Kenya’s Supreme Court rejects President’s plan to change the constitution

NAIROBI, Kenya — Kenya’s top court on Thursday overturned a presidential initiative to amend the constitution, dealing a major blow to a plan that could have cemented its ability to shape the country’s political future ahead of an election that will decide his successor will.

The Supreme Court’s decision comes several months after two lower courts – the High Court and the Court of Appeal – both ruled the initiative unconstitutional, arguing that Kenyan law does not allow an incumbent president to initiate constitutional amendments and to promote.

President Uhuru Kenyatta emerged victorious on one front, however, when the Supreme Court ruled he could not be sued because he had legal immunity as president – overturning the lower courts’ ruling that Mr Kenyatta was breaking the country’s laws violated and could be sued.

The president’s initiative would have introduced a series of constitutional amendments that would have expanded the scope of the executive branch and added new positions for the prime minister, two MPs and a leader of the official opposition. It would also have created 70 new constituencies and added dozens of new lawmakers to a parliament that already has 349 members.

The courts in Kenya, an East African country of more than 53 million people, have increasingly served as a counterbalance to the president in recent years. The judiciary has accused President Kenyatta of disregarding its decisions. He is only the fourth president since Kenya declared independence from Britain in 1963, and is the son of the nation’s founding father and first president, Jomo Kenyatta, who served for 15 years until his death in 1978.

On Thursday, the seven-member judges announced their decision in front of a crowded courtroom in the capital Nairobi in front of people across the country after six hours of broadcasting the verdict on television, radio and online.

“I support the findings of both higher courts that the president should not be a player and arbiter in the amendment process,” Chief Justice Martha Koome said.

Mr Kenyatta and his Attorney General Paul Kihara Kariuki did not immediately comment on the ruling.

The verdict is expected to have a significant impact on the August 9 general election, which will see Deputy President William Ruto face off against former Prime Minister Raila Odinga. Mr Kenyatta, who was president for 10 years and is no longer eligible to run, has fallen out with his deputy, Mr Ruto, in support of Mr Odinga as the nation’s fifth president.

The Supreme Court decision could strengthen the hand of Mr Ruto, who had opposed the initiative as a waste of public resources in a country grappling with mounting debt, poverty and a biting drought.

Kenya’s elections have been dogged by ethnic violence, allegations of electoral fraud and, in recent years, disinformation.

Efforts to change Kenya’s constitution were first launched in 2018 when Mr Kenyatta and Mr Odinga reconciled after disputed 2017 elections that led to an outbreak of deadly violence. The two leaders said the project, known as the Building Bridges Initiative, would introduce much-needed reforms and end the winner’s political system, which ignites competition between ethnic groups for power and resources.

But from the outset the proposals drew widespread criticism from representatives of the judiciary and civil society, who said Kenya, already burdened with debt, could not afford an expanded legislature and executive.

Observers also pointed out that Mr Kenyatta and Mr Odinga had backed the initiative to create a broad coalition that would undermine Mr Ruto’s presidential ambitions.

Many activists also saw the project as an attempt to water down the constitution, passed a referendum in 2010 with a majority of almost 70 percent and was seen by many Kenyans as a progressive document that set the country on a new course. The changes also created a position for a presidential-appointed judicial ombudsman, which the country’s former chief justice said would undermine judicial independence.

“The public interpreted this attempt to change the constitution as a backdoor attempt by the elite to reclaim the power that was taken from them by the 2010 charter,” said Murithi Mutiga, program director for Africa at the International Crisis Group. “It was seen as arrogant, a power grab, and a Jobs for the Boys program.”

Three years after the proposal was first introduced, those concerns found support in court last year.

In May, a panel of five judges declared the initiative “unconstitutional, null and void,” saying that parliament and the people, not the president, have the power to initiate constitutional changes. The judges also said that Mr Kenyatta had broken applicable laws in the country and could be sued during his tenure.

In August, the Court of Appeal also rejected the government, noting that “the days of an unaccountable presidency in Kenya are long gone.”

Experts called the rulings from both courts a rebuke of Mr Kenyatta, who has clashed with courts in the past and even vowed to “fix” the judiciary after the Supreme Court annulled his victory after the 2017 election. Mr Kenyatta was later re-elected in a re-election boycotted by the opposition.

The courts’ rulings also signaled to the political class that they are not above the law and that their “actions are subject to scrutiny” by both the public and the courts, said Waikwa Wanyoike, a Kenyan constitutional attorney.

The judgments, he said, showed “how effective the 2010 constitution was and the fact that it had created some strong institutions not only in theory but in practice and the proof of that lay in the judiciary.” Kenya’s Supreme Court rejects President’s plan to change the constitution

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