New administration under Samia Suluhu gives hope after 5 years of hopelessness

Justice Ouko says:-


1) Basic structure.

Implied limits of the Parliament to amend the constitution.

Therefore, basic structure is inapplicable in Kenya. Indian decision on this issue is uniquely applicable to India, and cannot be arbitrarily applied elsewhere.

Njoya case justifiably applied and approved Kasandarava decision but after the promulgation of the new constitution that ruling is inapplicable in Kenya.


Amendments in chapter 66 were ambiguous in the rulings of the lower courts.

Pragmatism was lacking in lower decisions.

Which Articles falls under the basic structure and cannot be amended?

Proposed amendments dismembered the constitution as decided by lower courts.


The identity of the constitution was irreparably destroyed amounting to write the constitution.

This alone cannot fault the process because the constitution must capture the wishes and aspirations of a society which may necessitate even total overhaul of the constitution.


In conclusion, the basic structure is inapplicable in Kenya.


2) president can initiate the constitutional process under article of constitutional on popular initiative?


Handshake aimed to restore peace and tranquility through BBI. The president appointer a 14 member steering Committee. Subsequently thr committee proposed changes of law.


BBI secretariat appeared from nowhere with their appointment unknown.


Popular initiative is by people. Waweru and Mohamed were the initiators not founded on facts. Both were executing the BBI which was initiated by the president.

Not clear how they collected signatures save for the executive letter directing the process.

The president spearheaded the process an umbilical cord and did not act as a private citizen.











3) Article 89 amendable and may increase the constituencies


The problem of review is IEBC mandated and has specific timeliness but cannot be pursued by any other body.

Criteria not only population but more variables and public constitution

The 2nd schedule was inconsistent with the constitution



4) President to establish a steering Committee to oversee the process and whether the president can be sued.


Was the president given a hearing according to the law?

Lower courts erred in law to determine the issues.


President has immunity during tenure in office. He can be sued by naming the A.G or sue him after living office, impeachment is also a remedy.





5) Public Participation


A place of public participation and the role of the IEBC.

Verification of signatures is limited to IEBC

No public participation was conducted. The use of state resources, promoters negated the claim to the contrary.


6) IEBC quorum.


Three commissioners had resigned, and vacancies were not filled nearly 4 years.

The IEBC was properly constituted despite the said deficiencies.


7) Referendum questions.

Whether an omnibus was constitutional.

The matter was premature because the IEBC was estopped by the court to do anything.

Lower courts erred in law
 
Justice Lenana says


1) Basic structure.


Kasavananda ruling analyzed in his decision. Bill of rights, the judiciary, etc

Entrenched rights e.g human rights, sovereignty of the people,

Chapter 66 permit other provisions.

Outside Articles 255?

A fusion of constitution making and amendments of constitution is wrong under article 257.

Njoya case irrelevant.

Basic structure inapplicable in Kenya.




2) article 257 intended not by representatives but common people and civil societies.

The president powers are under article 66 but not article 257.

Signature collection no evidence it was done by president.


3) Public Participation.


Signature collection must be overseen by the IEBC. The 2nd schedule unconstitutional.

Respect article 89 limits and rights.


4) Suing the president.



Cannot be sued in personal capacity but through AG. No cost in a litigation of huge public I interest.



5) Public Participation

Voter verification not completed before the process was stopped by the High Court.








6) Laws are needed to direct how public participation is to be conducted.

IEBC quorum


IEBC lawfully constituted according to law.



7) An omnibus questions in the referendum.


The matter was premature as has been stated by my colleagues.

Basic structure inapplicable in Kenya.

President cannot initiate but in this process he did not.

The exclusion of IEBC in the determination of the number and boundaries of the constituencies.

IEBC lawfully constituted.
 
Justice Jonki Ndugu says


1) Basic structure.

Article 255 has entrenched provisions. No eternity clauses.

Basic structure inapplicable in Kenya.

Constitutional powers unrestrained.



2) President can initiate amendments.


Citizens initiated process. Meaning and interpretation of the word of the citizens. Many words applied by lower courts mot found in the constitution

Non constitution words blurred the issues. What is a popular initiative? And who are promoters as presented in the constitution?

Interpretation adventure to exclude the president from the citizens.

Two process in the constitution. Either by the Parliament and popular initiative through one million signature collection.


Popular initiative lies with the numbers of one million, two thirds in the Parliament,

Actions spell out but not players.

Constitutional silence have reasons too. Silence in the constitution is interpretation left to courts.

Representatives speak on behalf of the people.

Article 132 confers the president to safeguarding the rights of Kenyans.


Ruled....it was within the president's prerogatives to initiate the popular initiative under the constitution.


President can initiate the process under personal capacity, there is nothing in the law to bar him from doing so.


State organs cannot initiate parliamentary proceedings to amend the constitution.


On this reason, the president being an agent of the state has to access the amendment process through public initiative



3)

4)


5) 2nd schedule constitutionality.

Lower courts erred in law in determining the constitutionality of a Bill before it was passed by the Parliament.


Article 88 was targeted for ammendments. Improper a schedule to amend articles of the constitution.

2nd schedule conflicts article 82 hence unlawful


6) presidential immunity.

Autonomy shields the dignity of the office.

Constitutional violations above the immunity?


He was discharging his mandate to promote national cohesion and peace.


Remedies Article 143 impeachment

Article 132 gives no room to sue him except impeachment.



7) Public Participation is a matter of law.

Pre bill does not require promoters to seek Public Participation


President was not a promoter


No constituent assembly violated the public participation


8)
 
Justice Wanjara says

The case has contributed to the growth of jurisprudence of Kenyan law.




1) Basic structure.

Not applicable in Kenya. Lower courts erred in law to establish the opposite.






2) President can initiate the popular process.

The president cannot initiate the process. By the people is a serious matter. The common mwananchi constitute popular initiative.

A felt need by the people.

Not underplaying the role of political elites in the process.


All are entitled to engage in the process.

Article 272 (2) forbids presidential interference in this process

Did he initiate the process?

Appointed task force BBI to address constitution amendment process by a popular initiative

He gazetted a steering committee that will propose administrative and constitutional reforms.

Nothing unconstitutional in formations.

All processes indicate the president took part in the popular initiative.


Articles 255, 257 applied.


3) 2nd Schedule unconstitutional?

Is indeed unconstitutional



4) Suing the president during his tenure.


Such immunity is limited. Article 141 the president can still be sued in his personal capacity.

Violations of the constitution have remedies in the constituion

Article 144 (3)

Law of limitation is deprived to the president during his tenure because he cannot be sued while in office.




5) Public participation.

No need certification of signatures before the Bill passed by Iebc.

Promoters obliged to ensure meaningful participation.

Robust participation not evidenced by promoters



6) Quorum of the IEBC.


Verification of signatures by IEBC .


Statutes can not override the constitutionality of the IEBC as stated in the constitution.



7) Questions framed cannot be abstract.



Article 257 (10) applied.

The framing of questions for referendum unlawful
 
Justice Mwilu

Basic structure exist in Kenya but cannot applied as prayed by Defendants

President cannot be sued in personal capacity during tenure.

Absolute immunity granted by the constitution


No public participation

IEBC constitutionality observed

Article 250 applied.



Referendum questioning


The matter was premature since the Bill was not yet enacted .
 
Breaking News


Social media commentaries aimed to undermine the highest Court of the land.

Such deeds which target to undermine the court amount to professional misconduct.


Aspersions against the court are unacceptable.


Disparaging the Court are gross professional misconduct

Abdullai senior counsel is gravely mentioned.

Before decisions are delivered it is improper for lawyers advocates to comment on pending cases.


The usage of Social media
 
Officially, BBI declared by the highest Court in Kenya as unconstitutional!


So, Raila presidential stab is now a pipe dream. Without the BBI he has no positions to bribe non Jaluo kingpins to support his wavering presidential bid.

To add salt to the wound, Raila decision, not yet announced, to pick a running mate from Kikuyuland threatens a revolt in Ukambani and Luhya nations.

Without them and investing on the Gikuyu where few than 10% of the electorate will vote for him speaks decibels about his ineptitude.

Uhuru Muigai Kenyatta was left with a blackeye as the Supreme Court ruled he had abused public office in expending public resources to spearhead an unconditional bite


Morally speaking, he is a spent force and will find the political terrain very hostile, indeed.
 
The Treasury avaricious attempt to control Western aid worries donors just as in the case of Afghanistan
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