• The lawmaker said every opportunity that the people may have to amend the Constitution is sovereign.
• It was his argument that the decisions made by the judiciary should favour the exercise of political rights by the people.
Image: EZEKIEL AMING'A
As Day 1 of the BBI appeal hearing proceeded on Tuesday, Senator James Orengo, representing ODM leader Raila Odinga and BBI secretariat, asked the court to set aside the High Court ruling.
Orengo said the judges erred in law when they nullified the BBI process that had been endorsed by millions of Kenyans.
“If ever the court thought about context about what the Constitution making process was all about, it was to provide lasting peace and formal government that will create a truly democratic and just society,” he said.
He argued that when it comes to the sovereignty people, the court said that because they are sovereign then, they can have an existence outside the Constitution, but under this Constitution it is not possible.
“If that were true because all powers are donated including judicial authority, my Lords your powers are donated; Wanjiku can come to this court and order you to retire and that's not how a democratic society can operate,” Orengo said.
Orengo further argues that in order to amend the Constitution, one has to go through over 10 hurdles which have to be covered in order to amend the Constitution, addint it's not an easy task.
"The president can take the matter to the people, the only difference is while he has to identify what he wants taken to the people the IEBC is required to formulate a question or questions to a draft bill."
"Other than a repetition of the section contained in the section, most of the matters amended through a referendum were considered as forming issues of basic structures."
Orengo also argues that every article in the Constitution is amendable so long as it’s within the law and procedures.
He also claims that the question of having basic structure never arose in the constitutional making process and if it ever arose, that evidence should have been placed before court.
“We should never use revolution as way of bringing about constitutional change or bringing an amendment to the Constitution, Kenyans have been to the streets they have suffered violence,” Orengo submitted.
The lawmaker said every opportunity that the people may have to amend the Constitution is sovereign.
It was his argument that the decisions made by the judiciary should favour the exercise of political rights by the people.
“I want your lordship to tell me if this is not law making, if this is not a sovereign power of legislative authority,” he posed.
At one point during his submissions, Orengo asked the bench to go read the Bible, specifically the story of Jezebel.
“My Lord I will invite you in the Bible there is a lady called Jezebel if you read her story she was a vile satanic woman but if you read her other accounts she has very good accounts of strong lady,” he said.