Kenya: How Law Scholars Helped High Court Reach Momentous Decision

Away from the spotlight, four law professors presented legal arguments that helped to guide the High Court in its landmark ruling on Thursday against the proposed Building Bridges Initiative (BBI) referendum.

The four, Duncan Ojwang, John Osogo Ambani, Linda Musumba and Jack Busalile Mwimali, were admitted as amicus curiae (friends of the court) based on their expertise in constitutional law.

Dr Ojwang, the dean of the School of Law at the Africa Nazerene University, was part of the State delegation and worked as a researcher for the International Criminal Court (ICC) case against Deputy President William Ruto as he faced crimes against humanity.

Dr Ambani, who teaches at the Strathmore Law School and is also the Editor-in-Chief of the Strathmore Law Journal, has co-authored a book titled the New Constitution of Kenya with Prof Kiwinda Mbondenyi, the former Dean, Africa Nazarene University School of Law.

Dr Musumba is the founding dean of the Kenyatta University School of Law while Dr Mwimali is a senior lecturer and the Editor-in-Chief for the Jomo Kenyatta University of Agriculture and Technology law journal.

In their amici brief dated September 11, they said that they were offering to assist the court in adjudicating on the issues raised in the consolidated petitions.

Supported petitioner's argument

They supported the petitioner's argument that chapters one, two, four, nine and 10 form part of the basic structure of the Constitution, which cannot be amended under Articles 256 or 257.

They also held the position that the BBI Steering Committee does not fall under the category of citizens' initiatives, and could therefore not initiate a popular initiative.

The amici brief raised four other issues touching on the role of the court in interpreting the Constitution, the basic structure doctrine, the limits of the constituent power and state duty in international legal standards.

"On the issue of the applicability of the legal and judicial doctrines, the amici submitted that the doctrines did not apply to shield the entire specific chapters of the Constitution from unamendability, but rather, to protect amendment of specific provisions to the Constitution, whose effect would either be to interfere with the basic structure or essential features of the Constitution," the judgment reads.

Through oral submissions made on their behalf by Dr Musumba, they successfully urged the High Court to zealously protect the Constitution from what they called a "hyper-amendment culture" as had been in the past.

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