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Post by kamalet on Nov 15, 2005 15:27:38 GMT 3
Hopefully all those who had divergent views on the constitutional power of the Kenyan People to determine their destiny will forever keep quiet. It is now official that the process as it stands is LEGAL. Kapeesh?
Court throws out case against referendum
Story by NATION Reporter
Publication Date: 11/15/2005
The High Court has thrown out an application by the Yellow Movement lobby group that would have seen to the calling off of Monday's referendum on the Proposed Constitution.
A bench of three judges said courts have no power to call off the referendum. They said not even parliament could stop the referendum because it was an exercise of the people's constituent power.
Thousands thronged the law courts including leading politicians from the Banana and Orange camps.
Constitutional Court judges Joseph Nyamu, Roselyne Wendoh and Mathew Anyara Emukule reached a unanimous descision to throw out the application by 13 activists of the Yellow Movement.
The activists had sought to have the process leading to the referendum declared illegal.
They argued that the proposed Constitution is an illegal document because it is a product of a flawed process. They had also claimed that it was made in total disregard of the principles of democracy and sovereignty of the people.
The attorney-general, the Constitution of Kenya Review Commission and the Electoral Commission of Kenya are named as respondents.
Lawyers for both parties concluded their final submissions last Wednesday.
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Post by adongo12345 on Nov 15, 2005 16:09:47 GMT 3
Kamale
Stop inventing things. Did you even know what the lawsuit was all about? This particular court application was against Bomas Draft and process more than it was against the Wako fraud.
Number one the application was seeking to have the National Constitutional Conference that produced the Bomas Draft declared illegal.
Number two the application was to have any activities on the constitutional process that took place after the CKRC collected the views of Kenyans to be declared null and void. That would have meant Bomas I, II & III would have been declared unconstitutional.
Simply put, if this suit was accepted BOMAS would be dead in the water. As a staunch supporter of BOMAS I am thrilled that worry is now gone.
Yes the suit also wanted the Wako Draft declared illegal but that was more of an add on than anything else.
I still maintain that the Wako Draft is illegal.
Finally the ruling has basically declared that it would be against public interest to stop the referendum. That doesn't say much about who was wrong and who was right.
You don't need a "legal mind" to figure out the gist of the application was actually to nulify the Bomas process and its product and force Kenyans to literally go back to the drawing board.
The bottom line is beware what you take to the referendum. It is the final verdict.
Now let's proceed to November 21, 2005. Shall we.
Tuonane mbele ndugu yangu.
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Post by kamalet on Nov 16, 2005 7:23:36 GMT 3
Starnge the extent of dishonesty 'you people' cvan display. The Orange group went to court with exactly the same prayers as the yellow movement. Their issue was the legality of the entire process, including the CKRC Act and the Consensus Act. That in itself questioned the validity of the Bomas processes - especially when they agree with the Ringera ruling!!!
Are you not the one who has sung in these forums about the illegality of the process that can only be cured voting No at the referendum to save Kenya. At least that small lie has been debunked.
Tuonane jumatatu!!
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Post by kichwambaya on Nov 16, 2005 16:51:06 GMT 3
It is hard to find a major court ruling that everybody agrees with and there is nothing wrong with that. The reason why I disagree with this particular ruling is that it sets a horrible precedent if YES wins. The current constitution is the highest law of the land and the members of the executive, the legistlative and the judiciary took an oath to uphold it and protect it. The current constitution does not provide for its replacement. S.47 provides for the authority to amend and therefore it should have been amended to allow for a smooth transition from this constutitution to the new one. Kiraitu knew this but he figured out that he could not get the 3/4 votes to amend s.47 so he opted for the referendum of a simple majority. Whatever is being done right now is therefore outside the legal framework and therefore cannot be described as legal but as a revolution.
If the people can overide the constitution anytime they feel like with a referendum then the constitution is not the supreme law of the land anymore and there is realy no need for one. We can just have a parliament make all the laws neccessary and do away with the constitution in that case.
Suppose a year from now we are tired of kibaki's rule and we find the the constitutional provisions of removing a president mid-term too cumbersome. What would stop the parliament from iniating a referendum of a simple majority to remove him? These are the kinds of precedents some of us are worried about.
Kiraitu has proven that he does not have respect for rules if he deems them to be on his way. If they do not respect this constitution then what makes you think they will respect the new constitutition or the, statutes, regulations and case laws?
There is a reason why changing rules in the middle of the game requires a super majority. In this case we are throwing away the old constitution with a mere simple majority and some of us seems to be not worried about that.
I pray Orange wins because I cannot see how they can sustain a constitution passed by a simple majority. This will only set a stage for yet another fight and another fight with one part of the country divided. An orange win will allow us to do this thing the right way acceptable to at least 3/4 of our citizens.
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