According to Justice Njoki Ndung’u, the President has a right to initiate a popular initiative process either in his personal or official capacity.
Justice Ndungu argued that the President can execute that, following the fact that he is democratically elected by Kenyans.
“Looking for proper reasons for the decision to exclude the President from the amendment process and I cannot find a logical constitutionally based explanation,” she said.
“The President is elected by the people, and he can exercise delegated power on their behalf. A popular initiative is not the preserve of some people. It’s not an exclusive process,” she added.
She pointed that Kenyans have a right to enjoy representation from their elected leaders, whom can exercise sovereign power.
However, Chief Justice Martha Koome said that the President in his capacity can not initiate the initiative.
“Direct democracy can only be exercised by the people and not through their representatives,” CJ Koome stated.
Justice William Ouko pointed out that the President is ineligible to initiate a constitutional amendment through the popular initiative.
He argued that the suggestion that Dennis Waweru and Junet Mohammed were the initiators of the BBI Bill and not the President cannot be accurate.
“The president can not purport to act as an ordinary citizen because he is not,” Justice Ouko stated.
Also justice Isaac Lenaola asserted on the President’s ineligibility to initiate the process.
“The president cannot initiate a popular initiative and then go back to sit as president again to ascent to the same initiative,” Justice Lenaola said.
