President not permitted to initiate or promote constitutional amendment, says Koome
Chief Justice Martha Koome has said the President of the State institutions is not permitted to initiate or promote a constitutional amendment process through the popular initiative route envisaged in article 257 of the constitution.
While delivering Building Bridges Initiative (BBI), Koome said that she endorsed the finding of the two superior courts which found out that the President had no authority to promote the amendment of the Constitution through a popular initiative and that he can be sued with respect to his actions or omissions in the Constitution.
She argued that a popular initiative should be citizen-driven and a citizen-centered process, thus excluding the State institutions and the President from initiating the process.
“I have endorsed the finding of the two superior courts that the President cannot initiate constitutional amendments via the popular initiative route,” she stated.
She said there is enough evidence that the President initiated the BBI process since State resources were used to support the process.
Koome stated that a popular initiative is intended to give citizens an opportunity to exercise their sovereign power and not delegated sovereign power.
“Direct democracy can only be exercised by the people and not through their representatives,” Koome stated.
However, Koome differed with the two courts on the issue of the basic structure doctrine, noting that it is inapplicable in Kenya.
Koome equated the application of the doctrine in Kenya, where she argued enough safeguards against hyper-amendments exists, as tantamount to operationalising a ‘judiciary-created fourth pathway’ to amendments.
