• The Attorney General through Solicitor General Ken Ogeto had on Tuesday urged the court to quash that verdict and revive the BBI 'reggae'.
• The state argued that the appellate judges had answered important questions the wrong way, and that they had the wrong, often ambiguous and in some cases, contradictory justifications.
Image: FILE
BBI opponents on Wednesday asked Supreme Court judges not to succumb to threats from the state and instead affirm a Court of Appeal verdict that annulled the push for law change.
The Attorney General through Solicitor General Ken Ogeto had on Tuesday urged the court to quash that verdict and revive the BBI 'reggae'.
The state argued that the appellate judges had answered important questions the wrong way, and that they had the wrong, often ambiguous and in some cases, contradictory justifications.
On Wednesday, lawyer Nelson Havi, for Economist David Ndii and four others, urged the Supreme Court to rule on the matter without fear or favour.
He said the bench, led by Chief Justice Martha Koome, should not listen to claims that because they enjoy immunity as judges, similar immunity should be extended to the President.
President Uhuru Kenyatta through lawyer Gatonye Waweru had earlier said he has absolute immunity and cannot be sued for performing presidential functions.
Uhuru said the lower courts erred in law by finding that he can be sued.
But Havi told the judges that they are better off dying standing than living to be forced to kneel to the caprices and the oppression of those who find the Constitution as an inconvenience.
He urged the court to dismiss the appeals by the AG and IEBC seeking to set aside the Court of Appeal judgment.
In his submissions, Havi said President Kenyatta is not an equal to Kenyans and is not an ordinary citizen.
“You cannot insult the President, if you think you are equal to the President just insult him you will see what will happen to you,” the lawyer said.
Havi said equality is hard to describe in the societal African president's context.
“You don't find them riding a bicycle like the French President Macron. You will not find them eating a burger like the American President Obama. They dress themselves in uniforms, build themselves palaces, bring all traffic to a standstill when they drive, hold fancy parades, and generally demand to be treated like Egyptian Pharaohs,” he said.
He said if the President is supposed to protect the Constitution then he has no role in the popular initiative or in the parliamentary initiative, by way of initiation. That must be left to the people through the constituent power, he said.
Havi said the President of Kenya is not a pharaoh but a servant of the people.
“The President cannot say from one side of his mouth that I'm an ordinary citizen and at the same time say, no, I'm immune from everything,” he said.
Human rights activist Isaac Aluochier said Uhuru does not have absolute immunity and can be sued while in office.
Aluochier said the President has limited immunity, meaning he can be sued in civil proceedings.
“The President does not have absolute immunity. He has limited immunity with respect to civil proceedings,” he said.
He said one can bring a suit against the President if it touches on a matter outside the functions of the presidential office.
Aluochier said when the President issued Kenya Gazette notices and established the BBI steering committee, he was acting outside the functions of the office.
“There is nowhere in the Constitution that authorises him (Uhuru) to engage in constitutional change matters outside Article 256,” he said.
Aluochier also faulted the President for initiating the BBI process.
He argued that any public servant or state officer can initiate an amendment of the Constitution so long as they don’t use public funds.
“Don't use public facilities and so when the President seeks reelection as President, he's doing it properly, he doesn't use state funds. He uses his own money or his political parties money and things like that. He doesn't go to the National Treasury,” he said.
He gave an example of a traffic offence saying since the President loves driving himself, if he commits a traffic offence then he has immunity from being charged.
“Every once in a while we see the President driving vehicles, he could commit a minor traffic offence like anybody else. But because that particular criminal offence or traffic offence does not fall under Article 143 covered by an international treaty, you can't sue him,” he said.
On the issue of basic structure, Aluochier said there is a distinction between basic structure doctrine and basic structure in the Constitution.
He said basic structure is applicable in Kenya.
Aluochier argued that in the Constitution, Kenyans are sovereign and are the real bosses, not the president or Chief Justice Martha Koome.
“We are boss. We have limited the exercise of our sovereignty to only in accordance with this Constitution, and so we must be faithful to this Constitution,” he said.
Aluochier said independent commissions must conduct their affairs in accordance with the Constitution.
On the issue of multiple questions, Morara Omoke argued that BBI should have multiple questions to enable Kenyans to make a decision.
Omoke alongside lawyer Topua Lesinko argued that a referendum with a yes or no question on 74 amendments is dangerous and not good for the country.
“It will decimate the Constitution. I'm being put in a dilemma as a citizen when I am taking a vote on that kind of a bill,” argued Omoke.
He said it will be unfair for the bill to have a yes or no question when among the proposed amendments there are some that one may like and one they don’t like.
Thirdway Alliance has insisted that the President cannot initiate popular initiatives and has asked the court to find that Uhuru was the initiator of the BBI process.
Lawyer Elias Mutuma said the BBI remains a presidential initiative as opposed to a popular initiative, however the President is expressly prohibited from pursuing a popular initiative as a means to amend the Constitution.
“A constitutional change process is a legislative duty and part of the sovereign power that the people can exercise,” he said.
Mutuma said the people exercise that legislative duty directly or indirectly and in some instances the people have donated it to Parliament and only Parliament.
“At no point have the people donated or delegated legislative power to the President,” he argued.
Mutuma said he does not understand how the AG can say that there is nothing wrong with the President initiating a popular initiative.
On verification process, Mutuma said there is no time limit for IEBC to satisfy itself and it has a duty under Article 88 to ensure that before making the decision to forward the bill to county assemblies, every law has been complied with.
“They cannot run away from that responsibility, it is their duty, they must know at the end of the day, this is a bill capable of going to a referendum so a process has started,” he said.
He argued that it is upon the commission to ensure that there is adequate public participation.
Edited by A.N