President usurped Parliament legislative powers, lawyer says
Opponents of the Building Bridges Initiative yesterday urged the Supreme Court Judges to uphold the decision of the Court of Appeal and dismiss appeals filed by the Attorney General and Independent Electoral and Boundaries Commission.
Lawyers Nelson Havi and Elias Mutuma said the basic structure doctrine was applicable in Kenya and that the President cannot initiate constitutional amendments.
Mutuma, who is representing Thirdway Alliance, argued that the President was prohibited from pursuing a popular initiative as a means to amend the Constitution.
“I am persuaded to rely on the words of Shakespeare who says that a rose by any other name shall still smell as sweet. I wish to add that a skunk in the same measure by any other name shall smell as bad…This initiative that has been brought to our attention has been branded a popular initiative. There is no name changing that is going to change the character of this initiative, it remains a skunk,” he said.
Sovereign power
The Chief Justice Martha Koome-led bench heard that the BBI Initiative was actually a presidential initiative as opposed to a popular initiative
Mutuma argued that sovereign power belongs to the people and a constitution change process is a legislative duty and part of the sovereign power that the people can exercise directly or indirectly.
“In some instances, the people have donated the legislative duty to Parliament and only Parliament, have delegated legislative power,” he argued.
Mutuma said articles 129 to 132 of Constitution gave the President powers to govern, not legislate.
“So he cannot act as a symbol of national unity and then purport to legislates. It would be usurping the role of the legislature and by this I mean legislature, either Wanjiku herself or Parliament there isn’t any other person that can legislate,” he said.
Mutuma argued that if the President were to be allowed to initiate a popular initiative, that would amount to going against the doctrine of separation of powers
“The President cannot now shift goals from being a governor and start formulating a form of governance and subjected to the government that would be in breach of the social contract theory,” he said.
