Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)

Citation
Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR)
Media Neutral Citation
[2022] KESC 8 (KLR)
Court
Supreme Court
Court station
Supreme Court of Kenya
Outcome
Allowed in part
Case number
Petition 12 of 2021
Attorneys
[140] Learned Counsel, Dr. John Khaminwa, appeared,
Judges
MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko
Judgment date
31 March 2022
Language
English
Type
Judgment
Original source file
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Order
Having considered the seven (7) issues framed by this Court for determination the final Orders are as follows: (i) (a) The basic structure doctrine is not applicable in Kenya. (Ibrahim, SCJ dissenting). (b) In order to amend the Constitution of Kenya 2010, the four sequential steps as pronounced by the two superior courts below are not necessary. (Ibrahim, SCJ dissenting). (ii) (a) The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution. (Njoki Ndungu, SCJ dissenting). (b) The President initiated the amendment process in issue (Njoki Ndungu & Lenaola SCJJ dissenting). (c) Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional (Njoki Ndungu & Lenaola SCJJ dissenting). (iii) The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya 2010 for lack of public participation. (Unanimous). (iv) Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010. (Unanimous). (v) (a) There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. (Unanimous). (b) There was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (Mwilu; DCJ & V-P; Ibrahim and Wanjala, SCJJ dissenting). (vi) IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (Ibrahim, SCJ dissenting) (vii) The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (Njoki Ndungu, SCJ concurring). (viii) Each party shall bear their own costs, this being a public interest matter. 360. Consequently, the consolidated appeal is determined as follows: (1) The appeal is allowed on the issue No 1; The basic structure doctrine is not applicable in Kenya. (2) The appeal is allowed on issue No 4; Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary the Constitution of Kenya, 2010. (3) The appeal is allowed on issue No 5; There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. and there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (4) The appeal is allowed on issue No 6; The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (5) The appeal is allowed on issue No 7; The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (6) The appeal is disallowed on issue No 2; The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution; that the President initiated the amendment process in issue. Consequently, under Article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional. (7) The appeal is disallowed on issue No 3; The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Articles 10(2) and 89(7)(a) of the Constitution of Kenya, 2010. (8) Each Party shall bear their own costs.
JUDGMENT OF MK KOOME, CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT
A. Introduction
1.On August 27, 2010, in what may be fittingly depicted as a symbol of national rebirth and renewal, Kenya promulgated a new Constitution Constitution}} which has been described world over as progressive. This moment marked a historic transition from the old order to a new one. The Constitution,2010 (the Constitution) represents the people’s aspirations, laid out in the text of its Preamble, articles and Schedules. It is a framework for the realization of a shared vision and common agenda. The Constitution spells out far reaching fundamental institutional and other reforms meant to sustain human rights, equality, freedom, democracy, social justice and the rule of law for the present and future generations.
2.The history behind the making of the Constitution cannot be buried and forgotten as it continues to reverberate as the debate and discussions around its amendment harks back to the processes and sacrifices that were made by the Kenyan people over many decades during the search for a new constitutional order. Indeed, the Preamble thereto reminds us of “honouring those who heroically struggled to bring freedom and justice to our land ”.
3.It is the attempt to amend the Constitution as proposed in a document dubbed “Constitution of Kenya (Amendment) Bill, 2020” (the Amendment Bill) which led to the instant appeals before this court. The Amendment Bill is at the core of the dispute that has engaged all the superior courts on the question of interpretation and application of the Constitution with regard to not only the provisions of Chapter Sixteen that provides for amendment of the Constitution, but also the entire body thereto as the canons of interpretation provided under article 259 (3) enjoins courts to inter alia consider:“Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking …”
4.This means that the Constitution is always speaking to the present and future generations. Therefore, in discharging their interpretive mandate within the framework of a legal dispute before them, courts are required to uphold the Constitution by breathing life to all its provisions whilst promoting the dreams and aspirations of the Kenyan people in a manner that is consistent with the Constitution. In addition, it is envisaged that the approach to interpretation of the Constitution adopted by a court should not render any article or any provisions thereto superfluous or ineffective. Consequently, as the apex Court in the land and custodian of the Constitution, it is not lost to this court that we are being called upon to provide an impartial and authoritative determination which will guide and act as an interpretative compass to the courts below, state agencies and all persons with respect to the questions before it.
5.Before delving into our mandate under article 163(4)(a) of the Constitution, as invoked by the appellants, it is instructive to place the appeals in context by setting out a brief background to the dispute.
B. Background
6.It is no secret that in striving to promote and strengthen our democracy, a number of attempts have been made to amend the Constitution. Of significance, is that there have been a total of three attempts to amend the Constitution by way of popular initiative under article 257 of the Constitution. These are: Constitution of Kenya, 2010 (Amendment) Bill, 2015 (the Okoa Kenya initiative); Punguza Mizigo (Constitution of Kenya Amendment) Bill, 2019 (the Punguza Mizigo initiative); and more recently, the Amendment Bill. The first two initiatives failed for not garnering the requisite support at various stages of the amendment process while the Amendment Bill was subjected to the court process culminating in the instant appeals. Besides the above attempts under the popular initiative, there have been more than a dozen other unsuccessful attempts to amend various articles of the Constitution since 2011 through the parliamentary initiative route under article 256.
7.The instant appeals concern the Amendment Bill whose genesis can be traced to the outcome of the 2017 presidential elections. Following the initial and repeat presidential elections in 2017, His Excellency Hon. Uhuru Kenyatta, the President and Command er in Chief of the Kenya Defence Forces (the President) embarked on uniting a divided Nation, which led to the reconciliation famously known as the ‘Hand shake’ between Hon. Raila Odinga, the then leader of the opposition coalition, and himself on 9th March, 2018. In line with their mutual commitment to create and foster a united Kenya, the President and Hon. Raila Odinga released a Joint Communiqué known as Building Bridges to a new Kenyan Nation highlighting nine problem areas which they deemed as negatively impacting on peace and unity in the Nation.
8.Subsequently, the President established the Building Bridges to Unity Advisory Taskforce (the BBI Taskforce) vide Gazette Notice No 5154 dated May 24, 2018. Its mand ate was to evaluate the nine identified problematic areas and make policy, administrative and reform proposals that would build lasting unity based on consultations with citizens. Towards that end, on November 26, 2019 the BBI Taskforce presented its report ‘Building Bridges to a United Kenya: from a Nation of blood ties to a nation of ideals’ (the BBI Taskforce Report) to the President and Hon Raila Odinga which was unveiled to the public on November 27, 2019.
9.Intent on the implementation of the proposals in the BBI Taskforce Report, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee) vide Gazette Notice No 264 dated January 3, 2020. The main objectives of the BBI Steering Committee were to undertake validation of the BBI Taskforce Report with citizens as well as propose administrative, policy, statutory or constitutional changes it thought necessary for the implementation of the recommendations contained therein.
10.On completing its mand ate, the BBI Steering Committee presented its report, ‘The Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report’ (the BBI Steering Committee Report) on October 21, 2020. Annexed to the report were a number of documents including a draft Constitution of Kenya (Amendment) Bill, 2020 (the BBI Steering Committee Draft Bill) and proposed legislative Amendment Bills.
11.Somewhere along the line, the BBI Steering Committee Draft Bill was reviewed culminating in the Amendment Bill which was published by the Government Printer about a month later on November 25, 2020. Thereafter, the Building Bridges to a United Kenya, National Secretariat (the BBI National Secretariat) put in motion the process of collecting signatures in support of the Amendment Bill. Upon collection of the requisite number of signatures, the BBI National Secretariat submitted the same together with the Amendment Bill to the Independent Electoral and Boundaries Commission (IEBC) for verification and thereafter, submission to the County Assemblies and Parliament for approval.
C. Litigation History
(i) At the High Court
12.While the amendment process was ongoing, eight (8) petitions were filed before the High Court challenging the constitutionality of the process which resulted in the Amendment Bill and the contents thereof. Seven petitions were consolidated on January 21, 2021 while the eighth one was consolidated with the rest on March 10, 2021. Kenya Human Rights Commission and four Law Professors, Dr Duncan Ojwang’, Dr John Osogo Ambani, Dr. Linda Musumba and Dr Jack Mwimali were joined as amici curiae; while Kituo Cha Sheria and Phylister Wakesho were joined as interested parties.
13.Most of the petitions raised more or less similar issues which can be summarized as follows:
(a) Petition No E282 of 2020, David Ndii & others v. Attorney General & Others
14.The questions raised by David Ndii, Jerotich Seii, James Gondi, Wanjiru Gikonyo and Ikal Angelei (the 1st to 5th respondents) were whether the basic structure doctrine and its corollary doctrines were applicable in Kenya as far as amendments of the Constitution are cornered; whether by virtue of the doctrine(s) there was an implied limitation to the powers of amending the Constitution under Chapter Sixteen (articles 255-257); and whether certain provisions of the Constitution were not amendable under Chapter Sixteen of the Constitution.
(b) Petition No E397 of 2020, Kenya National Union of Nurses (KNUN) v. Steering Committee of BBI & Others
15.KNUN was aggrieved by the failure to include its proposal that called for establishment of an independent and constitutionally anchored Health Service Commission in the BBI Steering Committee Report as well as the Amendment Bill. In that regard, it raised the issues; whether the BBI Steering Committee was duty bound to include its proposal; and whether by disregarding the said proposal, the BBI Steering Committee’s action was an unfair administrative neglect of duty and abuse of powers.
(c) Petition No E400 of 2020, Thirdway Alliance Kenya & others v. Steering Committee of BBI & others
16.Of concern to Thirdway Alliance, Mururi Waweru and Angela Mwikali (the 7th to 9th respondents) was whether an amendment to the Constitution through a popular initiative could be originated by state actors, in particular, the President; whether a popular initiative could be originated and undertaken without a guiding legal framework; whether there was need of civic education on the Amendment Bill prior to collection of signatures in support thereof; and whether County Assemblies could alter or improve the contents of an Amendment Bill.
(d) Petition. E401 of 2020, 254 Hope v. The National Executive of the Republic of Kenya
17.254 Hope similarly sought a determination of whether the National Executive or any state organ could commence a popular initiative and utilize public funds in the process.
(e) Petition No E402 of 2020, Justus Juma & Isaac Ogola v. Attorney General & Others
18.Justus Juma and Isaac Ogola (the 11th and 12th respondents) were aggrieved with the creation of 70 additional constituencies; in particular, the Second Schedule attached to the Amendment Bill which they termed as unconstitutional and a usurpation of IEBC’s constitutional mand ate.
(f) Petition No E416 of 2020, Morara Omoke v. Raila Odinga & Others
19.On his part, Morara Omoke sought a determination of whether IEBC had the requisite quorum to consider and approve policy matters relating to verification of signatures in support of the Amendment Bill and conduct of a referendum; whether the Amendment Bill could be submitted to County Assemblies and Parliament for consideration as well as be subjected to a referendum in the absence of a legal framework facilitating the same; whether the Amendment Bill could be subjected to a referendum before a nationwide voter registration exercise; whether the use of public funds by the President and Hon. Raila Odinga in the initiation and facilitation of the amendment process was constitutional; and whether Parliament had the requisite capacity to consider the Amendment Bill following the former Chief Justice’s, Hon. Mr. Justice David Maraga, advisory opinion to the President to dissolve Parliament for failing to comply with the two thirds gender representation principle.
(g) Petition No E426 of 2020, Isaac Aluochier v. Uhuru Muigai Kenyatta & Others
20.In addition to seeking clarification on the President’s suitability to initiate a popular initiative, Isaac Aluochier’s (the 19th respondent) petition also raised issues on whether civil court proceedings could be instituted against the President or a person performing the functions of the office of the President during their tenure of office; and whether the BBI Steering Committee had legal capacity to promote a popular initiative pursuant to Article 257 of the Constitution.
(h) Petition No 2 of 2021, Muslims for Human Rights (MUHURI) v. Independent Electoral Boundaries Commission (IEBC) & others
21.Last but not least, MUHURI’s major concern was a determination of whether IEBC could undertake verification of signatures in support of a popular initiative without an enabling legal framework to that effect.
22.In opposition to the petitions, the competency of the petitions was challenged on the grounds that issues raised were not justiciable since the amendment process was still ongoing and some of the issues were either res judicata or sub judice. It was argued that the Constitution could be amended as prescribed under Chapter Sixteen hence the basic structure doctrine and its corollary doctrines were not applicable in Kenya; that there was adequate legal framework regulating the collection and presentation of signatures in support the Amendment Bill as well verification of signatures; that there was no legitimate expectation in favour of KNUN entitling it to the inclusion of its proposal to the BBI Steering Committee Report or the Amendment Bill; and the Amendment Bill had been formulated in accordance with the Constitution.
23.Based on the foregoing, the High Court outlined thirteen (13) issues for its consideration and ultimately, by a Judgment dated 13th May, 2021 allowed the petitions in part. In that regard, the High Court issued the following Orders:“i.A declaration hereby issues:(a)That the Basic Structure Doctrine is applicable in Kenya.(b)That the Basic Structure limits the amendment power set out in Articles 255 – 257 of the Constitution. In particular, the Basic Structure Doctrine limits the power to amend the Basic Structure of the Constitution and eternity clauses.(c)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, a referendum.ii.A declaration is hereby made 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.iii.A declaration is hereby made that the 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 under Article 256 or through a Popular Initiative under Article 257 of the Constitution.iv.A declaration is hereby made that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President vide Kenya Gazette Notice No 264 of 3 January, 2020 and published in a special issue of the Kenya Gazette of 10 January, 2020 is an unconstitutional and unlawful entity.
v.A declaration is hereby made that being an unconstitutional and unlawful entity, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, has no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.
vi.A declaration is hereby made 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.
vii.A declaration is hereby made that Mr. Uhuru Muigai Kenyatta contravened Chapter 6 of the Constitution, and specifically article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
viii.A declaration is hereby made that the entire unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report was unconstitutional, null and void.
ix.A declaration is hereby made that the Constitution of Kenya Amendment Bill, 2020 could not be subjected to a referendum before the Independent Electoral and Boundaries Commission carries out nationwide voter registration exercise.
x.A declaration is hereby made that the Independent Electoral and Boundaries Commission does not have quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum including the verification of signatures in support of the Constitution of Kenya Amendment Bill under article 257(4) of the Constitution submitted by the Building Bridges Secretariat.
xi.A declaration is hereby made that at the time of the launch of the Constitutional of Kenya Amendment Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation and verification of signatures nor a legal framework to govern the conduct of referenda.
xii.A declaration is hereby made that the absence of a legislation or legal framework to govern the collection, presentation and verification of signatures and the conduct of referenda in the circumstances of this case renders the attempt to amend the Constitution of Kenya through the Constitution of Kenya Amendment Bill, 2020 flawed.
xiii.A declaration is hereby made that County Assemblies and Parliament cannot, as part of their constitutional mand ate to consider a Constitution of Kenya Amendment Bill initiated through a Popular Initiative under Article 257 of the Constitution, change the contents of such a Bill.
xiv.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to predetermine the allocation of seventy constituencies is unconstitutional.
xv.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation was unconstitutional.
xvi.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to have determined by delimitation the number of constituencies and apportionment within the counties is unconstitutional for want of Public Participation.
xvii.A declaration is hereby made that Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum made by the Independent Electoral Boundaries Commission are illegal, null and void because they were made without quorum, in the absence of legal authority and in violation of article 94 of the Constitution and sections 5, 6 and 11 of the Statutory Instruments Act, 2013.
xviii.A declaration is hereby made that article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the People.
xix.A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020.
xx.The prayer for an order that Mr. Uhuru Muigai Kenyatta makes good public funds used in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by Mr. Uhuru Muigai Kenyatta is declined for reasons that have been given.
xxi.The prayer for the orders that the Honorable Attorney General to ensure that public officers who have directed or authorized the use of public funds in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report make good the said funds is declined from the reasons that have been given.
xxii.The rest of the reliefs in the Consolidated Petitions not specifically granted are deemed to have been declined.
xxiii.This being a public interest matter, parties shall bear their own costs.”
(ii) At the Court of Appeal
24.Dissatisfied with the determination of the High Court, four appeals were filed before the Court of Appeal namely:
(a) Civil Appeal No E291 of 2021, Independent Electoral Boundaries Commission (IEBC) v. David Ndii & 82 Others
25.IEBC vide its twelve (12) grounds of appeal challenged the High Court’s findings contending that the court erred by inter alia finding that; it lacked quorum to undertake its constitutional and statutory mand ate; its role under article 257(4) entailed verification of the authenticity of the signatures tendered in support of a popular initiative; there was a requirement for it to undertake a nationwide voter registration exercise for the intended referendum; and it had an obligation to ensure that the promoters of the Amendment Bill had complied with the requirement of public participation before transmitting the same to the County Assemblies.
(b) Civil Appeal No E292 of 2021, Building Bridges to a United Kenya, National Secretariat & another v. David Ndii & 76 others
26.The nineteen (19) grounds of appeal raised by the BBI National Secretariat and Hon. Raila Odinga are rather prolix and repetitive. I will nonetheless summarize them as follows; that the High Court erred for; holding that the basic structure doctrine and its corollary doctrines were applicable; introducing a mand atory four sequence amendment process unknown to the Constitution; imposing an obligation on the promoters of the Amendment Bill to conduct nationwide public participation exercise prior to collection of signatures in support of the amendment initiative; misinterpreting the role of the President in a popular initiative; misconstruing that article 257(10) requires separate and distinct referendum questions as opposed to a Bill being put to the people in a referendum; and usurping the people’s sovereign power as far as the issue of delimitation and distribution of constituencies was concerned.
(c) Civil Appeal No 293 of 2021, The Hon. Attorney General v. David Ndii & 73 others
27.The Attorney General raised thirty-one (31) grounds of appeal faulting the High Court on similar grounds as IEBC, the BBI National Secretariat and Hon. Raila Odinga. In addition, the appeal was premised on the grounds that the High Court erred in holding that the Amendment Bill was not consistent with the provisions of the Constitution; that the President can be sued in his personal capacity; and that he had contravened Chapter Six of the Constitution and for issuing orders against the President without according him an opportunity to be heard contrary to article 50(1) of the Constitution.
(d) Civil Appeal No E294 of 2021, Uhuru Muigai Kenyatta v. David Ndii & 82 others
28.The President’s seventeen (17) grounds of appeal were centered on the findings made against him. In particular, he took issue with the High Court for condemning him unheard; for misapprehending the scope and extent of presidential immunity enshrined under Article 143 of the Constitution; and proceeding to hear and determine the issue of legality of the BBI Taskforce and BBI Steering Committee which was res judicata by virtue of Thirdway Alliance Kenya & Another v. the Head of the Public Service – Joseph Kinyua & 2 others; Martin Kimani & 15 Others (Interested Parties), H.C Constitutional Petition No 451 of 2018; [2020]eKLR (Thirdway Alliance Case).
29.On June 3, 2021 the aforementioned appeals were consolidated and Civil Appeal No E291 of 2021 was designated as the lead file. Thereafter, the following cross appeals were filed:
(e) Cross Appeal by KNUN
30.The gist of this cross appeal, which was premised on six (6) grounds, was that the High Court erred by ignoring and misapprehending the doctrine of stare decisis; finding that KNUN’s petition was unmerited; and failing to take judicial notice of the state of health care in Kenya.
(f) Cross Appeal by 254 Hope
31.254 Hope challenged the High Court’s decision in part for failing to declare that, proposals made by the National Executive or any of its taskforces to amend the Constitution are subject to article 47 of the Constitution; and there was violation or at the very least a threatened violation of prudent use of public resources (human and financial) when the National Executive initiated the amendment in issue.
(g) Cross Appeal by Morara Omoke
32.Mr. Morara Omoke faulted the High Court for declining to direct; the BBI Steering Committee, the President and Hon. Raila Odinga to publish particular details of the budget as well as the public funds allocated and utilized in the promotion of the Amendment Bill; the Auditor General to establish the amount of public funds utilized in the promotion of the Amendment Bill; and the President to make good public funds utilized in the process which culminated in the Amendment Bill. He also took issue with High Court’s failure to declare that Parliament had no legal or constitutional capacity to debate and either approve or disapprove the Amendment Bill in light of the retired Chief Justice’s, Hon. Mr. Justice David Maraga, advise for its dissolution.
33.In determining the aforementioned appeals the Court of Appeal framed twenty-one (21) issues which were considered by a bench of seven Judges who rendered their own individual opinions. However, the conclusions and their findings were pronounced in the lead judgment of Musinga, (P) dated 20th August, 2021 as follows:“A.We uphold the judgment of the High Court to the extent that we affirm the following:i.The basic structure doctrine is applicable in Kenya. (Sichale, J. A. dissenting).ii.The basic structure doctrine limits the amendment power set out in Articles 255 – 257 of the Constitution. (Okwengu & Sichale, JJ.A. dissenting).iii.The basic structure of the Constitution can only be altered 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, a referendum. (Okwengu, Gatembu & Sichale, JJ. A. dissenting).iv.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. (Tuiyott, J.A. dissenting).v.The 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 under Article 256 or through a popular initiative under Article 257 of the Constitution.vi.The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (The BBI Steering Committee) has no legal capacity to initiate any action towards promoting constitutional changes under Article 257 of the Constitution.vii.The Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional and a usurpation of the People’s exercise of sovereign power.viii.The Constitution of Kenya (Amendment) Bill, 2020 cannot be subjected to a referendum in the absence of evidence of continuous voter registration by the Independent Electoral and Boundaries Commission. (Sichale, J.A. dissenting).ix.The Independent Electoral and Boundaries Commission does not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification whether the initiative as submitted by the Building Bridges Secretariat is supported by the requisite number of registered voters in accordance with Article 257(4) of the Constitution. (Sichale, J.A. dissenting).x.At the time of the launch of the Constitution of Kenya (Amendment) Bill, 2020 and the collection of endorsement signatures there was neither legislation governing the collection, presentation, and verification of signatures, nor an adequate legal/regulatory framework to govern the conduct of referenda. (Sichale, J.A. dissenting).xi.County Assemblies and Parliament cannot, as part of their constitutional mand ate, change the contents of the Constitution of Kenya Amendment Bill, 2020 initiated through a popular initiative under Article 257 of the Constitution.xii.The second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to: predetermine the allocation of the proposed additional seventy constituencies, and to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation, is unconstitutional. (Sichale, J.A. dissenting).xiii.The Administrative Procedures for the verification of signatures in support of the Constitution Amendment Referendum made by the Independent Electoral and Boundaries Commission are illegal, null and void because they were made without quorum and in violation of Sections 5, 6 and 11 of the Statutory Instruments Act, 2013. (Sichale, J.A. dissenting).xiv.A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill, 2020.B.We hereby set aside the following declarations and orders of the High Court:i.That President, Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.ii.That Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the People. (Nambuye, Okwengu & Kiage, JJ.A. dissenting).iii.The BBI Steering Committee established by the President vide Kenya Gazette Notice No 264 of 3rd January 2020 and published in a special issue of the Kenya Gazette of 10th January 2020 is an unconstitutional and unlawful entity.C.The Cross appeals fail and are hereby dismissed.This being a public interest matter, the parties shall bear their own costs in these appeals and in the High Court.”
(ii) At the Supreme Court
34.The above outcome dissatisfied some parties hence three appeals were filed challenging the same. More specifically, Petition No.11 (E015) of 2021- Morara Omoke v. H.E. Uhuru Muigai Kenyatta & 83 Others dated 15th September, 2021 was filed on 23rd September, 2021 by Morara Omoke; Petition No 12 of 2021 (E016 of 2021)- The Attorney General v. David Ndii & 73 Others dated 30th September, 2021 was lodged on 1st October, 2021 by the Attorney General; and Petition No 13 Of 2021 (E108 of 2021)- Independent Electoral and Boundaries Commission v. David Ndii & 81 Others dated 30th September, 2021 was lodged on 4th October, 2021 by IEBC. These appeals raised several grounds and sought a variety of reliefs.
35.On 9th November, 2021 this Court consolidated the three appeals designating Petition No 12 of 2021 by the Attorney General as the lead file; and joined the 1st- 8th amici curiae to the proceedings. In addition, based on the grounds raised in the consolidated appeal, the Court framed seven (7) issues for determination namely:(i)Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;(ii)Whether the President can initiate changes/amendments to the Constitution; and whether a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution;(iii)Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;(iv)Whether civil proceedings can be instituted against the President or a person performing the functions of the office of the President during his/her tenure of office with regard to anything done or not done contrary to the Constitution;(v)The place of public participation under Article 10 vis-a- vis the role of IEBC under Article 257(4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;(vi)Interpretation of Articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC; and(vii)Whether the interpretation of Article 257(10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.
36.Parties were directed to file their written submissions and make oral highlights on the above issues while the amici curiae participation was restricted to the written briefs they had attached in their respective applications for joinder to the proceedings. Be that as it may, it came to the Court’s attention that some of the respondents (Dr. Duncan Ojwang’, Dr. John Osogo Ambani, Dr. Linda Musumba, Dr. Jack Mwimali and Kenya Human Rights Commission, (the 74th, 75th, 76th, 77th and 78th respondents respectively)) in the consolidated appeal had actually been initially joined at the High Court as amici curiae but somehow on appeal to the Court of Appeal they were named as respondents, essentially designating them as parties, to the appeal.
37.It is well settled that a person admitted as amicus curiae is not a party to the proceedings but acts as a friend of the Court and the extent of their participation in the proceedings is limited by the Court. See Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, SC Petition No 12 of 2013; [2015]eKLR. It follows therefore, amicus curiae cannot be converted to a party even at the appellate stage. Having joined the proceedings as amicus curiae one remains so at every stage of litigation. Consequently, I concur with the observations of Gatembu, J.A that amici curiae who had been joined at the High Court should not have been made parties in the appeals at the Court of Appeal.
38.It is precisely for that reason that this Court restricted the participation of the 74th, 75th, 76th, 77th and 78th respondents in the appeal before this Court, to their written submissions like the 1stto 8th amici curiae herein.
D. Parties’ Submissions
39.For ease of reference and flow I shall set out the parties’ respective submissions starting with the Attorney General and IEBC followed by parties who supported their appeals. I will then set out submissions by parties who partially supported the Attorney General and IEBC. Subsequently, I will set out submissions of Morara Omoke, the 3rd appellant, who opposed the appeals by the Attorney General and IEBC followed by parties who supported his appeal but opposed the appeals by the Attorney General and IEBC. Last but not least, I will set out submissions by amici curiae. However, by not setting out the parties’ arguments verbatim is by no means discounting their significance but it is meant to simply avoid unnecessary repetition.
(i) Attorney General
40.The Solicitor General, Mr. Kennedy Ogeto, appeared together with Mr. George Oraro, SC, Mr. Kamau Karori, SC and Mr. Paul Nyamodi for the Attorney General. The Attorney General filed two sets of written submissions dated 24th November, 2021 and 14th January, 2022 respectively.
41.Concerning the basic structure doctrine, the Attorney General began by submitting that right from its inception as a constitutional theory in France, the doctrine was not applied even in France where it originated. Rather, it acquired judicial recognition in India through Kesavanand a Bharati v. State of Kerala, (1973) 4 SCC 225 (Kesavanand a Case) wherein the Supreme Court of India held that despite the Indian Parliament being vested with the power to amend the Constitution it could not make any amendments which affected the basic foundation and structure of the Indian Constitution. Thereafter, the doctrine featured in many jurisdictions where it was either accepted or rejected.
42.The Attorney General contended that in Kenya the doctrine was adopted through the case of Timothy Njoya & 6 Others v. Attorney General & 3 Others, H.C Misc. Civil Appl. No 82 of 2004 (OS); [2004]eKLR (Njoya Case) followed by Patrick Ouma Onyango & 12 Others v. Attorney General & 2 Others [2008] eKLR (EP) 84. However, in his view, the doctrine was applied in the above-mentioned cases within the context of the former Constitution wherein under Section 47 thereof, the power to amend the Constitution was exclusively in the hand s of Parliament. While the issue of Parliament’s power to amend the Constitution resurfaced again under the current Constitution in Commission for the Implementation of the Constitution v. National Assembly of Kenya & 2 Others, HC Petition No 496 of 2013; [2013]eKLR (Commission for the Implementation of the Constitution Case), the Attorney General claimed that despite finding that Parliament’s power was limited Lenaola, J. (as he then was) did not delve into the tenor and effect of amendment provisions in Chapter Sixteen of the Constitution.
43.The Attorney General went on to argue that thereafter, the substance of Chapter Sixteen had been considered in a number of cases namely; Priscilla Ndululu Kivuitu & Another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 Others v. Attorney General & 2 Others, HC Petition 689 of 2008; [2015]eKLR (Priscilla Ndululu Case); Attorney General & Another v. Rand u Nzai Ruwa & 2 Others, Civil Appeal No 275 of 2012; [2016]eKLR; and Senate & 48 others v. Council of County Governors & 54 Others, Civil Appeal No 200 of 2015; [2019]eKLR to mention but a few. In summing up the effect of those decisions, he submitted that the superior courts below held a unilateral view that the amendment provisions of the Constitution in Chapter Sixteen are applicable without any limitation thereby disregarding the basic structure doctrine.
44.According to the Attorney General, abuse of the amendment power vested in Parliament through hyper-amendments of the Constitution without participation or approval of the people, which was prevalent in the previous constitutional order, had since been addressed and tamed by the very design of the Constitution. In his view, the same was evident beginning from the Preamble of Constitution which recognizes the sovereign and inalienable right of the people to determine the form of governance they desire to be subject to; Article 1(1) confirms that all sovereign power belongs to the people and can only be exercised in accordance with the Constitution; the Kenyan people reserved their right to exercise sovereign power directly or through their democratically elected representatives; and the multi- track amendment process set out in Chapter Sixteen of the Constitution.
45.The Attorney General submitted that the multi-track amendment process by dint of Article 255 distinguishes and delineates the entrenched constitutional provisions. That is, the basic structure (fundamental pillars and structures of the Constitution) form the entrenched provisions. It provides that amendment of the entrenched provisions can be either through a parliamentary initiative under Article 256 or popular initiative under Article 257 save that in both scenarios it prescribes a higher threshold compared to amendment(s) of non-entrenched provisions. In that, there is requirement for public participation, and a referendum. What is more, the threshold of approving such an amendment through a referendum is higher than what is required for the election of the President under Article 138(4) of the Constitution.
46.Consequently, Counsel urged that the amendment process set out in Chapter Sixteen of the Constitution is in line with the demand s and recommendations made by the Kenyan people during the constitutional review process. That is, for multi-track amendment provisions, unlike the single-track provision in Section 47 of the former Constitution; the people’s choice to exercise their sovereignty; and their right to effect an amendment to the entrenched provisions only through a referendum. To buttress that line of argument reference was made to the Constitution of Kenya Review Commission Report dated 10th February, 2005 (the CKRC Final Report).
47.The Attorney General maintained that the amendment powers enshrined in Chapter Sixteen are not amenable to limitation let alone through an imported extra constitutional doctrine, the basic structure doctrine. In any event, he reiterated that where the involvement of the people in the amendment process of entrenched provisions is full-fledged, as in Chapter Sixteen, the four-sequence process of amendment advanced by the superior courts below has no application. In reinforcing this position, it was argued that the basic structure doctrine has predominantly been applied in jurisdictions with Constitutions, which unlike Kenya's, are silent on what constitutes the core structure, pillars, and elements of the Constitution, and which do not provide for the involvement and participation of the people in constitutional amendments through a referendum.
48.The Attorney General added that the role of courts in judicial review with respect to the amendment process of the Constitution is restricted to ensuring due compliance with the amendment procedures set out thereunder; and does not extend to review of the substance of the amendment which is within the preserve of the people. Towards this end, the Supreme Court’s decision in Judges & Magistrates Vetting Board & 2 Others v. Centre for Human Rights & Democracy & 11 Others; SC Petition 13A of 2013 as consolidated with SC Petitions Nos. 14 & 15 of 2013; [2014]eKLR (Vetting Board Case) was cited. Putting it differently, the Attorney General claimed that the substantive determination of an amendment of the Constitution (to approve or reject an amendment proposal) is reserved for the people or their democratically elected representatives as envisaged under Articles 1(2), 255 to 257.
49.As far as the Attorney General was concerned, the superior courts below contravened the principle on the sovereignty of the people and the supremacy of the Constitution by prescribing that the basic structure of the Constitution could only be amended through the primary constituent power comprising of a four sequential process, which terminologies are not used in the Constitution. Further, in distinguishing the judicial decisions relied upon by the superior courts below in support of the application of the doctrine in Kenya, he contended that none of them related to amendments by referenda or popular initiatives, as contemplated under Articles 255 to 257 of the Constitution.
50.As to whether the President can initiate changes or amendments to the Constitution, he submitted that the Constitution binds every citizen including the President to respect, uphold and defend the Constitution; and furthermore, Members of Parliament, like the President, take oath of office to obey and defend the Constitution. Nonetheless, there is no doubt that citizens as well as Members of Parliament may initiate amendments to the Constitution. Accordingly, it made no sense to the Attorney General why the President should be precluded from taking part in constitutional amendments yet, Article 257 does not exclude any citizens on the basis of their positions in society.
51.Besides, the Attorney General went on to urge that Article 1(2) of the Constitution provides that the people of Kenya may exercise their sovereign power either directly or through their democratically elected representatives. Therefore, he submitted that the President as an elected representative may legitimately initiate amendments to the Constitution through a popular initiative. In any event, the Attorney General contended that the fundamental ingredient of the popular initiative is the support it garners of at least one million registered voters, under Article 257(1) of the Constitution.
52.As far as the Attorney General was concerned, the superior courts’ finding that the President cannot participate in a popular initiative, unlawfully limits the President’s rights under Articles 27 and 38 of the Constitution.
53.Moving to the Second Schedule of the Amendment Bill, the Attorney General argued that the superior courts below misconstrued IEBC’s mand ate as far allocation or apportionment of new constituencies was concerned. Expounding on that line of argument, the Attorney General submitted that in the former Constitution the mand ate of determining the number of constituencies as well as their apportionment was vested in the then electoral body, Electoral Commission of Kenya. However, in the current Constitution the people deliberately excluded that mand ate from IEBC and left it to themselves.
54.The Attorney General maintained that prior to making the proposed amendment in its report, the BBI Steering Committee collected and collated the views of the people. What was more, the proposed amendment was geared towards progressive achievement of the universal principles of fair representation and equality of the vote. In any event, the Attorney General stated that the proposed amendment recognised IEBC’s mand ate to delimit boundaries of the proposed constituencies. In addition, the Attorney General claimed that the superior courts below disregarded the political nature of apportionment of constituencies. In his view, the process of determining which areas deserve new constituencies is a delicate matter that can only be achieved through political discussions and compromise.
55.The Attorney General went on to assert that the people in exercise of their sovereignty, have an inalienable right to make, remake and amend the provisions of the Constitution, as they see fit. Accordingly, he urged that the Second Schedule was a proposal and once it was approved as prescribed under Chapter Sixteen it would have become a constitutional provision hence could not be considered unconstitutional as the superior courts did.
56.On the issue of civil proceedings against the President, the Attorney General cited Articles 143, 144 and 145 of the Constitution and argued that the rationale for presidential immunity is to simply allow a sitting President to exercise his constitutional duties without fear of civil litigation. Moreover, he asserted that the nature of the various roles the President plays, as the Head of State and Government, the Command er in Chief of the Armed forces and the Chairperson of the National Security Council, require him to have decisional freedom that will enable him safeguard the interest of the country.
57.The Attorney General contended that the superior courts below failed to undertake a holistic reading of Article 143 of the Constitution. In particular, he submitted that if civil proceedings were to be brought against the President, then Article 143(3) of the Constitution, which otherwise seeks to give effect to Sub- Articles (1) and (2) thereof, would be rendered superfluous. In addition, the Attorney General argued that there was no lacuna with respect to the remedies available for any constitutional infractions or abuse of authority by the President. He went to state that the remedies in question may be obtained through a constitutional petition or judicial review proceedings instituted against the Attorney General as the principal respondent pursuant to Article 156(4) (b) of the Constitution as read with Section 12(1) of the Government Proceedings Act.
58.On the issue of public participation, the Attorney General argued that the superior courts below ignored the fact that Article 257 has inbuilt mechanisms to ensure public participation at various stages and in turn, they failed to consider the question of public participation as a continuum of the entire amendment process. Further, according to the Attorney General, the superior courts failed to appreciate that the issue of public participation was not ripe for consideration since the amendment process was still at the preliminary stages at the time the petitions were filed in the High Court. The Attorney General went on to argue that the burden of proof should have been placed on the petitioners before the High Court to demonstrate non-compliance with the public participation processes envisaged in the Constitution.
(ii) IEBC
59.Prof. Githu Muigai, SC leading Mr. Eric Gumbo, Mr. Justus Munyithia, Ms. Wambui Muiga, Mr. Delbert Ocholla, Mr. Steve Ochieng Wasonga, Mr. Moses Kipkogei and Mr. Ken Melly appeared for IEBC. IEBC filed two sets of submissions dated 25th November, 2021 and 10th January, 2022.
60.IEBC’s submissions were confined to three of the issues framed by this Court namely; its role under Article 257(4) of the Constitution with respect to public participation under Article 10 of the Constitution; its composition and quorum; and the nature of referendum questions required under Article 257(10) of the Constitution.
61.With regard to public participation, IEBC’s Counsel clarified that its appeal was limited to its role by virtue of the provisions of Article 257(4) and that it neither touched on the question of verification of signatures nor adequacy of the legal framework thereof hence, it urged this Court to disregard any arguments to that effect. Towards that end, IEBC contended that contrary to the clear provision of Article 257(4) of the Constitution, the High Court erroneously held that it was under an obligation to ensure that promoters of the popular initiative had undertaken public participation before submitting the Amendment Bill to the County Assemblies. According to IEBC, despite challenging that finding in its appeal, the Court of Appeal failed to determine the same hence left the High Court’s finding intact.
62.In addition, IEBC claimed that Gatembu, J.A imposed more onerous obligations upon it without any constitutional or legal basis. In a nutshell, IEBC took issue with the appellate Judge’s finding that there was an opportunity for it upon being satisfied that the requisite number of signatures in support of the initiative had been met, to undertake voter education and sensitization on the Amendment Bill.
63.IEBC maintained that its mand ate, as far as voter education is concerned, is limited to ensuring that voters are familiar with the processes governing the referendum as contemplated under Article 257(10) of the Constitution. Further, that the aforementioned role only comes into play once the President issues it with a notice to hold a referendum. Besides, relying on Republic v. County Assembly of Kirinyaga & Another Ex-Parte Kenda Muriuki & Another, HC JR Application No 271 0f 2019; [2019]eKLR (County Assembly of Kirinyaga Case), IEBC argued that conceptually, public participation, civic education and voter education are quite different in content, scope and intention.
64.Therefore, IEBC claimed that the superior courts below misapprehended the provisions of the Constitution with respect to the question of public participation. To buttress its position, IEBC urged that at the point of receipt of the Amendment Bill from the promoters, its mand ate under Article 257(4) was limited to verifying that the initiative is supported by at least one million registered voters. It argued that at the point of delivery of the Amendment Bill to the County Assemblies it was not yet seized of the referendum hence could not engage the public. In any case, IEBC expressed doubts that it was expected to conduct civic education over a referendum it would preside over.
65.IEBC contended that at the core of the issue of its composition and quorum were two decisions rendered by the High Court in Katiba Institute & Another v. Attorney General & Another, Constitutional Petition No 548 of 2017; [2018]eKLR (Katiba Institute Case) and Isaiah Biwott Kangowny v. Independent Electoral Boundaries Commission & Attorney General, Constitutional Petition No 212 of 2018; [2018] (Isaiah Biwott Case).
66.IEBC submitted that the Katiba Institute Case was rendered against a backdrop of a series of amendments to the Independent Electoral and Boundaries Commission Act No 9 of 2011 (IEBC Act), which initially provided that it shall constitute of eight (8) members and the Chairperson while Paragraph 5 of the Second Schedule thereto prescribed the requisite quorum of conducting business in its meeting as five (5). By the Election Laws (Amendment) Act No 36 of 2016 (Election Laws Amendment 2016) its composition was reduced to seven (7) members whilst the quorum of conducting business remained the same. Further, vide Election Laws (Amendment) Act No 34 of 2017 (Election Laws Amendment 2017) the quorum of conducting business was altered to read “…be at least half of the existing members of the Commission, provided that the quorum shall not be less than three members.” IEBC urged that it is the latter amendment which was challenged and declared unconstitutional in the Katiba Institute Case.
67.According to IEBC, the question that arose was the effect of the declaration of unconstitutionality. In this regard, IEBC stated that three possible scenarios became apparent. The first scenario, retrospective unconstitutionality which demand s that once a provision of a statute is repealed and replaced by another provision, the mere fact that the new provision has been annulled does not by itself render the repealed provision revived. To bolster that proposition, reference was made to this Court’s decision in Mary Wambui Munene v. Peter Gichuki King’ara & 2 Others, SC Petition No 7 of 2014; [2014]eKLR (Mary Wambui Case).
68.IEBC went on to demonstrate a second scenario stating that retrospective unconstitutionality is limited to the party who instituted the proceedings before a court. In that, where a court appreciates potential negative effects that a retrospective declaration of unconstitutionality will have formulates a middle ground. That is, the court directs that the declaration applies retrospectively only in relation to the party who moved the court and prospectively to any other person(s) who seeks to benefit from such declaration. To anchor this argument, IEBC relied on the decision of the Irish Supreme Court in Murphy v. Attorney General [1982] IR 241.
69.As for the last scenario, which IEBC referred to as prospective unconstitutionality, it submitted that the declaration of unconstitutionality takes effect from the date of the determination or some future date. By way of illustration, this Court was referred to Boniface Oduor v. Attorney General & Another; Kenya Banker’s Association & 2 Others, HC Petition No 413 of 2016; [2019]eKLR wherein the High Court suspended the invalidity of Section 33B of the Banking Act for a period of one year to enable the Attorney General and Parliament take remedial measures.
70.Consequently, IEBC maintained that the first scenario, as advanced by Tuiyott, J.A, is the correct position. As such, IEBC contended that both the superior courts below erred in relying on Paragraphs 5 and 7 of the Second Schedule of the IEBC Act as the basis of finding that it lacked quorum for purposes of carrying out its constitutional and statutory mand ate. This is because, as IEBC posited, the two superior courts erred by relying on repealed and non-existent law as opposed to being guided by the provisions of Article 250(1) of the Constitution.
71.Without prejudice to the above submissions, IEBC further contended that the issue of quorum was decided in the Isaiah Biwott Case. In giving a synopsis of the said case, IEBC submitted that the High Court found that there was no inconsistency between Paragraph 5 of the Second Schedule of the IEBC Act and Article 250(1) of the Constitution. Moreover, the issue of quorum was not only a matter provided for under the statute but was also a matter of common sense and construction dependent on the total number of the Commissioners appointed at any given time.
72.Pointing out that the said decision had not been challenged on appeal, IEBC argued that the question of quorum had already been settled by the Isaiah Biwott Case, which in its view, is a decision in rem, and binds the parties before the Court in question, the public at large as well as courts of concurrent jurisdiction. IEBC asked this Court to adopt the aforementioned perspective in order avert forum shopping with attendant consequences on the administration of justice. Therefore, relying on Article 250 and the Isaiah Biwott Case, IEBC argued that it was properly constituted as long as it had a minimum of three (3) Commissioners and was quorate at all material times.
73.Furthermore, IEBC submitted that in light of the Isaiah Biwott Case it had undertaken very many serious constitutional obligations most of which cannot be reversed; and any attempt to reverse the same would provoke far reaching consequences. Be that as it may, IEBC argued that even if the Court of Appeal made a merit review of the Isaiah Biwott Case it should have circumscribed and protected all decisions that were made by IEBC on the basis of the said decision. Likewise, that failure to do so had exposed it to potential challenges now and in the future in a manner that may not be remediable.
74.On referendum questions, IEBC submissions were in opposition to Morara Omoke’s appeal. Its contention was that Part V of the Elections Act No 24 of 2011 (Elections Act) and more specifically, Section 49 thereof places the obligation of framing referendum question(s) on it. Nonetheless, it asserted that, as it pertained to the matter at hand , it was yet to receive any request to hold a referendum hence its mand ate of framing questions had not crystalized. Further, IEBC argued that there was no evidence that it had taken a position on the issue. Consequently, there was no live issue before the High Court for it to entertain or make the determination it did; and moreover, the High Court could not purport to render an advisory opinion which is exclusively reserved for this Court. Finally, IEBC submitted that the Court of Appeal was correct in setting aside the High Court’s finding on this issue and urged this Court to uphold the same.
75.In conclusion, IEBC submitted that each party should bear their own costs regardless of the outcome of the appeals due to the public interest nature of the matter. However, it urged that on account of Morara Omoke’s plea for costs, costs should follow the event with respect to his appeal.
(iii) Parties Supporting the Appeals by the Attorney General and IEBC
(a) Speaker of the National Assembly and the National Assembly (13th and 15th respondents)
76.Learned Counsel, Mr. Josphat Kuyoni and Mr. Mbarak Awadh appeared for the 13th and 15th respondents. They filed joint submissions dated 14th December, 2021.
77.Beginning with the basic structure doctrine, the respondents submitted that by dint of Chapter Sixteen, all provisions of the Constitution including the basic structure are amendable provided the procedures laid thereunder are adhered to. Besides, to them, if indeed the framers of the Constitution intended that certain provisions could not be amended they would have expressly stated so like in the German, French and Italian Constitutions. Therefore, they contended that the finding by the two superior courts below that the basic structure could only be amended through the primary constituent power was not supported by the provisions of the Constitution; and the same had the effect of overthrowing the Constitution and subverting the sovereign power of the people. In any event, they urged that the Constitution has its own in-built restraint on Parliament’s power to amend the basic structure under Article 255 which is the very essence of the basic structure doctrine.
78.Supporting the Attorney General, the respondents held the view that nothing precludes an elected representative including the President from initiating a popular initiative under Article 257. Likewise, the respondents urged that the superior courts below failed to appreciate that the issue of public participation should be considered as a continuum of the entire amendment process based on the various stages prescribed under Article 257. Consequently, in their opinion since the process was ongoing the issue of public participation was not ripe for consideration.
79.They submitted that both Articles 256 and 257 make reference to a Bill that is either approved or rejected by Parliament depending on the subject being amended, hence in that context, there is no requirement for separate and distinct referenda questions.
(b) Speaker of the Senate and the Senate (14th and 16th respondents)
80.Learned Counsel, Mr. Job Wambulwa appeared together with Ms. Mercy Thanji for the 14th and 16th respondents. The respondents filed joint written submissions dated 10th December, 2021.
81.It is important to note that the respondents on one hand , in their written submissions indicated that whilst the basic structure doctrine is recognized and applicable in Kenya, they disagreed with the manner in which the two superior courts below applied the doctrine. Conversely, on the other hand , the respondents Counsel in his oral highlight submitted that their position was that the doctrine was not applicable in Kenya.
82.Be that as it may, the respondents argued that the two superior courts below failed to recognize that Kenya had progressed beyond the Njoya Case by enacting the current Constitution, which was self-executing and had no shortcomings such as would require application of a foreign doctrine predicated on different circumstances that were not obtaining in Kenya. Furthermore, they contended that the superior court below failed to appreciate that the doctrine had received varied reception in different jurisdictions; and even legal and academic scholars were not in agreement on its applicability as evinced by amici briefs on record. In the respondents’ opinion, the inclusion of Chapter Sixteen was deliberate and indicative of the framers’ intention that all provisions of the Constitution are amendable in accordance with the procedure set thereunder.
83.According to the respondents, nothing stops the President from initiating a popular initiative, which route is available to the President especially when the parliamentary initiative approach is impractical. Further, as far as the issues of public participation and referendum questions were concerned, the respondents expressed similar views as the 13th and 15th respondents.
(c) BBI National Secretariat and Hon. Raila Odinga
84.Mr. James Orengo, SC appeared together with learned Counsel, Mr. Paul Mwangi, Mr. Jackson Awele, Mr. Arnold Ochieng Oginga, Mr. Winfred Makaba and Prof. Ben Sihanya for BBI National Secretariat and Hon. Raila Odinga. The respondents filed joint submissions dated 7th December, 2021.
85.In emphasizing the different context in which the basic structure doctrine was applied in India, the respondents submitted that the Indian people, unlike the Kenyan people, delegated the entire amendment power to Parliament without reserving any power for themselves. In addition, in Kenya the amendment power of Parliament is expressly limited as set out under Articles 255 to 257 of the Constitution; and as such, the express provisions obviate the need for any judicial interventions. Consequently, they urged that any attempts by the courts to carve out any role in so far as the amendment of the Constitution is concerned amounts to double-limitation of the amendment powers and is unconstitutional.
86.Besides, in their view, the superior courts below misapprehended and conflated the basic structure of a Constitution with the basic structure doctrine. In that regard, the respondents contended that even though the Constitution has certain features which may be perceived to constitute the basic structure, the basic structure is not synonymous with the adoption of the basic structure doctrine.
87.The BBI National Secretariat and Hon. Raila Odinga, like the Attorney General, urged that nothing prohibited the President from undertaking constitutional changes through the popular initiative route under Article 257 of the Constitution. They held the view that the superior courts’ declaration of the Second Schedule as unconstitutional elevated an existing constitutional provision, that is, Article 89 of the Constitution, above any future amendments. They equally submitted that the issue of public participation was not ripe for the simple reason that the amendment process was still ongoing.
88.On quorum of IEBC, the respondents asserted that it is a peremptory principle of the supremacy of the Constitution under Article 2(4) that any law that is inconsistent with the Constitution is void to the extent of the inconsistency. Accordingly, in their view, Paragraph 5 of the Second Schedule of the IEBC Act fell in that category for requiring IEBC’s quorum as five (5) members when the Constitution had stated it could be properly composed with three members. They also argued that the extraneous and unconstitutional requirement that separate and distinct referendum questions be put to the people in a referendum rather than a Bill, as advanced by Morara Omoke’s appeal, lacked legal foundation and merit.
(d) The President
89.Mr. Waweru Gatonye, SC appeared with Mr. Mohamed Nyaoga, SC, Mr. Kiragu Kimani, SC and learned Counsel, Ms. Jacqueline Chemng’eNo The President relied on his written submissions dated 22nd December, 2021.
90.The President submitted that whilst Article 131 (2) (b) of the Constitution places an obligation upon him to promote and enhance national unity, the manner in which he executes the same is left to his discretion. In his view, he cannot initiate amendments to foster unity through Article 256 of the Constitution which is a clear preserve of the Legislature. Rather, the only recourse left for him is through a popular initiative under Article 257 of the Constitution.
91.The President asked this Court to examine presidential immunity as set out under Article 143 in light of judicial immunity under Article 160(5). According to him, Article 143(1) and (5) expressly provide that the President’s immunity against criminal proceedings is limited and does not extend to crimes for which the President may be prosecuted under international treaties ratified by Kenya. Similarly, under Article 160(5) the extent of judicial immunity is expressly prescribed to extend to only acts done in good faith. Therefore, the President urged that the above provisions were a clear demonstration that if the drafters of the Constitution intended to limit the President’s immunity with regard to civil proceedings they would have done so in express terms. To buttress his position, the President made reference to this Court’s decision in Bellevue Development Company Ltd. v. Francis Gikonyo & 3 Others, SC Petition 42 of 2018; [2020]eKLR (Bellevue Case).
92.The President maintained that Article 143 of the Constitution does not preclude the President from being held personally liable for any unlawful actions during his term of office once he is out of office. However, he submitted that there exist two alternative avenues to challenge the President’s actions or omissions while he is still in office: first, by suing the Attorney General; and second, through impeachment for gross violation of the Constitution or other law pursuant to Article 145 of the Constitution. Last but not least, the President urged that costs should follow the event and that Morara Omoke ought to pay his costs at the Court of Appeal and this Court.
(iv) Parties’ Partially Supporting the Appeals by the Attorney General and IEBC
(a) 254 Hope
93.Dr. Clarence Eboso appeared for 254 Hope and relied on the written submissions dated 10th December, 2021.
94.254 Hope began by submitting that the basic structure doctrine is based on the theory of delegation of authority whereby the people are the principal, delegating authority to the government (agent) through the Constitution. It serves as an inherent and constitutional limit on the exercise of constituted power including secondary constituent power in the amendment of the Constitution. In that regard, 254 Hope went on to state that Article 1 of the Constitution asserts that only the people have unfettered power and any organ acting under the Constitution is only exercising a delegated form of authority which is limited. Consequently, 254 Hope argued that the basic structure doctrine is applicable in Kenya to the extent that it is not expressly barred by the Constitution; and serves to limit the exercise of amendment power as a constituent power, when exercised by any authority secondary to the people.
95.254 Hope contended that primary constituent power in Constitution-making is a manifestation of sovereignty of the people; it is the primordial power to make a Constitution that precedes the Constitution hence cannot be limited by the Constitution; it is the source of the authority and validity of the Constitution; and may be bold and external or assert itself within ‘pseudo-constraints’ of the existing constitutional norm. Laying emphasis that primary constituent power may be exercised within a preexisting Constitution, reference was made to what 254 Hope termed as a valid and complete exercise of the popular initiative to amend the Constitution under Article 257 of the Constitution. In its view, a popular initiative constitutes a constitutional primary constituent power because it is fully participatory from its initiation by one million signatures of registered voters, through the legislative and constituent assembly processes to the referendum exercise where an amendment relates to certain aspects of the Constitution.
96.254 Hope submitted that it was a remiss for the superior courts below to on one hand , assert that primary constituent power is exclusively a supra or extra constitutional entity, unbound by any prior constitutional norms and incapable of limitation by the existing Constitution; and yet, on the other hand , despite being creatures of the Constitution, go ahead to define, with near-surgical precision, a detailed procedure of how the primary constituent power is to be exercised and even specifically direct that other infra constitutional organs may collectively facilitate such a process. In its view, the superior courts below should have simply settled at declaring the exclusive extra or supra constitutional nature of primary constituent power and the applicability of the basic structure doctrine as a limit to the amendment power under the Constitution, as the Supreme Court of India did in the Kesavanand a Case.
97.On whether the President can initiate changes to the Constitution, 254 Hope indicated that the real issue was not whether the President can initiate an amendment, but whether he may propose, promote and support a popular initiative. To that extent, 254 Hope submitted that the President in his official capacity, for instance while exercising his obligation to promote and enhance unity, has implied authority to propose an amendment to the Constitution.However, he can only make proposals to Parliament or the people and has no capacity to either initiate an amendment under Article 256 or 257 or officially promote or support such process. Nevertheless, according to 254 Hope, in his private capacity the President enjoys his political rights including the right to promote an amendment through a popular initiative but cannot utilize public funds to that end.
98.On the constitutionality of the Second Schedule to the Amendment Bill, 254 Hope also submitted that the superior courts’ declaration of unconstitutionality elevated an existing constitutional provision, that is, Article 89 above any future amendments, without recourse to the doctrines of unconstitutional constitutional amendments, or to the constitutionality of the amending authority and procedure. It was argued that the superior courts below ought to have considered whether the procedure was proper, whether the provision attempted to determine the form of governance hence not amendable by the secondary constituent power or whether the amending authority is an exercise of the primary constituent power.
99.Similarly, 254 Hope submitted that the President enjoys both functional immunity, like all public officials who perform state duties, which protects them from civil liability for official functions; and sovereign immunity as the Head of State. According to 254 Hope, the only way civil proceedings could be instituted against the President for violations of the Constitution is through the process of impeachment. Reference was made to Minister for Internal Security and Provincial Administration v. Centre For Rights Education & Awareness (CREAW) & 8 Others, Civil Appeal 218 of 2012; [2013]eKLR to support that assertion.
100.On quorum of IEBC, 254 Hope stated that if the Election Laws Amendment 2017, more specifically, Paragraphs 5 and 7 of the Second Schedule were declared unconstitutional due to non-compliance with the enactment procedure, then it would imply that no valid legislation had been competently passed hence no repeal had taken place. On the other hand , it urged that if the unconstitutionality was on the substance of the amendment, then the provision would remain in the statute books but with no valid effect to the extent of its unconstitutionality. Ultimately 254 Hope, expressed that since Parliament had not reviewed the provisions that had been declared unconstitutional, then it followed that the previous provisions remained in force.
(b) The 19th respondent (Mr. Isaac Aluochier)
101.Mr. Isaac Aluochier appeared in person, and he basically relied on his written submissions dated 9th December, 2021. He postulated that by dint of Article 2(3) of the Constitution neither a court nor a State organ has the jurisdiction to challenge the legality or validity of the Constitution. As far as he was concerned, the imposition of the basic structure doctrine by the superior courts below amounted to a challenge to the express provisions of the Constitution hence should be set aside.
102.He went on to assert that the suggestion that the President could promote a popular initiative was untenable under the Constitution. Further, he claimed that presidential immunity under Article 143 does not extend to constitutional violations by the President. However, it was his view that the pronouncement by the superior courts below went beyond what he had sought in his petition before the High Court. He claimed that he had sought a declaration that the President had acted outside the functions of his office by establishing the BBI Steering Committee hence he was liable. Consequently, he urged this Court to revert to his prayer as set out in the High Court and set aside the judgments of the superior courts on this issue.
103.Regarding the issue on whether IEBC was quorate, Mr. Aluochier wholly associated himself with IEBC’s position. According to him, IEBC was wrongly declared inquorate hence this Court should vacate such orders. He went on to submit that a valid constitutional Amendment Bill can contain only one amendment. He added that if the promoters of the Amendment Bill desired to propose more than one amendment, it was incumbent upon them to have prepared separate Bills for each proposed amendment and subjected each Bill to the amendment processes under Articles 255 to 257. In other words, he agreed with the High Court’s holding on the issue and urged the Court to uphold the same.
(c) Phylister Wakesho (the 72nd respondent)
104.Learned Counsel, Mr. George Gilbert appeared for the 72nd respondent and relied on her written submissions dated 8th December, 2021.
105.The 72nd respondent submitted that the substantive provisions of the Constitution are found in Chapter Sixteen; and in her view, it is not by mere coincidence that the said provisions are at the end of the Constitution. She asserted that the real substratum of the Constitution is found under Article 255(1) wherein the Constitution, in her own words, has cherry picked what it considered the most important substratum of the Constitution and laid out special stringent means of amending the same. According to this respondent, Article 255 (1)(a) to (j) form the design and architecture of the Constitution; in other words, the basic structure which can only be amended by referendum.
106.All in all, the 72nd respondent posited that by dint of Articles 255 to 257 not only is every part of the Constitution amendable but also the peoples’ power to amend the Constitution is unlimited. In that regard, the Court was referred to the High Court’s decision in Priscilla Ndululu Case. However, she reiterated that amendment of Article 255 has to be in line with the procedure outlined thereunder; otherwise, any amendment to the contrary is unconstitutional and null. Consequently, she faulted the Court of Appeal for importing what she believed was another basic structure, other than the one delineated under Article 255(1), and finding that the same cannot be amended.
107.On whether the President can initiate amendments to the Constitution, she asserted that under Article 38 of the Constitution, the President had equal rights as any other citizen to campaign for a political party or cause. The President does not cease being a citizen upon being elevated to presidency and as such, to assume that he could not initiate and promote an amendment to the Constitution through popular initiative without express provisions to that effect is discriminatory. She argued that all the President needed to do was to follow the prescribed procedures.
108.Moving to the constitutionality of the Second Schedule to the Amendment Bill, it was the 72nd respondent’s position that the issue was abstract and moot. She stated that Article 89(4) of the Constitution stipulates that new boundaries shall not take effect for purposes of an election if they are formed within 12 months of the election in question. According to her, by the time this consolidated appeal is determined, the scheduled elections of 2022 will be barely 6 months away hence it is neither possible nor logical for any action to be advanced in relation the boundaries.
109.As for institution of civil proceedings against the President, she submitted that the President’s immunity is limited to private civil matters under Article 143 of the Constitution. Expounding on that line of argument, she contends that the President cannot hide behind immunity when he acts beyond and /or in violation of the Constitution; the High Court by dint of Article 165(3)(b) and (d)(ii) is clothed with jurisdiction to question whether anything said to be done under the authority of the Constitution or any law is inconsistent with the Constitution; and therefore, the President is not immune to constitutional or judicial review proceedings before the High Court which are civil in nature.
110.The 72nd respondent echoed IEBC’s position that it has no role in ensuring public participation has taken place under Article 257(4); and its role thereunder is limited to verification of whether the initiative is supported by at least one million registered voters. Similarly, on composition and quorum of IEBC, she associated herself with IEBC’s submissions; that both the superior courts below relied on provisions that had been repealed and had no effect hence reached the wrong conclusion. She added that the IEBC has always been quorate to conduct its mand ate since Article 250(1) prescribes that each Commission shall comprise of a minimum of three members.
111.Opposing Mr. Morara Omoke’s appeal, as pertaining to the issue of the referendum questions, the 72nd respondent argued it was not justiciable since the mand ate to formulate such questions, which falls within the purview of IEBC, had not yet arisen by the time the matter was filed in the High Court. In her view, this Court while sitting as an appellate court also lacks jurisdiction to entertain the issue based on the doctrine of ripeness.
(v) Parties Opposing the Appeals by the Attorney General and IEBC
(a) Mr. Morara Omoke
112.Learned Counsel Mr. Morara Omoke appeared in person together with Mr. Topua Lesinko and Mr. Justice Nyagah. His written submissions were dated 24th November, 2021.
113.Though his appeal centered around the referendum questions, Mr. Omoke also opposed the appeals by the Attorney General and IEBC. In that regard, he submitted that the basic structure doctrine is applicable in Kenya as mirrored in the people’s aspiration under Article 1 of the Constitution. He contended that the Constitution does not limit amendment power under Article 257, but it does limit amendment power under Article 256. He therefore stated that the people’s intention at the inception of the Constitution was to preserve it for future generations unaltered. He therefore implored this Court to protect the architecture of the Constitution by upholding the applicability of the basic structure doctrine. On the issues of whether the President can initiate constitutional amendment, presidential immunity, public participation and quorum, Morara Omoke agreed with the findings of the two superior courts below.
114.Challenging the Court of Appeal’s decision on the referendum questions, he invited this Court to find that under Articles 255 to 257 of the Constitution, the phrases ‘a proposed amendment’; ‘the proposed amendment’; ‘the amendment’; ‘an amendment’; ‘a general suggestion’; are used in the singular deliberately. Moreover, he contended that those express terms do not countenance a large number of amendments in a single Bill. In his view, the Constitution restricts a draft Bill to a single amendment and nothing would have been easier than for the drafters of the Constitution to provide for ‘amendments’ in plural under Article 257, if that was their intention.
115.Mr. Morara further argued that due to Kenya’s troubled constitutional amendment history, the Constitution only permits an amendment at a time as a defence mechanism against its dismemberment through multiplicity of amendments in a single Bill to amend the Constitution either through a parliamentary or popular initiative. According to him, packaging multiple amendments into an omnibus Bill is a violation of Articles 38(3) and 257(10) of the Constitution and takes away the political right of every citizen to weigh each amendment on its own merit.
116.In other words, he submitted that omnibus Bills undermine the overarching values of democracy and accountability in so far as they do not allow the people to vote for or against specific items within them. He added that the requirement by Articles 10, 82(1)(d) and (2) that referenda should be conducted under a transparent system is informed by the need to ensure that constitutional amendments to every provision of the Constitution should not be hidden in the midst of other amendments such that they might not be noticed or considered by the people. Consequently, he stated that the Amendment Bill which contained seventy-eight (78) mostly unrelated amendments was a violation of Articles 255 to 257 of the Constitution.
117.In buttressing his position for single and distinct referendum questions, he propounded that the principle of unity of content or single-subject amendments would prevent the use of omnibus draft Bills for amendments and instead require promoters to propose amendments that focus on one subject alone. In that regard, he cited Michael, Douglas C. ‘Pre-election Judicial Review: Taking the Initiative in Voter Protection’ California Law Review, vol. 71, No 4, 1983, pp. 1216–38. Further, he argued that the said unity of content doctrine requires the formulation of multiple referendum questions in cases where a Bill for amendment of the Constitution by way of a popular initiative seeks to effect seventy-eight distinct and unrelated changes across fifteen Chapters of the Constitution. Finally, he prayed for costs of his appeal, to be borne by the President, Hon. Raila Odinga, IEBC and the Attorney General for reasons that their actions or omission necessitated the litigation.
(b) The 1st to 5th respondents
118.Learned Counsel, Mr. Nelson Havi and Ms. Esther Ang’awa appeared for the 1st to 5th respondents. The respondents relied on their joint written submissions dated 20th December, 2021.
119.Stand ing on his feet on behalf of the 1st to 5th respondents, Mr. Havi strenuously argued that a reading of the amendment provision in Chapter Sixteen reveals three features therein. Firstly, Article 255(1) entrenches certain provisions of the Constitution which can only be amended with the approval of the people through a referendum. Secondly, the Chapter codifies a dual track process of amending the Constitution either through parliamentary or popular initiatives and prescribes the conditions each must satisfy. Thirdly, the Chapter only contains provisions for amendments of the Constitution as opposed to its dismemberment.
120.Elaborating on the distinction between amendment and dismemberment, Mr. Havi submitted that an amendment is an alteration to the Constitution that corrects or modifies the same without fundamentally changing its nature, that is, it operates within the parameters of the existing Constitution; and the latter which alters constitutional fundamental values, norms and institutions amounts to dismemberment.
121.To Mr. Havi, the extent of the basic structure doctrine’s application can be traced from the history of the Constitution-making process in the Commonwealth. In Kenya particularly, the history demonstrates that the Constitution is the final product of the people to constitute a government and limit its powers. It follows therefore, that the basic structure of the Constitution could only be altered through the primary constituent power comprising of the four-sequence process (civic education, public participation, constituent assembly and referendum), which is akin to the powers and procedures that were applied by the people in formulating the current constitutional order. Counsel went on to submit that even in the absence of express codification of the primary constituent power in the Constitution, its existence and application is inherent since it antecedes the Constitution. To buttress that line of argument, Counsel cited the Njoya Case and the writings of Prof. Ernst-Wolfgang Böckenförde from the book, Mirjam Künkler and Tine Stein (eds), ‘Constitutional and Political Theory: Selected writings of Ernst-Wolfgang Böckenförde’ (2017, Oxford University Press).
122.Moreover, according to the 1st to 5th respondents, the application of the basic structure doctrine is justified as it acts as a democracy enhancing device that maintains the ultimate power of the people over their elected representatives to fundamentally alter the entrenched provisions of the Constitution. Towards that end, reliance was placed on the writings by Rosalind Dixon and David Land au, ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment’, (2015) 13 International Journal of Constitutional Law 606 and Minerva Mills Ltd. & Ors v. Union of India 1980 AIR 1789, 1981 SCR (1) 206.
123.According to the 1st to 5th respondents, the Amendment Bill which proposed to effect seventy-four (74) amendments to the Constitution thereby altering the entire system of the government was not only unconstitutional but also destructive of the state of democracy hitherto prevailing in Kenya. As such, in their view, the superior courts below could not be faulted for finding that some of the amendments thereunder required the exercise of primary constituent power.
124.The 1st to 5th respondents maintained that under Articles 257(9) and Section 49(1) of the Elections Act, the President’s role in a popular initiative is limited to assenting to an Amendment Bill and referring the same to IEBC for purposes of conducting a referendum. They further urged that based on the history of Constitution-making in Kenya, the popular initiative was exclusively for use by voters. As far as they were concerned, there was a deliberate effort to disguise the Amendment Bill which was actually a parliamentary initiative as a popular initiative. In addition, they argued that presidential immunity envisaged under Article 143 of the Constitution does not extend to constitutional violations by the President.
125.In their view, public participation is a requirement of a social contract and exists both inside and outside of the Constitution. In point of fact, they submitted that the Constitution textualises public participation in Articles 10,118, 124, 174 and 196 in so far as the making of decisions by the government that affect people are concerned. They added that even in the United States of America, where they urged that constitutional amendment by popular initiative originated, public participation is recognized as mand atory requirement before acceptance of an amendment proposal by the electoral body.
126.Therefore, they asserted that the contention that public participation was a requirement at the tail end fails to appreciate that a referendum is in respect of only the entrenched provisions of the Constitution. In addition, such erroneous interpretation, to the respondents, translated to exclusion of public participation at any other stage of the amendment processes contrary to the aspirations of the people and the Constitution.
127.While submitting on the issue of quorum, Ms. Ang’awa was emphatic that a court should always adopt a purposive construction of Article 250 (1) of the Constitution. She argued that the minimum number of Commissioners provided thereto as three must be construed alongside the provisions of Paragraph 5 of the Second Schedule to the IEBC Act, which provided the quorum as five Commissioners. According to Counsel, this reasoning is anchored on the public interest to the effect that all Commissions would perform at optimum capacity, and a quorum of three would mean that at any given time two Commissioners could end up making far reaching decisions that are against public interest. Counsel therefore urged us to uphold and support the finding of the superior courts below that IEBC lacked quorum. In any event, it was the view of the 1st to 5th respondents that the Constitution makes no express provision for quorum and only provides for the minimum and maximum membership. The respondents were also of the view that a valid constitutional Amendment Bill can contain only one amendment.
(c) The 7th to 9th respondents
128.Learned Counsel, Mr. Elias Mutuma appeared together with Ms. Caroline Jerono for the 7th to 9th respondents, who filed joint submissions dated 9th December, 2021.
129.Mr. Mutuma begun by urging this Court to find that the President is prohibited from pursuing a constitutional amendment through a popular initiative. In that regard, Counsel submitted that firstly, the people delegated legislative power to Parliament and not the President who exercises executive authority. Therefore, to allow the President to initiate a popular initiative would be going against the doctrine of separation of powers. Secondly, the respondents contended that the President is under a social contract with the people; that he took a solemn oath that he would inter alia obey, preserve, protect and defend the Constitution of Kenya; that to preserve means to maintain something in its original state; and therefore, the President in attempting to amend the Constitution goes against the very oath he took and violates his duty to the people under Article 131 of the Constitution. Thirdly, the respondents contended that the moment the President took office his private rights were limited by virtue of Article 24 of the Constitution.
130.Relying on Article 255, the respondents argued that Wanjiku’s role is not merely endorsement of the constitutional amendment process. Rather, Article 257 demonstrates that the place of public participation under the popular initiative is in a continuum, from the point of initiation of amendment proposals to their final adoption at the referendum. The 7th to 9th respondents contended that public participation must be purposive and meaningful. The burden of ensuring that the information reaches the people is upon the promoter of the popular initiative. To support this line of argument, they relied on the case of Doctors for Life International v. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (Doctors for life international Case).
131.It was also the respondents’ submissions that IEBC’s obligation under Article 257(4) of the Constitution is to not only validate the numeric compliance, but also to ensure that voters are educated on what they are endorsing incompliance with the voter education requirement under Article 88 (4)(g) of the Constitution. It followed therefore, according to the respondents, that IEBC is bound by Articles 10 and 33 of the Constitution. Therefore, IEBC should not overlook its role in ensuring that public participation is meaningfully and adequately carried out prior to receiving the draft Bill for amendment of the Constitution.
132.The respondents also urged that a valid constitutional Amendment Bill can contain only one amendment. They too believed that it is the element of hyper- amendability that the Constitution sought to prevent under Articles 255 to 257 by prescribing a single amendment in each Bill.
(d) The 11th and 12th respondents
133.Learned Counsel, Mr. Elisha Ongoya and Mr. Evans Ogada appeared for the 11th and 12th respondents and in addition to relying on their clients written submissions dated 9th December, 2021 they also made oral highlights.
134.They went on to urge that since IEBC had not challenged the superior courts’ findings on the Second Schedule of the Amendment Bill, the logical conclusion would be that IEBC agreed with the same. Likewise, the respondents contended that the issue was moot, vestigial and an academic exercise in light of the fact that new boundaries as had been proposed in the Amendment Bill could not take effect due to the general elections which were less than twelve (12) months away.
135.Be that as it may, they submitted that the proposed constituencies had not been established or apportioned in accordance with the proper procedures laid out under Article 89 hence, gave rise to issues of inequity. To them, the Attorney General’s argument that the delimitation was fair begs the questions, who determined its fairness and were the people consulted? Furthermore, to the respondents, the purported delimitation exercise under the Second Schedule was not only irregular, illegal, and unconstitutional but also amounted to blatant contempt of IEBC’s independence.
(e) Muhuri
136.Learned Counsel, Ms. Carolene Kituku appeared for MUHURI and relied on the written submissions dated 6th December, 2021 as well as her oral highlights.
137.Although Ms. Kituku extensively submitted on the issue of verification of signatures by IEBC and the requisite legal framework thereof, it is instructive to note that, these issues were not the subject of the consolidated appeal. In point of fact, Counsel confirmed as much in her oral highlights that there had been no challenge with respect to the findings on verification of signatures and the requisite framework thereof.
138.On quorum, MUHURI submitted that the Isaiah Biwott case was not binding on the two superior courts below hence, they could depart freely from it, if they found it had been wrongly decided. It asserted that while appreciating the important mand ate of IEBC, Parliament stipulated that the number of Commissioners should be seven (7) while placing its quorum at five (5) members. Moreover, MUHURI submitted that any attempt to reduce the quorum to three (3) through the Election Laws Amendment 2017 was declared invalid in the Katiba Institute Case which was also a judgment in rem.
139.However, MUHURI contended that an order for prospective application or suspension of the declaration of invalidity could only be available, if firstly, it had been specifically pleaded and secondly, in the event it was not pleaded, the same was granted by the court seized of a matter as the most appropriate remedy. Accordingly, MUHURI submitted that the remedies of prospective applicability or suspension of the declaration of invalidity are not available to IEBC in this consolidated appeal. MUHURI emphasized that this Court lacked the power to grant such a remedy no matter how attractive or appropriate it may be since it is not sitting on appeal or review of the Katiba Institute Case. Further, it urged that since the provisions of Paragraph 5 of the IEBC Act had not been challenged in this appeal as being inconsistent with Article 250(1) of the Constitution, then Paragraph 5 maintained its legal effect.
(f) Kituo Cha Sheria (the 79th respondent)
140.Learned Counsel, Dr. John Khaminwa, appeared for the 79th respondent and relied on the respondent’s written submissions dated 1st December, 2021.
141.Arguing on behalf of the 79th respondent, Dr. Khaminwa laid emphasis on the arduous history of Constitution-making which was reflected in the High Court’s observation that the Constitution was designed to respond to two sets of challenges that had plagued Kenya’s constitutionalism; that is, the culture of hyper- amendments wherein the political class amended constitutions with such ease and frequency rendering the same hollow shells; as well as realization of the emphasis on citizen led process of amendment of the Constitution.
142.As for the application of the basic structure doctrine, the respondent claimed that the answer lies in the Constitution. To the respondent, it was crystal clear from the Preamble of the Constitution that the people’s intention was that the basic structure should not be altered without their approval. Moreover, Counsel urged that since its recognition in India the basic structure doctrine has attained universal acceptance hence forms part of the general principles of international law which are applicable in Kenya by dint of Article 2(5) of the Constitution.
143.The 79th respondent asserted that the President cannot be a promoter of a popular initiative under Article 257 since that would amount to an infringement of Article 10 of the Constitution and is tantamount to usurping the people’s power as well as voiding social contract between the people and the State. It was the respondent’s submission that by virtue of the office and the delegated power he holds, the President cannot be considered as ‘the people’ envisioned under the Constitution. Besides, the respondent claimed that any process by a sitting President to initiate and promote a popular initiative easily turns into populist constitutionalism that can lead to constitutional populism.
(vi) Amici Briefs
(a) Prof. Rosalind Dixon and Prof. David E. Land au (1st and 2nd amici curiae)
144.With regard to the basic structure doctrine, the amici’ brief focused on the scope of the constitutional amendment powers under Articles 255 to 257. In their opinion, the Constitution contains limitations on the constitutional power of amendments and several different tiers for constitutional amendment. However, the limitations and different tiers thereunder are not exhaustive rather they were designed to establish a floor as opposed to a ceiling on democratic constitutional entrenchment. In other words, it was the view of the learned Professors that what is provided under Chapter Sixteen reflects certain minimum requirements for a successful constitutional amendment but in no way exhausts or precludes the existence and applicability of the basic structure doctrine in Kenya. Indeed, they provide support or confirmation of the general position that the Constitution was designed to entrench and protect the minimum core of democracy as espoused by the doctrine.
145.They urged that the above opinion on implied limits on the power of formal constitutional amendment resonates with the decisions of leading constitutional courts such as the Indian Supreme Court and the Colombian Constitutional Court operating in constitutional democracies. In point of fact, they opined that where courts in other jurisdictions have rejected the doctrine like Malaysia, Singapore, Zambia, Ugand a and Tanzania, there exists legal-political differences between such countries and Kenya hence, those authorities are not persuasive.
(b) Gautam Bhatia (the 3rd amicus curiae)
146.According to the 3rd amicus, justification for the basic structure doctrine, as found by courts that have upheld its application (including the superior courts below), rests on certain core principles. These are: constitutional provisions are concrete expressions of a set of underlying principles which constitute the distinct and unique identity of the Constitution; every Constitution prescribes a procedure for its amendment which is distinct from the concept of its repeal or replacement; and the power to create a Constitution or new identity, that is, the primary constituent power is distinct from the power to amend the Constitution using its own provisions, that is, the secondary constituent power.
147.The 3rd amicus went on to submit that, an amendment gives rise to the implicit assumption that what is being amended will retain its identity after the amendment; while repeal or replacement indicates the permanent loss of identity or creation of a new identity. Further, that primary constituent power is a sovereign act which is unbound by any existing legal structure while secondary constituent power flows from the Constitution. Consequently, the 3rd amicus urged that the essence of the doctrine is that the basic structure as the expression of constitutional identity acts as a substantive limitation upon the power of constitutional amendment.
148.He argued that the specific form and content that the doctrine takes in any particular jurisdiction is determined by the jurisdiction’s constitutional text, structure and history. Making reference to India, he stated that where the final word on amendments rest with Parliament, the doctrine takes the form of a prohibition upon amendments that seek to destroy the basic structure of the Constitution. He urged that given Kenya’s history, as well as the text and structure of Article 257, which envisages participation of both the people and the representative organs, it would not be appropriate, unlike India, for the application of the doctrine to include a judicial veto on amendments that violate the basic structure. In his view, the role played by the Judiciary must necessarily be a limited and procedural one; that is, adjudication of whether an impugned amendment violates the basic structure; and where it does, require such amendments be ratified under conditions that were equivalent to founding of the existing Constitution, that is, the four-step process set by the superior courts below.
149.He added that a referendum is not, in itself equivalent to the exercise of sovereign power involved in founding or re-creation of the Constitution. Making particular reference to Article 257, he argued that it carves out a role for direct democracy in constitutional amendments, by stipulating the role of the people at the beginning of a popular initiative and the end (ratification through a referendum). Nonetheless, to him, that role of direct democracy is to complement and act as an alternative to parliamentary initiative hence, it amounts to constituent power as opposed to a primary constituent power. Accordingly, he submitted that the substantive limitations imposed by the basic structure doctrine apply both to representative constitutional amendments as well as constitutional amendments via referendum.
150.Pertaining to whether the President can initiate changes to the Constitution, the 3rd amicus submitted that where a Constitution is silent on an issue, as Article 257, a court should follow two principles. These are: if there are two equally plausible textual interpretations of Article 257, the one that maintains the balance between representative and direct democracy ought to prevail over one that undermines or skews it; and where a constitutional question involves a clash of two constitutional principles, the Court should resolve the conflict in a manner in which both principles are allowed to have a maximum scope, and neither is subsumed by the other.
151.Based on the two propositions he argued that Article 257 contains an implied limitation upon the President’s participation in initiating an amendment through a popular initiative. He further explained that interpretation of Article 257 as allowing the President to initiate an amendment would upset the balance between representative and direct democracy characteristic of the provision. Equally, he submitted that the Court of Appeal’s finding that the President’s political rights under Article 257 were curtailed as long as he was in office was in line with the afore stated propositions.
152.On the referendum questions, he argued that the unity of content approach taken by the High Court is the correct position. The 3rd amicus went on to contend that the purpose of referenda is to give effect to the people's will, expressed directly through a yes or no vote on a question of national importance. Therefore, in his view, putting several issues unrelated by their content and nature, or several unrelated amendments to the Constitution, or several unrelated provisions of laws to a vote in a referendum as a single issue would deny determination of the actual will of the Nation regarding each significant issue.
(c) Prof. Migai Aketch (the 4th amicus curiae)
153.In the 4th amicus’ view, the superior courts below applied selective and erroneous version of the history of Constitution-making in Kenya. In turn, the courts disregarded firstly, the role that political compromise and the political elite played in the attainment of the Constitution. Secondly, that the people of Kenya were not only aware of the dangers of the culture of hyper-amendments but were also wary of overly rigid amendment procedures. Thirdly, that the question of how the Constitution would be amended had been extensively deliberated and resolved during the first phase of the constitutional review process.
154.All in all, he argued that taking into account the history of the Constitution making process, it was clear that, the provisions in Chapter Sixteen are meant to strike a balance between amendment procedures that are not too simple and not too rigid; the people did not intend to immunize any of the provisions of the Constitution from amendment; the people could amend any provisions of the Constitution by exercising their secondary constituent power either by themselves through a popular initiative or by their representatives exercising constituent power, as long as the stringent procedures in Chapter Sixteen are met.
155.As far the 4th amicus was concerned, the superior courts’ finding that people can only exercise their constituent power through the four mand atory sequential steps had no basis in Constitution-making practice or the Kenya’s history. In point of fact, he asserted that the Constitution was neither made using all the four steps alluded to nor in the sequence advanced by the superior courts below; and what was more, the draft Constitution that was subjected to a referendum in 2010 had been altered by the political elite through a pact and moreover it was tinkered with by a Committee of Experts who were charged with the responsibility of harmonizing the drafts.
156.He argued that political settlements on constitutional reform or amendment initiatives, like the BBI initiative and the resulting Amendment Bill, should be encouraged. Therefore, courts should not injunct, stop or refrain any process which leads to a referendum vote. The rationale, as per the 4th amicus, is that the people have the capacity and sensibility to reject constitutional amendments they consider not participatory or otherwise faulty, as they did the Wako Draft Constitution in 2005. In other words, he stated that a referendum is an effective constraint on those involved in the Constitution-making process because it gives the people the final authority to approve or reject elite settlements.
(d) Prof. Richard Albert (the 5th amicus curiae)
157.The 5th amicus curiae also held the view that there is a distinction between constitutional amendment and dismemberment; and that the Amendment Bill, was a constitutional dismemberment as opposed to an amendment. He contended once a court finds that a proposed amendment is actually a constitutional dismemberment only three options are available. Firstly, it can opt to do nothing about it, and permit constitutional reformers to proceed with their constitutional transformation. Secondly, it can declare that it violates the fundamental presuppositions of the Constitution, and ultimately invalidate the proposed constitutional reform on the basis of the basic structure doctrine. Finally, it may declare the proposed reform unconstitutional for violating the basic structure and concurrently offer a road map of how the reformers may lawfully proceed with the intended reforms. According to the 5th amicus, the Court of Appeal opted for the third option and advanced the four-stage sequence of amendment, which in his view, was rooted in the rule of mutuality. He went on to submit that the rule of mutuality entails that a democratic Constitution may be dismembered using the same procedure that was used to ratify it.
158.Be that as it may, the 5th amicus submitted that while the doctrine of unconstitutional constitutional amendments has received varied reception, Article 165 and its interpretation leans more towards the courts accepting rather than rejecting the doctrine.
159.In his view, the Constitution is unclear on how to put the referendum question to voters. Nevertheless, he believed that only two options are available for voters in a referendum; voters must either approve or reject the entire package of reforms presented to them or separately approve or reject every single individual reform proposal. Outside of these, he added, a separate option occurs upon the determination by a court that an Amendment Bill contains amendment proposals sufficiently related to each other. In his view, the Bill may be put to a single referendum question in its entirety, as one mega-package, for voters to either approve or reject the multi-subject Bill at once. He urged this Court to find that if an Amendment Bill consists of several different subject-matter, the voting management body shall put different sets of related amendments to voters as separate self-stand ing referendum questions. Thereafter, the voters choose to approve or reject the various proposals as opposed to requiring the voter to reject the entirety of the multi-subject Bill.
160.He however warned that application of the ‘rule of subject-matter relatedness’ may attract criticisms that a court is interfering with the constitutional reform process. He urged that the Court may consider applying this ‘rule of subject-matter relatedness’ in the context of the Amendment Bill if it ultimately upholds this constitutional reform and authorizes it to proceed to a referendum.
(e) Prof. Yaniv Roznai (the 6th amicus curiae)
161.Discussing the nature of constitutional amendment, the 6th amicus curiae argued that a country’s amendment formula is significant in balancing between flexibility and rigidity and often gives insights into the intricacies and peculiarities of a country’s social and political culture. In that regard, he submitted that some jurisdictions incorporate selective rigidity in the amendment of some of their constitutional provisions which they deem fundamental, either by prescribing a difficult amendment process or out rightly demarcating such provisions as unamendable. Nevertheless, he contended that while the unamendable provisions serve as a mechanism for limiting amendment power they do not and cannot limit the primary constituent power. Putting it differently, he stated that even unamendable provisions are subject to changes introduced by extra-constitutional forces.
162.In addition, he urged that courts in various jurisdictions have even gone beyond the text of the Constitution to recognize the idea of implied limitations on constitutional amendment power, like the basic structure doctrine. Nonetheless, he contended that whilst there was an increasing prevalence of the unconstitutional constitutional doctrine, it was yet to mature into a universal norm of constitutionalism. As such, in his view, circumstances under which a court may apply doctrines of implied limitations depend on firstly, the flexibility or rigidity of the amendment process; the more rigid the process is, the less need for implied limitation and vice versa; secondly, whether one party or the executive controls the amendment process; thirdly, whether a stable political-democratic culture that respects the rules exists; and fourthly, whether a country is part of a strong regional mechanism where there are various machineries to ensure rules and values are respected.
163.As for the scope of amendment power, the 6th amicus submitted that it is a delegated power exercised by special constitutional agents of the people. It is therefore subordinate to the principal power, that is, the primary constituency power, it draws its legal competency from; and cannot be used to destroy the Constitution or its basic principles.
164.In conclusion, he urged that the basic structure doctrine is applicable in Kenya as several matters can only be amended by the people and not Parliament. Furthermore, he was of the view that the role played by the people under the multiple procedures prescribed in Chapter Sixteen for amending certain provisions in the Constitution including the referendum thereunder, does not amount to an exercise of primary constituent power. He argued that people may be regarded in two distinct capacities; as a source of absolute power (primary constituent power) that may create a new constitutional organ, and as a constitutional organ established by the Constitution for its amendment (secondary constituent power). In other words, that role played by the people in a popular initiative and referendum under Chapter Sixteen is derived from the Constitution hence, cannot be used to destroy the basic structure of the Constitution.
(f) Prof. Charles Manga Fombad (the 7th amicus curiae)
165.According to the 7th amicus curiae, the framers of the Constitution provided three procedures for amending it in Articles 255 to 257; that is, an amendment by Parliament with the special majority; an amendment by Parliament subject to approval at a national referendum; and an amendment by popular initiative subject to approval at a national referendum. He argued that the Judiciary could not introduce a fourth method for amending the Constitution as the superior courts below did.
166.In his opinion, the doctrines of basic structure, constitutional unamendability and eternity clauses pose risks to constitutionalism, the rule of law, and democracy. Besides, he submitted that the framers of the Constitution intended for the Constitution to be amendable and transformative, otherwise they would have crafted specific clauses on the applicability of the basic structure doctrine. He argued that in limiting constitutional amendments under Article 257 of the Constitution, the superior courts below placed an impermissible constraint on the sovereign power of the people. Furthermore, he urged that considerable caution is necessary when invoking theories and principles developed by non- African scholars since most of those theories are based on western constitutions.
(g) Dr. Adem K. Abebe (the 8th amicus curiae)
167.In his brief, the 8th amicus began by stating that the recognition of the existence of a basic structure in the Constitution does not necessary lead to judicial enforcement of limits on the amendment of such structure. As far as he was concerned, whether or not a basic structure exists and how it should be defended is best left to the regular political process involving the people, civil society, the media, public intellectuals, and political institutions at the national and county levels. He argued that indeed Chapter Sixteen of the Constitution intentionally specifies what is considered the fundamental core of the political framework and provides for a heightened process of its amendment designed to ensure critical political deliberation, high-level consensus, and a direct say of the people.
168.Moreover, he stated that unless judicial power is specifically granted or naturally flows from the Constitution, courts should steer away from invoking power to evaluate and replace the considered judgment of the people and political representatives regarding substantive quality of amendments. Accordingly, he submitted that the superior courts below erred in outlining a four-step sequence process of amending the basic structure, which is quintessentially for the sovereign to determine. In any event, he stated that the proposed sequential process has already been given effect through the current constitutional amendment process.
169.He submitted that the question as to whether amendment proposals should be presented as one, separate or clustered proposals should be left to those proposing the amendment given the interrelations between the various proposals. Further, he urged that had the referendum in respect of the Constitution, which was adopted as a single document, been held on each provision or even clusters of provisions, the outcome would have been widely different. In his opinion, separate presentations of amendment proposal are rare in comparative practice.
(h) Dr. Duncan Ojwang’, Dr. John Osogo Ambani and Dr. Linda Musumba
170.They submitted that the basic structure doctrine as expressed in Kesavanand a Case exists as a concept to limit and guard against irregular constitutional amendments and unconstitutional constitutional amendment processes. In that, while it allows constitutional changes it requires that changes which alter the constitution’s identity be effected through the use of constituent power.
171.According to them, the scope of the basic structure doctrine in Kenya can be gleaned from the Njoya Case, the Commission for the Implementation of the Constitution Case as well as the Thirdway Alliance Case. It seeks to identify and guard against amendments that dismember, alter or change the basic structure notwithstand ing the process used. In that regard, they urged that referendum process prescribed in Chapter Sixteen does not offer one a carte blanche to alter the Constitution by bypassing the sequential process identified by the superior courts below. They went on to submit that constitutional provisions that form the basic structure could only be amended through the exercise of primary constituent power (sequential process), which exists outside the Constitution as opposed to secondary constituent power which is a creature of the Constitution.
172.In their opinion, the history of the Constitution-making process justifies the four sequential processes as a balance between rigidity and flexibility in amending the Constitution. Besides, amici argued that the interpretation of the Preamble and Article 1 of the Constitution indicates that the Kenyan people intended that the Constitution should be altered using the same process it had been adopted. In other words, they contended that what the people had in mind is that the Constitution would be changed through the exercise of primary constituted power comprised of the four stages as opposed to the secondary constituent power or constituted power.
173.They submitted that the President as the Head of the Executive and Government cannot be the promoter of a popular initiative under Article 257 based on the social contract of the Constitution, which emphasizes separation of powers, checks and balances. According to them, under the social contract theory, the constituent power belongs only to the private citizens called the people who form the social compact and not those who govern. Consequently, they urged that by virtue of Article 131 (2) of the Constitution, the President must safeguard the sovereignty of the people and not his sovereignty. Furthermore, Article 38 of the Constitution cannot be used by state officers to capture the people's sovereignty since once a citizen becomes the President, they cease to be an ordinary citizen; and are precluded from simultaneously playing participatory and representative democratic roles.
174.On the issue of referendum questions, amici associated themselves with the findings of the High Court.
(i) Dr. Jack Mwimali
175.He submitted that a holistic interpretation of the text, spirit, structure, and history of the Constitution leads to the finding that the basic structure doctrine applies in Kenya; and that it implicitly limits the amendment power in Articles 255 to 257. As such, he argued that any fundamental changes to the Constitution must be the subject of the four-step sequential process. According to him, the amendment powers in Articles 255 to 257 are secondary amendment powers derived from the Constitution and subject to the limitations imposed by the prescribed procedure thereunder. The amicus went on to urge that Judges may invalidate any exercises of the derivative amendment power that purport to violate the Constitution’s basic features.
176.According to Dr. Mwimali, if the Attorney General’s argument on presidential immunity was to be upheld, it would have the effect of hoisting the holder of the Office of the President above the law and immunize his conduct from judicial scrutiny.
(j) Kenya Human Rights Commission (KHRC)
177.KHRC submitted that the basic structure doctrine, eternity clauses and unamendable constitutional provisions are not only applicable in Kenya but can also be discerned from the Constitution. In particular, it urged that the basic structure doctrine as applied in Kenya protects certain fundamental aspects of the Constitution, which in its view are delineated under Article 255(1), from amendment through the use of either secondary constituent power or constituted power. Moreover, KHRC argued that the basic structure cannot be altered through the multi-tiered process prescribed under Chapter Sixteen of the Constitution.
E. Analysis
178.As previously observed, the instant consolidated appeal is predicated on Article 163(4)(a) of the Constitution which clothes this Court with jurisdiction to determine appeals from the Court of Appeal on questions of interpretation and application of the Constitution. Although the length and breadth of the pleadings and arguments as summarized above touched on several Chapters of the Constitution, the common denominator is that they are focused on the interpretation and application of Chapter Sixteen of the Constitution. The two superior courts below have given their elaborate views on how these provisions are to be interpreted and applied and in my view therefore, this Court’s jurisdiction is properly seized under Article 163(4)(a) of the Constitution.
179.Having set out the issues framed by the Court for determination beforehand , I will now proceed to deal with them sequentially.
(i) Basic Structure Doctrine
180.It is pertinent in the circumstances to point out that the basic structure doctrine as articulated by the High Court was also endorsed by the majority Judgment of the Court of Appeal. The sum total of the two decisions being that, beyond the three stipulated pathways for amending the Constitution provided in Chapter Sixteen, there are certain fundamental features in the eighteen (18) Chapters of the Constitution that are not amendable without first determining on a case by case basis whether a proposed amendment forms part of the basic structure. Further, that any amendment to those particular Articles identified as fundamental features of the Constitution, would follow a four sequential process being civic education, public participation and collection of views, constituent assembly debates, and a referendum. In effect, the two superior courts below concluded that certain provisions of the Constitution are beyond the reach of the enumerated amendment powers stipulated in Chapter Sixteen of the Constitution.
181.The history of the emergence and evolution of the basic structure doctrine was comprehensively captured in the very detailed judgments of the two superior courts below. Therefore, I will merely mention some of its key features to place my findings in perspective. The basic structure doctrine first received judicial recognition in 1973 in the Kesavanand a Case, a decision of the Supreme Court of India. The case concerned a challenge to the state government of Kerala’s attempts, under two land reform Acts, to allow the state government to acquire privately held land to fulfil its socio-economic obligations. Subsequently, the Indian Parliament passed the Constitution (24th Amendment) Act, (25th Amendment) Act, and (29th Amendment) Act which in one way or the other shielded the Kerala State’s Land Reform Acts from being challenged in court. It is in this context, that the Supreme Court of India addressed the question of whether there were limits to Parliament’s power to amend the Constitution.
182.In a majority finding by seven (7) Judges, with six (6) Judges dissenting, the Supreme Court of India held that the Constitution (24th Amendment) Act, (25th Amendment) Act, and (29th Amendment) Act passed by Parliament exercising its powers under Article 368 of the Constitution of India were unconstitutional to the extent that they damaged the basic structure of the Constitution. As enunciated therein, the doctrine places substantive limits on the amending power by placing the basic features of the Constitution beyond the Legislature’s power to amend the Constitution. In effect, the Supreme Court of India endorsed the idea that a constitutional amendment can be unconstitutional on substantive grounds.
183.The particular provision of the Constitution of India that was interpreted by the Supreme Court of India to yield the aforesaid finding was Article 368 which provided that:“An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.”It is irrefutable that a reading of the above provision clearly shows that the amendment process under the Constitution of India is exclusively vested in the Legislature. This therefore means, the amendment process of India’s Constitution can be described as falling under the flexible model of amendment powers in the flexible-rigid dichotomy used to categorise the nature of amendment powers in a given Constitution. and for this preposition, see books by; Zachary Elkins et al in ‘The Endurance of National Constitutions’ (2009, Cambridge University Press) 81; and Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions’ (2019, Oxford University Press) 95.
184.Subsequently, the basic structure doctrine and the idea of limits on power to amend a Constitution have been considered by courts in several jurisdictions across the world and received mixed reception. For example, the basic structure doctrine and its various variants have been accepted in Bangladesh, Belize, Colombia, Taiwan, Malaysia, Slovakia, and Peru; while courts in France, Georgia, South Africa, Singapore, Zambia, Ugand a, and Tanzania have rejected the doctrine. What this state of play demonstrates, which has been recognised by some of the distinguished scholars as reflected in the various materials cited before us, is that the basic structure doctrine has not yet matured into a universal norm of constitutionalism. It is in appreciation of this reality that Richard Albert et al, observe in ‘The Formalist Resistance to Unconstitutional Constitutional Amendments’ (2019) 70 Hastings Law Journal 639, at page 642 as follows:“But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It may well be that the doctrine fits in a given constitutional tradition and should be incorporated into its practices of adjudication. But this is a choice for a state and its domestic actors to make according to their own norms of governance. The politics of constitutionalism must remain localized in their particularized social and political circumstances. Otherwise, when combined with the enormous pressure on states in our day to conform to what may appear to be generally accepted stand ards of global constitutionalism, the trend toward adopting the doctrine of unconstitutional constitutional amendment might overwhelm the capacity of a state to evaluate whether the doctrine is right for itself in light of its own juridical history, political context, and constitutional traditions.The doctrine of unconstitutional constitutional amendment is most certainly not a necessary feature of modern constitutionalism, nor even of the narrower idea of modern liberal democracy. It is important for all constitutional actors to know that there is another answer to the question whether an amendment can be unconstitutional. Constitutional designers, adjudicators, and amenders should know that it is an altogether reasonable choice to deny the possibility of an unconstitutional constitutional amendment... [in effect] the doctrine has not yet matured into a global norm of constitutionalism.”
185.Given that the basic structure doctrine has not matured into a universal norm of constitutionalism or a doctrine of general application, courts have adopted the approach of evaluating its ‘fit’ within their constitutional systems before accepting its applicability in the various jurisdictions where it has been considered.
186.In the Kenyan context, this Court has already developed an approach which courts are obligated to follow in ascertaining whether to transplant any juridical idea to the Kenyan constitutional system in the post-2010 constitutional order. In the Vetting Board Case, this Court grappled with the question of the scope and effect of the ouster of the judicial review power of the High Court by a constitutional ouster clause. Whereas the Court considered similar jurisprudence on ouster clauses from other common law countries that had been inspired by the land mark decisionof the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission and Another [1969]2 A.C. 147, the following observation by Mutunga, CJ (as he then was) is pertinent:“210.….in interpreting the Constitution, Courts must take cognizance of Kenya’s unique historical context which is aptly captured in the majority opinion, and by the dissents of Murgor and Sichale, JJ.A. In holding that the English case, Anisminic was not applicable to the vetting process, Murgor, J.A observed that where the ouster clause is part of the Constitution itself, most jurisdictions such as the West Indies, India and England have followed the principles set out in Anisminic. The learned Judge held (at paragraph 76) that given Kenya’s unique historical circumstances, Anisminic was not applicable “on all fours,” in the interpretation of Section 23(2) of the Sixth Schedule to the Constitution; hence that case is to be distinguished.…218.Although certain jurisdictions, such as India and Germany, have perceived judicial review as an immutable structure of their Constitutions, these jurisdictions do not have Constitutions that are as unique as Kenya’s. We must ask whether the foreign jurisdictions we seek reliance upon, have Constitutions and , if they do, whether these Constitutions have provisions akin to Articles 1, 23, 159 and 259 which emphasize the sovereignty of the people; or whether they have principles and values, like the ones found in Article 10, which apply to the interpretation and application of the Constitution; or whether they have legislation similar to our Supreme Court Act, which introduces Kenya’s historical context into the interpretation of the Constitution. If the answers to these questions are in the negative, then the common law doctrines found in other jurisdictions, foreign cases and foreign constitutions, must be interpreted in such a manner as to reflect our modern Constitution, and our unique conditions and needs.”
187.I have considered the above dictum in light of the obligation imposed on this Court by Section 3(c) of the Supreme Court Act, No 7 of 2011 which is to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth”. Accordingly, before declaring the applicability or otherwise of the basic structure doctrine in Kenya’s constitutional context, the Court is obligated to take into account our constitutional history especially bearing in mind that the doctrine, which found root in India in 1973, was available when the framers of the Constitution conceptualised the provisions of Chapter Sixteen on amendments. Another way of looking at the matter is to ask a pertinent question as to whether there was a gap identified in particular in regard to the provisions of Chapter Sixteen of the Constitution requiring to be sealed by the basic structure doctrine.
188.In addition, in evaluating whether the basic structure doctrine is applicable in our constitutional system, a court must take into account the purposive and value-based interpretation decreed by Articles 10, 20(4), 159, and 259(1) of the Constitution. Such an approach to constitutional interpretation begins from and remains rooted in the text of the Constitution whilst interpreting it holistically, giving effect to its values and principles, and never losing sight of the historical context and the backdrop of the provisions being interpreted. Therefore, to comprehend and contextualise whether the Constitution contemplates the basic structure doctrine, the starting point should be the rationale behind the provisions of Chapter Sixteen of the Constitution as documented in the preparatory documents from the Constitution-making process.
189.It is an understatement to say that the Kenyan Independence Constitution endured a legacy of hyper-amendment during the post-independence period. The former Constitution was flexible giving the Legislature wide power and discretion in amending it. As a result, Parliament undertook so many amendments to the Constitution that it lost its original character. The most significant amendments being the merger of the Senate and the House of Representatives to establish a unicameral Legislature; abolition of the quasi-federal (regional) governments that led to the establishment of a unitary State; and alteration of the entrenched majorities required for constitutional amendments making it easier to amend the Constitution. Yet another repulsive amendment was the abolition of the security of tenure for Judges and other constitutional office holders. Ultimately, the amendment that finally broke the proverbial camel’s back giving rise to the clamour for a new constitutional order was the one that converted the country from a multi-party democracy to a de jure one-party State in 1982.
190.Informed by this history, Kenyans yearned for a stable constitutional system where the power to amend the Constitution would not be abused for short-term interests by the political elite. The CKRC Final Report records at page 74 that Kenyans expressed the view that:“There is need to protect the Constitution against indiscriminate amendments. If the amendment procedure is too simple, it reduces public confidence in the Constitution. The converse, however, is also true. If the amendment procedure is too rigid, it may encourage revolutionary measures to bring about change instead of using the acceptable constitutional means. Thus, a balance must be struck between these two extremes” [my emphasis].
191.What emerges from the historical account is that there was a strong concern that the country should adopt provisions on amendment power that are able to protect the constitutional order from abusive amendments. But this was not all. There was also a recognition that the Constitution must remain flexible in order to adjust to political, social, economic, technological and other changes that would take place in the polity. In effect, the overarching imperative that informed the drafting of Chapter Sixteen was the need to find a proper balance between rigidity and flexibility.
192.The quest for a balance between rigidity and flexibility is evident in the ‘tiered’ amendment provisions in Chapter Sixteen which stipulates three pathways for amending the Constitution. The first pathway under Article 256 provides for amendment by parliamentary initiative. This process involves public participation and approval by the Houses of Parliament through a vote of endorsement by two- thirds of all the members of each House during the second and third readings of an Amendment Bill. The second pathway under Article 257 provides for amendment by popular initiative. This process involves collection of at least one million signatures from registered voters in support of the popular initiative by the promoters of an initiative; approval of the initiative by a majority of the County Assemblies; and passage of the Bill by a majority of the members of each House of Parliament. In this second process, if either House of Parliament fails to pass the Bill, the proposed amendment is submitted to the people in a referendum.
193.The third pathway stipulated in Article 255 relates to what has come to be known as the entrenched provisions of the Constitution. Some of the Court of Appeal Judges referred to these entrenched provisions as forming the basic structure of the Constitution. Article 255(1) of the Constitution stipulates that in addition to adopting either the parliamentary initiative or popular initiative pathway, where an amendment relates to the following Articles, a Bill to amend those provisions shall be subjected to a referendum:“the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance referred to in Article 10(2); the Bill of Rights; the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which chapter fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of chapter sixteen on amendment of the Constitution.”Approval through the envisaged referendum under Article 255(2) must satisfy two conditions. At least twenty percent of the registered voters in each of at least half of the counties should vote in the referendum; and such an amendment should be supported by a simple majority of the citizens voting in the referendum.
194.A reading of the three pathways for amending the Constitution in Chapter Sixteen clearly shows that Kenyans were alive to the historical legacy of the culture of hyper-amendment in the pre-2010 era and sought to tame any abuse of the amendment power. In particular, Article 255(1) and (2) of the Constitution demonstrates that, alive to the culture of hyper-amendments, the Kenyan people sought to ring-fence the core or fundamental commitments of the Constitution by entrenching them and subjecting the process of their amendment to deepened public participation; as well as imposing a down-stream constraint or veto by stipulating that the entrenched provisions enumerated in Article 255(1) of the Constitution can only be amended through a referendum process. The rationale of entrenching the provisions mentioned in Article 255(1) of the Constitution is, in my view, informed by the very democratic idea that constitutional amendments of a fundamental nature should take place through a deeply participatory process and be ratified by the people, being the ultimate sovereign in the polity, through a referendum.
195.The approach in balancing flexibility and rigidity in constitutional amendment adopted in Chapter Sixteen reflects and compares favourably with modern constitutional architecture and design. Drafters of contemporary constitutions pursue the goal of balancing rigidity and flexibility through what has been termed as ‘tiered’ design of amendment rules. This argument is augmented by a number of articles cited before us, particularly: Rosalind Dixon and David Land au, ‘Tiered Constitutional Design’ (2018) 86 The George Washington Law Review 438, 441 and Richard Albert, ‘Constitutional Hand cuffs’ (2010) 42 Arizona State Law Journal 663, 709.
196.Under the ‘tiered’ design model, amendment rules vary with provisions that are core or fundamental to the constitutional system being placed on a higher tier and made more difficult to amend. The amendment rules under the Constitution adopt this modern ‘tiered’ constitutional design combining the virtues of rigidity and flexibility by having different amendment procedures apply to different parts of the Constitution. The core foundational values, principles and structures of the Constitution have been granted a high level of entrenchment to ensure the stability of the constitutional system. It follows therefore, that Kenyans were conscious of the core constitutional values, principles and structures that they wanted protected from abusive amendments and they protected them through the entrenched provisions in Article 255 of the Constitution. In my view therefore, the framers of the Constitution well aware of the basic structure doctrine, chose to ring-fence some key features from flexible amendments; and if it was their intention to provide for eternity clauses or the basic structure doctrine, nothing would have stopped them from so doing.
197.The next question that follows is whether it was necessary for the two superior courts below to adopt the basic structure doctrine and thereby devising a fourth pathway for amending the Constitution outside the three pathways stipulated in Chapter Sixteen.
198.To answer this question requires one to appreciate how the High Court and the majority of the Court of Appeal proceeded to analyse Chapter Sixteen. It was on the premise that based on the history of hyper-amendment of the repealed Constitution during the pre-2010 dispensation, the Constitution demand s heightened procedures beyond the ‘tiered’ design of the amendment procedures stipulated in Chapter Sixteen that would make the Constitution more difficult to amend. The two superior courts below however did not go into a detailed analysis and to specifically point out the actual shortcomings of the provisions of Chapter Sixteen especially in light of all the twenty-one (21) unsuccessful attempts that have been made over the last ten years to amend the Constitution.
199.The Court of Appeal in my respectful view had a duty to analyse the findings of the High Court and specifically point our whether there were apparent inadequacies as far as the provisions of Chapter Sixteen were concerned. Looking at the history as stated above, as well as the provisions of Chapter Sixteen, it is clear to me that Kenyans sought to achieve a balance between rigidity and flexibility in the amendment process. Kenyans did not want to shift from one extreme to another extreme in the amendment spectrum, that is, from hyper-amendments to ultra-rigidity in the amendment process. Rather, what Kenyans desired is a balance between rigidity and flexibility as reflected in the ‘tiered’ amendment process in Chapter Sixteen in the Constitution; with the core or essential features of the Constitution being accorded heightened protection but still open to amendment through an enhanced inclusive and participatory process that culminates in the people exercising their sovereign power through ratification in a democratic process in the form of a referendum.
200.The High Court and the majority of the Court of Appeal, with tremendous respect, failed to appreciate that the ‘tiered’ amendment procedure is one of the options available in the menu of constitutional design options for dealing with the practice of abusive amendments just like other design options that limit amendability (for example, eternity clauses and the basic structure doctrine). Therefore, where Kenyans have selected the ‘tiered’ amendment procedure as their response to the culture of hyper-amendability, I find it difficult to justify this judicially-created ‘fourth pathway’ of amending the Constitution founded on the basic structure doctrine. Unfortunately, there was no justification provided to demonstrate the lacuna in the Constitution and hence, the need to call in aid the basic structure doctrine to enhance the existing tools of interpretation. The pre- 2010 history of Kenya is replete with precedents of application of foreign laws and doctrines from the commonwealth and other jurisdictions which was done due to absence of local statutes. Today, I dare say that courtesy of our own Constitution, we have sufficient arsenals that include our own canons of interpretation which we must exhaust before borrowing from other jurisdictions.
201.Further, I also see a potential conflict within the constitutional system with this judicially-created ‘fourth pathway’ for amending the Constitution. This is for the simple reason that in our constitutional dispensation that is people- centered; our nascent democracy that respects the doctrine of separation of powers by vesting legislative power in the Legislature, to create a ‘fourth pathway’ within the scheme of amendments would bring into question the place of the participation of the people and the place of Legislature in that scheme. Taking into account where we are at in our constitutional democracy, Kenyans needed to be consulted on whether it is their wish to introduce the ‘fourth pathway’ for amending the Constitution. In other words, we, Judges should be vigilant lest we are accused of usurping the sovereign power vested in the people by introducing a constitutional amendment through judicial fiat.
202.Put differently, the ‘tiered’ amendment process provided in Chapter Sixteen of the Constitution is a design option for dealing with the problem of abusive amendments and obviates the need for judicially-created limits to amendment power like the basic structure doctrine. This is in line with the view expressed by Rosalind Dixon and David Land au in ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment’ (2015) 13(3) International Journal of Constitutional Law at page 613 where they remark thus:“The doctrine of unconstitutional constitutional amendment is useful as a partial solution to these threats. It is not the only possible response: another way in which the problem of abusive constitutional amendments can be dealt with at the level of constitutional design is via the use of some form of “tiered” amendment procedure. A system of tiered amendment thresholds has become a part of the comparative constitutional state of the art: many new constitutions include different amendment rules for different parts of the Constitution. The point of these schemes is to require more demand ing demonstrations of popular will to amend some parts of the constitutional order as opposed to others, thus raising the costs of dangerous forms of constitutional change” [my emphasis].
203.My take home from this scholarly perspective is that ‘tiered’ design of constitutional amendment processes is one of the design options used in curbing the problem of hyper-amendment. This tells us that judicially-created basic structure doctrine is not the only option available in the design toolkit for curbing abusive amendment practice. Moreover, the ‘tiered’ design of amendment provisions is arguably superior to the judicially-created basic structure doctrine given its democratic legitimacy.
204.Prof. Yaniv Roznai rightly points out in his well-balanced amicus brief filed before this Court that the applicability of the basic structure doctrine depends, very much on context. The most important contextual consideration is the balance between flexibility and rigidity of the amendment process. The more difficult the amendment process is, the less there is a need for a doctrine of implied limits to amendment power. As Yaniv Roznai has observed in ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Richard Albert, and Bertil Emrah Oder, (eds) ‘An Unamendable Constitution? Unamendability in Constitutional Democracies’ (Springer, 2018) at page 45:“Moreover, the theory of unamendability calls for judicial restraint… Especially if constitutional amendments are adopted through demand ing amendment procedures which are multi-staged, inclusive, participatory, deliberative and time-consuming, courts should restrain themselves when adjudicating constitutional amendments.”
205.The jurisprudential underpinning of this view is that in a case where the amendment process is multi-staged; involve multiple institutions; is time- consuming; engenders inclusivity and participation by the people in deliberations over the merits of the proposed amendments; and has down-stream veto by the people in the form of a referendum, there is no need for judicially-created implied limitations to amendment power through importation of the basic structure doctrine into a constitutional system before exhausting home grown mechanisms. Moreover, I fully agree with the portion of the Judgment of Sichale, J.A where she questioned the viability of relying on Judges to interpret on a ‘case by case’ basis on whether a particular provision of the Constitution is amendable.
206.To put this into perspective with respect to our constitutional architecture, amendment of the entrenched provisions of the Constitution relating to the matters listed in Article 255(1) of the Constitution through popular initiative route requires: first, there must be public participation throughout the amendment process by dint of Article 10(2)(a) of the Constitution. Second, collection of one million signatures from registered voters in support of the initiative as stipulated in Article 257(1). Third, support of the initiative through approval of the Bill by a majority of the County Assemblies as stipulated in Article 257(7). Fourth, consideration of the Bill by the bicameral Houses of Parliament by dint of Article 257(10). Fifth, subjection of the Bill to a referendum in terms of Article 255(2), in which at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum and the amendment is supported by a simple majority of the citizens voting in the referendum. Sixth, it should also be appreciated that the processing of the Bill in the County Assemblies and the bicameral Houses of Parliament is also subject to a further public participation requirement in terms of Articles 196 and 118 respectively. Seventh, Article 88(4) (g) imposes an obligation of voter education on IEBC.
207.Amendment of the entrenched provisions under the parliamentary initiative route requires: first, by dint of Article 10(2) of the Constitution, public participation must inform the entire amendment process. Second, the Amendment Bill has to go through the bicameral Houses of Parliament under Article 256. Third, the Bill shall not be called for second reading in either House within ninety days after the first reading of the Bill in either House as stipulated in Article 256(1)(c). Fourth, the Bill is deemed to have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House in terms of Article 256(1)(d). Fifth, the Houses of Parliament are under obligation to publicise the Bill and facilitate public discussion about it pursuant to Articles 118 and 256(2). Sixth, the President is to submit the Bill to IEBC to conduct a national referendum, within ninety days as stipulated in Article 256(5). Seventh, subjecting the Bill to a referendum in terms of Article 255(2), in which at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum and the amendment is supported by a simple majority of the citizens voting in the referendum. Eighth, Article 88(4)(g) of the Constitution imposes an obligation of voter (civic) education on IEBC.
208.Looking at the two pathways for amending the entrenched provisions, it is inescapable to conclude that amending the core or fundamental provisions of the Constitution is a multi-staged, multi-institutional, time-consuming process that ensures that a constitutional amendment process that touches on the core or fundamental aspects of the Constitution is transparent, inclusive and engenders the participation of the people in democratically deciding on their governance. I therefore find that the ‘tiered’ amendment process under the Constitution meets the set criteria as to when judicially-created basic structure doctrine is inappropriate and undesirable. Therefore, the two superior courts below erred by providing a fourth judicially-created pathway for amending the Constitution which is with respect tantamount to amendment of the Constitution through a judgment.
209.Indeed, reading Chapter Sixteen leaves me with the impression that Kenyans desired democratic self-government by opting for a balance of rigidity and flexibility. Chapter Sixteen provides citizens with a highly participatory process through which they can democratically reformulate the core aspects of the social contract. It enables them to exercise their sovereign power from time to time to reformulate their core commitments and update constitutional norms to conform to their will at any given time and respond to changing social, political, economic and technological needs and circumstances. This ensures that the Constitution reflects the desires of each generation, not past generations, however wise or well- intentioned. The Constitution-making generation should not forever tether the future generations in what they may perceive as suitable for them during the Constitution-making period. In addition, this would be tantamount to silencing some Articles against the canon of interpretation that the Constitution is speaking all the time.
210.In other words, denying people an opportunity to amend their Constitution through a judicially-created ultra-rigid process undermines democratic constitutionalism and self-government by stifling the voice of the present and future generations in governance. It is on this premise that I hold that where the amendment processes incorporate a ‘tiered’ process and the core or fundamental commitments of the Constitution can only be amended through an onerous process; that is, multi-staged, involving different institutional actors, deliberative, inclusive and participatory process, and involves ratification by the people in a democratically conducted referendum; then a court ought not to import the idea of a judicially-created basic structure doctrine. This is informed by the view that, in a context like Kenya, the Constitution has an explicitly in-built structure to discourage hyper-amendments and tame likely abuses of the amendment process by stealth or subterfuge.
211.To buttress this point further, the amendment practice in post-2010 Kenya illustrates that the ‘tiered’ amendment design is an adequate bulwark against abusive amendments. The attempts to amend the 2010 Constitution during the first decade of its operation and implementation demonstrate that the ‘tiered’ amendment design has ensured constitutional stability.
212.As pointed out by Sichale, J.A in her dissenting opinion at the Court of Appeal, there have been twenty-one (21) failed attempts to amend the 2010 Constitution during the first decade of its operation. Nineteen (19) of these were through the parliamentary initiative and two (2) were through the popular initiative route. It is also notable that although the Amendment Bill had gone the furthest in the amendment process, it was yet to be subjected to the ultimate down- stream veto of the referendum process. Comparatively, the independence Constitution had undergone twelve (12) major amendments by its tenth birthday. See Kenya Law, ‘The Amendments of the Constitution of Kenya from 1963 to 2019’ available at: http:kenyalaw.org/kl/index.php?id=9631. In essence, it is right to conclude that the resilience of the 2010 Constitution in its first decade is proof that Kenyans attained the goal of balancing flexibility with rigidity in designing the amendment power as reflected in Chapter Sixteen of the Constitution.
213.It ought to be appreciated that judicial protection of implied limitations to the amendment power, such as through the basic structure doctrine, become increasingly required in contexts where the country has a too flexible Constitution that can be amended fairly easily. Therefore, while it was appropriate in the pre- 2010 dispensation for the High Court (Ringera, J.) in the Njoya Case to recognize the basic structure doctrine under the former Constitution, there is no such need under the 2010 Constitution. This view is founded on the premise that the risk of abusive amendments has been tamed by the ‘tiered’ amendment process that entrenches the core or essential provisions through a heightened and elaborate amendment process, which is participatory, inclusive and involves the direct involvement of the people in the ratification of proposed amendments in a referendum.
214.Considering the progressive nature of the Constitution, a three Judge bench of the High Court (Korir, Ngugi & Odunga, JJ.) in the Priscilla Ndululu Case expressed scepticism as to the continued relevance of the holding in the Njoya Case on the basic structure doctrine post-2010 Kenya in light of the provisions of Article 255 of the Constitution. In contrast, the unique context of India, with a too flexible Constitution that grants the Legislature a wide discretion in amending the Constitution, arguably justifies the Judge made basic structure doctrine as developed and practiced in that country in order to stabilize the constitutional order and prevent the practice of abusive constitutional amendment given the low threshold for amendment in the text of the Constitution.
215.Although l think I have said enough to demonstrate why I disagree with the judgments of the majority of the Court of Appeal bench regarding the application of the basic structure doctrine in the post-2010 constitutional order, I will briefly, highlight some of the critical aspects which were not considered by the two superior courts; and if the learned Judges had, perhaps done so, they would have arrived at a different opinion.
216.One, the superior courts below failed to appreciate that the concern with the culture of hyper-amendment had already been taken into account during the drafting of the Constitution. This led to the design of the ‘tiered’ amendment process that balances flexibility and rigidity in the amendment process and protects the core or fundamental provisions of the Constitution through a heightened onerous, multi-staged, multi-institutional, inclusive, participatory process that culminates in ratification of amendments by the people in a referendum. In such a context, the correct judicial posture ought to be fidelity to the Constitution. This is informed by the reality that the Constitution to a large extent is self-contained and self-regulating in dealing with the legacy of abusive amendments in the former constitutional dispensation. Therefore, there is no justification for courts to go outside the four corners of the Constitution to create a ‘fourth pathway’ for amending the Constitution.
217.Two, the Court of Appeal failed to analyse the provisions of Chapter Sixteen and to arrive at its own independent conclusion on the shortcomings of the three- tiered process and to state clearly whether it was necessary to call in aid a foreign doctrine. Further to take into account the amendment practice in the post-2010 dispensation in their analysis of Kenya’s constitutional history, which shows that Chapter Sixteen of the Constitution has brought stability in the constitutional system in contrast to the culture of hyper-amendment under the former Constitution. There have been multiple attempts to amend the Constitution which were all unsuccessful meaning that the amendment process is not flexible as in the Indian Constitution.
218.Three, the Court of Appeal failed to take into account the fact that Chapter Sixteen is one of the entrenched parts of the Constitution under Article 255(1) of the Constitution. Therefore, it could not be amended by the courts through the created fourth pathway of amending the Constitution without following the constitutionally-ordained amendment process in Article 255(1) of the Constitution.
219.Four, the Court of Appeal failed to appreciate that Kenyans were aware of the idea around the basic structure doctrine during the Constitution-making phase in light of the legacy of the Njoya Case; and yet did not embrace the idea of a veto to the amending power as represented in the basic structure doctrine as well as related doctrines like eternity clauses. The CKRC Final Report at page 76 indicates that Kenyans yearned for power to have a say in amending the core or fundamental features of the Constitution through a referendum and an inclusive and participatory process. This was done through the provisions of Article 255 of the Constitution.
220.Another aspect of the majority Judgment of the Court of Appeal that I need to address relates to how the two courts treated the historical background informing the drafting of Chapter Sixteen. It is evident that the decision on the question of the application of the basic structure doctrine within Kenya’s constitutional system has largely turned on historical inquiry to clarify and provide interpretative guidance on the intent of the Kenyan people during the drafting of Chapter Sixteen of the Constitution. While this Court has in the past celebrated the virtues and utility of historical context and the background to the adoption of the Constitution in constitutional interpretation [see In the Matter of the National Land Commission, SC Advisory Opinion No 2 of 2014; [2015]eKLR (In the Matter of the National Land Commission) and Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others, SC Petition Nos. 14. 4A, 14B & 14C (Consolidated), [2014]eKLR (Communications Commission of Kenya Case)], courts must always bear in mind that historical narratives are interpretive and normative hence often informed by value judgments. This makes historical narratives subjective depending on the discretion of the interpreter. It is in appreciation of this that Renáta Uitz in ‘Constitutions, Courts and History: Historical Narratives in Constitutional Adjudication’ (Central European University Press, 2005) at page 53 has observed that:“...instead of providing objective, external, and neutral points of reference, historical inquiries provide a “history for today.” A keen eye might find that arguments from the history and traditions of the polity are normative claims, implying value judgments.”
221.Given the subjective nature of historical narratives, courts should endeavour to extract and have in view the complete account of the historical background to the constitutional provision being interpreted. Where a court embraces an account of history that marginalizes, excludes, suppresses or omits some portions of the historical account then such an incomplete or partial account of history is certain to distort rather than illuminate the meaning of the constitutional provision being interpreted hence misleading the court to reaching an erroneous conclusion.
222.In the instant case, the Kenyan people’s desire for a balance between the two extremes of hyper-amendability and ultra-rigidity that informed the drafting of Chapter Sixteen of the Constitution was lost in the superior courts. This happened because the High Court and the majority at the Court of Appeal focused solely on the past problem of hyper-amendability thus losing sight of the Kenyan people’s desire for a balance between rigidity and flexibility that is achieved through the ‘tiered’ design of the amendment provisions in Chapter Sixteen of the Constitution. This ought to serve as a cautionary tale to courts to take into account exhaustive and complete accounts of historical narratives if historical contexts or background information is to help in illuminating the purpose and meaning of constitutional provisions being interpreted.
223.Before leaving this part, I will address an argument advanced by learned Counsel, Dr. Khaminwa that the basic structure doctrine is applicable in Kenya pursuant to the provisions of Article 2(5) of the Constitution. The provision reads “The general rules of international law shall form part of the law of Kenya.” This Court has already provided judicial interpretation of Article 2(5) in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae), SC Petition No 3 of 2018, [2021]eKLR (Mitu-Bell Case). The Court held at para. 140 as follows:“In light of the foregoing, we hold that the words general rules of international law in Article 2 (5) of the Constitution refer to customary international norms, including jus cogens” [my emphasis].
224.There is a general acceptance that customary international law requires, in the words of Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), “a general practice accepted as law,” that is, both a sufficiently widespread and consistent practice and what states have accepted as law (opinio juris) accompanying it. Examples of customary international law principles include: the doctrine of non-refoulement of refugees, and the granting of immunity for visiting heads of state. Since the basic structure doctrine is a constitutional law principle acceptable in just a number of states and not an international law principle, it does not amount to a customary international law principle. Therefore, Article 2(5) of the Constitution cannot be the basis for founding the applicability of the basic structure doctrine in Kenya.
225.On the four sequential steps recommended in the impugned opinions, just like the two superior courts below, I would wish to observe in obiter that Parliament needs to consider the onerous complexity in the implementation and compliance with the obligations in Chapter Sixteen and enact a legislation to guide the constitutional amendment process. This could be formulated in the mould of the Constitution of Kenya Review Act, No 6 of 2009, which was enacted to guide the review of the repealed Constitution, only that the proposed legislation will provide a more detailed framework to guide the process of amendment according to the three tiered process, or if it is the desire of the people to add a fourth tier as proposed by the two superior courts. Moreover, it is necessary to also note that many of the petitions challenged the impugned amendment process because there was no legislation that was put in place to govern the collection of signatures, the verification, public participation and the conduct of a referendum. In my humble view, it is not at all reasonable to expect citizens to navigate all the numerous steps in the amendment process without a simplified guide drawn from legislation and even perhaps augmented by some rules or guidelines on the amendment process. The time and effort taken in determining this consolidated appeal is a testament that the provisions of Chapter Sixteen are complex and cannot be properly navigated without a legally ordained guide.
226.For a start, there has been no legislation to guide even public participation which is a key guiding pillar of governance in the post-2010 constitutional order. There is also the need for a comprehensive referendum law to guide the conduct of a referendum as far as Chapter Sixteen is concerned. If the people so desired, I see no problem with the Legislature taking up this recommendation to provide for the four sequential steps in the proposed legislation, given that in their true essence, they are but modalities and sites for deepening public involvement and participation in the amendment process which is already a constitutional requirement under Article 10(2).
227.In the end, I find that the basic structure doctrine and the four sequential steps for amendments as prescribed by the High Court and the majority of the Court of Appeal are not applicable in Kenya under the Constitution. Any amendment to the Constitution must be carried out in strict conformity with the normative stand ards and the provisions of Chapter Sixteen of the Constitution.
(ii) Whether the President can initiate amendments to the Constitution through a popular initiative
228.The question raised was whether the President could initiate the process of amending the Constitution through the popular initiative route as provided in Article 257 of the Constitution. The other related question was who started the process of amending the Constitution through the Amendment Bill?
229.Like other norm-producing processes, a Constitution amendment process starts with an initial decision, that is, the initiation or activation of the process. The ‘initiative’ speaks to how the amendment process starts. This is what is in question before the Court. It is therefore imperative to start this analysis by tracing the process that led to the formulation of the Amendment Bill.
230.The story starts with the 8th August, 2017 presidential elections in which the President was declared by IEBC as having been duly re-elected for a second term in office. The presidential elections results were challenged before the Supreme Court by Right Hon. Raila Odinga who had been declared as the runner up in the presidential elections. The Supreme Court annulled the results through a majority decision delivered on 1st September, 2017. The Court ordered for fresh presidential elections to be conducted within 60 days of the nullification of the election. However, Hon. Raila Odinga and his political coalition, the National Super Alliance (NASA), withdrew from participating in the fresh presidential election which took place on 26th October, 2017.
231.Subsequently, Hon. Raila Odinga and the NASA coalition vowed not to recognize the government that was formed as a result of the fresh presidential election. This led to some incidents of violence that brought about tension in the country. After months of tension, the President and Hon. Raila Odinga in an act of statesmanship, patriotism, and bipartisan accord, emerged on 9th March, 2018 to announce to the public that there was cessation of hostilities between the two political sides in what they called the ‘Hand shake’. Through a Joint Communiqué, they promised the two political sides will work towards ‘Building Bridges to a New Kenyan Nation’.
232.It is in a quest to implement this noble objective of promoting national unity and overcoming other challenges identified in the Joint Communiqué that the President appointed the BBI Taskforce. The terms of reference of the BBI Taskforce were three pronged, being:(a)evaluate the national challenges outlined in the Joint Communiqué of Building Bridges to a New Kenyan Nation’, and having done so, make practical recommendations and reform proposals that build lasting unity;(b)outline the policy, administrative reform proposals, and implementation modalities for each identified challenge area; and(c)conduct consultations with citizens, the faith-based sector, cultural leaders, the private sector and experts at both the county and national levels.
233.On 26th November, 2019 the BBI Taskforce released the BBI Taskforce Report which was unveiled to the public. It had various policy and administrative reform recommendations which included constitutional amendments, policy reforms, statutory enactments, institutional reforms, as well as behavioral and ethical changes amongst the citizens.
234.On 10th January, 2020 the President appointed the BBI Steering Committee whose terms of reference were to: (a) conduct validation of the BBI Taskforce Report through consultations with citizens, civil society, the faith-based organizations, cultural leaders, the private sector, and experts; and (b) propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the BBI Taskforce Report, taking into account any relevant contributions made during the validation period. The BBI Steering Committee released the BBI Steering Committee Report on 26th October, 2020 which was accompanied with annextures of twelve (12) Bills including the BBI Steering Committee Draft Bill. Thereafter, the BBI Steering Committee Draft Bill proposing to amend the Constitution was further revised and the final version – the Amendment Bill was unveiled for collection of signatures on 25th November, 2020.
235.As far as the President’s actions with respect to the setting up of the BBI Taskforce and the BBI Steering Committee to further the agenda of promoting national unity were concerned, in my view these actions cannot be faulted. Indeed, they are laudable acts of statesmanship executed within the ambit of the provisions of Article 131(2)(c) of the Constitution. This Article demand s nothing less from the President as it directs the holder of that venerable office to “promote and enhance the unity of the nation.”
236.However, it is important to clarify that the legal and constitutional question before this Court does not go to the propriety of the pursuit of the Building Bridges to Unity project. The question before the Court is a narrow one and it relates to whether a constitutional amendment process initiated by the President can be pursued through the popular initiative route prescribed in Article 257 of the Constitution. The relevant provision to call in aid to resolve this question is the same Article 257 which provides:“
257.Amendment by popular initiative
(1)An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.(2)A popular initiative for an amendment to this Constitution may be in the form of a general suggestion or a formulated draft Bill.(3)If a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill.(4)The promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.(5)If the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.(6)If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.(7)If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay.(8)A Bill under this Article is passed by Parliament if supported by a majority of the members of each House.(9)If Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Article 256(4) and (5).(10)If either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in Article 255(1), the proposed amendment shall be submitted to the people in a referendum.(11)Article 255(2) applies, with any necessary modifications, to a referendum under clause (10).”
237.To answer the question as to who may initiate an amendment process through a popular initiative, requires that we understand the purpose that is intended to be served by the introduction of the popular initiative as a route for amending the Constitution. This is pursuant to the purposive interpretation decreed by the Constitution at Article 259(1) of the Constitution. The appropriate starting point for this inquiry is the preparatory documents from the Constitution making process. It is recorded in the National Constitutional Conference Documents: The Final Report of Technical Working Committee Group ‘K’ on Constitutional Commissions and Amendments to the Constitution (2005) at page 4 that:“The committee introduced a novel idea called popular initiative. This is an innovation where the citizens can on their own motion initiate amendment to the Constitution by a way of a popular initiative either in the form of a general suggestion or a formulated draft bill. The committee explained that their intention was a starting point towards curbing dictatorship by Parliament” [my emphasis].
238.The above Constitution-making history demonstrates that a popular initiative was a tool curved out exclusively as a route for constitutional amendments by the citizens. In essence, amending the Constitution through a popular initiative was intended to be a citizen-driven and citizen-centered process. The citizen-centric nature of a popular initiative is linked to the fact that it is conceived as a means for direct sovereign power to be expressed as contradistinguished with a parliamentary initiative which lies at the realm of derived or delegated sovereign power. Under this understand ing, the popular initiative is supposed to be triggered ‘from below’ at the initiative of the citizenry as opposed to representative institutions.
239.In other words, the popular initiative is intended to give citizens, acting outside the institutions of the State, a means to activate or trigger the exercise of their sovereignty. This understand ing of the centrality of the citizens in activating a constitutional amendment process through the popular initiative is projected in the book by Joel Colón-Ríos, ‘Constituent Power and the Law’ (2020, Oxford University Press) at pages 150-151 where it has been observed as follows:“Since constituent power, almost by definition, was exercised against the constituted institutions (in order to alter them or to override an executive, legislative, or judicial decision), it was necessary to ensure that citizens, acting outside of the ordinary institutions of government, had a means of triggering its exercise. A solution …was the recognition of the right to change the Constitution through popular initiative. This solution was not presented as a means of facilitating participatory democracy but as one of controlling the power of the three branches of government” [my emphasis].
240.The above position is also reflected in persuasive judicial reasoning, such as, by the Constitutional Court of Hungary in Decision 52/1997, On Referenda and Popular Sovereignty, 14th October, 1997 where the court held as follows in this regard:“If the Initiative was launched by the representative organs or its ‘descendants,’ the inclusion of the people serves merely the ex post facto legitimization of the decision of the representative sphere… The expression by the people of their will in this case does not equal the complete, direct exercise of sovereignty by the people. … [the Popular Initiative] differs from this on the theoretical level as well. Each element of it is under the ‘influence’ of the voters concerned: the initiation, the formulation of the question as well as the enforceability (provided that the number of signatures necessary has been gathered). The ‘people’ control the situation with regard to every element of the direct exercise of power” [my emphasis].
241.My analysis of Article 257, the history of the Constitution-making process, and the above authoritative but persuasive writings indicates that a popular initiative is an exercise of direct sovereign power; and excludes representative institutions (for example, the Legislature, and the Presidency) which only exercises power that is derived or delegated sovereign power as distinguished in Article 1(2) and (3) of the Constitution. In other words, it is a means of direct democracy; and indeed, direct democracy can only be exercised by the people not their representatives since that would convolute the form of democracy at play. It follows therefore that a popular initiative in a constitutional amendment process ought to be seen as an avenue through which citizens engage in the exercise of their sovereignty. As such, State organs, not being bearers of direct sovereignty, have no right to activate the popular initiative. This leads to the conclusion that the popular initiative is a preserve of the citizens, ‘the Wanjiku’, in Kenyan popular lexicon.
242.It ought to be appreciated that the Constitution provides normative markers for how, when, where and by whom particular powers are to be exercised. Article 257 delineates who has the power to undertake what duty or obligation or has a right to undertake specified measures with respect to the constitutional amendment process. It is in appreciation of this, that I need to interrogate the argument that the institution of the presidency has the authority to initiate a popular initiative in light of the overarching leitmotif of the Constitution which is concerned with tempering or limiting the powers of the Presidency.
243.In its architecture and design, the Constitution strives to provide explicit powers to the institution of the presidency and at the same time limit the exercise of that power. This approach of explicit and limited powers can be understood in light of the legacy of domination of the constitutional system by imperial Presidents in the pre-2010 dispensation. As a result, Chapter Nine of the Constitution lays out in great detail the powers and authority of the President and how such power is to be exercised. In light of the concerns over the concentration of powers in an imperial President that animate the Constitution, I find that implying and extending the reach of the powers of the President where they are not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes.
244.Another reason that supports the finding that the President was not envisaged as an initiator of a popular initiative is the role of the President with respect to entrenched matters listed in Article 255(1) of the Constitution. Article 256(5) as read with Article 257(10) of the Constitution grants the President a role that can be typified as serving a ‘guardianship’ role over the amendment process. In that, where a constitutional Amendment Bill is presented for assent, the President has the obligation of reviewing the Bill and referring the Bill to undergo the referendum process where it involves matters listed in Article 255(1) of the Constitution. Such a ‘guardianship’ role over the amendment process ought not to be undertaken by a player in the amendment process. I therefore endorse, the finding by the two superior courts that the President ought not to be both a player and umpire in the amendment process.
245.The last reason for finding that state institutions and organs are excluded from using the popular initiative is found in Article 255(3)(b) of the Constitution. This provision states that an amendment by popular initiative under Article 257 of the Constitution is by ‘the people and Parliament’. It shows that the Constitution recognizes a distinction between ‘the people’ and state bodies like ‘Parliament’. It therefore follows that a state body like the institution of the presidency cannot fall within the rubric of ‘the people’ as the very text of the Constitution makes this distinction.
246.This leads me to the inescapable conclusion that state institutions and state organs, such as the Presidency, cannot initiate a constitutional amendment process using the popular initiative route provided in Article 257 of the Constitution. Such state organs or state institutions are precluded from the initiation and promotion of a constitutional amendment process through the popular initiative route.
247.Nonetheless, this finding does not dispose of the issue as Counsel for the President and even the Attorney General sustained an argument that barring the President from initiating or pursuing a constitutional amendment process through a popular initiative was a violation of the President’s political rights as protected in Article 38(1) of the Constitution. Article 38(1) provides as follows:“Article 38. Political rights(1)Every citizen is free to make political choices, which includes the right–(a)To form, or participate in forming, a political party;(b)To participate in the activities of, or recruit members for, a political party; or(c)To campaign for a political party or cause.”
248.Given that a process to amend the Constitution is a democratic process which is meant to give effect to self-government, the initiation and promotion of an initiative to change the Constitution is a political choice protected under Article 38(1)(c) of the Constitution. However, there is an additional hurdle in deciding whether a right is applicable in a given factual situation. This is the concern with a right’s range of application as found in the edict in Article 20(2) of the Constitution which is to the effect that:“Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom” [my emphasis].
249.What I deduce from this provision is that a court is under an obligation to interrogate whether a person alleging a violation of a right is a beneficiary of the right in question. In this context, it is notable that Article 38(1) grants the freedom to make political choices to every citizen. The citizen qualifier speaks to the range of application of the freedom to make political choices, by limiting the right’s enjoyment to citizens. Therefore, for one to be a beneficiary of the freedom to make political choices they must fall within the category of a citizen.
250.Based on the citizenship qualification, the freedom to make political choices is a right that does not accrue to state organs or institutions. State organs or institutions cannot be citizens because under Chapter Three of the Constitution, citizenship is limited to living human beings excluding state organs and institutions. In a relevant persuasive reasoning in this respect, the High Court (Majanja, J.) held in Famy Care Limited v. Public Procurement Administrative Review Board & Another, HC Petition No 43 of 2012; [2013]eKLR as follows:“Though the term “citizen” is not defined in Article 260, citizenship is dealt with under Chapter Three of the Constitution, Articles 12 to 18. The purport and effect of these provisions is that citizenship is in reference to natural persons… A juridical person is neither born nor married as contemplated by these Articles. Similarly, the provisions on citizenship by registration and dual citizenship set out in Articles 15 and 16 of the Constitution negative an intention to define a citizen as including a juridical person…“A reading of the Constitution and an examination of words “person” and “citizen” within the Constitution can only lead to one conclusion: That the definition of a citizen in Articles 35(1) and 38 must exclude a juridical person and a natural person who is not a citizen as defined under Chapter Three of the Constitution.”The above reasoning which I find to be the correct position in law was also followed by Mumbi Ngugi, J. (as she then was) in Nairobi Law Monthly Company Limited v. Kenya Electricity Generating Company & 2 Others, HC Petition No 278 of 2011; [2013]eKLR.
251.Consequently, while the President when acting in his private capacity as a citizen can enjoy the freedom to make political choices, this right does not accrue to the institution of the Presidency which is a state organ. The Presidency and other state organs do not fall under the rubric of citizens. I therefore, find that exclusion of the institution of the Presidency and other state institutions from initiation of a process to amend the Constitution through the popular initiative route does not violate political rights protected under Article 38(1) of the Constitution.
252.The last aspect of this issue relates to whether it was established through evidence that the process to amend the Constitution through the Amendment Bill was initiated by the President. At the outset, it should be pointed out that the concurrent findings by the two superior courts below was that the President by a number of antecedent acts had initiated the process and the state was the real force behind the amendment process including through the use of state resources to support the process. In a challenge to this finding, it was argued by the Attorney General, and the BBI National Secretariat, that it is the BBI National Secretariat, through Hon. Dennis Waweru and Hon. Junet Mohamed, who were the initiators and promoters of the impugned constitutional amendment initiative and not the President.
253.An examination of the evidence before the courts reveals a number of things relevant to this factual determination. For starters, the President and the National Executive took certain actions which portray his role in the initiation and promotion of the constitutional amendments. The President did not do those things as a private citizen and this is clearly demonstrated in a number of ways. The President signed off the initial Communiqué of 9th March, 2018 in the official title of President; the Communiqué was published on a paper bearing the coat of arms of the Republic and seal of the President; the President appointed the BBI Taskforce and BBI Steering Committee through gazette notices 5154 and 264 of 2018 and 2020 respectively; and the President received the official reports through a state function as the President. As a result, it cannot be disputed that the President was involved in the initiation of the Amendment Bill. However, in my considered view, the President cannot be blamed for this, because it is the promoters who took over the Amendment Bill under the auspices of the BBI National Secretariat who erred by invoking the popular initiative route under Article 257 to pursue the amendment process.
254.It is my finding that the genesis of the Amendment Bill can be traced to the terms of reference of the BBI Steering Committee which included:“(b)propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report, taking into account any relevant contributions made during the validation period” [my emphasis].This is the foundation upon which the BBI Steering Committee formulated the BBI Steering Committee Draft Bill which was an annexure to the BBI Steering Committee’s Report. In effect, I find that the BBI Steering Committee was implementing the directive of the President as the Committee’s appointing authority. Therefore, the President cannot be delinked from a product that emerged as a natural consequence or result of implementing a task assigned by the President.
255.In point of fact, the President’s written submissions dated 22nd December, 2021 filed before this Court confirm that this is the correct position at page 3, para. 9 where it is indicated as follows:“The Petitioner (Isaac Alouchier erroneously cited as the 21st Respondent herein) impleaded the President in his personal capacity arguing that the acts done were unconstitutional and that the President was acting in his personal capacity. However, the official documents (the Gazette Notices) clearly shows that they were signed by or on behalf of the 22nd Respondent (the President) in his official capacity.”This assertion resonates with the evidence before the Court that all actions by the President leading to the Amendment Bill were undertaken in his official as opposed to his personal capacity. They were actions by the office of the President as a state organ or institution and ought not to be attributed to the person holding that office in personal capacity.
256.I therefore affirm the factual finding by the two superior courts below that the President was the real force or driving principal behind the Amendment Bill. I particularly endorse the view expressed by Tuiyott, J.A. in his Judgment to the effect that:“…the process of popular initiative must be guarded from abuse. A state actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will [be.an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation.”
257.I believe I have stated enough to support my conclusion that the President or state organs or institutions are not permitted to initiate or promote a constitutional amendment process through the popular initiative route envisaged in Article 257 of the Constitution. Therefore, the promoters erred by pursuing the Amendment Bill as a popular initiative and this rendered the amendment process unconstitutional.
(iii) Second Schedule to the Amendment Bill
258.The question for resolution from the above issue is whether the Second Schedule to the Amendment Bill was unconstitutional based on the findings by the two superior courts below that it was unlawful for the Amendment Bill to directly allocate and apportion the seventy (70) constituencies proposed therein.
259.To put this question in context, it ought to be appreciated that the Second Schedule was intended to serve as a transitional scheme of implementing Clause 10 of the Amendment Bill. Clause 10 which intended to amend Article 89 of the Constitution provided:“Article 89(1) of the Constitution is amended by deleting the words “two hundred and ninety” and substitute therefor with the words “three hundred and sixty.”
260.The Second Schedule of the Amendment Bill which provided for the delimitation of the proposed additional seventy constituencies stated that:“Within 6 months of the commencement of the Act, the IEBC shall, subject to subsection 2 determine the boundaries of the additional seventy constituencies created in Article 89(1) using the criteria in Article 81(d) and 87(7) (sic).The seventy constituencies shall be spread among the counties set out in the first column in a manner specified in the second column.”
261.Clause 1(2) of the Second Schedule proceeded to distribute the additional seventy constituencies among the counties as follows: Mombasa Three; Kwale Three; Kilifi Four; Mand era One; Meru Two; Embu One; Machakos Three; Makueni One; Kirinyaga One; Murang’a One; Kiambu Six; Turkana One; West Pokot One; Trans Nzoia Two; Uasin Gishu Three; Nand i One; Laikipia One; Nakuru Five; Narok Three; Kajiado Three; Kericho One; Bomet Two; Kakamega Two; Bungoma Three; Siaya One; Kisumu Two; Nyamira One; and Nairobi City Twelve.
262.It is necessary to point out that Article 89 of the Constitution provides for delimitation of electoral units, a role that is vested in IEBC. This is what Article 89 provides:“Article 89. Delimitation of electoral units(1)There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97(1)(a).(2)The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.(3)The Commission shall review the number, names and boundaries of wards periodically.(4)If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.(5)The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6) to take account of — (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.(6)The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— a) forty per cent for cities and sparsely populated areas; and b) thirty per cent for the other areas.(7)In reviewing constituency and ward boundaries the Commission shall — (a) consult all interested parties; and (b) progressively work towards ensuring that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota.(8)If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.(9)Subject to clauses (1), (2), (3) and (4), the names and details of the boundaries of constituencies and wards determined by the Commission shall be published in the Gazette, and shall come into effect on the dissolution of Parliament first following their publication.(10)A person may apply to the High Court for review of a decision of the Commission made under this Article.(11)An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.(12)For the purpose of this Article, “population quota” means the number obtained by dividing the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.”
263.It is in the above context that the constitutionality of the Second Schedule directly allocating and apportioning the proposed constituencies to specified counties was challenged. The two superior courts were unanimous in their finding that the Second Schedule to the Amendment Bill was unconstitutional. This finding was based on substantive grounds that the Second Schedule violated the basic structure of the Constitution by purporting to take away the mand ate of IEBC, an independent body under the Constitution.
264.Further, it was contended that the Second Schedule impermissibly directed IEBC on the execution of its constitutional functions; set criteria for the delimitation and distribution of constituencies contrary to Article 89(5); ignored the principle of due process in delimiting and distributing constituencies, namely, the public participation requirement; imposed timelines for the delimitation exercise contrary to the Constitution; impermissibly took away the rights of individuals who are aggrieved by the delimitation decisions of IEBC to seek judicial review of those decisions; tucked in the apportionment and delimitation of the seventy newly created constituencies in the Second Schedule using a pre-set criteria which is not within the constitutional stand ard enshrined in Articles 89(4), (5), (6), (7), (10) and (12) of the Constitution; and extra-textually amended or suspended the intended impacts of Article 89 of the Constitution which they found formed part of the basic structure of the Constitution.
265.It is imperative to begin the analysis on the constitutionality of the Second Schedule of the Amendment Bill by pointing out that given my earlier finding that the basic structure doctrine does not apply under the Constitution of Kenya 2010, my determination of this question rests on the procedural concerns linked to whether there was public participation in coming up with the Second Schedule. This is because the provisions of Article 89 are amendable as long as due process is followed.
266.It ought to be appreciated that amendments touching on matters falling within the remit of Article 255(1), which are the core or fundamental commitments of the Constitution, ought to be undertaken through a highly participatory and inclusive process. It should be noted that, directly allocating and apportioning constituencies usurps the mand ate of IEBC, an independent constitutional commission; removing the possibility of judicial review of the delimitation has an effect on the independence of the Judiciary; the centrality of constituencies as units of political representation in the National Assembly means that they ought to be apportioned and allocated by a neutral and professional actor; much more so, because malapportioned constituencies have the potential of diluting the power of the vote hence threatening the animating goal of fair and effective representation, which is at the heart of the foundational value of democratic governance enshrined in Articles 4(2) and 10(2)(a) of the Constitution. Further, since constituencies are units of social and economic development through allocation of National Government Constituencies Development Fund (NG-CDF) and the recruitment into disciplined forces, such as the Kenya Defence Forces and the National Police Service, delimitation of constituencies has implications on the constitutional values and principles of equity, and social justice enshrined in Article 10(2)(b) of the Constitution.
267.It goes therefore without saying that the delimitation of constituencies must be accompanied by a process that is fair and just, which is the golden thread that runs through our constitutional order as elaborated in the preceding paragraphs. Therefore, the process of allocating and apportioning constituencies demand s deepened public participation to ensure such a process is not carried out through stealth or subterfuge. Indeed, it is this perspective that informs the specific and in- built requirement of public participation in delimitation of electoral units in Article 89(7)(a) of the Constitution.
268.This Court set the threshold for assessing whether public participation has been met in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v. Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party), SC Petition. No 5 of 2017; [2019]eKLR (BAT Case). The Court at para. 96 of the Judgment set the constitutional test for adequate public participation as being the “reasonableness” threshold. The Court observed thus:“Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.”Following from this, I will now examine whether reasonable notice and opportunity was afforded to the public for generating views and deliberating on apportioning and allocating of the disputed seventy constituencies.
269.An examination of the process leading to the BBI Taskforce Report and the BBI Steering Committee Report reflects that there was reasonable participation and involvement of the people in coming up with the recommendations in those two reports. However, it is noteworthy that the BBI Steering Committee Draft Bill, which was annexed to the BBI Steering Committee Report, did not contain any clause dealing with apportioning and allocation of constituencies. It is in the Amendment Bill published on 25th November, 2020 where the impugned Second Schedule first emerged.
270.There is no evidence of any form of public participation or deliberation between 21st October 2020 and 25th November 2020 when changes to the BBI Steering Committee Draft Bill including the Second Schedule was added that shows public engagement and consideration of the issue of apportioning and allocating the subject seventy constituencies. This leads to the conclusion that the constitutional threshold of reasonable public participation was not met in coming up with the Second Schedule of the Amendment Bill. Consequently, I come to the conclusion that the Second Schedule of the Amendment Bill is unconstitutional for want of public participation, a constitutional obligation that flows from Articles 10 (2)(a) and 89(7)(a) of the Constitution.
(iv) Presidential Immunity
271.The question before the Court, as I understand it, relates to the nature, scope and reach of protection from civil legal proceedings enjoyed by the President or a person performing the functions of the office of the President under Article 143(2) of the Constitution.
272.At the outset it is important to point out that given that the Court of Appeal held that the President was not served with HC Petition No E400 of 2020 in the proceedings before the High Court, in which this question arose, it was improper for the Court of Appeal to proceed and adjudicate the question of interpretation of Article 143(2) of the Constitution. However, as conceded in the President’s written submissions filed before this Court, there is a public interest element in the need for this apex Court to clarify and settle the law on the nature and scope of protection of the President from civil legal proceedings considering the findings by the two superior courts below. It is on this basis that I will proceed to determine this issue.
273.The majority decision of the Court of Appeal (Musinga, (P), Nambuye, Okwengu, Kiage, Gatembu & Sichale, JJ. A) upheld the finding of the High Court to the effect that the President can be sued in his personal capacity during his tenure of office for anything done or not done contrary to the Constitution. In their view, it is apparent from Article 143(2) that the President or any other person holding that office is only protected from civil proceedings in respect of anything done or not done in the exercise of their powers under the Constitution. Expressing a different opinion, Tuiyott, J.A found that Article 143(2) and (3) read together struck a balance by giving functional immunity to a sitting President during his tenure of office but leaving it open for him to still be held personally accountable once out of office for any act or omission in his official capacity contrary to the Constitution.
274.Article 143 of the Constitution provides as follows:“Article 143. Protection from legal proceedings–(1)Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.(2)Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.(3)Where provision is made in law limiting the time within which proceedings under clause (1) or (2) may be brought against a person, a period of time during which the person holds or performs the functions of the office of the President shall not be taken into account in calculating the period of time prescribed by that law.(4)The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.”To understand the ambit of protection from legal proceedings envisaged under Article 143(2) of the Constitution requires teasing out of the purpose intended to be served by the above provision and the animating idea underlying it.
275.It is generally recognised that immunity from legal proceedings usually takes two forms: first, immunity from liability protects officials, not from proceedings being undertaken, but from personal liability at the end of the proceedings which relate to enforcement. Second, immunity from proceedings, is a broader form of immunity that overthrows the court’s or tribunal’s jurisdiction to hear a matter in question because the party against whom the proceedings are undertaken enjoys immunity. Neither proceedings nor liability may arise from this second form of immunity.
276.It is also necessary to recognise the distinction between sovereign immunity and functional immunity. Sovereign immunity is the immunity enjoyed by a sovereign state or the heads of states or their representatives who have diplomatic immunity and entails that the holders of such immunity cannot be subjected to the jurisdiction of certain courts, either their own local or foreign courts. In contrast, functional immunity is conferred on state or public officers not to be tried or made liable for acts done (usually in good faith) in discharge of their official functions. The former emanates from the tradition that a sovereign cannot be subjected to its own courts without its consent, while the latter derives from the need to let persons lawfully performing their functions not be subjected to unnecessary suits.
277.Further, there is absolute and qualified immunity. Absolute immunity (whether functional or sovereign, jurisdictional or enforcement immunity) has no limitations as to its application while qualified immunity usually has limitations like the extent of actions and whether related to the official function or whether done lawfully and in good faith or out of malice or whether it was a discretional act or not. See Charles Manga Fombad and Enyinna Nwauche, ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’ (2012)5 African Journal of Legal Studies 91,102.
278.The Constitution contemplates immunity of certain officials in the performance of their functions. Examples include:(a)Article 160(5) provides that: “a member of the judiciary is not liable in an action or suit in respect of anything done or not done in good faith in the lawful performance of a judicial function.”(b)Article 250(9) provides that: “a member of a commission, or the holder of an independent office, is not liable for anything done in good faith in the performance of a function of office.”(c)Article 143 (1) provides that: “criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.”(d)Article 143(2) provides that: “civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”In addition, the Privileges and Immunities Act, and the Parliamentary Powers and Privileges Act, 2017 provide different scopes of immunities for respective individuals.
279.From a structural reading of the above provisions, there are glaring distinctions that illuminate the nature and scope of presidential immunity envisaged in Article 143(2) of the Constitution. Firstly, all the officials set out above enjoy immunity as persons (holder of office, member of commission) but not their offices; whereas, the President enjoys immunity as both the person in the office, and the office itself. This is evident from the choice of phraseology used in Article 143(2) to the effect that: “President or the person performing the functions.” To make the point clearer, one can contrast the nature of immunity envisaged in Article 143(2) with that in Article 250(9) for a holder of an independent office. The difference in phraseology between these two provisions yields the view that the holder of the office of the Auditor General may not be liable but the office of the Auditor General may be liable, but neither the office of President nor the holder of that office may be liable.
280.Secondly, the President enjoys immunity from proceedings in any court, whereas the other officials enjoy immunity from liability but not expressly from proceedings that lead up to liability. Thirdly, the President’s immunity is limited to the duration of their tenure of office whereas that of the other officials would remain beyond even their tenure of office. This is to say, that the person performing the functions of the office of President ceases to enjoy immunity from proceedings once they cease to hold office as President but the other officials continue to enjoy the immunity for the actions they did while they were still in office. Fourthly, the immunity of the President is not qualified by good faith whereas that of the other officials is qualified by the requirement or the assumption that they performed the function in good faith. It is notable that for judicial officers, it is also expected that the act or omission in issue should be within the lawful performance of their functions for them to enjoy the stipulated immunity.
281.There is a compulsive tone in the protection of the President from proceedings which stems from the use of ‘shall not’ in Article 143(1) and (2), and a deliberateness in the overthrowing of jurisdiction of any court to try the President or any person performing the functions of the office during the tenure of that office. This only changes with the caveat in Article 143(4) which provision withdraws the entire cloak of immunity when the President (and not any other person) is tried for crimes for which the President may be prosecuted under any treaty to which Kenya is a party, and which prohibits such immunity.
282.Consequently, this leads to the inescapable conclusion that the immunity of the President is unlike that of the other state actors. The President not only enjoys functional immunity like all public officials who perform state duties, which protects them from civil liability for official functions, they further enjoy sovereign immunity as the Head of State and the single representation of the sovereignty of the Republic. Indeed, it is only sovereign immunity that can immunize anyone against both proceedings and criminal liability because any other immunity would be related to official functions and therefore would inherently be a ‘qualified immunity’. This is the only explanation why all other public officials would be liable to criminal prosecutions even while in office, but the President would not only not have criminal proceedings instituted against them, but also any criminal proceedings that may have been ongoing would be discontinued in the duration of the President’s tenure of office. It is this sovereign immunity that the Head of State, like all heads of states, enjoys that makes Article 143(4) relevant in that, the immunity shall be waived by consent of the Republic through ratification of a treaty that forbids such immunity. Likewise, that is also why this immunity (from any proceedings, and especially from criminal liability) is limited to the duration during which the person represents the sovereignty of the Republic, and expires upon expiry of such term.
283.The two superior courts below, especially the majority opinion of the Court of Appeal, relied on the phrase “… in the exercise of their powers under this Constitution” in Article 143(2) to emphasize that when the President exercises powers not granted by the Constitution, then the immunity is extinguished. It is true that, that is one of the interpretations one may obtain from a plain reading of the Sub Article, but a purposive interpretation of the phrase yields a different result. Taking into account the logic and animating idea behind Article 143(2) leads to an interpretation of the phrase to mean that the immunity is in relation to the President’s official functions and not personal suits.
284.I am conscious that part of the President’s role in the performance of their functions is the interpretation of the Constitution as to whether or not it gives them power to perform particular roles. Upon such interpretation, the President either acts or fails to act in the belief that either that power exists or does not exist. It would follow then that if proceedings were to be instituted against the President after an interpretation which is considered to have been a wrong interpretation, then such proceedings would fall within the immunity contemplated by Article 143(2); in that, it would be within the performance of the President’s functions. There is no provision allowing or requiring the President to seek an advisory opinion from the judiciary before exercising their duties or before determining whether they have power to perform any official act; and in any event, this would generally blur the separation of powers.
285.Further, the two superior courts below held that the President or the person performing the functions of the office of the President is not above the law and should be amenable to the law if they act against the Constitution. The implication of this finding is far reaching and therefore calls for a very careful analysis and consideration by this Court. The submissions and concern of the proponents of the said finding is that total immunity would provide cover for impunity by the President or a person acting in that capacity. Therefore, they argued that there is need to address what I would call the ‘accountability gap’ concern through a balance between accountability and impunity.
286.The response to the ‘accountability gap’ concern is that the Constitution provides for political and legal accountability of the President hence giving effect to the protection from legal proceedings in Article 143(2) would not foster a culture of lawlessness and impunity. Indeed, it should be appreciated that by enshrining the rule of law, accountability, and good governance as national values and principles of governance in Article 10(2), the Constitution recognises that the exercise of public power is a constrained power that cannot be beyond the reach of the law.
287.It is necessary to state that the Constitution has provided for how the President and the Executive in general can be kept in check through political accountability, with the provision that the President is liable for impeachment under Article 145 of the Constitution. The grounds for impeachment listed under Article 145(1) of the Constitution include gross violation of the Constitution or any law, commission of a crime under national or international law, or gross misconduct. This means that there is a clear avenue to check the President’s conduct as acknowledged by the Court of Appeal in Minister for Internal Security and Provincial Administration v. Centre for Rights Education & Awareness (Creaw) & 8 Others, Civil Appeal 218 of 2012; [2013]eKLR at para. 37 thus:“There were also issues raised regarding the immunity of the President as provided in the Constitution in respect to civil and criminal litigation, we wish to say no more on this issue as the Constitution is clear, if the President violates the law, he or she can only be subjected to the process of impeachment, however the former Constitution did not have provisions of impeachment.”
288.With respect to legal accountability, the protection of the President from legal proceedings under Article 143(2) does not mean that a President’s actions or omissions cannot be challenged in court. Anybody or party aggrieved by the President’s actions or failures can initiate proceedings against the Attorney General who by virtue of being the legal representative of the government in legal proceedings also represents the President, who is the Head of Government. The immunity on the other hand offers protection that shields the President from civil suits being filed against them in their personal capacity. As rightly conceded by the President in his written submissions before this Court:“....an aggrieved litigant has the option of challenging the President’s decision or actions in court by suing the Attorney General.”As such, pursuant to Article 156(4) of the Constitution, the exercise of public power by the President can be challenged in a court of law by suing the Attorney General through an action of judicial review or constitutional petition wherein the court may issue appropriate remedies. See the High Court’s decisions in Republic v. Chief Justice of Kenya & 6 Others Ex-parte Moijo Mataiya Ole Keiwua, Misc. Appl. No 1298 of 2004; [2010]eKLR; and Julius Nyarotho v. Attorney General & 3 Others, Misc. Appl. No 36 of 2012; [2013]eKLR (Nyarotho Case).
289.It should also be appreciated that the protection of the President or a person acting in the office of the President from legal proceedings was a clear desire by Kenyans as captured in the CKRC Final Report which records at page 425 that:“The President should receive protection from any legal proceedings that may be instituted during his tenure of office.”
290.In effect, the finding by the superior courts below had the ramifications of rendering Article 143(2) of the Constitution ineffective or superfluous. This is an interpretive path that, in my view, is not open to the courts. An interpretation of the Constitution that results to an amendment vide a judgment is tantamount to judicial overreach. As pointed out by the Constitutional Court of South Africa in Khumalo and Others v. Holomisa (CCT 53/01), 2002 (5) SA 401 at para. 32:“We cannot adopt an interpretation which would render a provision of the Constitution to be without any apparent purpose.”
291.I therefore agree with the interpretation by Tuiyott, J.A in his dissenting opinion which held that the import of Article 143(2) of the Constitution with respect to protection of the President from civil proceedings is as follows:“(a)Immunity does not extend to acts or omission of a sitting President done in purely personal capacity not connected with his office.(b)The immunity is only in respect to acts or omissions connected with the office and functions of that office.(c)Where an action or inaction/omission is in official capacity but bereft of any constitutional authority or power whatsoever or is in fact done in gross or serious violation of the Constitution then it is actionable against the President in person but only after he leaves office.(d)For acts and omissions falling under (c) above and which must be questioned or challenged immediately, the President can be sued, not in his personal name, but through the Attorney General.”
292.This leads me to the conclusion that the learned Judges unfortunately fell in error in their interpretation and application of Article 143(2) of the Constitution by holding that civil 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. I hold that civil proceedings cannot 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. Such proceedings can be instituted against the President vide the Attorney General.
(v) Public Participation
293.The issue as framed by the Court contains two components. The first relates to the role of IEBC under Article 257(4) of the Constitution and in particular, whether IEBC is under an obligation to ascertain that promoters of a popular initiative have undertaken public participation during the collection of signatures. The second part deals with the broader question as to whether there was public participation in respect of the Amendment Bill. I will deal with these questions in turn; first by revisiting Article 257(4) which is couched in the following terms:“The promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.”
294.It is clear to me that there is no direct requirement arising from this provision that imposes an obligation on IEBC to ascertain that promoters of a popular initiative have undertaken public participation. Nonetheless, the High Court held that IEBC was obligated to ensure that the promoters of the impugned popular initiative complied with the requirements of public participation. In other words, the High Court found that it was imperative for IEBC to ascertain there was public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies. The rationale embraced by the learned Judges was that under Article 10(1), IEBC was not only interpreting but also applying the Constitution.
295.On appeal against this finding, the majority of the Judges of the Court of Appeal did not determine the issue leaving the determination by the High Court intact. It is only Gatembu, J.A who addressed the issue peripherally by reasoning that there was an obligation on IEBC to undertake voter education and sensitization on the amendments proposed in a draft Bill to empower the citizenry to engage meaningfully and from a point of information, with their representatives at the County Assemblies. It is in light of this, that IEBC appealed to this Court seeking clarification on its obligation under Article 257(4).
296.It is necessary to keep reminding ourselves that IEBC being a creature of the Constitution and statute can only discharge a mand ate vested in it explicitly by the law. This is a direction given in Article 10(2) which identifies the rule of law as a national value and principle of governance. In a persuasive dictum, the Constitutional Court of South Africa in Law Society of South Africa & Others v. Minister for Transport & Another, 2011 (1) SA 400 (CC) at para. 32 expressed itself as follows:“…the rule of law... is a founding value of our Constitution. The rule of law requires that all public power must be sourced in law – this means that state actors exercise public power within the formal bounds of the law.”
297.The same court held in Fedsure Life Assurance Ltd & Others v. Greater Johannesburg Transitional Metropolitan Council & Others, 1999 (1) SA 374 at para. 56 as follows:“It is a fundamental principle of the rule of law, recognized widely that the exercise of public power is only legitimate where lawful. The rule of law – to the extent at least that it expresses this principle of legality - is generally understood to be a fundamental principle of constitutional law. This has been recognized in other jurisdictions. In The matter of a Reference by the Government in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada the Supreme Court of Canada held that: “Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. V. The Queen, [1985]1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.”
298.It follows that IEBC, like all other public bodies, cannot by craft of innovation or interpretation extend its powers to include ascertaining whether a promoter of a popular initiative has complied with the public participation requirements under the Constitution where the law does not explicitly grant it that mand ate. The power granted to IEBC under Article 257(4) is limited to “verifying that the initiative is supported by at least one million registered voters.”
299.Equally, courts should not encourage extension of powers by constitutional or statutory bodies. Such bodies must operate strictly within the four corners of their constitutional and statutory mand ate. Therefore, where no power conferring legal provision can be pointed to as the basis for founding a mand ate, courts should not use interpretive craft to extend the mand ate of a public body. Given this view, unless there is a statutory framework enacted that confers power on IEBC to ascertain whether a promoter has undertaken public participation, the exercise of such a mand ate would be a mere overreach.
300.With respect to the finding by Gatembu, J.A that there is an obligation on IEBC to undertake voter education and sensitization on the amendments proposed in a draft Bill, it is my finding that the obligation for voter education under Article 88(4)(g) kicks in only after the mand ate to conduct a referendum has arisen. This conclusion is founded on the fact that under Article 88(4), voter education is linked to IEBC’s role in “conducting or supervising referenda and elections”. Thus, the obligation to conduct voter education only arises within the context of a referendum. Accordingly, the obligation of voter education arises upon the conclusion of the process in Article 257(10) where the President issues a notice to IEBC to hold a referendum for approval of the Bill. With respect to the Amendment Bill, such an obligation had not arisen at the time the instant cases were filed and adjudicated by the superior courts below.
301.In the upshot therefore, it is my finding on the first part of the question as framed, that there was no obligation on IEBC to ensure that the promoters of the impugned popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies.
302.The second part of the question as framed relates to whether there was public participation in respect of the Amendment Bill. In determining this question, it ought to be appreciated that while participation of the people has been identified as a foundational value and principle of governance under Article 10(2), it is even more crucial with regard to processes that would lead to constitutional amendment. This is so, since it is the people’s acceptance and ownership that grants democratic legitimacy and authority to a Constitution. It therefore means that the process of constitutional amendment should be inclusive, enable deep public participation, and promote active involvement of the people during all the stages. Considerations around public participation in constitutional amendment process ought to be geared towards maximizing public participation and ensuring that people understand the options and choices available to them in the process.
303.In the BAT Case this Court emphasized that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of sovereignty of the people. Accordingly, in line with its mand ate under Section 3 of the Supreme Court Act, the Court formulated the following guiding principles for public participation:“
(i)As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v)Public participation is not an abstract notion; it must be purposive and meaningful.
(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
(ix)Components of meaningful public participation include the following:
(a)clarity of the subject matter for the public to understand ;
(b)structures and processes (medium of engagement) of participation that are clear and simple;
(c)opportunity for balanced influence from the public in general;
(d)commitment to the process;
(e)inclusive and effective representation;
(f)integrity and transparency of the process;
(g)capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”
It is against these stand ards that allegations of lack of public participation ought to be assessed. Importantly, the constitutional threshold is that of reasonableness of notice and opportunity for public participation.
304.On this question, the Court of Appeal unanimously held that the Constitution amendment process contemplated under Article 257 was continuous with several phases hence, elements of public participation should be understood from that perspective. This is a view that I agree with given that a constitutional amendment process takes place in a series of stages. When we look at the constitutional amendment process as a series of stages, a number of avenues open up to encourage public participation in various ways at different points of the process.
305.From the provisions of Article 257 it is discernible that there are four stages in the amendment process under the popular initiative route. The first (initiation) stage: Collection of signatures under Article 257(1) typically involves the promoters of the initiative setting the referendum agenda. However, this has to be within a context of the constitutionally guaranteed opportunities for citizens to influence the process. It is also not lost to me that an onerous requirement that a promoter conducts public participation before presenting the signatures for verification at this stage would be unreasonable because the whole process may be rejected by IEBC, like it did in the two popular initiatives dubbed as Okoa Kenya and Punguza Mizigo initiatives.
306.Moreover, unlike subsequent stages where the cost of public participation is borne by public bodies, that is: County Assemblies, Houses of Parliament, and IEBC; at this first stage the cost of public participation will be borne by citizens or a group of citizens. In such a context, I am of the view that the requirement of public participation during the period preceding and during the collection of signatures should not impose onerous requirements on promoters of an initiative.
307.The second (passage through the County Assemblies) stage seems to lend itself more to public participation. This is because the Constitution imposes a normative obligation for public participation in legislative affairs at the County Assemblies under Article 196. Moreover, the timeline of three (3) months within which County Assemblies ought to consider a Bill under Article 257(6) of the Constitution supports a reading that the assemblies ought to solicit for public input. See in this regard the persuasive decision of the High Court (Nyakundi, J.) in Abe Semi Buere v. County Assembly of Tana River & Another; Speaker of The National Assembly & Another (Interested Parties), H.C Petition No E001 of 2021; [2021]eKLR.
308.The third (passage through the Houses of Parliament) stage is another key stage for public participation. A structural reading would imply that the obligation under Article 256(2) for the Houses of Parliament to publicize any Bill and facilitate public discussion about the Bill, would also apply to a Bill that has come to the Houses of Parliament pursuant to a popular initiative. This is in addition to the general obligation on the Houses of Parliament to promote public participation in the legislative process under Article 118. This is in recognition that deliberations by legislative representatives should promote the goal of allowing public input in deliberations that affect them.
309.The fourth (referendum campaign) stage under Article 257(10), is intended to serve as a national deliberative moment, hence duty bearers including IEBC have an obligation to facilitate a broad participatory process that includes voter education under Article 88(4)(g). The nature of public participation at this stage ought to include civic education to provide objective education on the merits and demerits of the issues presented to the referendum. It is in this context that Section 40 of the Elections Act, which operationalizes Article 88(4)(g) of the Constitution, provides as follows:“
40.Voter education
(1)The Commission shall, in performing its duties under Article 88(4)(g) of the Constitution establish mechanisms for the provision of continuous voter education and cause to be prepared a voter education curriculum.
(2)The mechanisms under subsection (1) shall include provision for partnership with other agencies and non-state actors in the provision of voter education.”
310.It is important to reiterate that the requisite mode, degree, scope and extent of public participation or the sufficiency thereof is to be determined based on the peculiar circumstances of each case. Nonetheless, public participation must not be an illusion but a meaningful engagement with the people.
311.On the question of burden of proof, Okwengu and Kiage, JJ.A held the view and rightly so, that by dint of Section 112 of the Evidence Act, once there is an allegation of lack of public participation, the burden shifts to the person charged with the responsibility of performing the same to establish adequate public participation. However, Tuiyott, J.A arrived at a slightly different conclusion. In his view, the burden could only shift to the promoters of the Amendment Bill if there was evidence to the effect that a person(s) who appended their signature in support of the same was not aware of the content or implication of the Amendment Bill.
312.The evidence before the Court shows that there was a reasonable attempt at public participation with respect to the impugned initiative. This view is supported by the evidence of Hon. Dennis Waweru, Co-Chairperson of the BBI National Secretariat, in his affidavit sworn on 5th February, 2021 which was in response to HC Petition No 416 of 2020 by Morara Omoke. He deposed that the BBI Taskforce Report, BBI Steering Committee Report and the Amendment Bill were a product of comprehensive and consultative public engagement all over Kenya; which process entailed voluntary nationwide public participation. In addition, he annexed to his affidavit invitations, deliberations, reports and memorand a to that effect.
313.I have also taken time to go through the BBI Steering Committee Report and there is evidence of public participation with regards to the process as documented in page 2 of the report. I reproduce an extract of the report verbatim:“…The validation exercise was conducted through the following content and report implementation methodologies:Taskforce ReportReviewing the contents of the Taskforce Report and this is contained in Section 3 of this Report.National Stakeholder Validation ForaThe Steering Committee held a total of 93 stakeholder consultation meetings at the KICC, Laico Regency hotel and at its offices in Nairobi. These fora were attended by representatives from civil society, faith-based organisations, women’s groups, youth groups, persons with disability (PWD) groups, cultural leaders and Government.Regional Delegates’ MeetingsThese regional meetings took place across the country to discuss and validate the Taskforce Report. During the meetings, the technical experts who were retained as consultants by the Steering Committee took attendees through the Taskforce Report. They received written validation submissions from the leaders at the end of each of the meetings.Regional Public MeetingsRegional leaders held meetings across the country during which members of the public engaged their leaders on the recommendations of the Taskforce Report. Most of these meetings were attended by one or two Steering Committee members, who received written submissions from Kenyans through their leaders. Rift Valley Governors were hosted at the Steering Committee’s offices on 20 March 2020 to present and submit memorand a from their Counties following postponement of a regional meeting due to the Covid-19 pand emic. The Governors submitted memorand a from their respective Counties.Written SubmissionsThe Steering Committee publicised its official email and physical address through which written memorand a from members of the public and organisations were delivered. The committee received a total of 124 hand -delivered memorand a and 223 emailed memorand a.”
314.There was no challenge to the contents of the BBI Steering Committee Report and the deposition by Hon. Dennis Waweru. This therefore leads to an unavoidable conclusion that there was reasonable public participation with respect to the Amendment Bill save for the Second Schedule thereto. As far as the Second Schedule of the Amendment Bill is concerned, as I had discussed earlier, it was a late addition to the process. It is worth reiterating that the evidence of public participation runs up to the launch of the Steering Committee Report that took place on 21st October, 2020 wherein the BBI Steering Committee Draft Bill was attached and unveiled to the public. This version did not have the Second Schedule in question. There is no evidence of public participation between 21st October, 2020 and 25th November, 2020 when the Amendment Bill was published and introduced the Second Schedule for the first time.
315.Having made the above finding, I need to point out in obiter that there is need for Parliament to enact a legislative framework to guide and regulate the process of public participation. While the Constitution sets a broad normative obligation for public participation in various governance processes, there is no legislative framework regulating how this obligation ought to be implemented. It is instructive to note that there have been three bills tabled in the Houses of Parliament with respect to providing a legal framework for public participation, namely:(a)Public Participation Bill, 2016, Senate Bill No 175 of 2016; which just underwent the first reading on 15/2/2017;(b)Public Participation Bill, 2018, Senate Bill No 4 of 2018; which underwent the first reading 29/3/2018; second reading 11/7/2018 and stopped at the point of the Committee of the Whole House;(c)Public Participation Bill, 2019, National Assembly Bill No 69 of 2019; which was read for the first time on 29th October, 2019 and then referred to the select Committee on Parliamentary Broadcasting and Library.
316.Likewise, there have been attempts to enact legislation on referendum that stipulates or regulates the process of conducting a referendum on a constitutional amendment. They are:(a)The Referendum Bill, 2020, National Assembly Bill No 11 of 2020; which underwent the first reading on 2/5/2020; and the second reading on 2/6/2020.(b)The Referendum (No 2) Bill 2020, National Assembly Bill No 14 of 2020; which is yet to even undergo the first reading.
317.It ought to be appreciated that the Legislature has a duty to fulfil its obligations under the Constitution by enacting legislation to actualize constitutional imperatives. Furthermore, pursuant to Article 10 of the Constitution, the Legislature and other state organs are under a command to implement or help realize the values and principles that the Constitution secures. Taking into account that the Constitution also places an affirmative duty on the Legislature to enact a legislation on the conduct of referenda under Article 82(1)(d), I implore the Legislature to enact comprehensive legislations that will implement these twin constitutional obligations.
318.In the end, I hold that there that there was reasonable public participation with respect to the Amendment Bill save for the Second Schedule of the impugned Bill.
(vi) Composition and Quorum of IEBC
319.The above issue was raised in the High Court vide Petition No E416 of 2020 wherein it was alleged that IEBC lacked quorum for consideration and approval of policy matters relating to the conduct of referenda including verification of signatures under Article 257(4). As at the time the verification process was undertaken, only three (3) Commissioners of IEBC were in office while the other four (4) Commissioners had resigned and had not been replaced.
320.The High Court was persuaded by the petitioners in the aforementioned case and held that IEBC did not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum as well as verification of whether the Amendment Bill was supported by the requisite number of registered voters. This position was affirmed by a majority of the Court of Appeal bench, with Sichale, J.A dissenting. It is in light of this background that this Court is called upon to determine whether IEBC was constitutionally infirm in terms of its composition and quorum at the time it verified that the Amendment Bill was supported by more than one million registered voters.
321.It ought to be appreciated that the legal regime on the composition of IEBC is regulated by the Constitution. Whilst Article 88 of the Constitution establishes IEBC, provides for eligibility of appointment of its members and its mand ate, this provision does not touch on its composition. It is Article 250(1) which provides for the composition of commissions and independent offices. Article 248(2)(c) lists IEBC as one of the commissions and independent offices making Article 250(1) the constitutional provision regulating its composition. The said Article 250(1) provides as follows:“Each commission shall consist of at least three, but not more than nine, members.”
322.Section 5(1) of the IEBC Act, which statute according to its long title is “an Act of Parliament to make provision for the appointment and effective operation of the Independent Electoral and Boundaries Commission”, provides as follows on the composition of IEBC:“The Commission shall consist of a chairperson and six other members appointed in accordance with Article 250(4) of the Constitution and the provisions of this Act.”
323.Section 5(1) of the IEBC Act appears to have influenced the reasoning of the two superior courts below in resolving the question on IEBC’s quorum. To illustrate, the High Court held as follows:“
718.The Constitution placed the minimum number of commissioners of independent commissions at three and the highest number at nine members. Parliament, while appreciating the important mand ate the IEBC discharges, picked a high number of seven commissioners to constitute it and placed its quorum at five members.”
Similarly, at the Court of Appeal, Musinga, (P), held as follows:“Parliament, well aware of the provisions of Article 250(1) of the Constitution, enacted the IEBC Act and stipulated that the Commission shall consist of a Chairperson and six other members. Appreciating the mand ate of the Commission, Parliament fixed the quorum at five members.”
324.It is readily apparent that there is the possibility of the provisions of Article 250(1) of the Constitution and Section 5(1) of the IEBC Act being read as imposing different requirements with regard to composition of IEBC. This also leads to the question as to whether an IEBC composed of three Commissioners would be infirm to conduct its constitutional mand ate including the verification process provided for in Article 257(4).
325.My finding on the above question is that Section 5(1) of the IEBC Act should be read in a manner that conforms to Article 250(1) of the Constitution. The reason being that Article 2, which expresses the supremacy of the Constitution, demand s that no legal norm, including legislation, should have an effect contrary to that expressed in the Constitution. In other words, provisions of an Act of Parliament cannot override the Constitution. The expressed intention of Parliament in legislation cannot trump the normative command of the Constitution in a legal system where the Constitution is supreme. This Constitution-conform approach to statutory interpretation has already been recognised by this Court in Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, SC Petition 10 of 2013; [2014]eKLR (Hassan Joho Case) at para. 85 as follows:“As rightly submitted by the appellants, the Court of Appeal interpreted Article 87(2) of the Constitution so as to place it in conformity with the provisions of Section 76(1)(a) of the Elections Act. This is tantamount to elevating a statutory provision above that of the Constitution, and is not tenable, in the light of the provisions of Article 2 of the Constitution. The provisions of the Constitution are superior to any legislation. As such, when interpreting the provisions of an Act of Parliament, the Court must always ensure that the same conform to the Constitution and not vice versa” [my emphasis].
326.This position was reiterated by the Court in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, SC Civil Application No 29 of 2014; [2014]eKLR. In effect, courts are under an obligation to ensure that statutory interpretation promotes and sustains the normativity of the Constitution. This is done by ensuring that a Constitution-consistent meaning is given to statutes and a Constitution-infringing interpretation of statutes is avoided. It follows that courts must place the goal of Constitution-consistency at the heart of the process of statutory interpretation.
327.I have also looked at persuasive jurisprudence from apex courts in other jurisdictions which support this approach to statutory interpretation. For example, the Constitutional Court of South Africa has made this point in Investigating Directorate: Serious Economic Offences and Others v. Hyundai Motor Distributors: In Re Hyundai Motor Distributors (Pty) Ltd and Others v. Smit NO and Others 2001(1) SA 545 (CC) at para. 22 thus:“The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.”The same position was adopted by the Supreme Court of Ireland in McDonald v. BordnagCon (No 2) [1965] IR 217 where the court laid the rule of statutory interpretation thus: ‘where an enactment is capable of bearing two interpretations one of which is compatible with the Constitution and the other incompatible, the Court must adopt the former’.
328.Therefore, the implication is that IEBC is legally constituted when composed of the minimum number of three Commissioners stipulated in Article 250(1) of the Constitution. As such, I find that IEBC was constitutionally and legally composed when it undertook the verification process under Article 257(4) relating to the Amendment Bill.
329.This now leads me to the issue of quorum of IEBC. The crux of the issue is whether three Commissioners could constitute the legally prescribed quorum at the time of the impugned verification process under Article 257(4) relating to the Amendment Bill. Given that there is no constitutional rule prescribing the quorum for IEBC Commissioners, the question of quorum is regulated by legislation and subsidiary legislation.
330.Section 8 of the IEBC Act provides for the conduct of business and affairs of the Commission. It states:“The conduct and regulation of the business and affairs of the Commission shall be as provided for in the Second Schedule but subject thereto, the Commission may regulate its own procedure.”
331.Paragraph 5 of the Second Schedule of the Act went ahead and fixed the quorum for conducting business at five. The provision provided that:“The quorum for the conduct of business at a meeting of the Commission shall be at least five members of the Commission.”
332.Incidentally, and by a strange twist or turn of events, sometimes in 2017, Parliament enacted the Election Laws Amendment 2017 which amongst other provisions amended the law on quorum of IEBC (that is, paragraph 5 of the Second Schedule of the Act) to “at least half of the commissioners in office and not less than three members”. This amendment was nonetheless quickly challenged in court in Katiba Institute Case and the High Court (Mwita, J.) held that Parliament’s reduction of the quorum of the IEBC to “at least half of the existing members and not less than three members” was “constitutionally invalid” in a Judgment delivered on 6th April 2018.
333.It is useful to note that the decision in the Katiba Institute Case was never overturned by a higher court and Parliament did not make any amendments to the statute to replace the provision declared constitutionally invalid. Consequently, a question arises as to whether there was a legal stipulation on the quorum of IEBC at the time it undertook the impugned verification process under Article 257(4) relating to the Amendment Bill.
334.Article 2(4) of the Constitution provides that:“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”This makes a declaration of invalidity of any law a remedy that a court ought to grant in case it finds a law to be incompatible with the Constitution. The effect of such a declaration of invalidity is that the law so declared becomes ineffective as though it is not in the statute book. It is in appreciation of this that the Supreme Court of Canada has held as follows with respect to a declaration of invalidity in the case of R v. Ferguson, 2008 SCC 6 at para. 65:“To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand . It is null and void, and is effectively removed from the statute books.”
335.Since the declaration of invalidity in the Katiba Institute Case effectively removed the amendment to Paragraph 5 of the Second Schedule of the IEBC Act, which had been effected through the Election Laws Amendment 2017, from the statute books, the question becomes whether there was a law in existence to regulate question of the quorum. In Senate & 2 Others v. Council of County Governors & 8 Others, SC Petition 25 of 2019; [2022]KESC 7 (KLR) (Senate & 2 Others Case) this Court addressed the question of the effect of declaration of invalidity of an amendment to a legislative provision. We held thus at para. 54:“Subsection (f) above was deleted by the amendment effectively removing the peoples’ representatives; members of the National Assembly and Senate from the County platforms envisaged by that section. We suppose this was informed by the fact that their participation had been moved to a new platform, the Board. With the deletion of (f) above, the modalities and platforms that were to be established under the section were reserved for citizen participation. Indeed, the entire PART VIII is devoted to citizen participation in counties. The effect of the courts’ declaring the amendment unconstitutional restored section 91(f)” [my emphasis].It follows that the decision in the Katiba Institute Case restored the status ante before the 2017 amendment with respect to the quorum of IEBC.
336.However, as explained before, Paragraph 5 of the Second Schedule of the IEBC Act like Section 5(1) of the IEBC Act is drafted on the premise that the Commission will be composed of seven (7) Commissioners on all occasions. A reading of Paragraph 5 of the Second Schedule of the IEBC Act shows that the Legislature did not take into account the terms of Article 250(1) of the Constitution in prescribing the quorum of IEBC.
337.Since Article 250(1) envisages that an IEBC composed of three (3) Commissioners is competent to discharge its constitutional mand ate, an interpretation of Paragraph 5 of the Second Schedule of the IEBC Act that leads to a contrary result will be an affront to the supremacy of the Constitution. In such a context, a court is required to “read down” the statute to ensure conformity with the normative demand s of the Constitution. In a relevant persuasive finding, the Supreme Court of Canada has in Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987]1 SCR 110 observed at para. 26 as follows:“Still another meaning of the "presumption of constitutionality" is the rule of construction under which an impugned statute ought to be construed, whenever possible, in such a way as to make it conform to the Constitution. This rule of construction is well known and generally accepted and applied under the provisions of the Constitution relating to the distribution of powers between Parliament and the provincial legislatures. It is this rule which has led to the "reading down" of certain statutes drafted in terms sufficiently broad to reach objects not within the competence of the enacting legislature: McKay v. The Queen, [1965] S.C.R. 798.”
338.Therefore, IEBC’s quorum ought to be construed to reflect the normative expectation flowing from the Constitution that IEBC can discharge its constitutional mand ate with at least three Commissioners in office. Flowing from the requirement that a court ought to give effect to a constitutionally conforming interpretation of statutes, I hold that IEBC with three Commissioners had the requisite quorum to undertake the impugned verification process.
339.There is still another aspect of this question of the quorum that I need to address relating to the significance of the decision of the High Court in the Isaiah Biwott Case. In that case, the petitioner argued that IEBC was unlawfully composed given that only three Commissioners were in the office at the material time; and therefore, it could not supervise the by-elections which were then slated for 17th August, 2018. In a Judgment delivered on 10th August, 2018 Okwany, J. dismissed the petition as lacking merit. She reasoned that:“
44.Having regard to the above decision, I do not find any inconsistency between the provision in Paragraph 5 of the Second Schedule of the IEBC Act and Article 250(1) of the Constitution. I find that the Act must have been enacted on the assumption or hope that the Commission will be constituted with its maximum nine members which is not the case in the instant petition given that only seven commissioners were appointed in the current commission. Since quorum is composed of a clear majority of members of the commission, my take is that quorum cannot be a constant number as it is dependent on the actual number of the commissioners appointed at any given time. The question that we must ask is if quorum would remain five in the event that only three commissioners are appointed because the Constitution allows for a minimum of three members. Would the quorum still be five? The answer to this question is to the negative. My take is that the issue of quorum, apart from being a matter provided for under the statute, is also a matter of common sense and construction depending on the total number of the commissioners appointed at any given time because it is the total number of commissioners appointed that would determine the quorum of the commission and not the other way round. In view of the above findings, I do not find Paragraph 5 of the Second Schedule of the Act unconstitutional having found that it was enacted on the belief that the maximum number of commissioners would be appointed.”
340.IEBC argued in this Court, like it did before the two superior courts below, that having been given the go ahead by the High Court that it could transact its mand ate with three Commissioners in office, its actions and decisions were immunized from challenge. The two superior courts below gave short shrift to this argument holding that the decision of a High Court Judge did not bind a court of concurrent jurisdiction under the doctrine of stare decisis. Thus, the High Court in the instant case was free to depart from the finding in the Isaiah Biwott Case.
341.My view is that common law doctrines like the stare decisis doctrine must be interpreted in a manner that promote and give effect to the values and principles of the Constitution. In the instant case, the two superior courts below, unfortunately did not take into account the value and principle of the rule of law enshrined in Article 10(2)(a) that command s compliance with court orders before making a decision that has the effect of penalizing IEBC for relying on a declaratory finding by a High Court. IEBC cannot be faulted as its actions then were supported by the Isaiah Biwott Case. Although the said decision was not binding on the High Court or the Court of Appeal, it created a legitimate expectation by IEBC that carrying out business with three Commissioners complied with the law.
342.It needs to be appreciated that the value and principle of the rule of law under Article 10(2)(a) of the Constitution demand s that public bodies and private individuals comply with court decisions. As pointed out by the Supreme Court of the United Kingdom in Craig v. Her Majesty's Advocate (for the Government of the United States of America) & Anor (Scotland ) [202] UKSC 6:“...some general observations about the use of declaratory orders in public law may be helpful. It has been firmly established since the case of M v Home Office [1994]1 AC 377 that there is a clear expectation that the executive will comply with a declaratory order... The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our Constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts... In other words, it is because ours is a society governed by the rule of law, where the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy...”
343.The significance of the above is that where a state organ or private individual acts in compliance with a court decision, like IEBC did in this case, it ought not be punished by a subsequent court’s decision declaring such actions illegal based on a differing interpretation of the law.
344.In circumstances where a High Court in a later case, like in the instant case, disagrees with an earlier finding by another bench of the High court, the best approach is for the court to craft and mount appropriate remedies taking into account contextual considerations like the reliance placed by public bodies and private individuals on earlier court decisions. In such instances, the High Court ought to opt for the remedy of “prospective overruling” or “suspending the declaration of invalidity” and stipulate that the effect of its decision will apply prospectively.
345.Indeed, this Court has already given guidance and signal to this effect in its decisions in Mary Wambui Case and Suleiman Said Shahbal v. Independent Electoral and Boundaries Commission & 3 Others, SC Petition No 21 of 2014, [2014]eKLR. Such an effect of controlling the consequences of a finding by the court will promote compliance with court decisions and thus promote the rule of law. The contrary approach, like that adopted by the two superior courts below in the instant case, encourages disregard or second guessing of court decisions thus is a threat to the value and principle of the rule of law.
346.In conclusion therefore, I find that IEBC had the requisite quorum to undertake the impugned verification process under Article 257(4) relating to the Amendment Bill.
(vii) Referendum Questions
347.On this issue, the High Court determined that Article 257(10) of the Constitution requires all the specific proposed amendments to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper, which are to be voted for separately and distinctively. This finding was affirmed by Nambuye, Okwengu, and Kiage, JJ.A. Gatembu, J.A added a qualifier “subject to the nature of proposed amendment” to the High Court’s finding. Musinga, (P), disagreed with the learned Judges of the High Court and held that what is to be subjected to the referendum is the Amendment Bill which the people are to approve or disapprove by answering a question or questions, either in the affirmative or in the negative as framed by IEBC and approved by Parliament.
348.On his part, Tuiyott, J.A held that since IEBC had not received the request to hold the referendum, no occasion had arisen for it to discharge its responsibility of framing the question or questions. What’s more, it had not been suggested that IEBC had already determined the manner or formula in which it would frame the question or questions in respect to the referendum touching on the impugned Bill. As a result, it was his finding that there was no live controversy that required the High Court to pronounce itself on and the whole question was not ripe for determination.
349.The first question for determination is a preliminary one which is whether the question on formulation of referendum questions was ripe for determination. The doctrine of ripeness focuses on when a dispute has matured into and existing substantial controversy deserving of judicial intervention. The Black’s Law Dictionary, 10th Edition at page 1524 defines ripeness as:“The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.”
350.The doctrine of ripeness prevents a party from approaching a court before that party has been subject to prejudice, or the real threat of prejudice, as a result of the legislation or conduct challenged. The doctrine of ripeness is well developed in American jurisprudence as I have found in the persuasive decision of Abbott Laboratories v. Gardner 387 US 136, 148 (1967) (Abbott Laboratories Case) where the United States’ Supreme Court held that the rationale behind the ripeness requirement is to enable courts to avoid becoming entangled in determining abstract questions of law that have not matured into live controversies. This is the observation that was made:“Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration” [my emphasis].
351.It should be noted that at the time of filing the subject petitions, particularly Petition E416 of 2020, the Amendment Bill was yet to be submitted to the County Assemblies for debate. This means that IEBC was yet to be invited to make a determination on the manner and form of the referendum question(s). Taking into consideration that IEBC’s obligation under Article 257(10) of the Constitution had not yet arisen, Tuiyott, J.A was right in finding that there was no live controversy before the High Court which ought to have declined to make a determination on this question.
352.Be that as it may, since the two superior courts below have pronounced themselves on this question although not ripe, I have taken time to consider whether there is need for this apex Court to settle this issue within the rubric of settling this question in the public interest. Adopting such an approach would settle this controversy and provide guidance to the nation and state agencies (including IEBC) on the discharge of the mand ate under Article 257(10).
353.The need to settle the law and offer jurisprudential guidance in public interest in a context such as this has been alluded to by this Court in the past. In the Matter of the Speaker of the Senate & Another, SC Reference No 2 of 2013, [2013]eKLR (In the Matter of the Speaker of Senate), Mutunga, CJ (as he then was) observed:“[156]The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretive guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents” [my emphasis].
354.Other Courts have also embraced such a stand point. For example, the Constitutional Court of South Africa in AAA Investments (Pty) Limited v. Micro-Finance Regulatory Council & Another 2007 (1) SA 343 (CC) held at para. 27 as follows:“We must however bring into the equation the question of mootness in the process of deciding the interests of justice issue. By the time this case was heard by the SCA, the Exemption Notice had been replaced by a new Exemption Notice which in effect set out the Rules that had been determined by the Council and which are under attack in this case, as rules prescribed by the Minister. The Council’s Rules had become the Minister’s Rules. The Council’s contention in the SCA that this rendered the issue before that court moot was rejected and not raised again in this Court. However the possibility of the issue in relation to the Rules contested in this Court being moot because they have been overtaken by the new Notice is so strong that this factor must be brought into account in the interests of justice analysis. The issues may well be moot. Nonetheless, there are two conflicting judgments on these issues and , if we do not consider this aspect of the case, the judgment of the SCA with all its implications for future regulation would remain binding. In all the circumstances, I would hold that these issues are so crucial to important aspects of government as well as the rights contained in the Bill of Rights that it is in the interests of justice to grant leave to appeal” [my emphasis].
355.The Court of Appeal has also made the same point in Public Service Commission & 4 Others v. Cheruiyot & 32 Others, Civil Appeal 119 & 139 of 2017 (Consolidated); [2022] KECA 15 (KLR) at para. 54 as follows:“The above finding on the jurisdiction of the Employment and Labour Relations Court would have been sufficient to dispose of the consolidated appeals. However, owing to the gravity of the remaining issues and the public interest touching on the consolidated appeals, we feel inclined to determine each of the remaining issues” [my emphasis].
356.Having considered the above authorities, I still hold the view that such an approach would not be appropriate in the peculiar circumstances of this case. The question of whether under Article 257 (10) requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions is a deeply fundamental one and it cannot be dwelt with in an anticipatory manner. This is the first time IEBC came close to conducting a referendum on amending the Constitution but had not had the occasion to discharge its mand ate of framing the question or questions for the same.
357.This therefore lends credence to the arguments that the matter of the conduct of the referendum was not ripe and the two superior courts erred by failing to extrapolate the real meaning of the doctrine of ripeness and its applicability in the instant matter. Ripeness discourages a court from deciding an issue too early. It therefore requires a litigant to wait until an action is taken against which a judicial decision can be grounded and a court is able to issue a concrete relief. This approach shields a court from dealing with hypothetical issues that have not crystalized.
358.Accordingly, I find that the issue of whether Article 257(10) of the Constitution entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination.
(viii) Costs
359.On costs, ideally, costs should follow the event but nonetheless, ultimately, whether or not costs are to be awarded lies within the discretion of the Court. The judicial discretion is not to be exercised capriciously but is meant to accommodate the special circumstances of each case, while being guided by ends of justice. See Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others, SC Petition No 4 of 2012; [2014]eKLR. As such, taking into account that the consolidated appeals revolved around the interpretation and application of Chapter Sixteen with respect to amendment of the Constitution, which is in public interest, an order that each party bears its own costs would be most appropriate.
F. Summary Of My Findings
360.Based on the foregoing analysis, the position that I take on the issues determined above is that:1.The basic structure doctrine and the four-sequential steps for amendments as prescribed by the two superior courts below are not applicable in Kenya under the Constitution.2.The President or state organs or institutions are not permitted to initiate or promote a constitutional amendment process through the popular initiative route provided in Article 257 of the Constitution. That being the case, the Amendment Bill does not pass muster as a popular initiative under the provisions of Article 257 of the Constitution thus making the amendment process unconstitutional.3.The Second Schedule of the Amendment Bill is unconstitutional for want of public participation, a constitutional obligation that flows from Articles 10(2)(a) and 89(7)(a) of the Constitution.4.Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary to the Constitution.5.There was no obligation on IEBC to ensure that the promoters of the impugned popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies. In addition, there was reasonable public participation with respect to the Amendment Bill save for with respect to the Second Schedule of the impugned Bill.6.IEBC had the requisite quorum to undertake the verification of signatures in support of the Amendment Bill under Article 257(4) of the Constitution.7.I find the question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination.8.This being a public interest matter, I find that each party should bear their own costs both in this Court and the superior courts below.
JUDGMENT OF P. M. MWILU, DEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT
361.The lead Judgment of the Chief Justice and President of the Court comprehensively details the background to this matter, the history of the proceedings, analysis of all the facts, the submissions of all the parties and the various reliefs sought in the consolidated petitions and I need not make any detailed reference to those areas. Herebelow are my personal perspectives and considerations of the issues raised before all the superior courts including this Court.
362.Democracy is a perpetually contested condition. Within it, through discourse, persuasion, contention, and reconciliation, we are in constant mutability towards improving our condition through perfecting the substance of the norms and agreements by which we agree to co-exist and flourish. Whilst we see this across our courts every day, there are certain matters that accentuate our constant pursuit of social and political perfection; the Appeal before this court is one such. Within the context of our national journey towards perfecting our constitutional democracy, the important role of this Court and all parties to this appeal becomes more apparent.
363.The crux of this appeal, as I see it, is the extent and nature of constitutional amendment in Kenya. Especially within our nation’s history of Constitution development and more specifically the experiences and processes that birthed the Constitution of Kenya 2010, any initiative that seeks to change that body of fundamental principles according to which we as Kenyans have agreed to be governed, our Constitution, deserves the utmost attention of all Kenyans, whose duty under Article 3 is to respect, uphold and defend the Constitution, and all state organs who under Article 2 exercise their delegated authority only through and in accordance with that Constitution.
364.The history of constitutional development in Kenya has been laid out concisely and in detail both in the High Court and Court of Appeal decisions in this matter. This history is most relevant; this Court, the Supreme Court, has on numerous occasions asserted the importance of historical context as a key tool for courts and tribunals in the interpretation of the provisions of our transformative charter. Though a significant factor, it is not and ought not to be the only lens through, or the weightiest factor upon which we consider questions of constitutional interpretation.
365.Prof. Richard Albert, referred to in both the judgments of the superior courts in this matter, speaks of the “rise of unamendability” and the duality of formal amendment rules in terms of their availability for both good and ill as posing a challenge for constitutionalism in that though rules of change are indispensable for the functioning of constitutional democracy, they at once “…open the door to the demise of constitutional democracy itself.” Therefrom he poses the question, “How, then, can we protect constitutional democracy from the misuse of its own devices?” The late Prof. H.W. Okoth Ogendo illuminates this discussion by pointing out that it is pointless having a Constitution if constitutionalism is not our concern.
366.As I stated above, I am most cognisant of our history as a country as well as the history of the development of our much-cherished Constitution. I am also aware of the principles developed by this Court regarding historical context in interpretation of the Constitution, a living document speaking from the past, through the present and to the future. I must, however, state that the role of our courts must remain within the architecture of the Constitution; it is bound by it. The exercise of discretion must be judicious. Though it is the Court’s task to breathe life into the Constitution and to ensure that its text is constantly speaking to the transformative and emancipatory ideals therein, on the other hand , the text of the Constitution cannot be seen as devoid of meaning and content, merely to be filled by ideas and opinions by those on the bench, no matter how laudable and well intentioned they may be. A balance must be maintained, such balance is crucial to the very architecture of our constitutional democracy, for the courts too, must not see themselves as immune to inimical despotic tendencies.
367.This is especially true in regard to constitutional amendment and the exercise of sovereignty as acknowledged in the Constitution, directly or indirectly, through processes prescribed therein. The courts must seek to steadfastly and purposely defend and protect the constitutional processes through which the people of Kenya express their sovereign power. Not, on the basis of justifiable apprehension and no matter the nobility of the cause, employ judicial craft to read certain moral or doctrinal limits into the exercise of such sovereign power. It is the sovereign, the people who must decide, and responsibility of all state organs to only exercise state authority as delegated by the sovereign, and remove all extra- constitutional impediments to the free exercise of such power. This Constitution has been stretched in its over ten years’ existence and perhaps this is the most serious attempt yet to espouse its limits in the wake of attempted amendments.
368.To demonstrate the magnitude of the case before the Court, while the High Court framed thirteen issues for determination arising out of the consolidated petitions, the Court of Appeal expand ed them to twenty-one. This Court, based on its special position and purpose in our constitutional scheme, framed seven issues as the basis upon which to settle any constitutional controversy.
369.All the above said, I will now proceed to consider the seven issues framed for determination by this Court which are:(i)Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;(ii)Whether the President can initiate changes/amendments to the Constitution; and whether a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution;(iii)Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;(iv)Whether civil proceedings can be instituted against the President or a person performing the functions of the office of the President during his/her tenure of office with regard to anything done or not done contrary to the Constitution;(v)The place of public participation under Article 10 vis-a- vis the role of IEBC under Article 257(4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;(vi)Interpretation of Articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC; and(vii)Whether the interpretation of Article 257(10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.
(i) Whether the Basic structure doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can be altered through the primary constituent power; and what constitutes the primary constituent power
370.If there were any stand out words emanating from these proceedings, they are “basic structure”. Petition No E282 of 2020, David Ndii & Others v. Attorney General & Others before the High Court brought the issue of basic structure to the core of these proceedings. The petitioners therein raised three main issues seeking declaratory reliefs imposing the doctrine of the basic structure and its corollary doctrines in Kenya. They specifically sought to protect chapters one, two, four, nine and ten as forming part of the basic structure and therefore not amendable. It was therefore no surprise that Isaac Aluochier, the 19th respondent herein referred to David Ndii as “the champion of the basic structure doctrine”.
(a) Basic Structure and Basic Structure Doctrine
371.What then is the basic structure and is it any different from the doctrine? Our Constitution does not have any reference to the basic structure or basic structure doctrine in its text. It is my considered view that before determining the applicability of a doctrine, it is imperative to first establish and /or locate it. According to the petitioners in Petition No E282 of 2020, the Constitution has certain fundamental aspects that must be maintained at all times. To them, there are eternity clauses whose amendment cannot be entertained without overhauling the Constitution.
372.Taking into account the Constitution-making process leading to the promulgation of the Constitution of Kenya 2010, there is no doubt that the Constitution had to take a certain configuration. For instance, certain aspects of sovereignty of the people and supremacy of the Constitution, the Bill of rights which now extended to socio-economic rights, leadership and integrity, devolution and the two levels of government, the executive which was detached from legislature, Judiciary among other provisions were introduced into the Constitution. Following the clamour for constitutional review over the years, the Constitution was promulgated following an elaborate process that was preceded by a largely participatory and people-centric mechanism.
373.I can therefore comfortably state that the Constitution has a certain structure incorporating the certain provisions as stated above which are termed as basic. This structure takes into account the history of the country and the aspirations of the citizens that are elevated into the Constitution. From the proceedings and the record, the parties commonly agreed that the Constitution does have a basic structure that is inherent therein. This structure may differ from country to country but subsists in all Constitutions.
374.The point of departure between the parties before us, as I perceive it, is the existence and applicability of a basic structure doctrine in Kenya. That was the direct invitation to the High Court by David Ndii & Others when they first approached court. But first, it is imperative that the basic structure doctrine is identified and defined.
375.The Constitution of Kenya 2010 neither defines the word ‘doctrine’, ‘basic structure’ nor even ‘basic structure doctrine.’ The only doctrine referred to in the Constitution is on the construing of the Constitution. Article 259(3) provides that every provision of the Constitution shall be construed according to the ‘doctrine of interpretation’ that the law is always speaking.
376.A doctrine is defined as “a belief or set of beliefs held and taught by a church, political party or other group” (refer to Oxford Dictionary 12th ed. (2011) Oxford University Press). Black’s Law Dictionary 11th Edition defines a doctrine as a “principle, especially a legal principle, that is widely adhered to.” In legal parlance, legal doctrine is the currency of law. In many respects, doctrine, or precedent is the law, at least as it comes from courts. According to Emerson H. Tiller & Anor “What is legal doctrine?” (2006) 100 Nw.U.L. Rev. 517, a legal doctrine sets the terms for future resolution of cases in an area and it may take many forms – fact-dependent and therefore limited or sweeping in its breadth. It is not debatable then that a doctrine is a legal principle of long usage, which is widely accepted as such. That definition is what I consider a working tool in resolving the present controversy inherent in the existence, and applicability, if at all, of the basic structure doctrine in the circumstances and command s of the Constitution of Kenya, 2010.
377.The learned Judges of the High Court found that the basic structure doctrine is applicable in Kenya and it protects certain fundamental aspects of the Kenyan Constitution from amendment through the use of either secondary constituent power or constituted power. Accordingly, to the High Court, there are unamendable or eternity provisions that represent certain provisions in the Constitution which are inoculated from any amendment at all because they are deemed to express categorical core values and cannot be changed through the exercise of secondary constituent power or constituted power. To the High Court therefore, the basic structure can only be altered or modified by the people using their primary constituent power and that the text, structure, history and context of the Constitution of Kenya 2010 all read and interpreted using the canon of interpretive principles decreed by the Constitution yield the conclusion that the basic structure doctrine is applicable in Kenya.
378.By majority, the Court of Appeal (Sichale, J.A dissenting) affirmed the High Court decision to the extent that the basic structure doctrine is applicable in Kenya and it limits the amendment power set out in Articles 255-257 of the Constitution (Okwengu and Sichale, JJ.A dissenting). The Court of Appeal further affirmed the High Court decision to the effect that the basic structure of the Constitution can only be altered through the primary constituent power which must include four- sequential steps, that is: civic education to equip people with sufficient information to meaningfully participate in the Constitution-making or Constitution-altering process; public participation and collation of views in which the people – after appropriate civic education – generate ideas on the type of governance charter they want and give their views about the constitutional issues; Constituent Assembly debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of Constitution-making or Constitution-alteration; and referendum to endorse or ratify the Draft Constitution or changes to the basic structure of the Constitution. (Okwengu, Gatembu and Sichale JJ.A dissenting).
379.What is apparent is that there is no consensus on what this basic structure doctrine is, including its origin and applicability in Kenya. To my mind therefore, it is only upon a proper understand ing of the doctrine that would render a proper determination of its applicability, the extent of its application and the amendment of the Constitution in that context.
380.In their case before the High Court, the proponents of the doctrine merged the basic structure doctrine with the doctrine and theory of unamendability of “eternity clauses,” the doctrine and theory of “constitutional entrenchment clauses” and “unamendable constitutional provisions” in seeking a declaration that they are applicable in Kenya. Their lead argument is that the legal and judicial doctrines substantively limit the ability to amend the Constitution under Articles 255-257 thereof. That the amendment powers reposed in Articles 256 and 257 of the Constitution can only be used to amend the ordinary provisions rather than enact a new constitutional order, there being a difference between amendment and alteration. To them, any amendment of what was considered to be part of the basic structure amounted to an alteration, going beyond Articles 255 to 257 of the Constitution.
381.The proponents of the doctrine traced it from the famous writings of John Locke, Hume and Rousseau. They referred to John Locke’s Two Treatises of Government and Baron De Montesquieu’s The Spirit of the Laws to assert that it is neither emergent nor alien being rooted in antiquity as a feature of democratic governance.
382.They also employed reliance on scholarly works. At the heart of their submission was the work of Prof. Ben Nwabueze on Presidentialism in Commonwealth Africa in which the learned author deals with “Constituent Power and Popular Sovereignty.” The seminal book, Constitutional Amendments; Making, Breaking and Changing Constitutions by Prof. Albert Richard was cited to buttress the evolution of unconstitutional constitutional amendments across multiple jurisdictions and how it applies to modern constitutional democracies tracing its political foundations to France and United States, with its doctrinal origins to Germany.
383.The Njoya Case was heavily relied upon for the position that it established the doctrine of constituent power in Kenya. The Indian Kesavanand a Case was cited as establishing the basic structure doctrine and applying it to the Indian context. They posit that constituent power did not originate with the Njoya Case but rather that it is traceable from John Locke, and Montesquieu as earlier enunciated.
384.To the proponents, even local text affirms the basic structure of our Constitution. They cite John Mutakha Kangu, “Constitutional Law of Kenya on Devolution,” (Strathmore University Press, 2015) who states that the basic structure of our Constitution should include the sovereignty of the people, the supremacy of the Constitution, the principle of sharing and devolution of power, democracy, rule of law, the Bill of Rights, separation of powers and the independence of the Judiciary.
385.The opponents of the importation of the basic structure led by the Hon. Attorney General faulted the doctrine just as it has been rejected in many jurisdictions including Malaysia, Singapore, Zambia, Ugand a and South Africa. They also faulted the applicability of the Kesavanand a Case determined in 1973 under circumstances radically different from the present case.
386.Prof. Yaniv Roznai was quoted extensively at the Court of Appeal. He traces the history of the basic structure doctrine and how it was developed in India. This was in response to Prime Minister Gand hi’s “far-reaching attempts to amend the Constitution, leading eventually to the judicial development of the ‘Basic Structure Doctrine’.” According to the doctrine, the amendment power is not unlimited. He criticized the Kesavanand a Case for failure to identify the unamendable clauses.
387.Further criticism of the Indian case was made by Prof. Charles Manga Fombad, amicus curiae, that the doctrine of basic structure was developed in India when it was dealing with India’s 20th century independence Constitution of the 1950s whereas African Courts are now dealing with African made Constitutions of the 21st century, negating the relevance of the Kesavanand a Case due to the changed circumstances.
388.To help expound this issue further, the court admitted Professors Rosalind Dixon, David E. Land au, Gautam Bhatia, Migai Akech, Richard Albert, Charles Manga Fombad and Dr. Adem K. Abebe as amici on the basis of the briefs filed. I have greatly benefited from their exposition, some of which is right “from the horse’s mouth” owing to the fact that their scholarly works had been quoted by the litigants. The amici came forth to directly express their views, just in case they had been quoted out of context or misquoted. As expected, the scholarly contest among the amici turned out to be an interesting discourse on this issue of the extent of applicability of the basic structure doctrine. This is both from the amici admitted before this Court and those that had participated in the case prior to its hearing before this Court.
389.The irrefutable conclusion that I make on this issue is that while the Constitution of Kenya has a basic structure as conceded by the parties, the structure is different from the basic structure doctrine and the different parties in this matter, just like the amici, had different definitions, origin, components and considerations as to what amounts to the basic structure doctrine. This now leads to the consideration whether indeed the basic structure doctrine applies in Kenya and if so to what extent.
(b) Applicability of the basic structure doctrine in Kenya
390.A common thread as to what constitutes the basic structure doctrine in Kenya, as argued, is that the doctrine seeks to protect the Constitution from radical amendments especially those perpetuated by the leaders, be they in Parliament or in the Executive. This is based on the past trend where constitutions were amended over time with the aim of diminishing citizens’ rights at the expense of entrenching political rights. Considering the history of our country and the process through which the Constitution making process was subjected to, it is imperative that certain provisions which contain the basic structure be upheld and protected from haphazard interference.
391.What then be the place of this doctrine? As earlier stated, it is not an express provision of the Constitution. There is no uniform and agreed definition of this doctrine. Is it then an implied doctrine and if so from which provisions of the Constitution does it accrue? Article 2 of the Constitution deals with the supremacy of the Constitution. How then does the doctrine mirror in this supremacy equation? Article 1 of the Constitution vests all sovereign power in the people, and it is exercised only in accordance with the Constitution. This is either directly or through democratically elected representatives.
392.Was this doctrine introduced in Kenya through the Njoya Case or any other judicial determination so that we are being called upon to merely affirm it? Or is it one of those doctrines of common law – like judicial review, res judicata, estoppel and so forth which are aimed at proving inspiration for new legislation to be enacted? Certainly, some of the proponents, including Kenya Human Rights Commission, the 78th respondent, consider it a common law doctrine that is inherent in all Constitutions. Opponents like Prof. Yaniv Roznai dismisses the notion that the doctrine is a common law doctrine in the following terms:“The Kesavanand a Case did not provide a precise list of unamendable features that constituted the Constitution’s Basic Structure, thus forming a sort of common law doctrine that develops on a case by case basis” and that the Kesavanand a Judgment created a “Constitutional quicksand .”
393.As stated, the parties did not have consensus on what the doctrine entails. The High Court found the doctrine applicable in Kenya, and that it protected certain fundamental aspects of the Kenyan Constitution from amendment. Differently put, the basic structure doctrine protected the core edifice, foundational structure and values of the Constitution but left open certain provisions of the Constitution as amenable to amendment as long as they did not fundamentally tilt the basic structure. That the basic structure doctrine limited the amendment power set out in Articles 255 – 257 of the Constitution.
394.The challenge on the applicability of the doctrine in Kenya was manifest at the Court of Appeal. By majority, six of the seven Judges of Appeal agreed with the High Court’s conclusion as to the applicability of the doctrine. The Judges would, however, not agree on what the doctrine constituted and identified what is set out under Article 255(1) of the Constitution to form the basic structure. They held that the basic structure doctrine applies through implication. Sichale, J.A was categorical that the doctrine was not supported by the context, structure and history of the Constitution. In relation to the Constitution of Kenya (Amendment) Bill 2020 (Amendment Bill), the majority of the Judges of appeal were not in agreement that the Amendment Bill sought to fundamentally alter certain constitutional pillars by way of dismemberment and not as an amendment of the Constitution.
395.Where do all these unclear positions leave the basic structure doctrine and its applicability in the Kenyan context? One thing for certain is that the doctrine, not being expressly stated in any statute or the Constitution, remains manifest only by necessary implication.
396.The Attorney General, the 79th respondent, 3rd amicus curiae Gautam Bhatia, the 74th to 78th respondents and Kituo Cha Sheria trace the applicability of the basic structure doctrine in Kenya to the Njoya Case. The Attorney General went further to say that this doctrine was followed in the case of Patrick Ouma Onyango & 12 Others v AG & 2 Others Misc. Appl No 677 of 2005 [2008]3 KLR (EP) 84.
397.At the onset, the Attorney General, rightly so, notes that the Njoya Case was rendered under the repealed Constitution. It therefore behooves the Court to pronounce that that case does not apply in the present circumstances. With respect and viewing the matters in controversy here in proper context, this is clearly not a “Njoya moment.” The Njoya Case was determined on the backdrop of the non- existence of any legal mechanism under the Constitution towards amendment or overhaul of the Constitution, including the conduct of a referendum or referenda.
398.Following the decision in the Njoya Case and its ensuing pronouncement on the necessity of a referendum, questions arose on whether there was need to amend the Constitution to provide for referendum or whether amendments to the operating statute relating to the review of the Constitution would suffice. The basic question at the heart of the Njoya Case was whether the existing Constitution of Kenya could be extinguished and another given life in its place otherwise than as provided for in the Constitution and on the basis only of the provisions of an ordinary Act of Parliament. This is what informed the enactment of Chapter Sixteen that we currently have in the Constitution, the basis upon which the present dispute should be considered.
399.Section 3 of the Supreme Court Act gives the objects with respect to the operation of the Supreme Court as a court of final judicial authority to among other things:(a)assert the supremacy of the Constitution and sovereignty of the people of Kenya;(b)provide authoritative and impartial interpretation of the Constitution(c)develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social economic and political growth;(d)enable important constitutional and other legal matters, including matters relating to the transition from the former to the present constitutional dispensation to be determined having due regard to the circumstances, history and cultures of the people of Kenya.This is an important provision that must at all times guide the Court in dealing with matters before it such as the present one.
400.The inescapable thread that emerges from this matter is that the framers of the Constitution took deliberate steps, at least for Kenya, to ensure the process of amending the Constitution was strictly regulated. Our Constitution is not referred to as transformative for the sake of it. It is a product of quite an effort made at different levels and by different players to guard the aspirations of the citizens whose participation remains at the core. This is the import of Articles 10 and 259 of the Constitution.
401.While the Kesavanand a Case might have been jurisprudential and originated this otherwise interesting basic structure doctrine, with respect, the decision is distinguishable in many facets. Firstly, the historical context within which the decision was made is different from Kenya’s situation. Kenya did not undergo the same circumstances as those of India. While India’s parliament had the sole discretion of amending the Constitution, in Kenya the amendability of the Constitution was not of concern. The global dynamics obtaining in the 1970s including the cold war when the decision was made were very different from the current dynamics. Secondly, the juxtaposition of the Constitutional provisions and architecture reveal a discrepancy between the Indian Constitution and the Kenyan one. Thirdly, the political underpinning and democratic spaces between the two countries remain distinguishable.
402.As noted by the opponents of the doctrine, there were substantial textual and contextual differences between the Kenyan Constitution and the Indian Constitution at the time the Indian Supreme Court developed the doctrine. For instance, under the Indian Constitution, Parliament has the exclusive and final power to amend the Indian Constitution; there is no requirement for approval of an amendment of the Indian Constitution in a referendum; the popular initiative approach is neither provided for nor contemplated under the Indian Constitution; the court’s jurisdiction to question parliamentary power to amend the Indian Constitution on any ground is expressly ousted.
403.It is noted, as was argued before us, that courts in some countries such as Nicaragua, El Salvador, Honduras and Bolivia have over-enforced the basic structure doctrine, while others have applied the doctrine in ways that have had distinctly anti, rather than pro-democratic effects, to for example, remove term limits on the presidency. In addition, it was also submitted that India, Malaysia, Singapore, Belize, South Africa, Taiwan, Ugand a, Colombia, Bangladesh and Pakistan, relied upon by the Court of Appeal in support of the application of the Basic Structure Doctrine in Kenya were all in respect of the Parliament's power to amend the Constitution.
404.Further, that none of the cases related to amendments by referenda or popular initiatives, as is contemplated under Articles 255 and 257 of the Constitution of Kenya. Countries such as Malaysia, Singapore, Zambia, Ugand a and Tanzania, stated to have rejected the basic structure doctrine, did so with the courts operating in very different political and legal contexts, often with low levels of judicial independence or insulation from authoritarian actors.
405.More importantly, it is indubitable that, being a foreign concept and doctrine, the basic structure doctrine should only be considered within our constitutional design and architecture. As we observed in Mitu-Bell Case, any foreign legal principles must be construed within Article 2(5) of the Constitution and only applied as a fall back when we have no internal recourse to the matter at hand . Moreover, for us to accept the doctrine by implication, it must meet the muster of Article 2(4) to the extent that it must not be inconsistent with or in contravention of the Constitution.
406.The corollary question to ask myself is whether I can, by any stretch of imagination contemplate that there is a lacuna in our Constitution. This is a path I would be reluctant to take as the Constitution is presumed to be self-contained. Any lacuna identified can only be resolved through amendment or repeal of the Constitution using the mechanism set out under the very Constitution. The courts retain the authority to interpret and apply the Constitution, in relation to any legislative or other undertakings done under or in the name of the Constitution. The Constitution itself gives the authority to the courts to interpret the Constitution as guided by Article 259.
407.In my view, whether a Constitution is amendable or not, whether any amendment initiative amounts to an alteration or dismemberment and the procedure to be followed is a matter that would be determined on a case to case basis depending on the circumstances. Articles 255 – 257 just like any other provisions of the Constitution can be interpreted or applied to the circumstances of a relevant case within the Constitution. This may involve invoking the jurisdiction of the High Court under Article 165(3)(b) and (d) with the possibility of appellate process all the way to the Supreme Court as the final arbiter under Article 163(4)(a) of the Constitution in a case involving the interpretation or application of the Constitution.
408.It is entirely within the rights of any party to submit the basic structure doctrine as they understand it to interpret the provisions of the Constitution. For our purposes, the overarching contention is whether the Constitution can be amended or not, and if so, how such amendments ought to be carried out. The fact that the parties propose the basic structure doctrine as the method of interpreting the clauses of the Constitution does not mean that the Constitution embodies the basic structure doctrine as the method of interpreting the articles of the Constitution. Any departure from or concurrence with the basic structure doctrine as posited by the proponents would thus be purely coincidental rather than consequential.
409.This position is not specific to the basic structure doctrine but any other prism as may be proposed by a litigant. Several scholars and legal or other principles were cited to the Court. Just to name a few, some Counsel quoted writers such as Chinua Achebe, scholars such as Prof. B.O. Nabwueze and some of the amici in these proceedings, theorists, political analysts, and so on. To extrapolate the point being made is to now start saying just as an example, that Chinua Achebe’s principles apply to the Constitution.
410.Counsel and litigants are at liberty to defer to different and sometimes fancy concepts to articulate their position on any issue. In doing so, the court is not always obliged to take the bait and endorse some of these concepts without a careful interrogation. I am confident that we have a corpus of indigenous, contextual and progressive jurisprudence that informs and guides the courts in their interpretation and application of the Constitution. It is only through such recourse that the court would play its rightful role in developing its own rich jurisprudence that respects Kenya’s history and traditions as contemplated under Section 3 of the Supreme Court Act.
411.To state that the basic structure doctrine is applicable in Kenya is, to say that it has the force of law. That, it does not have in my view. Some judicial reasoning which is what Kesavanand a Case is, cannot be elevated to a doctrine above the Constitution. The basic structure doctrine is not within our Constitution and needless to say, our Constitution is self-sustaining.
412.The sum total of my finding is that the basic structure doctrine, by whatever machination is not applicable in Kenya.
(c) Whether the basic structure of the Constitution can be altered through the primary constituent power and what constitutes primary constituent power
413.This issue calls for our determination of the amendability of the constitutional provisions, if there is any limitation on amending certain provisions and generally how to go about it. The protagonists of the basic structure doctrine called for the unamendability of certain provisions which constitute the basic structure. To them, there exists the doctrine of constitutional entrenchment clauses which insulates certain provisions of the Constitution from amendment either under Article 256 of the Constitution by Parliament or through popular initiative under Article 257. The affected provisions include Chapter One on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on the Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary.
414.The Attorney General challenged the unamendability argument on two grounds – One, that such a doctrine of unamenability was not applicable in Kenya. Secondly, that the issues raised were not justiciable, were speculative and not specific enough. The Speaker of the National Assembly, agreeing with the Attorney General added that the only limitation to the people’s power to amend the Constitution was the procedure set out under the Constitution. He further added that under Article 255, provision was made for the basic structure which could only be amended by the people exercising their sovereign right directly through a referendum.
415.Though the proponents of the basic structure of the Constitution had pinpointed what they construed as comprising the basic structure, the High Court went a step further. The High Court identified the basic structure of the Constitution as consisting of the foundational structure of the Constitution as provided in the preamble, the eighteen Chapters and the six schedules of the Constitution. The High Court took the position that an exhaustive list of eternity clauses was inadvisable in a vacuum. Whether a particular clause consisted an eternity clause or not would be a fact-intensive determination to be made after due analysis of the Constitution, its foundation, structure and other non-legal considerations permitted by Kenya’s canons of interpretation of the Constitution.
416.What I can make from the above position is that the Constitution has to be interpreted cumulatively and not on clause by clause basis. The holding of Mutunga CJ & P (as he then was) in In the Matter of the Speaker of the Senate inter alia, that the Constitution does not subvert itself hence their conclusion that it is a peremptory rule of Constitutional construction that no provision of the Constitution is to be segregated from the others. In his concurring opinion, Mutunga CJ & P stated:“(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower Courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The Court must also remain conscious of the fact that Constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demand s of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, Constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tends to create… .”
417.The starting point for interrogating this issue is the place of amendment in contra distinction with alteration. The Constitution does not make any reference in its entire text to its alteration. However, when it comes to amendment, a whole chapter, to wit, Chapter Sixteen is dedicated to it. Article 255 deals with amendment of the Constitution and reserves certain matters to be only amendable by referendum. These are; supremacy of the Constitution; the territory of Kenya, the sovereignty of the people; the national values and principles of governance referred to in Article 10(2)(a) to (d); the Bill of Rights; the term of office of the President; the independence of the Judiciary and the Commissions and independent offices to which Chapter Fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of the Chapter Sixteen.
418.An ‘amendment’ is defined as “a minor change or addition designed to improve a text, piece of legislation” (Black’s Law and Oxford Dictionaries). On the other hand , an ‘alteration’ stems from the verb ‘alter’ which refers to the change in character or composition, typically in a comparatively small but significant way. In relation to a building, to alter is to make structural changes to a building.
419.What can be gleaned from these provisions is that all provisions of the Constitution are amenable to amendment. The only distinction is on the specific provision sought to be amended as against the process being used. At any rate, nothing prevents any person from challenging any proposed amendment through the judicial process. The test to be met is that pronounced in Article 259 of the Constitution on how to interpret the Constitution. It provides:“Article 259. Construing this Constitution(1)This Constitution shall be interpreted in a manner that—(a)promotes its purposes, values and principles;(b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c)permits the development of the law; and(d)contributes to good governance.(2)If there is a conflict between different language versions of this Constitution, the English language version prevails.(3)Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and , therefore, among other things—(a)a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office;(b)any reference in this Constitution to a State or other public office or officer, or a person holding such an office, includes a reference to the person acting in or otherwise performing the functions of the office at any particular time;(c)a reference in this Constitution to an office, State organ or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in the circumstances; and(d)a reference in this Constitution to an office, body or organisation is, if the office, body or organisation has ceased to exist, a reference to its successor or to the equivalent office, body or organisation.”
420.In Commission for the Implementation of the Constitution Case Lenaola, J. (as he then was) was faced with the task of making a determination on the constitutionality of a proposed amendment. A proposed Constitutional Amendment Bill had been published containing a proposal to amend the definition of a ‘state officer’ to exclude Members of Parliament, Members of County Assembly, Judges and Magistrates from the designated offices. In disallowing the proposed amendment, the learned Judge stated:“To my mind, the basic structure of the Constitution requires that Parliamentary power to amend the Constitution be limited and the judiciary is tasked with the responsibility of ensuring constitutional integrity, the Executive, the tasks of its implementation while Independent commissions serve as the “people’s watchdog” in a constitutional democracy. The basic structure of the Constitution, which is commonly known as the architecture and design of the Constitution ensures that the Constitution possesses an internal consistency, deriving from certain unalterable constitutional values and principles.”
421.The learned Judge went further to state:“. . . where the basic structure or design and architecture of our Constitution are under threat, this Court can genuinely intervene and protect the Constitution.”The court always reserves the constitutional obligation to intervene provided that a party seeking relief proves to the court’s satisfaction that there are clear and unambiguous threats such as to the design and architecture of the Constitution.
422.The prominent role that the people play in the constitutional design was aptly introduced pre-2010 in the Njoya Case in which Ringera, J., coined the phrase the ‘constituent power of the people.’ The history of this country had been awash with various attempts to dilute the role of the people in favour of those in authority when dealing with constitutional amendments. As at 2010, the 1969 Constitution had undergone no less than thirty piecemeal amendments some done within one afternoon with far-reaching consequences. The Court stated:“With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgement that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of the Republic is the sovereignty of its people … The second stop is the recognition that the sovereignty of the people necessarily betokens that they have a constituent power – the power to constitute and /or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution… The Constitution is not supreme because it says so. Its supremacy is a tribute to its having been made by a higher power, a power higher than the Constitution itself or any of its creatures.”This decision resulted in the exercise of the people’s sovereign power over the amendment of the Constitution by way of a referendum, the first of which was held on 21st November, 2005.
423.It was therefore not difficult to fathom that the place of the people as sovereign would find itself in the Constitution. This included the attendant acknowledgement of the referendum process. Indeed, the effective date of the 2010 Constitution under Article 263 was reserved as the date of promulgation by the President or on the expiry of a period of fourteen days from the date of the publication in the Gazette of the final result of the referendum ratifying the Constitution, whichever was earlier.
424.This did not in any way mean that all the clauses of the Constitution are amendable by way of referendum through the people’s direct exercise of power. There is another route as provided in, Article 94(3) of the Constitution provides:“(3)Parliament may consider and pass amendments to this Constitution” [emphasis mine].
425.The Constitutional design is permeated by reference to the sovereign in different aspects. For instance, the Preamble acknowledges “We, the people of Kenya – EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of the Constitution.” Article 1 of the Constitution affirms the sovereignty of the people and provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution. Article 1(2) of the Constitution allows the people to exercise their sovereign power either directly or through democratically elected representatives. Article 10(2) lists national values and principles of governance to include democracy and participation of the people.
426.Article 22(1) grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened. This mirrors the provision contained in Article 70(1) on enforcement of environmental rights and Article 258(1) which gives every person the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened with contravention. Article 255 – 257 in my view are explicit on amendment of the Constitution the extent of which can only be subject to interpretation on a case to case basis.
427.On the other hand , suffice to note that alteration connotes a more radical approach. As earlier stated, the Constitution of Kenya 2010 does not refer to alteration. Unlike amendment whose process is spelt out, an alteration involves an extra-constitutional process. This may therefore take the form of a coup or any such other Kelsenian theory of grundnorm as exemplified in the South Rhodesia case of Madzimbamuto v. Lardner-Burke and Another (1969) 1A C.645(P.C.) which was concerned with the legality of the Unilateral Declaration of Independence made by Rhodesia in 1965. There was also the decision in Ugand a v. Commissioner of Prisons, ex parte Michael Matovu (1966) EA 514. In applying these cases, Bwonwong’a, J. in Erickson Rover Safaris v. Peninah Nduku Muli (Suing as Legal Representative of the Estate of Michael Kyalo Wambua (Deceased) HCCA No 56 of 2017; [2019]eKLR acknowledged that a new constitutional dispensation will be upheld even if it came about through violent means.
428.As there are no hard and fast rules, it may take whichever form provided it results in a new constitutional dispensation. For those who pride themselves as democratic, the process of alteration may take the form of a people centric approach. An alteration may, in my view, go beyond the parameters set out in Article 255 into changing the form of governance. For example, the sovereign may decide to aband on devolved governments, convert into a presidential, parliamentary or even monarchic system of governance. These are not matters contemplated for referendum under Article 255 of the Constitution.
429.The question then becomes, when it comes to such matters, what is the governing framework? Is it something that can be found in the Constitution? In my estimation, resulting to the primary constituent power as defined in the Njoya Case is only one way but not the only way.
430.In Preston Chitere et al Kenya Constitutional Documents: A Comparative Analysis CMI Report Kenya Constitutional Documents R 2006: 5, the authors identify four options of Constitution making process. The first one is the constituent assembly which remains one of the more popular options for resuscitating constitutional review process. The role of such an assembly would solely be to consider and synchronize all the data collected so far in the course of the review process. On the basis of all the already collected sources, the constituent assembly would be required to craft a document largely acceptable by the majority of the people.
431.The second option involves the enlisting of constitutional experts to write the Constitution. The experts may be local or international. In either event, the terms of reference of these experts would be to coalesce and align the diverse views that have emanated from the debate with a view to producing an acceptable document. Such a document would still require endorsement by the people through a referendum. The third option is that involving Parliament. To the above cited authors, this is the least popular option the review of the Constitution by Parliament. They argue that though the current Constitution under Article 94 reserves to Parliament the power to amend the Constitution, it is now widely accepted that as a matter of law Parliament does not have the power to overhaul the Constitution in the fundamental manner anticipated by the proposed review process. That view has been endorsed by the court decisions in the Njoya Case and the Patrick Onyango Case.
432.The final approach is what was adopted by the Constitution of Kenya Review Commission, CKRC. It involved local people through consultations when the CKRC toured the country to hear views and collect information about the new Constitution it was to prepare. The CKRC also brought together various stakeholder representatives as well as members of parliament into a Constitution-making assembly at the Bomas conference. The process thus emanates from the grassroots in order to evolve a system in which the people feel a genuine ownership of governance.
433.The process we had as a country in the enactment of the 2010 Constitution buoyed by the decision in the Njoya Case and having experienced a referendum before; it was almost inevitable that a referendum would be part and parcel of our Constitution making process. The High Court, after undertaking its analysis and having regard to the history of the country’s Constitution making process, arrived at the conclusion that sovereign primary constituent power is only exercisable by the people after four sequential processes namely – civic education, public participation and collation of views, constituent assembly debate and ultimately, a referendum.
434.It appears clear that the Court of Appeal never interrogated the origin, basis or subsequent application of these sequential processes as adopted by the High Court. It is evident that the High Court indeed appreciated that there was a power that existed beyond the amendment power set out in Articles 255 – 257 of the Constitution. This is what the High Court considered as the primary constituent power. Having successfully deployed the same in the making of the 2010 Constitution, it was only logical that the same forms a template for future application unless the Constitution was otherwise overhauled through another radical but accepted process.
435.The question lingers as to what juridical value this primary constituent power possesses. Is it for any of these processes? If so, what then would be the foundation? The obvious answer, devoid of judicial fancy footwork or ingenuity is that these steps do not have any legal basis. The Constitution does not always contemplate its overthrowing and when the constitutional moment arrives, it can only be dealt with at the time. It is inconceivable for Parliament to legislate for the drastic overhaul of the Constitution. Even if that were to occur, the resulting law would have to surmount the supremacy of the Constitution as contemplated under Article 2 of the Constitution.
436.Turning to the Amendment Bill, it is evident that it contained far reaching consequences. There is a contestation as to whether the proposed changes amounted to permissible amendments as contemplated under Articles 255-257 or went beyond, into the realm of dismemberment.
437.In my view, there are two ways of looking at it. Firstly, by looking at each of the amendments as proposed in the Amendment Bill as against the threshold set out in Article 255 to see whether they result in fundamental alteration of the governance structure or are mere amendments. Secondly, looking at the totality of the amendment proposals – the over seventy of them – and the resultant effect in relation to the Constitution as it exists. The answers to either of the two questions would inform the next course. Needless to add, the facts and evidence before the courts points to far-reaching proposals that go beyond the limited realm of amendments – akin to alteration of the basic structure and affecting the existing form of governance stipulated under this Constitution. This necessitates the need to resort to the primary constituent power or any of the other mechanisms necessary to overhaul the constitutional dispensation.
438.In conclusion and in summary therefore, the fact that, in considering the text, structure, nature, historical development and context of the Constitution of Kenya 2010, the High Court concluded that “ . . . Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments” (para. 472) does not, in my considered view, equate with a conclusion that the basic structure doctrine as espoused by the respondents is applicable in Kenya and thus by extension the basic structure of the Constitution of Kenya, as identified, is unamendable. What the High Court gleaned from the history of our Constitution-making process was the meticulous and painstaking attention to the four distinct processes, the four sequential steps, in that Constitution-making process and not necessarily regarding future Constitution making processes. Why would those who took such attention to detail in the making of the Constitution of Kenya 2010 deliberately fail to expressly import such important instructive provisions into that very Constitution regarding its amendment? As I shall express further below, I believe that they are by no means guilty of any such failure. The mechanism expressly imported into the Constitution 2010 to protect it from hyper-amendment, dismemberment, or alteration, is in the process of amendment, and not in the implicit reliance on the basic structure doctrine, theories of constitutional entrenchment clauses, unamendable constitutional provisions, and eternity clauses. I must state here that a reading of the Constitution reveals that all of its provisions are entrenched provisions.
439.The High Court in its detailed exposition of the long and painful birth of the Constitution 2010, outlined the historical socio-political context of our transformative charter with particular emphasis on the imperative to remedy the ills occasioned by an all-powerful presidency, unrestrained by the democratic canons of self-determination and the rule of law, and as espoused in such principles as the balance and separation of powers, transparency, and accountability. Framed by this justifiable apprehension and cognizant of the solemn responsibility of the court as custodian and protector of the Constitution, the High Court, in applying the basic structure doctrine to the Constitution 2010 sought to protect the core edifice, foundational structure and values of the Constitution 2010. But in doing so, that superior court, in my humble consideration went beyond the plain reading of the text of the Constitution 2010 and misapplied an extra-constitutional doctrine in the interpretation of the Constitution 2010. There may well be a basic structure, a golden thread of constitutional morality, from which it would be, in current circumstances, difficult to see a more appropriate alternative or configuration. But whilst the existence and , at the very minimum, the form or content, of such basic structure is difficult to specifically identify – and in any case has not been definitively agreed upon during these proceedings – the principle of sovereignty of the people of Kenya and their right to self-determination is foundational and beyond contestation. One cannot read into the Constitution 2010 principles that contradict express and fundamental principles therein. It is elementary that the Constitution cannot subvert itself. The High Court in its decision at para. 476, cited in full an extract from this Court’s decision in The Matter of the Kenya National Human Rights Commission, SC Advisory Opinion No 1 of 2012; [2014]eKLR as follows:“...a holistic interpretation of the Constitution ... must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridles extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”
440.In outlining the three levels through which the people can exercise their sovereignty in Constitution-making, the High Court seems to suggest that a referendum is not a direct exercise in the sovereignty by the people. Is an election the people’s direct exercise of sovereign power? If so, is it not so for a referendum? The Constitution 2010 only recognizes two types of exercise of sovereign power: direct and indirect. Article 1(2) states that “The people may exercise their sovereign power either directly or through their democratically elected representatives.” It is not immediately clear what could constitute a direct exercise of sovereign power but, contrasting it with what is described in the Constitution as the indirect exercise of sovereign power, to wit, through democratically elected representatives, it can be logically inferred that the establishment of such democratically elected representatives, through a voting process, is an example of such exercise of direct sovereign power. Where the people, in a free and fair expression of their will directly determine their preference on a matter related to their governance, such as through a referendum, this too, in my humble opinion, is a direct exercise of sovereign power.
441.Therefore, and this cannot be overemphasized, the manner and process through which such sovereign power is directly exercised is so very fundamentally important, especially where what is at stake is our constitutional architecture, the very framework through which the people agree to be governed. In my reading, the intention of the framers of the Constitution 2010 and the people of Kenya in bestowing that Charter on ourselves and our future generations was not to implicitly prohibit amendment of its content and structure, whether identified as basic or not; it was to ensure that, through that very Constitution, any process of amendment is undertaken in the finest spirit of our democracy, fully cognizant of our historical context, our present experiences and our aspirations for the future.In my opinion such protection is found both expressly and implicitly in the provisions attendant to the process of amendment within the Constitution 2010.
442.It is my considered finding that the High Court erred in extrapolating from the description of the primary constituent process that birthed the Constitution 2010, implied Constitutional principles on how that Constitution ought to be amended. The High Court correctly laid out the progressive principles that have been developed by the courts, including this Court, on constitutional interpretation. I query however, whether some of the issues in this matter lend themselves to such interpretive jurisdiction of this Court.
443.Recognising the progressive jurisprudence that has been developed by the courts and especially the Supreme Court on constitutional interpretation, such jurisdiction ought to be exercised very reservedly in the face of express provisions of the Constitution; very reservedly in the face of the constitutional exercise in sovereignty by the people; and very reservedly where the substantive import of any action is not what is in contention. and , it is always important to remember that not once does the Constitution 2010 employ the term ‘alter’ in relation to the changes in the Constitution.
444.The upshot of my finding is that the Constitution of Kenya 2010 does indeed have a basic structure. That the matter of the Constitution of Kenya 2010, embodying in itself or deriving from it such a thing as a basic structure doctrine is a misnomer for in my view, no such doctrine is derivable from our Constitution and consequently, the basic structure doctrine wherever else it may be found, does not apply in the Kenyan constitutional context. The manner and process through which sovereign power is exercised by the citizens, in its different forms is fundamentally important under our constitutional architecture and the Constitution can be altered through other mechanisms not limited to the primary constituent power.
(ii) Whether the President can initiate changes/amendments to this Constitution; and whether a constitutional amendment can only be initiated by Parliament under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution
445.This issue traces its origin in Petition E426 of 2020 – Isaac Aluochier v. Uhuru Muigai Kenyatta. The substantive argument in this regard is that the President lacked authority to initiate constitutional amendments that were to be undertaken through a popular initiative. In the consolidated appeals, the High Court framed the issue as “who could initiate constitutional amendments through a popular initiative as provided for under the Constitution.” In the end the High Court found that the Amendment Bill was an initiative of the President. That the power to amend the Constitution using the popular initiative was reserved for the private citizen. Neither the President nor any state organ was permitted under the Constitution to initiate constitutional amendment using the popular initiative option. Further, that allowing the President to initiate constitutional amendments through the popular initiative would have the effect of granting him both the roles of promoter and referee under Article 257(5) which also gives the President power to determine whether or not a referendum is to be held.
446.The petitioner in Petition No E400 of 2020 – Thirdway Alliance Kenya v. Steering Committee of BBI & Others also raised the issue about whether a popular initiative for the amendment of the Constitution of the Republic of Kenya can be commenced by state actors, in particular the President of Kenya. Principally, they sought the relief by way of declaration that the Amendment Bill was not a popular initiative towards the amendment of the Constitution of Kenya.
447.The High Court found that the Amendment Bill was a State sponsored initiative, having been spearheaded by the President as the Chief Executive of the Republic. The argument that the President was acting in his personal capacity did not find favour with the High Court because of the very fact that the BBI Steering Committee was established by way of publication under the hand of the President in the Kenya Gazette, an official government publication.
448.On their part, the majority of the Court of Appeal Judges were of the view that the 17th, 20th and 21st respondents, Executive together with Hon. Junet Mohamed and Hon. Dennis Waweru were the promoters. They deemed this to be a culmination of events starting with the hand shake, establishment of the BBI taskforce and steering committee all the way to the collection of signatures in support, being a continuous process. Two other Judges of Appeal were of the view that Hon. Junet Mohamed and Hon. Dennis Waweru being the co-chairpersons of the secretariat were the promoters under whose hand they signified their intention to collect signatures by writing to IEBC seeking approval of the format for collecting the signatures. Upon approval by IEBC, these two individuals after the collection of the signatures hand ed over the Amendment Bill to IEBC.
449.In answering whether a President can initiate changes or amendments to the Constitution, it is first proper to appreciate who the President is. It is upon this determination that I would proceed to examine the amendment processes as against Article 256 and 257 of the Constitution.
(a) Whether the President can initiate changes or amendment to the Constitution
450.The President’s authority is set out under Article 131 of the Constitution as the Head of State and Government; exercises executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries; the Command er-in-Chief of the Kenya Defence Forces; is the chairperson of the National Security Council and is a symbol of national unity. Article 130 provides for the structure of the National Executive comprising the President, the Deputy President and the rest of the Cabinet.
451.The President is elected by registered voters in a national election in a manner specifically set out in the Constitution. So important is this election that the President-elect must receive a 50%+ 1 of votes cast in at least 24 counties. Further, the validity of the election of President, if challenged, can only be determined by the Supreme Court, the apex Court in the Republic exercising original jurisdiction in that regard. Upon election, the President assumes office by a public swearing in before the Chief Justice who is the head of the Judiciary.
452.The President and his deputy when acting as President are the only State officers under the Constitution that take two oaths or solemn affirmation – the oath or solemn affirmation of allegiance of the President/Acting President and the Deputy President and the oath or solemn affirmation of due execution of office for the President/Acting President. The first oath makes a realization of the high calling that is assumed by the President. It states:“I, in full realization of the high calling I assume as President (Acting President/Deputy President of the Republic of Kenya, do swear/solemnly affirm that I will be faithful and bear true allegiance to the Republic of Kenya; that I will obey, preserve, protect and defend this Constitution of Kenya, as by law established, and all other laws of the Republic; and that I will protect and uphold the sovereignty, integrity and dignity of the people of Kenya. (In the case of an oath – so help me God)” [emphasis mine].and there is a lot more, including how the President is regarded concerning litigation, a matter that shall be discussed later herein. The magnitude of responsibility and reverence to the office of President is beyond doubt.
453.The above constitutional underpinning reveals that the President, whilst always being a citizen, ceases to be an ordinary person upon assumption of the office of the President. The question as to whether he is capable of separating his official and private lives is one that is best addressed when considering the immunity of the President as granted by the Constitution. For now, let me consider various aspects of the issue as placed before the courts.
454.There has been a conflation of several terms, the input of which in my view is significant. What do we mean when we refer to ‘Government,’ the ‘Executive,’ the ‘President’ and /or the ‘Presidency’? These terms have been used interchangeably in both judgments of the High Court and the Court of Appeal in reference to the initiation and promotion of the impugned constitutional amendment process. I believe the most important aspect of this question is not so much who initiated and promoted the proposed amendments, but rather the process, the how. Allow me from the onset to state that the President, as I understand , as a citizen of the Republic of Kenya fully possesses of all the Article 38 rights is not precluded from proposing a popular initiative for the amendment of the Constitution, 2010 under Article 257. The issue is the ‘how,’ and regarding the President of the Republic of Kenya, given the principles of executive authority under Article 129, the authority of the President under Article 131 and the functions of the President under Article 132, the latitude to act in this manner is significantly proscribed and any determination of whether he or she acted within such strictures, must be determined by the court on a case-by-case basis.
455.