CONSTITUTIONAL AMENDMENTS

Ndii leads team in court battle to scuttle BBI

Case to ensure a referendum through the Building Bridges Initiative does not go through

In Summary

• Economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei want their case certified as urgent.

• They also want the matter to be sent to Chief Justice David Maraga so he can assign a three-judge bench to hear it.

Economist David Ndii
Economist David Ndii
Image: /JACK OWUOR

Five activists have filed a case challenging the process of constitutional amendment, a move likely to scuttle President Uhuru Kenyatta's push to overhaul the country's governance structure.

Economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei want their case certified as urgent.

 
 
 

They also want the matter to be sent to Chief Justice David Maraga so he can assign a three-judge bench to hear it.

 

They have sued Attorney General Kihara Kariuki, National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka and the Independent Electoral and Boundaries Commission.

The effect of the case filed by the five is to eventually ensure a referendum through the Building Bridges Initiative does not go through.

They say that since 2013, Parliament through various Bills (some debated, others not) has been repealing the Constitution under the guise of amendments.

The activists want the court to declare that Parliament cannot pass any laws that alter the basic structure of the constitutional foundation.

The chapters that form the basic structure of the Constitution include the Legislature, Executive, Judiciary and the Bills of Rights. These chapters entrench sovereignty.

 
 
 
 

In their view, many of the chapters have been tinkered with and there's a need to renegotiate the social contract.

For example, the clamour to have the loser of a presidential election back in Parliament as leader of the Opposition would amount to a change of the structure of the Constitution, they argue.

 

They are afraid that if the court does not address their concerns, there is a high likelihood the Constitution would be violated.

The 2010 Constitution is a product of a long struggle by Kenyans and embodies their will that must be safeguarded in the present and future, they said.

They argue that the amendment powers reposed in Article 256 and 257 do not extend to the power to destroy the Constitution. They also give no entity power to establish a new form of government or enact a new constitutional order.

And for this reason, they have placed some critical questions to be determined by the court. Can specific chapters that form part of the basic structure of Constitution be amended by Parliament or through the popular initiative? Is there an implied limitation to powers of constitutional amendments?

Through lawyer Nelson Havi, the activists want the questions they have raised addressed to prevent the state from violating the Constitution. 

Such an act would undermine the sovereign will of Kenyans through amendments aimed at serving other interests.

They foresee a danger that in the absence of clear guideposts to define the scope of Parliament’s authority to amend the Constitution, the House believes it enjoys an unlimited authority to change the law wilfully.

Their case has been filed as campaigns to push for amendments through BBI start taking shape again.

The final report by Garissa Senator Yusuf Haji's team has been ready for the past three months.

The President in June maintained that the country is ripe for constitutional change to address challenges bedevilling the country including ethnic animosity and exclusion.

"The primary reason for BBI is to ensure future generations are not going through the kind of things we have seen. We want to make our politics mature and inclusive. We went across the country to collect views of what Kenyans want us to do to address the underlining causes of ethnic tensions," he said the during a virtual meeting with the Atlantic Council Africa Centre on strengthening US-Africa trade. 

In a strong pitch for the law change, Uhuru said after 10 years there is a need for a review of the Constitution which he said is not cast in stone. 

“The Constitution should be able to address people's problems. There are areas we want to be reviewed and that is the meaning of a referendum."