Kenya: Petitioners Seek Court's Interpretation on Constitutional Amendment Limitations

16 September 2020

Nairobi — Economist David Ndii filed a joint petition with four other activists on Wednesday seeking clarity on the basic structure doctrine, a common law judicial principle safeguarding certain clauses of the Constitution from amendment by Parliament.

The petitioners want Chief Justice David Maraga to constitute a three-judge constitutional court bench to determine if five chapters of the Constitution presumed to form the basic structure of the constitution can be amended either through Parliament or popular initiative.

Ndii, Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei argue that the basic structure doctrine limits the amendment power in the constitution both under Articles 256 and 257.

"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 and the provisions therein forms part of the "Basic structure"; "Entrenchment Clauses" and "eternity" provisions of The Kenya Constitution and therefore cannot be amended either under Article 256 by Parliament or through popular initiative under Article 257 of The Constitution of Kenya," the five stated in a petition filed by lawyer Nelson Havi.

"The amendment powers under Articles 25 and 257 are implicitly limited to the extent that parliament cannot pass an amendment which destroys the basic structure of the Kenyan Constitutional foundation, to wit; 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 and the provisions therein," the petition listed as urgent further stated.

The petitioners cited violation and contravention of key chapters of the constitutions including the bill of rights on which they argue there exists implied limitations to amendments.

"Recent developments in Kenya's legislative history confirm a threatened abrogation, contravention and violation of Chapters ONE, TWO, FOUR, NINE, TEN and in particular Articles 256 and 257 of The Constitution of Kenya by the Respondents on the application of the legal doctrine and theory of the "Basic Structure" of a Constitution," Havi outlined.

The filing of the petition coincides with renewed constitutional amendment campaigns spearheaded by former Prime Minister Raila Odinga under the Building Bridges Initiative (BBI) which he co-founded with President Uhuru Kenyatta.

A 14-member BBI taskforce is expected to submit its second draft to President Kenyatta in the coming days following the conclusion of validation hearings conducted after the taskforce's initial draft was launched in November 2019.

The Senator Yusuf Haji-led taskforce had recommended the expansion of the national executive to include a Prime Minister and two deputies while retaining the positions of the President, as Head of State and government, and the Deputy President as a core assistant.

Deputy President William Ruto has however dismissed calls to expand the national executive as deceitful and part of a scheme to safeguard selfish political interests.

Ruto had proposed the formalization of the role of the Leader of Opposition to enhance countability.

The Deputy President has also termed a proposal by Odinga to adopt a three-tier system of governance which would see the creation of fourteen regional governments as inefficient.

"We are finding all manner of cards flying, at one point we are being told we want another layer of government, another layer of bureaucracy, some people are telling us extension of terms," Ruto remarked on Monday during a meeting with opinion leaders at his official residence in Karen, Nairobi.

Ruto has publicly differed with President Kenyatta on the ongoing clamor for a constitutional amendment, terming calls to review the document enacted in 2010 as deceitful.

"In 2010 we formulated and adopted a new constitution, altogether replacing the independence constitution. Ten years later, I am already discerning a constitutional moment. Not a moment to replace the 2010 constitution but one to improve on it," the President said during the 57th Madaraka Day celebrations on June 1.

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