In Summary

•She said the Constitution struck a balance between stability & instability by providing for amendments.

•"What is good for one generation may not necessarily be good for the next. Present and future generations should not be ruled by the dead hand of their ancestors," she said.


Lady Justice Fatuma Sichale follows proceedings during the ruling of the BBI at the appeals court on August.20th.2021/EZEKIEL AMING'A

Justice Fatuma Sichale has upheld the high court order that President Uhuru Kenyatta cannot be the promoter of a popular initiative.

"On personal and official capacity; Can a president cease to be president without handing over power during the tenure of his office?" she posed. 

 

"The president cannot be a Wanjiku and therefore cannot initiate process to amend constitution through popular initiative." 

Reading her judgement on Friday, Sichale also agreed with the high court that the president can be sued in his personal capacity in civil matters.

Justice Sichale further said the president was not served with the petition and that he had a right to be heard.

"He is entitled to the protection. It was wrong for the court to proceed with the hearing without ascertaining whether he had been served," she said.

She noted that at no point was the high court shown the affidavit of service adding that the president was entitled to a fair hearing and right to be heard.

On IEBC quorum, Justice Sichale says the verification of signatures by IEBC did not require quorum.

She said that the IEBC as currently constituted with three members is constitutionally compliant.

"Therefore it can carry out its mandate. The issue of verification of signatures is not a policy but operational decision," Sichale said. 

"Verification of signatures was not null and void due to lack of signatures."

This is contrary to what Justice Francis Tuiyott said in his judgment on the Building Bridges Initiative.

Tuiyott upheld the decision by the High court which ruled that IEBC had quorum when it embarked on the referendum's verification of signatures.

"IEBC should have filled the vacant positions. IEBC should carry out its functions with all hands on deck," he said on Friday.

Tuiyott said the Statute fixes the composition of IEBC to seven and a quorum of five which has not been challenged.

On the excess of the judiciary, Justice Sichale said in her view it is not correct to elevate judges to the status of demigods.

"And just as it is possible to have a distrustful and rogue parliament, it is also possible to have a rogue and distrustful Judiciary," she added. Edited by N.Agutu