Parliament and the electoral body yesterday urged the High Court to dismiss petitions challenging the Building Bridges Initiative (BBI) constitutional amendment process.
A day after the Independent Electoral and Boundaries Commission (IEBC) told Parliament that some proposals in the BBI were unconstitutional, its lawyers yesterday told the High Court to dismiss the case.
IEBC, through its chair Wafula Chebukati was critical of the proposal to allocate the 70 new constituencies envisaged in the amendments, but yesterday it called for the dismissal of the petitions.
The electoral body's lawyers made submissions before a bench of justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka sitting in Nakuru County.
IEBC lawyer Moses Kipkosgei said the prayers being sought in the consolidated petitions cannot be granted, arguing that the theories applied do not exist.
He said IEBC shall verify the initiative is supported by 1 million voters by checking who in the list of persons is a registered voter and not to undertake a forensic exercise.
Kipkosgei said IEBC went out of its way and published a link where every person who considered their name was published irregularly can object.
"Out of the over three million signatures, not even a single Kenyan came out to state their names were illegally included in the list," he argued.
The petition was filed by David Ndii and four others and was later consolidated with six other petitions including one filed by the Thirdway Alliance Party.
Ndii, Jerotich Seii, James Gondi, Wanjiru Gikonyo and Ikal Angelei are seeking, among other orders, a declaration that Parliament cannot pass laws that alter the basic structure of the Kenyan Constitution.
However, Parliament submitted that the Constitution was a living document that needs to respond to new leads and changing public demand.
REGISTERED VOTERS
The submissions that were made via virtual hearing stated that Parliament may consider and pass amendments to the Constitution as Article 256 of the Constitution allows amendments through a Parliamentary initiative.
The Parliament further informed the court that the Constitution itself does not preclude the president or any State organ from originating the constitutional amendment.
The Senate said they associate themselves with the submissions of the Senate and informed the court that they had filed grounds of opposition to the petitions.
They submitted that a Constitution is a declaration of the people in the manner they wish to be governed and Kenyans can exercise their powers directly or through democratically elected leaders who can amend it.
State counsel Emmanuel Bitta said provided the initiative is signed for by at least one million registered voters, it qualifies as a popular initiative.
He noted that on the issue of public finance, the Constitution has a specific framework on its management and the overall duty rests with the legislative arm of the government.
According to Bitta, the auditing of public finance rests with the Auditor General and the court has been invited to serve the role.
But no evidence had been rendered in regard to the misuse of public funds.
“They are challenging the contents of the proposed legislation which is subject to the legislative role, the court will be denying the Legislature the role given to them,” he said.
Lawyer John Khaminwa, acting for interested parties, Kenya Human Rights Commission and Kituo Cha Sheria, said the 2010 Constitution has not been implemented fully and there is no need to amend it.
“Those supporting the amendments are doing so for selfish reasons. They want a job,” he said.
