Entry Instance

HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept

{
    "id": 1064032,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1064032/?format=api",
    "text_counter": 142,
    "type": "speech",
    "speaker_name": "Sen. Sakaja",
    "speaker_title": "",
    "speaker": {
        "id": 13131,
        "legal_name": "Johnson Arthur Sakaja",
        "slug": "johnson-arthur-sakaja"
    },
    "content": "But beyond that, the issues raised – and I have heard the contributions – were really of a technical and drafting nature, but not of substance. The essence of a popular initiative is the substance of the decision that Kenyans are being asked to take. In fact, in Article 257, it says that it could be in form of a general suggestion; that then, these Houses are supposed to facilitate that Kenyans or the IEBC to draft it into law. If the intention of the Kenyans or Wanjiku, who has gone and collected signatures, and gone to 24 counties, is clear, you cannot say then that their suggestion is unconstitutional. I will explain and give an opinion. Within the Report, the Committee has stated – and this is something that has happened in various different jurisdictions--- I hold that the power to amend the Constitution is what we call constituted power. It is different from constituent power. It is not the power to destroy the system created by a Constitution, and I will explain. Parliament cannot usurp the sovereign power of an individual or groups of Kenyans to actually exercise their sovereignty as per Article 1 of the Constitution. Article 1 of our Constitution is very clear. It says that all sovereign power belongs to the people, and the people can exercise it directly or in accordance with the Constitution. A plebiscite or referendum is one of the events when the sovereign do what we call direct exercise of their sovereignty. Mr. Speaker, Sir, there have been many different discussions on this even in our country. If you look at the Constitution of Kenya Review Commission (CKRC), its final Report, they stated that the purpose of including Article 1 in our Constitution was to acknowledge the Constitution and the fact that ultimately, the Constitution is a product of and must carry the aspirations of the people. Mr. Speaker, Sir, in Njoya versus the Attorney General, the court considered the issue of constituent power. Justice Ringera said that the sovereignty of the people necessarily beckons that they have a constituent power, the power to constitute and/or reconstitute, as the case may be, the framework of their government. That power is with the people. That power is a primordial one. It is a basis for the creation of the Constitution and can, therefore, not be granted or referred to by the Constitution. Prof. Nwabueze, in his book “ Ideas and facts in constitution making ” summarizes what I am calling constituent power as the authority to approve and adopt a constitution. He says that the notion of the people as a constituent power is only an integral part of the wider concept of the people as a repository of the totality of a country’s sovereignty. There is only one case that was referred to in this Report, if you look at it. That case that was referred to, where the issue of constitutionality arises, was in India. In this case, which is ‘ Bharati versus State of Kerala and Minerva Mills Limited"
}