Petition raising questions on whether there were provisions of the Constitution that were not capable of amendment referred to the Chief Justice for the empaneling of a bench of an uneven number of judges, being not less than three judges. 

David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae) [2020] eKLR

Petition No E282 of 2020

High Court at Nairobi

AC Mrima, J

November 30, 2020

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the High Court - jurisdiction to determine questions related to constitutionality - whether the High Court could determine a petition which sought declarations that certain provisions of the Constitution were incapable of being amended - Constitution of Kenya 2010, article 165(3).

Civil Practice and Procedure - preliminary objection - nature of a preliminary objection - whether a preliminary objection could contain points of law that require a consideration of evidence.

Constitutional Law - judiciary - judges - empanelment of a bench of an uneven number of judges being not less than three - circumstances under which the High Court would certify that a matter raised substantial questions of law warranting the empanelment of a bench of judges - Constitution of Kenya 2010, article 165(4).

Brief facts

The petition sought various declarations meant to assert applicability of various judicial doctrines to Kenya's Constitution. The doctrines included the doctrine of the basic structure of a Constitution, the doctrine and theory of unamendability of eternity clauses, the doctrine and theory of constitutional entrenchment clauses and unamendable constitutional provisions. The petitioner sought declarations whose import was that certain provisions of the Constitution could not be amended either under article 256 of the Constitution by Parliament or through popular initiative under article 257 of the Constitution.

The provisions which the petitioner said were in the form of the basic structure, entrenchment clauses or eternity provisions of the Constitution of Kenya 2010 were 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 .

The petitioner filed an application seeking an order that the petition raised substantial questions of law under article 165(3)(b) and 165(3)(d) of the Constitution and for the referral of the petition to the Chief Justice for assignment of an uneven number of Judges, being not less than three to hear it.

The 1^st respondent filed a preliminary objection. Generally, the 1^st respondent stated that the petition was non-justiciable as there were no justiciable issues and it were not ripe. The 1^st respondent's preliminary objection was also premised on the ground that the petition sought an advisory opinion which court lacked jurisdiction to issue. The 2^nd respondent also raised a preliminary objection which was inter alia based on the issue of justiciability and ripeness, the petition being speculative and anticipatory and it being scandalous and vexatious.

The 3^rd respondent's preliminary objection was premised on grounds that the petition was theoretical, that it sought to challenge the validity and legality of the Constitution, which was contrary to article 2(3) of the Constitution, it was frivolous, incompetent and vexatious, it did not disclose any infringement or violation of the petitioners' rights and that the court lacked jurisdiction to hear and determine the petition.

Three applications were also made for the joinder of three amici curiae.

Issues

1. Whether the High Court had jurisdiction to hear and determine a petition, that sought declarations to the effect that certain provisions of the Constitution were subject to doctrines of the basic structure of the Constitution, eternity clauses, constitutional entrenchment clauses and unamendable constitutional provisions, and they could not be amended.
2. Whether a preliminary objection could be based on a point of law which required consideration of evidence.
3. When would the High Court issue certification that a matter raised substantial questions of law warranting the empanelment of an expanded bench?

Held

1. A preliminary objection was a point of law which had been pleaded or which arose by clear implication out of the pleadings and, which if argued as a preliminary point, would dispose of the suit. The objections raised fell short of standing as preliminary objections. The issues raised were highly contested and largely dependent on evidence. For example, there was no concurrence that the parliamentary Bills annexed in support of the petition amounted to a threatened violation of the Constitution.
2. Jurisdiction as defined in Black's Law Dictionary, 9^th Edition, was the court's power to entertain, hear and determine a dispute before it. A court's jurisdiction was derived from the Constitution, statute or a settled judicial precedent. Jurisdiction was a central issue in court proceedings. A court that acted without jurisdiction acted in vain. Issues about jurisdiction were capable of being raised at any stage in proceedings.
3. There was no doubt that the supremacy of the Constitution was not subject to challenge. The petition aimed to defend and protect the Constitution and not to challenge the supremacy of the Constitution or sovereignty of the people. What the petitioners sought was for the court to clearly pronounce itself on the parameters which would prevent the destruction of what the petitioners referred to as the basic structure of the Constitution, during the process of constitutional amendment.
4. The court had jurisdiction to hear and determine the petition under article 165(3) of the Constitution.
5. The petitioner had an obligation to demonstrate with some degree of precision the right, fundamental freedom or part of the Constitution that it alleged had been violated or was threatened with violation, the manner or evidence of the violation or threatened violation and the relief it sought for that violation or threatened violation. Proof was based on evidence.
6. An allegation of a threat or violation of rights, fundamental freedoms or the Constitution was a matter of fact. Such a factual allegation could only be dealt with by presentation of evidence. Preliminary objections could not be used to contend that the Bills annexed to the petition did not amount to evidence of a threatened violation of the Constitution.  A preliminary objection had to be based on settled facts and it could not be used to challenge the quality of evidence in support of a petition.
7. The question as to whether the petition was non-justiciable on account of the doctrine of ripeness could be canvassed at an appropriate manner and at an appropriate time. Out of abundance of caution, the question as to whether what the petition sought was an advisory opinion could also be canvassed an appropriate time and manner.
8. The principles governing certification by the High Court that a matter raised a substantial question of law so as to warrant the empanelment of an expanded bench were settled in judicial precedent. The petition met the set criteria. It was of immense public interest; the issues raised were not only weighty but also complex and unsettled. The issues fell within the terms of articles 165(3)(b) or 165(3)(d) of the Constitution and the petitioner crafted clear issues of law to be dealt with.

Orders : -

1. The High Court was seized of the jurisdiction to deal with the petition dated September 16, 2020.
2. The preliminary objection dated September 29, 2020, the preliminary objection dated October 2, 2020 and the undated preliminary objection were struck out with no order as to costs.
3. It was certified that the petition dated September 16, 2020 raised substantial questions of law as to warrant an expanded bench of the High Court.
4. The matter was referred to the Honourable the Chief Justice of the Republic of Kenya to assign an uneven number of judges, in terms of article 165(4) of the Constitution to hear and determine it.
5. The applications for joinder were to be dealt with by the expanded bench.