Law experts split over Ruto’s bid to change Constitution

President William Ruto faces a litmus test in his quest to change the Constitution through a parliamentary initiative as experts warn that his proposals could suffer the same fate as the Building Bridges Initiative (BBI).

There is also a growing fear among a section of MPs from both sides of the political divide that President Ruto could be trying to circumvent the Supreme Court’s ruling, which affirmed that a President does not have the power to initiate constitutional changes given that he takes an oath of office to protect and uphold the supreme law.

In a memorandum dated December 9, 2022 and addressed to Speakers of the National Assembly and Senate, the President urged the two Houses to consider a raft of amendments to the 2010 Constitution to cure what he termed as a ‘constitutional void’ on creation of the office of a Leader of the Official Opposition.

And in an interview with TV journalists earlier this month, he said the process would be parliamentary and that anyone was free to propose their amendments. However, in his proposal to Parliament, President Ruto rooted for the creation of the Office of the Official Opposition Leader, arguing that such an office would institutionalise governance, strengthen oversight and deepen democracy.

In addition, he also proposed to enhance parliamentary oversight by providing for Cabinet Secretaries to respond to questions raised by MPs in their capacity as the representatives of the people.

The President also asked the 13th Parliament to initiate amendments to deal with the elusive two thirds gender rule by allowing nomination of more women to Parliament in view of another indictment by the then Chief Justice David Maraga, who had said that Parliament ought to be disbanded for failing to meet the gender threshold.

Parliamentary route

Now, political pundits argue that his proposal could suffer a similar fate as that of the collapsed BBI, which the Supreme Court declared null and void.

In a ruling that sounded the death-knell to a raft of constitutional changes proposed by the previous administration, Supreme Court Judge Isaac Lenaola argued that a sitting President cannot, and should not, initiate constitutional changes through a popular initiative.

The President had proposed that the changes be pursued through the parliamentary route so as not to take voters to a referendum following the August 2022 polls. Some constitutional lawyers have argued that both the popular and parliamentary routes would have the same outcome, in effect implying that the President should not be the originator.

Constitutional lawyer and High Court advocate Martin Oloo argued that the President was within his right to suggest to Parliament the constitutional changes but could be falling into the same pitfalls as his predecessor, retired President Uhuru Kenyatta.

“In the face of BBI and in the face of the ruling and conversations that were issued during BBI, the President is not in his right to suggest to Parliament or National Assembly what they should do about the constitutional changes because in so doing, he seems to be walking in the shoes of his predecessor Uhuru Kenyatta,” said Oloo. “However, Parliament itself can originate a constitutional amendment and I believe that what he was trying to do is to appeal to them to initiate that not necessarily saying that he is the one originating it.”

Law Society of Kenya (LSK) President Eric Theuri was of the view that President Ruto’s proposal could suffer a similar fate as that of BBI.

Similar fate

He argued that the President has numbers both in the National Assembly and Senate and that by making such a proposal to the two Houses was akin to initiating the constitutional change.

“If we are to go with what the Supreme Court ruled, then chances are that his proposals will suffer a similar fate as that of BBI. He controls the majority in both Houses of Parliament. We will be watching to see what happens,” said Theuri.

According to him, if Parliament goes ahead to make the changes, then any Kenyan will be free to seek legal redress because such a move would run contrary to the Supreme Court verdict on the role of the President in initiating changes to the Constitution. “We as LSK might go to court ourselves,” he told People Daily.

 “The proposed amendments are unconstitutional. The amendments are being initiated by the President contrary to the decision in the BBI case and so, they should not see the light of day in Parliament.”

He challenged legislators not to entertain the proposals.

“There is a very clear precedent that has been set by the courts,” he said.

However, constitutional lawyer Paul Aol differed with the LSK President, saying that Ruto’s only route to amend the Constitution was through a parliamentary initiative, not a popular one.

He attributed the Supreme Court ruling on BBI to the fact that the initiative was sponsored and funded by the State.

“The difference between this one and BBI is that BBI came as pass it as is or leave it as is. It came as a Bill to parliament with the then President even proposing on issues to do with boundary delimitation,” said Aol.

Both Chief Justice Martha Koome and Justice Lenaola argued that a president does not enjoy untamed power, especially on constitutional reforms.

“The President cannot initiate the process by collecting one million signatures and crafting an amendment Vill and then retire to await the same Bill under Article 257 (9) and assent to it as President.”

Political hypocrisy

Aol further argued that Parliament was mandated by law to consider any petition brought before it, and that Ruto merely made a proposal for MPs to consider.

“Parliament may consider the proposals and go back to the President that some of the proposals can be changed without a referendum while some require a referendum,” said Aol.

Senate Majority Leader Aaron Cheruiyot (Kericho) told People Daily that the Speaker had already referred the matter for his attention and that he will be forwarding the memorandum to the joint committee of the two Houses that was considering the CDF and Senate oversight fund law.

“They will consider the memorandum and advice the House on the way forward,” said Cheruiyot. “We will wait for the report of the committee before taking an action on the issue”.

His Minority counterpart, Stewart Madzayo (Kilifi,) said that the proposal to change the Constitution from the same people who opposed the BBI process smacks of political hypocrisy.

“Some of the proposals being made are similar to the ones that were in BBI. You can-not change the Constitution without going back to the people through public participation or referendum. It is wrong in all senses,” said Madzayo.

That can only mean the fate of the proposals will be decided on the floor of the two Houses of Parliament but Kenyans can still challenge the outcome in the corridors of justice.