High Court of Kenya: While deliberating upon constitutional petitions challenging the Building Bridges Initiative (hereinafter BBI) and the resulting controversial Constitution of Kenya Amendment Bill, 2020; the 5 Judge Bench of Joel M. Ngugi, G.V. Odunga, Ngaah Jairus, E.C. Mwita and Mumbua T. Matheka, JJ., held the following –
- The Doctrine Basic Structure is applicable in Kenya and it limits the power to amend the Basic Structure of the Constitution and eternity clauses.
- The Court also held that the Basic Structure of the Constitution and eternity clauses can only be amended through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, referendum.
- The Kenyan President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative or through a Popular Initiative as enshrined in the Kenyan Constitution.
- It was also held that civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.
Post the Presidential Elections in 2017, elected President Mr. Uhuru Kenyatta started an initiative “towards united Kenya” and appointed the Building Bridges to Unity Advisory Taskforce comprising of 14 committee members and 2 joint secretaries in May 2018. The key mandate of the BBI Taskforce was to come up with recommendations and proposals “for building a lasting unity in the country”. The BBI Taskforce came up with an interim report in November, 2019. On 3rd January 2020, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report. The Committee recommended certain administrative, policy, statutory or constitutional changes. Despite some controversy as to how exactly the Report of the BBI Steering Committee (after it was handed over to the President), became the Constitution of Kenya Amendment Bill, 2020 (herein after, “The Constitution of Kenya Amendment Bill”). There was no dispute that the BBI Secretariat then put in motion the process to collect signatures in support of the Popular Initiative associated with the Constitution of Kenya Amendment Bill. Thereafter, the BBI Secretariat submitted the signatures to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the County Assemblies and Parliament for approval.
Both the petitioners and the respondents relied heavily on the landmark Indian case on Basic Structure Doctrine- Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.
Applying the Basic Structure Doctrine to the proposed Constitution of Kenya Amendment Bill, the petitioners argued that the Bill proposes to discard the doctrine of separation of powers and checks and balances first, by threatening to reverse the Presidential system of government, by threatening amend Chapter 9 of the Constitution on the executive, which goes against the decisions and reasoning of the makers on the Constitution. Regarding the Basic Structure doctrine, the petitioners contended that the Doctrine imputes logical limits to the power of amendment. They stated that the Doctrine exists to protect the essential characteristics of the Constitution; the power to amend the Basic Structure is limited because to so amend would be to destroy the essential character of the Constitution. The Petitioners drew their primary authority for this argument from the comparative Indian case of Kesavananda Bharati.
Meanwhile the respondents attributed the origin of the Doctrine of Basic Structure to Kesavananda Bharti case. The Basic Structure Doctrine articulated in the Kesavananda Case is not applicable in Kenya because of our different circumstances. They argue that, unlike in India, the amendment authority in the Constitution does not rest with Parliament alone since the people of Kenya have the final say through a referendum. They submitted that the Doctrines of Basic Structure; unamendability and eternity clauses do not apply in Kenya. They faulted the Petitioners for mixing up the concepts of Basic Structure Doctrine, the Concept of Unamendability and Eternal clause, which they contended must be distinguished. The respondents further argued that the Basic Structure Doctrine lacks universal acceptance.
‘Anxiously’ perusing the contentions, the Bench observed that, “Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and, at times, against the Political and other elites. Kenyans, therefore, were keen to ensure that their bequest to themselves would not be abrogated through either incompatible interpretation, technical subterfuge, or by the power of amendment unleashed by stealth”. The Court noted that a holistic reading of the Constitution, its history and the context of the making of the Constitution; the Basic Structure of the Constitution consists of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution. This structure outlines the system of government Kenyans chose – including the design of the Judiciary; Parliament; the Executive; the Independent Commissions and Offices; and the devolved system of government. It also includes the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment. Read as a whole, these chapters, schedules and the Preamble form the fundamental core structure, values and principles of the Constitution. This core thus, cannot be amended without recalling the Primary Constituent Power of the people. “We can discern this doctrinal illumination by correctly interpreting both the history of Constitution-making and the structure of the Constitution Kenyans made for themselves. At every step of the way, Kenyans were clear that they wanted a Constitution in which the ordinary mwananchi, Wanjiku, took centre-stage in debating and designing”.
With the aforementioned observations, the Court declared that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President is unconstitutional. The Court also declared that the entire BBI process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power and that the President contravened Chapter 6 of the Constitution and Art. 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
[David Ndii v. Attorney General, PETITION NO. E282 of 2020, decided on 13.05.2021]
Sucheta Sarkar, Editorial Assistant has put this report together