Supreme Court judge Isaac Lenaola ruled that a president cannot initiate a popular initiative, but noted that Uhuru Kenyatta had no hand in the Building Bridges Initiative.
According to him, it is illegal for the president to be a player and an umpire in the process.
He observed that footprints of BBI could be traced to Suna East MP Junet Mohamed and former Dagoretti MP Dennis Waweru.
He noted the process started when Junet and Waweru initiated signature collection and not when the president appointed the task force.
According to him, the popular initiative is people-centric. He noted that although the president has his private rights, he cannot collect one million signatures
He, however, noted that if the president has muscles in Parliament, then he could pursue amendments through that route.
“The president cannot initiate a popular initiative amendment but in this case, he did not. The process was undertaken by Junet and Waweru. I have not found the role of the president and therefore on that narrow issue I have disagreed with the Chief Justice,” said Justice Lenaona.
He however disagreed with the Court of Appeal on the basic structure doctrine.
According to him, the Indian case relied upon by opponents of BBI to argue that there are amendable and non-amendable clauses of the Constitution do not apply to Kenya.
He noted that the lack of unanimity by courts worldwide casts doubts on the applicability of the doctrine.
According to him, Chapter 16 of the Constitution is the right balance between flexibility and rigidity.
He noted that the recommendations of the Constitution of Kenya Review Commission is what morphed into the Chapter stipulating how the Constitution can be amended.
“By those provisions, the people attained the right balance between flexibility and rigidity and provided sufficient safeguards against the culture of hyper amendability that is characterised in the current constitution,” he stated.
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According to him, Kenya’s history indicates that the people did not intend to immunise the 2010 Constitution.
Instead, they created a procedure to follow when amending it... shielding it from political abuse.
“My finding is that basic structure doctrine does not apply in Kenya as suggested by the first and the fifth respondents,” said Justice Lenaola.
Lenaola upheld the Court of Appeal’s verdict that BBI erroneously created new constituencies.
He noted that the issue of boundaries is emotive and should involve the Independent Electoral and Boundaries Commission.
“To create new constituencies, do not ignore the people and IEBC,” he stated.
He agreed that the president cannot be dragged to a civil court.