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Uhuru can’t be a President and mwananchi at the same time, Nelson Havi tells court

By Mireri Junior | July 1st 2021

On Thursday, July 1, Nelson Havi (pictured) challenged President Uhuru Kenyatta's role in the Constitutional change process. [Standard]

The President of the Law Society of Kenya (LSK), Nelson Havi, has challenged President Uhuru Kenyatta’s involvement in the Constitutional change process.

Havi, appearing for the LSK at the Court of Appeal on Thursday, July 1 said Kenyatta’s argument – that he initiated Constitutional reforms as a private citizen, and not as a State officer – lacked legal backing.

“If the President wants to engage in affairs of lesser mortals, he must abdicate (renounce his throne). The President is not a mere mortal, but a superior. He cannot make a direct appeal to the people and join them in petitioning Parliament,” Havi told seven Appellate Court judges hearing the BBI appeal matter.

One of the grounds that the BBI Constitutional change push was thrown out, was because of Kenyatta’s involvement in initiating the reforms.

The High Court ruled the President wields immense powers, which he abused in choosing a Constitutional reforms route reserved for the common mwananchi.

Lawyers representing the Head of State, however, said on Wednesday that their client had a right to explain himself, but that opportunity wasn’t accorded to him by the High Court.

Havi, on Thursday, said it was impossible for the President to occupy one seat that accords him both the presidential power and the mwananchi privilege.

“Would a President elected on an independent ticket lead Kenyans in demonstrating against a perceived rogue Parliament? If the Head of State is only left with one option – picketing – he’d rather resign,” he said.

The LSK President said public participation was an integral cog in the Constitutional change process that the appellants appeared to have overlooked while fronting the BBI agenda.

“Civic education, public participation and debate must form part of a Referendum process,” he said.

The lawyer argued the supreme law of the land cannot be changed casually as the appellants attempted to, emphasising civic education and public participation are mandatory in the reforms quest.

Tasked to explain the place of civic education, which has not been emphasised in the 2010 Constitution, Havi said promoters or initiators of Constitutional reforms are duty-bound to ensure civic education forms part of the process.

Lucy Kambuni, who represents ODM leader Raila Odinga – one of the BBI proponents – had faulted the lower court for halting the BBI caravan on grounds that the public wasn’t directly consulted.

The lawyer stated the law only underscores support by one million people for the Constitutional change process to be adopted.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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