CJ Koome: The President Cannot Initiate A Popular Initiative

NAIROBI, Kenya, Mar 31- Chief Justice Martha Koome says the President cannot initiate a popular initiative, in her ruling in the Building Bridges Initiative appeal.

Koome affirmed that a popular initiative should be both citizen-driven and centered, saying state institutions including the President are excluded.

The Chief Justice said that a popular initiative is meant to give citizens a space to participate in constitutional change.

A popular initiative is an exercise of direct sovereignty to the preclusion of representatives like Parliament and the President, she argued during the BBI appeal ruling, that was issued on Monday.

Both the High Court and the Appellate Court found that the President had no authority to promote the amendment of the Constitution through a popular initiative.

“I have endorsed the finding of the two superior courts that the President cannot initiate constitutional amendments via the popular initiative route,” she stated.

The Chief Justice said there was enough evidence that the President initiated the constitutional amendment process, through among other things appointing the BBI taskforce, which was financed from the public coffers.

“Direct democracy can only be exercised by the people and not through their representatives,” she said.

The Chief Justice differed with the High Court and Court of Appeal, on the issue of the basic structure doctrine, noting that it is inapplicable in Kenya.

The CJ further ruled that the President enjoys both functional and sovereign immunity against both civil and criminal proceedings.

She said the President can only be sued through the Attorney General, saying the Court of Appeal on fault for holding that the President can be sued personally for violating the Constitution.

Each Judge of the Supreme Court is set to read their ruling.

The bench comprises CJ Koome, Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.