• Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said amendments cannot be made to the basic foundation structure of the Constitution.
• The judgement threw into disarray President Uhuru Kenyatta’s push to overhaul the country's governance structure.
Image: /PSCU
The process to change the Constitution through the Building Bridges Initiative has been halted.
A five-judge bench of the High Court on Thursday declared the process unconstitutional and blocked the electoral agency from holding a referendum on the Constitution of Kenya (Amendment) Bill.
The Solicitor General has said he will appeal the ruling.
Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said amendments cannot be made to the basic foundation structure of the Constitution.
The judgement threw into disarray President Uhuru Kenyatta’s push to overhaul the country's governance structure.
The President was also cited for breach of the Constitution – an impeachable offence.
The judges said Uhuru does not have powers to initiate constitutional amendment under the law, only Parliament and the people have that power.
If the President were allowed to change the law, it would mean he was granted the role of promoter and referee, the judges noted.
He can only use the Attorney General through Parliament to initiate the process, they said.
Since the steering committee of BBI was a brain child of the President who has no locus standi, it had no power in law to promote the constitutional changes, the judges held.
“It is our finding that popular initiative is power reserved for Wanjiku neither the president or any other state organ can utilise Article 257 to amend the Constitution,” the judges said.
“Kenyans intended that the essence of constitutional order they were bequeathing themselves in 2010 would only be changed in exercise of primary constituent power that is through civic education, public participation, constitutional assembly plus a referendum and not through secondary constituent power which is through public participation and referendum only.”
And having found the illegalities, the judges declared that basic structure of the Constitution is applicable and it limits amendment powers of eternity clauses.
They also declared that a civil court proceeding can be instituted against President
In a bold decision, the judges held that President Uhuru has contravened Chapter Six of the Constitution by initiating and promoting constitutional change.
The entire constitutional change process by BBI is unconstitutional, null and void, they held.
The BBI Bill cannot be subjected to referendum due to lack of public participation and because IEBC does not have quorum, the judges said.
They restrained IEBC from undertaking any process in respect of the BBI Bill.
The upshot is that the text structure, history and context all read and interpreted decreed by Constitution is that basic structure doctrine is applicable in Kenya.
The 18 chapters which form basic structure of the Constitution outlines system of governance Kenyans chose. It includes also important areas such as land and environment, national security and public finance.
This means, they said, the chapters cannot be amended without primary power of people but that does not mean every clause is inoculated.
The judges also looked into whether the BBI steering committee is legal and, in their finding, noted that the President did not comply with law in creating it and as such it is unlawful.
The BBI team also did not print the document in Kiswahili for the common mwananchi hence failed in civic education.
Citizens should and must be given information and failure to produce the copies in languages people understand makes the process unconstitutional.
The BBI steering committee failed to give people information and sensitise them prior to collecting signatures which makes the process unconstitutional, the court said.
On the question of whether IEBC, county assembly and National Assembly have legal framework to proceed with the mandate, the judges said: “It is our view that the Election Act being relied on by state does not cover adequately the process of referendum because for example it fails to address important issues such as the public participation.”
“We disagree that legislature have enacted statutes to deal with issues of referendum.”
The provisions of the Election Act alluding to referendum is not a referendum act, they said.
Notwithstanding absence of enabling statute, a referendum may be undertaken in compliance with national values of good governance espoused in Article 10 of Constitution, the judges held.
Parliament and county assemblies cannot hijack process since by purporting to do so the Bill will lose its popular initiative.
“The only purpose for consideration of constitutional amendment bill is proper understanding and views of public gathered to either approve it or reject the bill. In other words, the national assembly has to either to spit the bill or swallow it wholly.”
On the issue of referendum questions the judges had this to say: “It is our finding and hold that Article 257 (10) requires all the specific required amendments to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper and to be voted for or against separately and distinctively.”
“…To lump all proposals together as an omnibus bill for the purposes of either laundering the whole bill is not permissible under our Constitution. Not only does such a scenario lead to confusion but it also denies voters the freedom of choice.”
The court said proposed additional 70 new constituencies are unlawful.
This is because the amendment bill, they said, directs the IEBC on its constitutional mandate and ignores key due process in delimitation of boundaries namely public participation and imposed timeliness.
Also, it takes away rights of those aggrieved to challenge the delimitation.
They noted that IEBC is independent and ought not to be directed to create constituencies.
The judges noted that the BBI Bill seeks to short-circuit Section 87 of the Constitution and as such it is illegal.
The court said IEBC did not properly work by authenticating the signatures in support of the amendment bill the court said the commission did not do its work well.
There is no doubt that IEBC takes its role in voter verification more than ceremonial and it should apply the same seriousness with authentication and verification of signatures for the initiative to amend the Constitution, the court held.
The administrative procedures by IEBC, the court said, are invalid due to lack of public participation, they are in violation for want of parliamentary approval and developed without quorum.
Holding a referendum without conducting voter registration will violate rights of citizens who have not registered to take part in the exercise, the court held.
Their decision comes a week after lawmakers passed the BBI Bill with an overwhelming vote in support of the amendments.
At least 320 members participated in the vote at the second stage where 235 supported the Bill, 83 voted against it and two abstained.
The judgement arose out of seven cases filed against the BBI Bill.
The main case was filed by five activists namely economist David Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei. The Ndii-led team’s case was consolidated with seven other cases challenging BBI.
They sued Attorney General Kihara Kariuki, National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka and the Independent Electoral and Boundaries Commission.
The cases challenged the content of and the process by which the BBI Bill was formulated and the steps that have been and are intended to be taken in an effort to amend the Constitution.
The parties said the contents and process violate the Constitution.
The petitioners said that since 2013, Parliament through various Bills (some debated, others not) had been repealing the Constitution under the guise of amendments.
The activists had asked the court to make a declaration 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 Bill of Rights. These chapters entrench sovereignty.
In their view, many of the chapters have been tinkered with and there was 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 argued.
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 argued 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 asked some critical questions which required the court to pronounce itself on.
Among the questions is whether specific chapters that form part of the basic structure of the Constitution can 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 had said 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.
During hearing, ODM party leader Raila Odinga told the bench that the cases challenging the proposed changes of the Constitution through the BBI is an afterthought and one made in bad faith.
Raila together with the BBI National Secretariat disagreed with arguments by Ndii and four activists that five chapters of the 2010 Constitution -Chapter One, Two, Four, Nine and 10 -cannot be amended either through Parliament or a popular initiative.
Through lawyer Paul Mwangi, the former Prime Minister and the Secretariat co-chairman Dennis Waweru said the Constitution is not a rigid document and can be amended at any time as the need may arise at any given point.
“In the event that the framers of the Constitution did not intend to have it amended, nothing could or indeed have barred them from having such an express provision in the Constitution,” said Waweru in his response. He cited Chapter 16 titled ‘Amendment of This Constitution’.
Raila further told the court that the cases are not aimed at achieving the ends of justice but are ‘merely’ aimed to achieve political ends and motives.
While urging the five-judge bench to dismiss the cases, Raila said the petitions are an abuse of the court process and an invitation of the court to encroach on the legislative mandate of the National Assembly, County Assemblies and the Senate. Hence, the petitions offend the doctrines and principles of separation of powers.
He argued that the petitions offend the political question doctrine because the petitioners want court to ‘encroach and substitute the views of the Legislature, the Executive and the people of Kenya’.
According to him, the cases are also fundamentally defective because the petitioners have made generalised assertions and allegations without providing supporting evidence.
“No harm or prejudice has been demonstrated in any of the petitions and none of the petitioners has adduced any such evidence of violation or contravention of the law to warrant the inference and involvement of this court in the constitutional amendment process,” he said.
He also questioned why the petitioners failed to challenge previous attempts to amend the constitution, including the Punguza Mzigo Initiative by 2017 presidential poll loser Ekuru Aukot and Okoa Kenya Movement by opposition alliance CORD.
“The petitions are a mere afterthought as the petitioners are selectively seeking to exercise their fundamental rights and freedoms to the detriment of the Respondents in light of the fact that there have been several attempts to amend the Constitution and none of the petitioners ever sought to challenge or dispute the said past processes,” he said.
ISSUES IN SUMMARY BY COURT
The text structure, history of constitution of Kenya yields the conclusion that basic structure doctrine is applicable in Kenya.
The basic structure of the constitution can only be altered by people and not merely through referendum.
Basic structure doctrine leaves open some sections of Constitution amendable in as long as they do not change basic structure of the Constitution.
There are provisions which are unamendable.
Sovereign primary constituent power is only exercisable by people after public participation civic education and referendum.
Under article 143 president can be sued during his tenure in office except for omission or commission of actions done in exercise of his duty.
President does not have mandate to initiate constitutional amendment.
To the extent BBI committee is appointed by president it is unconstitutional entity.
BBI committee is unlawful.
President failed to uphold leadership and integrity provision in his actions.
Parliament, county assembly cannot alter or amend the constitution amendment bill presented to them.
Each of proposed amendment clauses ought to be presented as separate question.
Procedure for apportionment of constituencies are unamendable.
The IEBC cannot conduct referendum because it has no quorum due to lack of five commissioners, it has not carried out voter registration.
All the actions taken by IEBC with respect to the amendment bill are null and void.