While representing the BBI proponents in the Court of Appeal, the lawyer stated that the judges – Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka – were imagining that Kenyans were living outside the constitution and not guided by it.
This, he argued, made them misinterpret the meaning of basic structure and sovereignty of the people. Orengo stated that these two phrases formed the fundamental argument of the BBI case.
“Let me ask a question; Does the Constitution create people as sovereign outside or inside the Constitution? The manner in which the court dealt with basic structure is people operating outside the Constitution.
“They got it wrong before – it’s clear even in the preamble of the Constitution. People adopting the Constitution are adopting it for themselves and doing it under the Constitution,” Orengo stated.
He added that the Constitution binds all persons. This, he explained, was why President Uhuru Kenyatta had the right to initiate the popular initiative.
Orengo explained that Kenyans despite being sovereign cannot disregard the Constitution but rather live under it. He gave an example that Kenyans cannot walk into the courts and demand judges to retire just because they – the people who are sovereign and gave judges power – have the authority to demand it back.
“That’s not how a democratic country works. We have to provide lasting peace and be a truly democratic country. Even during Repeal of Section 2A under the old Constitution, the clause was part of basic structure,” he pointed out.
Court of Appeal President Daniel Musinga interrupted and asked “is every clause under the Constitution amendable as long as it is done right?” to the acknowledgement of the Senior Counsel who concurred.
Orengo argued that the High Court had limited the Constitution such that some clauses were not amendable.
“We should never use insurrection or revolution as a way of amending constitutions. Kenyans have been in the street and this initiative addresses long-standing issues
“It is really painful at the end – every opportunity the people may have to amend the constitution as sovereign – even one step they cannot do it yet Parliament can do it anytime. For Kenyans, we have to start asking ourselves if we are promoters and why there are prohibitions that prevent someone from being a promoter,” he defended Uhuru against the 5 High Court judges.
The judges had ruled that the power to amend the Constitution through referendum route under Article 257 is reserved for the private citizen (Wanjiku only), neither the President nor any state organ is permitted under our Constitution to initiate a constitutional amendment using the popular initiative route.
They added that the essential features of the Constitution forming the basic structure can only be altered or modified by the people through their sovereign power and not merely through the referendum.
â€œThe basic structure doctrine protects the foundation, structure and core value of the Constitution but leaves open certain positions as amendable through procedures outlined in Articles 255, 266 and 257 as long as they do not change the basic structure,â€ High Court Judge, Justice Joel Ngugi ruled.