Beyond the text of the Constitution, there is another reason it is impermissible under our Constitution: in our view to permit the President to initiate such amendments through a Popular Initiative and then sprint to the finishing lane to await and receive it and to determine its ultimate fate would have the effect of granting to him both the roles of the promoter and the referee. This is because Article 257(5) of the Constitution provides that if a Bill to amend this Constitution proposes an amendment relating to a matter specified in Article 255(1) the President shall, before assenting to the Bill, request the IEBC to conduct, within ninety days, a national referendum for approval of the Bill. In other words, Article 257(5) of the Constitution, arguably, gives the power to the President to determine whether or not a referendum is to be held. In circumstances where the President, whether in his official or personal capacity is the promoter of the Amendment Bill, his role in determining whether or not the Bill is to be subjected to a referendum may well amount to a muddled up conflict of interest. The President cannot be both player and the umpire in the same match.
Under Article 131(1)(b), the President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries. Under the Constitution, the President is not a Member of Parliament and therefore cannot directly, purport to initiate a constitutional amendment pursuant to Article 256 of the Constitution. This is because under Article 94(1) of the Constitution, the legislative authority of the Republic at the national level, is vested in and exercised by Parliament. It follows that the President has no power under the Constitution, as President, to initiate changes to the Constitution under Article 256 of the Constitution since Parliament is the only State organ granted authority by or under the Constitution to consider and effect constitutional changes. The President, if he so desires, can however, through the Office of the Attorney General, use the Parliamentary initiative to propose amendments to the Constitution.
It has been argued that the President was acting in his personal capacity and not as the Chief Executive of the Republic of Kenya. This argument is, however, betrayed by the very fact that the BBI Steering Committee was established via a Gazette Notice, an official publication of the government of the Republic of Kenya and its report was addressed to “His Excellency the President of the Republic of Kenya and Commander-in-Chief of the Defence Forces, Hon. Uhuru Kenyatta, C.G.H.”
It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law-making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.
The Respondents and some Interested Parties have taken refuge in the fact that there were previous initiatives sponsored by the State in 2005 and 2010 to amend the Constitution as a basis for justifying the role of State organs in popular initiative. It is important to note that the previous initiatives were undertaken under the retired Constitution. At that time there was no provision for two initiatives provided under the current Constitution. The provision of two distinct initiatives under the current Constitution lends credence to the fact that the two avenues are distinct and ought not to be muddled up by creation of a hybrid initiative unknown to the Constitution.