A Nairobi court has been asked to stop plans to amend the constitution in a case likely to scuttle President Uhuru Kenyatta and ODM leader Raila Odinga’s Building Bridges Initiative (BBI).
Economist David Ndii and activists Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei are seeking ‘to stop reggae completely’ with their eyes on sections of law which are at the heart of the BBI drive.
The petitioners, through lawyer Nelson Havi, want the court to declare that five chapters of the 2010 Constitution - Chapter One, Chapter Two, Chapter Four, Chapter Nine and Chapter Ten - cannot be altered or changed through amendments, either by Parliament or popular initiative. They argue these chapters form the foundation of the country and should not therefore be altered.
Chapter One deals with the sovereignty of the people and the supremacy of the Constitution while Chapter Two declares Kenya as a republic, defines its territory, national values, language, culture and devolution.
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Chapter Four accords Kenyans their fundamental rights, Chapter Nine is about the Executive, while Chapter 10 defines the Judiciary.
The crux of the case is that subjecting these chapters to changes may mean changing the entire the law.
The court documents read that the 2010 Constitution can only be altered through a referendum, not BBI or Parliament.
“If certain fundamental constitutional provisions, principles and values are amended or seriously altered, the life of the Constitution will come to an end. It is therefore trite to say there is implied limitation to what can qualify as a valid amendment to the Kenyan Constitution,” the petition filed yesterday reads in part.
It continues: “Consequently, there is no circumstance under which constitutional change can reasonably embrace the repeal of the essentials of the constitution.”
After a near chaotic 2017 presidential election, a historic handshake on March 9, 2018 between the then nemesis Uhuru and Raila, birthed the BBI with hopes that the initiative would help address election-related ethnic conflicts.
Uhuru and Raila later appointed a team which collected views across the country on how to deal with negative ethnicity, political antagonism and corruption, among others.
In their court papers, the petitioners argue that Kenya already has a good law that can effectively address the problems cited in the BBI document. To the petitioners, the problem is not the law but failure to comply with it and implement it.
There have been reports BBI recommendations would be included into the constitution through parliament. This will mean the process will sidestep the lengthy route of collecting and verifying one million signatures and the need to have all county assemblies debate them, and at least 24 passing it.
The petitioners argue Kenya already has structures for power sharing between national and county governments, with sections of the law which deal with representation. They also cite Chapter Six which deals with integrity and how to address corruption, among others.
“There is a difference between amendment of the constitution and its replacement. However, the change should not be so radical as to replace the constitutional model currently in force or lead to the replacement of a defining axis of the identity of the constitution. It is the prerogative of the people to change their constitution or system of governance but this cannot be through an amendment procedure,” the court documents state further.