BBI Appeal Case: Raila files submissions at Supreme Court

The two argue that judges of the High Court and the Court of Appeal erred in law to rule that a promoter of a popular initiative is synonymous with an initiator of a popular initiative.

According to them, the learned judges deliberately intended to create a foundation for the argument that the president was the promoter of the Constitution (Amendment) Bill 2020.

"A proposal to amend what is amendable cannot be said to be unconstitutional and a court ought not to substitute the views of the people with its own. The power of the court is to interpret and not to usurp either the role of the people or parliament," reads court documents.

On public participation, they submit that by dismissing their case the judges misdirected themselves and acted prematurely.

“It is our submission that the creation of the threshold of supporters at 1 million registered voters was in recognition of the importance of the involvement of the people in the amendment process,” they argue.

Similarly, they argue that at the time of the hearing of the petitions before the High Court, they demonstrated that public participation was on going at the County Assemblies, the National Assembly, the Senate and various players such as the Law Society of Kenya were in the process of collecting views and receiving memoranda.

”It should be borne in mind that constitutions are political negotiations and the consensus is arrived at by people who are opposed to one thing supporting it because they are given another," reads court papers.

They claim that in such a scenario, bargains must be presented to voters in the negotiated form so that people intending to obtain one advantage have to agree to give a similar advantage to another, without such a provision, constitution-making would be impossible.

“The proposals to amend clauses of a Constitution that are amendable cannot be said to be unconstitutional and it is only the people that possess the power to determine what is either good or bad for them in a constitutional amendment process,” they argue.