“The Constitutional Amendment Bill is an initiative of the President and the law clearly states that the President does not have the constitutional mandate to initiate constitutional amendments through popular initiative,” the five-judge High Court bench said in its verdict, adding that “civil proceedings can be initiated against the President for violation of the Constitution.”
The BBI bill proposes to revise the 2010 constitution, which established a presidential system, by creating a prime minister, two deputy prime ministers and a leader of the opposition.
The review was suggested by a commission set up in 2018 after what was described as a “historic” handshake between President Kenyatta and Odinga, in which the two men promised to draw a line under years of post-election protests and political violence.
Article 145 (1) of the Kenyan Constitution provides that the President may be impeached for gross violation of the Constitution or any other law, serious misconduct and crimes under international or domestic law.
A member of the National Assembly, supported by at least one-third of all members, may introduce a motion to impeach the President.
“If at least two-thirds of all the members of the Senate vote in favor of impeaching him, the President shall cease to hold office,” according to the Constitution.
Politicians and lawyers have stressed in statements carried by local media that the president’s mandate “is in danger” and could be interrupted by an impeachment.
“The president is now very vulnerable to impeachment because the court did not allege that the president violated the Constitution but indicted him,” said lawyer Danstan Omari.
Faced with this situation, the ODM leader called for restraint while expressing his intention to appeal.
In a statement on behalf of his party, Raila said: “We will calmly and respectfully move before the Court of Appeal to present our arguments as to why we believe the High Court did not give the right verdict. We will do so with respect for our judges and our courts.”
The former prime minister, however, called on his supporters to exercise restraint and not to venture into personalised attacks on the court and its members, particularly the five judges who delivered the decision on Thursday.
“We may disagree with the court, but we must respect its decision and its freedom to exercise its judgment because it understands the legal and constitutional issues before it,” Raila said, assuring that his team will appeal for a second opinion, in the hope of reviving the BBI process.
Other supporters of the process, including BBI Secretariat co-chair Junet Mohammed, have also vowed to appeal the decision.
The BBI process has drawn mixed reactions, including opposition from Deputy President William Ruto, an ally of Mr Kenyatta since his first election in 2012 and his supposed successor, who sees it as a move to remove him from power.
Kenya’s presidential election is scheduled for 2022 and Uhuru Kenyatta, who is completing his second term, is not eligible to run again.
Ruto, who is from the Kalenjin ethnic group and who was promised by Uhuru Kenyatta to be the candidate of the Jubilee presidential party in 2022, believes that this constitutional revision will create a system allowing Mr Kenyatta and Mr Odinga, respectively Kikuyu and Luo, the two main ethnic groups in the country, to share power.
In Kenya, which has 42 ethnic groups, political affiliation and community identity are deeply intertwined and elections have often resulted in violence. The post-election crisis that arose from Raila Odinga’s contested defeat in 2007 left more than 1,100 people dead, it is recalled.
2024-09-15 19:27:50