Lawyers representing President Uhuru Kenyatta and Raila Odinga took the lead assault into the Court of Appeal judgement on day two of the Building Bridges Initiative (BBI) hearing at the apex court.
Uhuru’s lawyers argued that the appellate court’s judgement on whether the president can initiate changes to the Constitution by a popular initiative was wrong.
The Court of Appeal ruling in August 2021 led by its president Daniel Musinga found that President Uhuru is not constitutionally mandated to initiate changes to the Constitution through the popular initiative, an avenue reserved for the common mwananchi.
But in his submission, through lawyer Kiragu Kimani on Wednesday, he questioned whether the proceedings were fair and if the law was applied correctly.
“What the Court of Appeal determined in saying the president cannot initiate amendments by popular initiative is that the people can delegate sovereign powers to those they elect, including the president…but the ones they donate power to have no business initiating change through a popular initiative,” he told Supreme court judges.
This, he said was flawed logic, terming it “inconsistent.”
“You can’t say people can donate sovereign power but those they donate to cannot run with it,” Kimani said.
Kimani further quoted Article 20 (2) of the Kenyan Constitution which states that every person shall enjoy the rights and fundamental freedom to the greatest extent.
Finding fault in the Appellate court’s judgement, he said that “the judges would have reached the conclusion by inserting words after ‘every person’ excluding the president, the deputy president, and elected leaders.”