Day two of the battle to rescue the building bridges initiative led constitutional amendment drive and it was finally president Uhuru Kenyatta’s turn to take the stand.
His legal team’s first defense being that the high court condemned him unheard.
“So my prayer today my lord on behalf of his excellency the president is that he was not sad with the process in petition number 426 and yet the court proceeded to make certain orders against him,” said Senior Counsel Waweru Gatonye.
A thorny issue personal to President Kenyatta’s fate would dominate his legal teams argument.
The high court finding in the now contentious BBI verdict that a sitting president can be personally sued in a court of law. A verdict that originated from the inclusion of Kenyatta’s name among the parties sued in one of the anti-BBI petitions over alleged hand in illegalities surrounding the constitutional amendment push.
“The president will be distracted from performing his activities under his mandate. It will interfere with his duties and will be disabled from executing his duties,” Senior Counsel Mohammed Nyaoga.
“Supposing I were the president of the republic and in my home in Kesogon, in Transzoia, I keep dogs. My dogs escape and they are vicious dogs. They go and bite my neighbor’s child. What is presidential about my dog biting so that I will be protected from suit?” posed Justice Patrick Kiage.
“My Lord those are personal acts. If that particular neighbor is asserting a constitutional right against the president and the president then asserts his constitutional right of immunity, he would not be sued during his tenure,” responded Senior Counsel Mohammed Nyaoga.
Also at the heart of Kenyatta’s appeal was a finding by the high court that he as a sitting president cannot institute a constitutional amendment by popular initiative.
Kenyatta’s lawyers now decrying what they term as an infringement on the president’s right as a citizen, a registered voter and a politician in an argument that has also transcended submissions of nearly all appellants including lawyers representing his BBI co-founder former prime minister Raila Odinga.
“The decision of the lower court looked at as a whole, determines that the president is expected to be a political. In my humble submission that is fundamentally wrong,” said Senior Counsel Kiragu Kimani.
“Is there any legislation that limits the president from this initiative? The answer is no. If there was to be any legislation, then again the court would be called upon to look at it and determine whether it is reasonable in an open and democratic society,” said Senior Counsel Otiende Amollo.
As the president, the former prime minister and other BBI proponent sum up their submissions, a fierce battle also awaits the seven judges bench as the parties opposed to the BBI prepare their arguments.
