Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)

Case Metadata
Case Number:	Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)
Parties:	Ndii & others v Attorney General & others
Date Delivered:	13 May 2021
Case Class:	Civil
Court:	High Court at Nairobi (Milimani Law Courts)
Case Action:	Judgment
Judge(s):	George Vincent Odunga, Joel Mwaura Ngugi, Jairus Ngaah, Enock Chacha Mwita, Teresia Mumbua Matheka
Citation:	Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment)
Advocates:	Mr Havi
Court Division:	Constitutional and Human Rights
County:	Nairobi
Advocates:	Mr Havi
Case Summary:	High Court declares that the BBI Steering Committee is unconstitutional and its efforts to amend the Constitution are also unconstitutional Brief facts After the intensely contested presidential election in 2017, there was a charged political climate. The President and Mr Raila Odinga, who participated in the elections as contestants, shared what was known as the handshake on March 18, 2018. The President later appointed the Building Bridges to Unity Advisory Taskforce (BBI Taskforce). The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building lasting unity in Kenya. In November 2019, the Taskforce came up with an interim report and on January 3, 2020, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee). The Steering Committee was required to engage in consultations with different segments of the public in order to validate the Taskforce Report and also to propose administrative, policy, statutory or constitutional changes that could be necessary for the implementation of the recommendations contained in the report, while considering contributions made during the validation exercise. The report of the BBI Steering Committee became the Constitution of Kenya Amendment Bill, 2020, (Constitution Amendment Bill) after it was handed over to the President. Signatures were collected in support of the popular initiative to amend the Constitution of Kenya, 2010 (Constitution). The signatures were submitted to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the county assemblies and Parliament for approval. There were eight consolidated constitutional petitions filed in court to challenge the Building Bridges Initiative and the resulting Constitution Amendment Bill and its associated popular initiative. The consolidated petitions were Petition Nos E282 of 2020, 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021. Petition No. E282 of 2020 The petitioners in Petition No. E282 of 2020 argued that the judicial doctrines and theory of the basic structure of a constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution were applicable to the Constitution. They stated that certain provisions of the Constitution were incapable of amendment either under article 256 of the Constitution by Parliament or through a popular initiative under article 257 of Constitution. According to the petitioners, the unamendable provisions of the Constitution included Chapter One on sovereignty of the people and supremacy of the Constitution, Chapter Two on the Republic, Chapter 4 on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary. The contentions of the petitioners relating to the basic structure of the Constitution and unamendability were challenged by the Attorney General on two grounds. One was that the doctrines related to unamendability were inapplicable in Kenya. Secondly, the Attorney General stated that the issues raised were not justiciable and were speculative and not specific enough. The Speaker of the National Assembly filed grounds of opposition in response to all the eight consolidated petitions. He stated that the issues raised were non-justiciable as they were based on speculative future contingencies. He added that the amendment Bill was under consideration before Parliament and that the court lacked jurisdiction to intervene in an active parliamentary process. The Speaker explained that the only limitation to the people’s power to amend the Constitution was the procedure set out under the Constitution. The Speaker of the Senate argued that the people of Kenya were granted sovereignty under the Constitution and they had an inalienable right to determine their form of governance. The Constitution, according to the Speaker of the Senate, provided for how the Constitution could be amended directly through popular initiative or through democratically elected representatives of the people. He added that under article 255 of the Constitution provision was made for the basic structure of the Constitution which could only be amended by the people exercising their sovereign right directly in a referendum. The BBI secretariat together with Raila Odinga filed a joint response to the consolidated petitions and stated that the petitions were an abuse of court process and vexatious because they were speculative and offended the principles of pleading with precision. They added that the petition invited the court to encroach into the legislative mandate of Parliament in breach of the doctrine of separation of powers. They also stated that some issues raised were res judicata and others were sub judice. Other issues, according to the BBI Secretariat and Raila Odinga, were founded on a misinterpretation of the law and were speculative. They offended the political question doctrine and sections 106 and 107 of the Evidence Act as they were mere generalizations. They stated that the petitions did not demonstrate any violation or contravention of the law to warrant the intervention of the court. Petition No E397 of 2020 In Petition No E397 of 2020, the Kenya National Union of Nurses stated that it had submitted various proposals to the BBI Steering Committee. The proposals included the establishment of an Independent Constitutional Health Service Commission, recognition of universal health care as a human right, expansion of free basic education and the removal of the Salaries and Remuneration Commission. The main aspiration of the nurses' union was for health sector personnel to be transferred from county governments to an Independent Health Service Commission to enable sharing of very limited health experts. An initial report from the BBI taskforce of October 2019 reflected those aspirations. However, a report released in October 2020 limited the functions of the proposed Health Service Commission to reviewing standards on the transfer of health workers, facilitation of resolution of disputes between employers and health workers and accreditation of health institutions through a proposed Bill to amend the Health Act as opposed to a constitutional amendment. The union felt that the failure to fully incorporate its proposals into the subsequent report meant that its legitimate expectations had been breached. In response to the union's contention, the BBI Steering Committee stated that the petition invited the court to usurp the role of Parliament and the county assemblies and substitute their views with those of the petitioner. The BBI Steering Committee said that it collected divergent views and not all of them could be accommodated. Further, according to the BBI Steering Committee, an entity could not be allowed to force its views on the popular initiative. The Attorney General also opposed the petition on grounds that all views collected during a public participation exercise needed not be implemented and that compelling the respondents to incorporate the views of the nurses' union would amount to an unlawful interference with their discretion. Petition No E400 of 2020 In Petition No E400 of 2020, the petitioners contended that the collection of signatures for the Constitution Amendment Bill was hurriedly done. They stated that the public did not get civic education so as to enable them to make informed decisions and to exercise their free will. The petitioners further contended that the terms of reference of the BBI Taskforce did not contemplate proposals for the amendment of the Constitution. They stated that the appointment of the BBI Steering Committee was an afterthought and averred that the subsequent process of validation of the initial report, formulation and publication of the Amendment Bill was unconstitutional. The petitioners claimed that the initiation of the constitutional amendment process by the President violated the sovereign right of the people of Kenya to exercise power directly by proposing an amendment to the Constitution as it was disguised as a popular initiative when in fact it was not. It was contended that an amendment to the Constitution by popular initiative as envisaged in article 257 of the Constitution had to originate from the electorate devoid of the influence of any representative. The petitioners averred that under article 257(10) of the Constitution, it was necessary to allow the people to exercise their free will to approve or reject specific proposals and a mere "yes" or "no" to the entire Amendment Bill violated the exercise of free will by the people as they could not distinguish between proposals that they accepted and those that they rejected. They also claimed that the IEBC lacked capacity, to receive, verify and approve signatures of the alleged Kenyan voters who endorsed the impugned Bill and that Kenyans were not given reasonable time to process the over one thousand paged document which was only accessible online. They also said that since IEBC did not have specimen signatures of the registered voters in Kenya to warrant a comparison for verification and approval of the signatures collected, any attempt to carry out verification was unlawful. Petition No E401 of 2020 The petitioner stated that amendments to the Constitution could only be done in accordance with the Constitution and that the National Executive, any state organ or taskforce could not initiate constitutional amendments through a popular initiative. Further, the petitioner stated that the National Executive could not use public resources to steer constitutional amendments through a popular initiative. The petitioner also stated that some of the proposed constitutional amendments were constitutionally defective. It stated that the collection of signatures and submission of the same to the IEBC by the National Executive for purposes of pursuing constitutional amendments through a popular initiative was not authorized. The Attorney General, in opposition, averred that the President's role included promoting unity in the nation and that the Constitution did not preclude any State organ, body, person or public entity from initiating a constitutional amendment. He also stated that the rationality or otherwise of the proposed amendments was subject to approval or disapproval by Kenya's legislative assemblies and by the people. On the issue of use of public resources, the Attorney General stated that there was no proof that principles of public finance had been breached and that it would be wrong under the doctrine of separation of powers for the court to intervene when the Constitution had assigned the management of public finance to specific constitutional bodies. Petition No E402 of 2020 The petitioner's main contention was about the proposed constitutional amendments that would increase the number of constituencies by 70 from 290 constituencies to 360 constituencies. Section 74 of the Amendment Bill directed the IEBC on the manner of delimitation and distribution of the 70 constituencies in various counties, the time frame within which the constituencies had to come into existence and the criteria on how the constituencies would be distributed. Under the Second Schedule to the Constitution Amendment Bill the allocation of the 70 constituencies was pre-determined. The petitioners argued that the role of creating constituencies and delimiting the boundaries was within the competence of the IEBC and it could not be done in pre-determined manner without public participation. The Attorney General, in opposition, stated that the petition was not justiciable on account of want of ripeness. He argued that the issues raised on the new constituencies and their distribution entailed political questions and the legislative assemblies were best placed to decide on them. He added that the Constitution's provisions on amendments gave absolute sovereignty to the people to amend the Constitution either through a popular initiative or through directly elected representatives. The Attorney General also averred that the issue as to whether there was sufficient public participation in the constitutional amendment process was premature and could only be considered after a referendum. Petition No E416 of 2020 The petitioner stated that there was no legislative framework to operationalize article 257 of the Constitution. The petitioner further stated that, the legal framework was necessary for purposes of providing for the submission of a Constitution Amendment Bill to the county assemblies and the Speaker of the two Houses of Parliament for consideration and how the referendum would be conducted. Further, the petitioners stated that it was necessary to stop efforts to process the Constitution Amendment Bill, including the conduct of a referendum, until the Covid-19 pandemic was combatted by the State. According to the petitioner, the IEBC had to conduct a nationwide voter registration exercise before any referendum could be conducted. They also averred that under section 8 of the Independent Electoral and Boundaries Commission Act (IEBC Act), there were requirements as to quorum and the IEBC as constituted lacked quorum and it could not verify signatures as it had purported to do or conduct a referendum. The petitioner alleged that there had been violations of articles 7, 10, 33, 35 and 38 of the Constitution when signatures were collected before members of the public were provided with copies of the Interim and Final BBI Report and the Constitution Amendment Bill in English, Kiswahili, indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. According to the petitioner, it was necessary to give the public reasonably sufficient time to read and understand the documents that should have been availed in various communication formats. The petitioner also stated that it was not constitutional for public funds to have been spent in order to promote the constitutional amendment initiative and that any public funds utilized should be refunded. The petitioner further contended that Bills for constitutional amendments should be prepared and tabled before Parliament by the Attorney General and that any other entity should not exercise that role. The petitioner sought various reliefs in the petition which included a mandatory injunction for the President to dissolve Parliament under article 267(7) in accordance with the advice of the Chief Justice to the President pursuant to article 261(7) of the Constitution dated September 21, 2020. Petition No E426 of 2020 The petitioner averred that the court should find that the President could be sued, during his tenure of office, in civil proceedings for acts or omissions that were not authorized under the Constitution. The petitioner contended that the President lacked authority to initiate constitutional amendments that were to be undertaken through a popular initiative. He also alleged that the BBI Steering Committee established by the President was an unlawful entity under the laws of Kenya. The petitioner prayed for a declaration that the BBI Steering Committee lacked locus standi to promote constitutional changes under article 257 of the Constitution. He also sought orders related to the use of public funds during the constitutional amendment process including orders for the sums spent to be accounted for. Lastly, he also sought orders for the constitutional amendment process to be terminated. Petition No 2 of 2021 On December 18, 2020, the petitioner requested IEBC to provide information about whether there were rules to guide and regulate the signature verification process, whether the IEBC held specimen signatures of all registered voters and whether funds had been allocated for the signature verification exercise. The IEBC responded and stated that it developed procedures for signature verification, that it had biographic and biometric data of registered voters but not specimen signatures and that it had funds from treasury for the signatures verification exercise which had been launched at the Bomas of Kenya. In a press statement published on January 21, 2020, the IEBC stated that it had published the names of persons who had appended their signature in support of the Constitution Amendment Bill, on its website. The IEBC invited the public to access the information on their website and in case of any complaint, it required the complaint to be made in writing to the IEBC by January 25, 2021. The signature verification exercise concluded with the IEBC saying that the requirements of article 257 of the Constitution in relation to the Constitution Amendment Bill had been met. The IEBC proceeded to submit the Bill to the 47 counties for consideration and approval or rejection. According to the petitioner, there was no regulatory framework governing the collection of signatures or their verification and any procedures applied by the IEBC were in violation of articles 10, 94 and 249 of the Constitution as the IEBC did not have legislative power. They said that the conduct of the signature verification exercise without a regulatory framework, was a violation of article 81 of the Constitution. Additionally, the petitioner stated that the procedures used were developed without legal authority and failed to comply with sections 5, 6, and 11 of the Statutory Instruments Act. The petitioner added that failure to maintain a database of specimen signatures of registered voters by the IEBC violated articles 257(4) and 257(5) of the Constitution as it had rendered IEBC incapable of discharging the mandate of signature verification. Issues Whether the basic structure doctrine on constitutional amendments was applicable in Kenya. What were the implications of the basic structure doctrine in Kenya for the constitutional amendment powers provided under articles 255 to 257 of the Constitution? Whether the President’s role in promoting national unity included promotion of constitutional amendments through a popular initiative. Whether the President and public officers who directed or authorized the use of public funds for a constitutional amendment process that was alleged to be unconstitutional could be ordered to refund the monies used. Whether there was an adequate legislative framework to guide the process of undertaking constitutional amendments through a popular initiative and whether, where such a framework was inadequate or lacking, it would render any constitutional amendment processes incurably defective. Whether Parliament and county assemblies could propose changes to a constitutional amendment bill that was promoted through a popular initiative. Whether it was necessary for specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions. Whether it was lawful for the BBI Steering Committee to leave out a proposal on the establishment of the Constitutional Health Service Commission, which was proposed during a public participation exercise, from the constitutional amendments bill which was the outcome of the BBI Steering Committee's work. Whether it was lawful for a constitutional amendment bill to set the number of constituencies and to effectively increase their number by 70 constituencies. Whether it was lawful for a constitutional amendment bill to directly allocate and apportion the constituencies that it had created without requiring the conduct of a delimitation exercise using the criteria and procedure set out in article 89 of the Constitution. Whether a referendum to effect proposed amendments to the Constitution could be undertaken without the conduct of a nationwide voter registration process by the Independent Electoral and Boundaries Commission. Whether the Independent Electoral and Boundaries Commission comprised of the chairperson and two commissioners was properly constituted in terms of quorum for the verification of signatures for purposes of a popular initiative for constitutional amendment and submitting the proposed constitutional amendment bill to county assemblies and also conducting a referendum. Whether a legal regulatory framework for the verification of signatures by the Independent Electoral and Boundaries Commission and other processes required under article 257(4) and 257(5) of the Constitution was necessary and in existence. Whether the conduct of a referendum would provide an environment that was conducive to the spread of covid-19 and whether it was a violation of the right to health under article 43 of the Constitution. Held 1. The Constitution of Kenya, 2010, had a transformative character. Transformative constitutionalism was an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. In its transformative character, the Constitution reconfigured the interplays between the State's majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance, consistent with dominant perceptions of legitimacy, be achieved. 2. The transformative nature of the Constitution informed methods of constitutional interpretation in Kenya. In particular, four principles of constitutional interpretation emerged in Kenya's jurisprudence, namely; The Constitution had to be interpreted holistically. That meant that in interpreting a constitutional provision, it was necessary to undertake a contextual analysis wherein that provision would be read alongside other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances. Formalistic approaches to constitutional interpretation were not favoured. The Constitution could not be interpreted in the same way that a statute would be interpreted. The Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes. Non-legal considerations were important in giving the Constitution its true meaning and value. The historical, economic, social, cultural and political context was fundamentally critical in discerning the various provisions of the Constitution. 3. The process that culminated in the promulgation of the Constitution of Kenya, 2010, was participatory. The public participated directly and meaningfully in the process and that was a different process from having experts write a constitution. 4. The 1963 independence Constitution was negotiated to mark the end of colonial rule and to establish a Government elected by Kenyans and to ensure the devolution of powers among other checks and balances of excessive Executive and Presidential power. However, by the end of 1980 Kenya had effectively become an authoritarian state. By 1991 when Kenya officially became a multi-party state after close to a decade of being a de jure one-party state, the 1963 Constitution had been amended many times and stripped of most of its initial democratic and social justice protections. There had been a culture where the Constitution had been amended and changed profoundly and rapidly to the point that it lost its value content and significance. 5. Kenyans intended to protect the basic structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments. That doctrinal illumination was discernible by correctly interpreting both the history of constitution-making and the structure of the Constitution Kenyans made for themselves. The process leading to the promulgation of the Constitution of Kenya, 2010, showed that Kenyans wanted a constitution in which an ordinary citizen took centre-stage in its debate and design. Kenyans were clear about the need for informed public participation in the process. The 2005 Wako Draft was rejected because it failed the public participation test and verged on political elite consensus. 6. Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through an informed and participatory process. They also intended that the essence of the constitutional order they bequethed themselves in 2010 would only be changed in the exercise of primary constituent power (civic education, public participation, constituent assembly plus referendum) and not through secondary constituent power (public participation plus referendum only) or constituted power (Parliament only). 7. There was no clause in the Constitution that explicitly made any article in the Constitution un-amendable. However, the scheme of the Constitution, coupled with its history, structure and nature created an ineluctable and unmistakable conclusion that the power to amend the Constitution was substantively limited. 8. The text, structure, history and context of the Constitution all read and interpreted using the canon of interpretive principles decreed by the Constitution yielded the conclusion that the basic structure doctrine was applicable in Kenya. The basic structure doctrine protected certain fundamental aspects of the Kenyan Constitution from amendment through the use of either secondary constituent power or constituted power. 9. Sovereignty of the people in constitution-making was exercised at three levels: - The primary constituent power was the extraordinary power to form (or radically change) a constitution; the immediate expression of a nation and thus its representatives. It was independent of any constitutional forms and restriction and was not bound by previous constitutional rules and procedures. The secondary constituent power was an abbreviated primordial constituent power exercisable by the whole polity in an abbreviated process to alter the constituting charter (Constitution) in non- fundamental ways, that was, without altering the basic structure. In Kenya, the secondary constituent power to amend the Constitution was exercisable through a referendum subsequent to public participation and parliamentary process. The constituted power was created by the Constitution and was an ordinary, limited power, a delegated power derived from the Constitution, and hence limited by it. In Kenya, the constituted power was exercised by Parliament, which had limited powers to amend the Constitution by following the procedures set in articles 255-257 of the Constitution. 10. The essential features of the Constitution that formed the basic structure could only be altered or modified by the people using their primary constituent power. Primary constituent power was only exercisable after four sequential processes had been followed: - Civic education to equip people with sufficient information to meaningfully participate in the constitution-making or constitution-altering process; Public participation and collation of views in which the people – after appropriate civic education – generated ideas on the type of governance charter they wanted and gave their views about the constitutional issues; Constituent assembly debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making or constitution- alteration; and Referendum to endorse or ratify the draft constitution or changes to the basic structure of the Constitution. 11. The basic structure of the Constitution consisted of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules to the Constitution. That structure outlined the system of government Kenyans chose – including the design of the Judiciary, Parliament, the Executive, the independent commissions and offices and the devolved system of Government. It also included the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment including land and environment, leadership and integrity, public finance and national security. Read as a whole, those chapters, schedules and the Preamble formed the fundamental core structure, values and principles of the Constitution. That fundamental core, the constitutional edifice, thus, could not be amended without recalling the primary constituent power of the people. 12. It was not every clause in each of the eighteen chapters and six schedules which was inoculated from non-substantive changes by the basic structure doctrine. Differently put, the basic structure doctrine protected the core edifice, foundational structure and values of the Constitution but left open certain provisions of the Constitution as amenable for amendment as long as they did not fundamentally tilt the basic structure. 13. There were certain provisions in the Constitution which were inoculated from any amendment at all because they were deemed to express categorical core values. Those provisions were therefore, unamendable: they could not be changed through the exercise of secondary constituent power or constituted power. Their precise formulations and expressions in the Constitution could only be affected through the exercise of primary constituent power. Those provisions could also be termed as eternity clauses. 14. An exhaustive list of eternity clauses was inadvisable in a vacuum. Whether a particular clause consisted of an eternity clause or not would be a fact-intensive determination to be made after due analysis of the Constitution, its foundational structure, its text, its internal coherence, the history of the clause and the constitutional history and other non-legal considerations permitted by Kenya's canons of interpretation. 15. The power to amend the Constitution was prescribed in articles 255 to 257 of the Constitution. There were two ways in which a constitutional amendment could be initiated, either by parliamentary initiative or by popular initiative. 16. Since under article 2(2) of the Constitution, no person could claim or exercise State authority except as authorised under the Constitution, it necessarily followed that, subject to the role of the primary constituent assembly, there was no other constitutionally permissible avenue available to any person to initiate a constitutional amendment except the prescribed ones. 17. The Constitution Amendment Bill was an initiative of the President. It could not be otherwise since the BBI Taskforce was set up courtesy of his initiative and the subsequent BBI Steering Committee was tasked with implementing the BBI Taskforce Report and the membership of the two entities remained the same. 18. Under the Constitution, the President was not a Member of Parliament and therefore he could not directly, purport to initiate a constitutional amendment pursuant to article 256 of the Constitution. That was because under article 94(1) of the Constitution, the legislative authority of the Republic at the national level, was vested in and exercised by Parliament. It followed that the President had no power under the Constitution, as President, to initiate changes to the Constitution under article 256 of the Constitution since Parliament was the only State organ granted authority by or under the Constitution to consider and effect constitutional changes. The President, if he so desired, could however, through the Office of the Attorney General, use the parliamentary initiative to propose amendments to the Constitution. 19. Both a textual analysis of Kenya's Constitution and a historical exegesis of the clause on popular initiative made it clear that the power to amend the Constitution using the popular initiative route was reserved for the private citizen. Neither the President nor any State Organ was permitted under the Constitution to initiate constitutional amendments using the popular initiative option. 20. Allowing the President to initiate constitutional amendments through the popular initiative would have the effect of granting him both the roles of promoter and referee. That was because article 257(5) of the Constitution provided that if a Bill to amend the Constitution proposed the amendment of matters specified in article 255(1) of the Constitution, before assenting to the Bill, the President had to request the IEBC to conduct, within 90 days, a national referendum for approval of the Bill. 21. Article 257(5) of the Constitution, arguably, gave power to the President to determine whether or not a referendum was to be held. In circumstances where the President, whether in his official or personal capacity was the promoter of the Amendment Bill, his role in determining whether or not the Bill was to be subjected to a referendum could amount to a muddled up conflict of interest. The President could not be both a player and the umpire in the same match. 22. It had been argued that the President was acting in his personal capacity and not as the Chief Executive of the Republic of Kenya. That argument was, however, betrayed by the very fact that the BBI Steering Committee was established via a gazette notice, an official publication of the Government of the Republic of Kenya and its report was addressed to the President in his official capacity. 23. Article 257 of the Constitution was reserved for situations where the promoters of a constitution amendment Bill did not have recourse to the route contemplated under article 256 of the Constitution. If the President intended to initiate a constitutional amendment, he could do so through Parliament. 24. A popular initiative to amend the Constitution, being a process of participatory democracy that empowered the ordinary citizenry to propose constitutional amendments independent of the lawmaking power of the governing body, could not be undertaken by the President or State organs under any guise. 25. Previous constitution-making initiatives in 2005 and 2010 were sponsored by the State. That would not justify attempts to have the Constitution amended in a similar way because those previous initiatives were undertaken under the repealed Constitution which did not make provision for its amendment in a similar fashion as the Constitution of Kenya, 2010. 26. Sections 6 and 7 of the Civil Procedure Act governed situations where a litigant raised issues that were either sub judice or res judicata. The rationale for staying matters on grounds of them being sub judice was that it was vexatious and oppressive for a claimant to sue concurrently in courts. Where two courts were faced with substantially the same issue, that issue should only be determined in one of the courts and the other court should stay the claim. Ordinarily, it was the second suit that would be stayed. 27. For a suit to be stayed on grounds of sub judice, the matter in issue in the suit had to be directly and substantially in issue in the previously instituted suit and the parties in the two suits had to be the same parties or parties claiming under them or litigating under the same title. 28. The matters in issue in Petition No 12 of 2020 (Omtatah Petition) were covered under the consolidated petitions. However, the consolidated petitions covered a wider range of issues than the Omtatah Petition. Therefore, only a segment of issues in the consolidated petition were directly and substantially in issue in the consolidated petitions. Additionally, the parties in the Omtatah Petition were different from the parties in the consolidated petitions. 29. The consolidated petitions were wider in scope than the Omtatah Petition and could not be said to be an abuse of the process. There was no evidence that steps had been taken to prosecute the Omtatah Petition. The nature of the dispute that the consolidated petitions raised demanded an expedient determination and it was in public interest that they be resolved at the earliest opportunity. 30. The provisions of section 7 of the Civil Procedure Act on res judicata were based on the fundamental doctrine that there had to be an end to litigation. The doctrine of res judicata could be pleaded by way of estoppel so that where a judgment had been given, and it was a matter of record, an 'estoppel by record' arose. 31. The nature of the estoppel pleaded by the Attorney General was an issue estoppel to the effect that specific questions concerning the legality or constitutionality and the mandate of BBI Steering Committee had been resolved by the High Court in Third Way Alliance Kenya & another versus Head of Public Service & 2 others, Petition No. 451 of 2018, High Court at Nairobi (Third Way Alliance Case). The consolidated petitions asked questions that were not asked in the Third Way Alliance Case. For example, one question was on whether a popular initiative to amend the Constitution could be started by the President and the other was whether the BBI Steering Committee and any actions undertaken by it were constitutional. The judgment in the Third Way Alliance Case was incapable of answering such questions because the court in that instance was not asked to answer those questions. The court was therefore not estopped from discussing the constitutionality of the BBI Steering Committee and its mandate and thus, the issue was not res judicata. 32. Article 143(1) of the Constitution was to the effect that criminal proceedings were incapable of being instituted against the President or a person performing the functions of that office, during their tenure of office. On the other hand, article 143(2) provided that civil proceedings could not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in exercise of their powers under the Constitution. The correct position was that the President could be sued in any civil proceedings and the only protection was against actions that were in respect of anything done or not done in exercise of his powers under the Constitution. In appropriate circumstances, for example where the President took actions in violation of the Constitution and also destructive to the nation, any person could invoke the jurisdiction of the court and sue the President whether in his personal or official capacity. 33. The BBI Taskforce which eventually morphed into the BBI Steering Committee was the President’s and not the peoples’ initiative. The Bill to amend the Constitution was as result of the proposals of the BBI Steering Committee. Therefore, what had been presented as a popular initiative to amend the Constitution was in reality the presidency’s initiative which was certainly contrary to article 257 of the Constitution. To the extent that the BBI Steering Committee was created to perpetuate what was clearly an unconstitutional purpose, it was an unlawful, and at any rate, an unconstitutional outfit. 34. Article 132(4)(a) of the Constitution provided that the President could only establish an office in the public service on the recommendation of the Public Service Commission. There was no evidence that the President complied with that provision when he created the BBI Steering Committee. 35. A reading of the Constitution showed that only Parliament could enact legislation. However, that did not mean that only Parliament could draft Bills. Therefore, anybody including the BBI Steering Committee, if lawfully established, as promoter of the Constitution of Kenya Amendment Bill, could draft Bills. Under article 257(2) of the Constitution it was clear that the promoter of a popular initiative to amend the Constitution was required to come up with a draft amendment Bill. The Bill would then be submitted to the IEBC which would then send it to the Speakers of County Assemblies and Parliament for approval or rejection. 36. Public participation was one of the principles of good governance; a constitutional right that had to be complied with at every stage of a constitutional amendment process. 37. The right to make political decisions went beyond voting or deciding on whether to append a signature on a constitution amendment Bill. The right to make political decisions included the availability of information to citizens in order to enable them to make informed decisions. 38. Kenyan voters were entitled, at a minimum, to copies of the Constitution of Kenya Amendment Bill to read and understand what the promoters were proposing to amend. At the very least, the copies ought to have been in the constitutionally required languages namely, English, Kiswahili and Braille. The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under article 7(3)(b) of the Constitution. 39. The only copy of the Constitution Amendment Bill that was availed was in English and it was not printed and distributed to the people, it was only available online. Even if they had been distributed, those who did not understand English and persons with disabilities would not have been able to understand the contents of Bill. Therefore, there was no effort at all on the part of the BBI Steering Committee to make copies of the Constitution Amendment Bill available to the public. 40. Since meaningful public participation and sensitization of people prior to collection of signatures in support of the Constitution Amendment Bill was not done, the exercise of collecting signatures in support of the Bill was constitutionally flawed. 41. Before transmitting the Bill to the County Assemblies for voting, the IEBC was obligated to ensure that the BBI Steering Committee had complied with constitutional requirements on public participation. 42. Under article 226(5) of the Constitution, if the holder of a public office, including a political office, directed or approved the use of public funds contrary to law or instructions, the person was liable for any loss arising from that use and had to make good the loss, whether the person remained the holder of the office or not. No evidence was tendered to show that the BBI Steering Committee spent public funds on its operations. 43. What the President did through the BBI Steering Committee was a clear attempt to stretch his authority under article 131(2)(c) of the Constitution to include power to initiate constitutional amendments. The President's role in promoting and enhancing national unity did not include initiating constitutional amendments through a popular initiative. 44. Article 35 of the Constitution guaranteed every citizen the right of access to information held by the State and information held by another person, which was required for the exercise or protection of a right or fundamental freedom. Access to information was a critical constitutional right for open and democratic conduct of governmental affairs. The State or State organ responsible was obliged to disclose information to citizens whenever sought. 45. The petitioner in Petition No. E416 of 2020 had a right to seek information from relevant authorities while complying with the procedure set out in the Access to Information Act. The petitioner had not demonstrated that he had sought that information. He only prayed for orders from the court for publication of details of the budget and money allocated and used in promoting the BBI activities. 46. In order to carry out the referendum process as contemplated under the Constitution, it was necessary that the legislation be enacted. The fact that the Constitution did not provide for the enactment of such legislation did not mean that the legislation was unnecessary. That legislation would deal with the manner in which county assemblies would process a constitution amendment Bill, including the number of readings for the Bill, the manner of conducting public participation, whether they could amend the Bill before approving it and whether such a Bill would be passed by a simple majority. It would also contain provisions on the correct procedure to be used by Parliament in approving the Bill. 47. The legislation on the processing of a constitution amendment Bill and the referendum necessary for its passage, would deal with questions such as how an amendment Bill that had proposals that included those that required a referendum under the Constitution and those that did not require a referendum would be handled. Such legislation, if enacted would also answer questions as to whether specific aspects of the Bill required separate approval or rejection as opposed to having the entire list of proposals in the amendment Bill approved or rejected. 48. Part V of the Elections Act dealt with referenda. It did not adequately cover the process contemplated under the Constitution for a referendum. For example, it did not address public participation requirements and it did not provide for how a constitution amendment Bill would be handled by county assemblies where the Constitution mandated consideration of such a bill by county assemblies. The lacuna in law was incapable of being addressed by Part V of the Elections Act. 49. The absence of legislation to operationalize a constitutional provision would not render the provision inoperative or unenforceable. In the absence of enabling legislation for the conduct of a referendum, a referendum could be undertaken as long as constitutional expectations, values, principles and objects were met. 50. The terms “consideration” and “approve” as used in article 257(5) and 257(7) of the Constitution did not give room to the legislative organs, whether at the national level or county level, to alter and or “improve” the contents of a constitution of Kenya amendment Bill. Such alteration could mean the constitution amendment Bill in the context of a popular initiative would be hijacked and even turned into what it could have been if it had been promoted as a parliamentary initiative. 51. Depending on the proposed constitutional amendments, a multi-option referendum could be necessary. What the Constitution contemplated under articles 255 to 257, was that each proposed constitutional amendment had to be considered on its own merit and not within the rubric of other amendments. Some proposed amendments could be agreeable to voters while the same voters could find that they did not agree with other proposed amendments. 52. A careful reading of article 255(1) of the Constitution showed that each proposed constitutional amendment clause ought to be presented as a separate question. That would avoid confusion and allow voters to decide on each presented amendment question on its own merit. 53. Section 49 of the Elections Act supported the preposition that omnibus amendments ought to be presented as separate referendum questions. What should be subjected to a referendum was those questions and not the entire Constitution Amendment Bill. 54. The fact that an entity was required to consider public views did not necessarily mean that those views had to be incorporated into the final decision. While the Kenya National Union of Nurses made proposals for the setting up of the Health Service Commission as a constitutional commission, it was not the case that the BBI Steering Committee made representations that their proposals would be incorporated in their report. 55. A legitimate expectation arose where a clear and unambiguous promise had been given by a public authority. That authority had to have had the competence to make the promise and it would have to be lawful for it to make a promise. There could be no legitimate expectation against provisions of the law or the Constitution. 56. Had there been a representation made by the BBI Steering Committee that the views of the Kenya National Union of Nurses would be incorporated in the Constitution of Kenya Amendment Bill, the union would have been justified in contending that it ought to have been afforded an opportunity of being heard. The union's claims that there was unreasonableness and unfair administrative action had to be disallowed. 57. A constituency in Kenya was a unit of representation that was at the heart of Kenya's electoral process. It went to the root of the enjoyment of the democratic right to representation. It was seen as a unit for taking development to the people. 58. The constitutionality of the Constitution Amendment Bill in terms of the proposal to create 70 new constituencies was challenged. The court would not exercise judicial restraint or apply the doctrine of constitutional avoidance but would instead proceed to consider the merits of that question. Threatened violations of the Constitution could found the basis of a constitutional petition. A litigant did not have to wait for an actual violation to occur before approaching the court. 59. The doctrine of separation of powers did not bar the court from exercising jurisdiction under article 165(3)(d)(ii) of the Constitution. The court could determine whether the state, in pursuing certain policy decisions or undertaking certain actions, had failed to fulfil constitutional dictates. 60. The argument by the Attorney General that the petitioners had alternative avenues of redress, such as persuading Parliament and the Kenyan people to reject the Constitution Amendment Bill, was a misapprehension of the doctrine of exhaustion. A party was only debarred from approaching the court where a statute or policy had created a mechanism for determining a dispute related to the subject matter in question. The political route of persuading Parliament, county assemblies and the Kenyan people, was not a dispute settlement mechanism within the meaning of the doctrine of exhaustion. 61. The history and text of the Constitution showed that Kenyans were not particular about the number of constituencies. They were more concerned with the process, procedure, timelines, criteria and review process of the delimitation of electoral units. Article 89(1) of the Constitution – which provided for the exact number of constituencies – was not an eternity clause and it was capable of amendment while following the procedure set under articles 255 to 257 of the Constitution. 62. The provisions of the Constitution of Kenya Amendment Bill which directly allocated and apportioned the 70 additional constituencies without a delimitation exercise as set out in article 89 of the Constitution, were unlawful and unconstitutional for the following reasons: - they impermissibly directed the IEBC on the execution of its constitutional functions; they purported to set criteria for the delimitation and distribution of constituencies which was at variance with that created under article 89(5) of the Constitution; they ignored public participation as a key consideration in delimiting and distributing constituencies; they imposed timelines for the delimitation exercise which were at variance with those in the Constitution; they took away the rights of those aggrieved by a delimitation exercise to seek judicial review; by having an additional 70 constituencies provided for under the Second Schedule while using a pre-set criteria, which did not accord with standards set in articles 89(4), 89(5), 89(6), 89(7), 89(10) and 89(12) of the Constitution, they had the effect of amending or suspending the intended impacts of article 89 of the Constitution, which was part of the basic structure of the Constitution which was unamendable. 63. Section 5(1) of the Independent Electoral and Boundaries Commission Act provided that the IEBC had to consist of the chairperson and six other commissioners. Further, paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act provided for a quorum of at least five members for the conduct of business at a meeting of the IEBC. The existing composition of the IEBC was the chairperson and two commissioners. 64. The issue of quorum in the IEBC was decided in the case of Isaiah Biwott Kangwony v Independent Electoral & Boundaries Commission & another [2018] eKLR (Isaiah Biwott Kangwony case). The court in that case held that lack of quorum limited the IEBC'S operations when dealing with policy issues but that the IEBC could conduct by-elections as that did not require quorum to make decisions. 65. The issue before the court was whether the IEBC was properly constituted for purposes of verifying signatures and did not have a quorum to conduct a referendum. It was different from the issues in the Isaiah Biwott Kangwony case. 66. The Independent Electoral and Boundaries Commission Act was clear in providing that a quorum of five commissioners was required in order for the IEBC to conduct business. Therefore, the court respectfully departed from the holding in the Isaiah Biwott Kangwony case as the statute did not distinguish between the need for quorum in policy decisions as compared to other business. 67. Verification of signatures and determining whether a constitution amendment Bill met constitutional requirements set out under article 257(4) of the Constitution was a policy issue that required determination by the IEBC as a commission. Such a serious constitutional question could not be determined by a committee of the IEBC. The IEBC needed quorum in order to make such a determination. 68. The IEBC did not have the quorum of five members when it conducted verification of signatures and determined that the BBI Secretariat had met the constitutional threshold under article 257(4) of the Constitution to move the constitutional amendment process to the next stage. Therefore, all the decisions made by the IEBC in relation to the proposed constitutional amendments were invalid, null and void for lack of quorum. 69. The mandate of the IEBC under article 257(4) of the Constitution was a two-step process. First, it was to ascertain the numbers of registered voters in support of a popular initiative to amend the Constitution, and secondly, it was to verify the authenticity of the signatures of registered voters claimed to be in support of the popular initiative. 70. The existing regulatory framework was not sufficient for the verification of signatures by the IEBC under article 257(4) of the Constitution. To fill the gap, the IEBC developed Administrative Procedures approved on April 15, 2019. The Administrative Procedures were within the definition of statutory instruments provided under section 2 of the Statutory Instruments Act but they were not gazetted as required by section 22 of the Statutory Instruments Act. Therefore, the Administrative Procedures were invalid for lack of public participation as well as failure to comply with the provisions of the Statutory Instruments Act. They were also invalid for two other reasons: - the Administrative Procedures were developed and revised without the IEBC having the quorum necessary to conduct its business; and the Administrative Procedures did not have provisions or procedures for the authentication of signatures which was a necessary step in the verification process required under article 257(4) of the Constitution. 71. In carrying out the verification process, the IEBC did not comply with the Administrative Procedures. The IEBC published a list of persons who had appended their signatures in support of the Constitution Amendment Bill online and gave the public five days to raise any issues they had with the list. The period allowed for that process would be two weeks if the IEBC had complied with the Administrative Procedures. 72. Holding a referendum without voter registration, updating the voters register, and carrying out voter education, would particularly disenfranchise citizens who had attained voting age but had not been given an opportunity to register as voters, thus violating their constitutional right to vote and make political choices. Holding a referendum without first conducting voter registration would violate the very essence of the right of a class of citizens who had not been given the opportunity to register and vote in deciding on their destiny. 73. Article 43(1)(a) of the Constitution guaranteed every person the right to the highest attainable standard of health, which included the right to health care services and reproductive health. The right to health was different from the right to be healthy. The right to health meant the right to enjoy a variety of goods, services and conditions that was necessary to one's wellbeing. It was usually based on Government programmes and goals that were realized on a long-term basis, usually dependent on availability of resources. 74. The petitioner in Petition No E416 of 2020 did not provide evidence to support his contention that the conduct of a referendum would provide an environment for the spread of coronavirus. 75. The issue as to whether Parliament could consider the constitutional amendment Bill given that it was to be dissolved by the President was raised in Petition E416 of 2020. The basis for the dissolution of Parliament was the advice rendered by the Chief Justice on September 21, 2020, under article 261(7) of the Constitution. The issue was however pending before another bench of the High Court. It was being canvassed in the case of Milimani High Court Petition No. 302 of 2020 Third way Alliance v Speaker of the National Assembly & another (consolidated with JR No. 1108 of 2020 and Petition Nos. E291 of 2020 and 300 of 2020.) The petitioner could, therefore, apply to join that matter.
Extract:	Cases Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others (civ suit 1338 of 97;[2003]eKLR) — Explained Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others (Civil Appeal 1338 of 97; [2003] eKLR) — Explained Alila, Titus & 2 others (Suing on their own Behalf and as the Registered Officials of the Sumawe Youth Group) v Attorney General & another (Constitutional Petition 22 of 2018; [2019] eKLR) — Followed Aluochier, Isaac Aluoch Polo v Uhuru Muigai Kenyatta & another (Petition 297 of 2016; [2016] eKLR) — Explained Anam, Peter Ochara& 3 others v Constituencies Development Fund Board & 4 others (Petition No 3 of 2010;2011]eKLR) — Explained Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979 [1979]eKLR) — Explained Anarita Karimi Njeru v Republic (No1) ([1979] KLR 154; [1976- 80] 1 KLR 1272) — Explained Apollo Mboya v Attorney General & 2 others (Petition 472 of 2017; [2018] eKLR) — Explained Biowatch Trust v Registrar, Genetic Resources & 5 others — Explained British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others (Civil Appeal No 112 of 2016; [2017] eKLR) — Explained Center for Rights Education and Awareness & anothers v John Harun Mwau & 6 others ([2012] 2 KLR 261) — Explained Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another (Petition Nos 628 & 630 of 2014; [2015] eKLR (Consolidated)) — Explained Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others (Petition 496 of 2013 [2013] eKLR) — Explained Communication Commission of Kenya & 5 others v Royal Media Services & 5 others (Petition Nos 14, 14A, 14B & 14C of 2014; [2014] eKLR (Consolidated)) Council of County Governors v Attorney General & another (Constitutional Petition 56 of 2017; [2017] eKLR) — Explained Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba Institute & 2 others (Amicus Curiae) (Reference 3 of 2019 [2020] eKLR) — Followed County Government of Nyeri & another v Cecilia Wangechi Ndungu (Civil Appeal 2 of 2015; [2015] eKLR) — Explained D E N v PN (Civil Appeal 226 of 2012; [2015] eKLR) — Explained Gakuru & others v Governor Kiambu County & 3 others ([2014] 3 KLR 3) — Followed Galaxy Paints Co Ltd v Falcon Guards Ltd ([2000] EA 885) — Explained Gikonyo,Wanjiru & another v National Assembly of Kenya & 8 others (Petition 178 of 2016;[2016] eKLR) — Explained Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association Being sued on behalf of Kenya Bankers Association) & another (Petition 457 of 2015 ;[2018] eKLR) — Explained Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others (Civil Appeal No. 224 of 2017; [2017] eKLR) — Explained In re the Matter of the Interim Independent Electoral Commission ([2011] 2 KLR 32) — Explained Institute of Social Accountability & another v National Assembly & 4 others (Petition No 71 of 2014; [2015] eKLR) — Explained In the Matter of the Interim Independent Electoral Commission ([2011] 2 KLR 32) — Explained In the Matter of the Kenya National Commission on Human Rights (Reference 1 of 2012; [2014] eKLR) — Explained In the Matter of the National Land Commission (Advisory Opinion No 2 of 2014; [2015] eKLR) In the Matter of the Principle of Gender Representation in the National Assembly and the Senate ([2012] 3 KLR 718) — Explained In the Matter of the Speaker of the Senate & another ([2013] 3 KLR 278) — Followed Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others (Petition 4 of 2012; [2013] eKLR) — Cited in Dissenting Opinion Julius Nyarotho v Attorney General & 3 others (Miscellaneous Civil Application 36 of 2012 ;[2013]eKLR) — Explained Kabiru, Geoffrey Muthinja & 2 othes v Samuel Munga Henry & 1756 others (Civil Appeal 10 of 2015; [2015] eKLR) — Explained Kamau, Jesse & 25 others v Attorney General (Miscellaneous Civil Application 890 of 2004; [2010] eKLR) — Explained Kaminja, Daniel & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi (Judicial Review 441 of 2018; [2019] eKLR) — Explained Kangwony, Isaiah Biwott v Independent Electoral and Boundaries Commission & another (Petition No 212 of 2018; [2018] eKLR) — Explained Katiba Institute & another v Attorney General & another (Constitutional Petition No 209 of 2016; [2017] eKLR) — Explained Kega, Hon Kanini v Okoa Kenya Movement & 6 others (Petition 427 of 2014;[2014] eKLR) — Explained Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) & 8 Others v Cabinet Secretary For Transport & Infrastructure & 5 Others (Judicial Review Case 2 of 2014; [2014] eKLR) — Explained Kenya Human Rights Commission & another vs Attorney General & 6 others (Civil Appeal 147 of 2015; [2019] eKLR) — Explained Kenya Planters Co-operative Union Limited v Kenya Co-operative Coffee Millers Limited & another (ELC Constitutional Petition 7 of 2015;[2016] eKLR) — Explained Kenya Revenue Authority v Universal Corporation Ltd (Civil Appeal 150 of 2018; [2020] eKLR) — Explained Keroche Breweries Limited & 6 others v Attorney General & 10 others (Petition Nos 295, 309 & 314 of 2015; Judicial Review Nos 231, 242, 246 & 247 of 2015; [2016] eKLR (Consolidated)) — Explained Kiambu County Government & 3 others v Robert N Gakuru & others (Civil Appeal 200 of 2014; [2017] eKLR) — Mentioned Kilonzo, Diana Kethi & another v Independent Electoral and Boundaries Commission & 10 others (Petition 359 of 2013; [2013] eKLR) — Explained Kivuitu ,Priscilla Ndululu & another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 others v Attorney General & 2 others (Petition 689 of 2008; [2015] eKLR) — Explained Law Society of Kenya v Attorney General & another (Petition 4 of 2019; [2019] eKLR) Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) (Petition 307 of 2018; [2019] eKLR) — Explained Law Society of Kenya v Inspector General Kenya National Police Service & 3 others (Petition 9 of 2014;[2015] eKLR) — Explained Law Society of Kenya v Kenya Revenue Authority & another (Petition 39 of 2017; [2017] eKLR) — Explained Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya (Judicial Review Case 472 of 2014;[2015] eKLR) — Explained Maingi ,John Kimanthiv Andrew Ligale & 4 others (Petition 72 of 2010;[2010]eKLR) — Explained Manyasi v Gicheru & 3 others ([2009] KLR 687) — Explained Mate, Justus Kariuki & another v Martin Nyaga Wambora & another (Petition 32 of 2014; [2017]eKLR) — Explained Mate, Justus Kariuki & another v Martin Nyaga Wambora & another (Petition No 32 of 2014; [2017] eKLR) — Explained Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others (Civil Appeal 290 of 2012; [2013] eKLR) — Explained Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for StrategicLitigation in Africa (Amicus Curiae) (Petition 3 of 2018; [2021] eKLR) — Explained Munya v Kithinji & 2 others ([2014] 3 KLR 36) — Explained Murang’a County Government v Murang’a South Water & Sanitation Co. Ltd & another (Constitutional Petition 16 of 2019;[2019] eKLR) — Explained Muriithi, Deynes & 4 others v Law Society of Kenya & another (Civil Application 12 of 2015; [2016] eKLR) — Explained Muslims for Human Rights (Muhuri) & another v Inspector-General of Police & 4 others (Petition 19 of 2015;[2015] eKLR) — Explained Muthinja, Geoffrey & another v Samuel Muguna Henry & 1756 others (Civil Appeal 10 of 2015; [2015] eKLR) — Explained Mwende Maluki Mwinzi v Cabinet Secretary,Ministry of Foreign Affairs & 2 others (Petition 367 of 2019; [2019] eKLR) — Explained Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others (Petition No 278 of 2011; [2013] eKLR) — Explained National Assembly of Kenya & another v Institute for Social Accountability & 6 others (Appeal 92 of 2015; [2017] eKLR) New National Party v Government of the Republic of South Africa and others ((1999) ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489) — Explained Njoya and 5 others v Attorney General & others(No 2) ([2004] 1 KLR 261) — Explained Non-Governmental OrganizationsCo-Ordination Board v EG & 5 others (Civil Appeal 145 of 2015;[2019] eKLR) — Explained Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) (Petition 56, 58 & 59 of 2019; [2020] eKLR (Consolidated)) — Explained Nyarotho,Julius v Attorney General & 3 others (Miscellaneous Civil Application 36 of 2012;[2013] eKLR) — Explained Ojiayo, Samson Owimba v Independent Electoral and Boundaries Commission (IEBC) & another (Petition 104 of 2013; [2013] eKLR) — Explained Okoiti, Okiya Omtatah v Communication Authority of Kenya & 8 others (Constitutional Petition 53 of 2017 ;[2018]eKLR) — Explained Olum & another v Attorney General ([1995-1998] 1 EA 258) — Followed Patrick Ouma Onyango & 12 others v Attorney General and 2 others (Miscellaneous Application 677 of 2005;[2005] eKLR) — Explained Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others (Civil Appeal 11of 2018; [2018] eKLR) — Explained Ramogi, William Odhiambo & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR (Constitutional Petition 159 of 2018 & Petition 201 of 2019 (Consolidated); [2020] eKLR) — Explained Republic v Attorney General; Law Society of Kenya(Interested Party); Ex-parte: Francis Andrew Moriasi (Judicial Review Miscellanous Application 364 of 2018;[2019] eKLR) — Explained Republic v County Assembly of Kirinyaga & another Ex-Parte Kenda Muriuki & another [2019] eKLR (Judicial Review Application 271 of 2019) — Followed Republic v County Government of Kiambu Ex parte Robert Gakuru & another (Judicial Review Case 434 of 2015 ;[2016] eKLR) — Explained Republic v County Secretary - Nairobi City County & another Ex Parte Tom Ojienda & Associates (Miscellaneous Application 306 of 2017; [2019] eKLR) — Explained Republic v Independent Electoral and Boundaries Commission (IEBC) Ex parte National Super Alliance (NASA) Kenya & 6 others (Judicial Review 378 of 2017; [2017] eKLR) — Explained Republic v Independent Electoral & Boundaries Commission and others ex- parte Cllr Elliot Lidubwi Kihusa and others (Misc Applic No 94 of 2012; [2012] eKLR) — Followed Republic v Kenya Revenue Authority Ex Parte Cooper K-Brands Limited (Miscellaneous Application 458 of 2013; [2016] eKLR) — Explained Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited (Judicial Review Application 74 of 2018 [2018] eKLR) — Explained Speaker of the National Assembly v Karume ([1992] KLR 22; (2008) 1 KLR (EP) 425) — Explained Speaker of the Senate & another v Attorney-General & 4 others (Advisory Opinion Reference No 2 of 2013; [2013] eKLR) — Explained Stephen Somek Takwenyi & another v David Mbuthia Githare & 2 others (Civil Case No 363 of 2009) — Explained Takwenyi, Stephen Somek & another v David Mbuthia Githare & 2 others (Civil Case No 363 of 2009) — Explained Waititu, Ferdinand Ndung’uAlias Babaya v Republic (Civil Appeal No 416 of 2019;[2019]eKLR) Wanjiru, Gikonyo & 2 others vs National Assembly of Kenya & 4 others (Petition 453 of 2015; [2016] eKLR) — Explained Ndyanabo v Attorney General ([2001] 2 EA 485; (2002) AHRLR 243 (TzCA 2002)) — Followed Rev Christopher Mtikila v Attorney General ([1994] TZHC 12) — Explained Male Mabirizi & others v Attorney General ([2019] UGSC 6) — Explained Nyanza Garage v Attorney General (Civil Suit No 450 of 1993) — Explained Paul Ssemogerere and Others vs. The Attorney General (Constitutional Appeal no. 1 of 2002) [2004] UGSC10)) — Explained Tinyefuza v Attorney General ((Constitutional Petition 1 of 1996) [1997] UGCC 3) — Followed Doctors for Life International– vs- Speaker of the National Assembly and Others ((CCT12/05(2006) ZACC 11(2006) (12) BCLR 1399(CC); 2006 (6) SA 416(CC)) Matatiele Municipality and Others v President of the Republic of South Africa and Others (2) ([2006] ZACC 12; 2007 (1) BCLR 47; 2006 (5) SA 47 (CC)) — Explained Pharmaceutical Manufacturers Association of SA and another: In re Ex parte President of the Republic of South Africa and others In President of the Republic of South Africa and others v South African Rugby Football Union and others; (; [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241) — Explained President of the Republic of South Africa and Others v M & G Media Ltd ([2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011)) — Explained United Democratic Movement v Speaker of the National Assembly and others ([2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC)) — Followed AK Gopalan vs the State (AIR 1950 SC 27; 1950 SCR 88; (1950) 51 Cri LJ 1383) — Explained Central Province (959 FC R 18 (39) AFC,) — Explained Kesavananda Bharati v State of Kerala & another ((1973) 4 SCC 225 ;AIR 1973 SC 1461) — Explained Keshava Memon v State of Bombay (1951 AIR 128; 1951 SCR 228) — Explained James v Commonwealth of Australia ([1936] A C 578;[1936] UKPCHCA 4; 55 CLR 1; [1936] 2 All ER 1445) — Explained R (Bibi) v Newham London Borough Council ([2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).) — Explained R (Coughlan) v North and East Devon Health Authority ([1999] EWCA Civ 187) — Explained Royal Bank of Scot-land Ltd v Citrusdal Investments Ltd ([1971] 3 All ER 558) — Mentioned South Bucks District Council v Flanagan ([2002] EWCA Civ. 690 [2002] WLR 2601) — Explained Thames Launches Ltd v Trinity House Corporation (Deptford Strond) ([1961] 1 All ER 26) — Followed Re Judiciary Act 1903-1920 & In re Navigation Act (1912-1920 (1921) 29 CLR 257) — Explained Apotex Inc v Canada Attorney General ([1994] 3 SCR 1100;1993 Can LII 3004 (FCA); [1994] 1 FC 742 (CA); aff'd 1994 CanLII 47 (SCC)) — Explained Dragan v Canada (Minister of Citizenship and Immigration) ((2003), 228 FTR 52 (TD);2003 FCT 211 (CanLII); [2003] 4 FC 189 (TD)) — Explained Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187) — Explained Ravi s/o Madasamy v Attorney-General and other matters ([2017] SGHC 163) — Explained Teo Soh Lung vs Minister of Home Affairs ([1989] 1 SLR(R) 461, HC ; [1990] 1 SLR(R) 347, CA) — Explained Law Association of Zambia and another v Attorney General of the Republic of Zambia ([2019] ZMCC 18) — Explained Statutes Access to Information Act, 2016 (Act No 31 of 2016) — Section 4(2);8;9 — Interpreted Civil Procedure Act (cap 21) — Section 6,7 — Interpreted Civil Procedure Rules, 2010 (cap 21 Sub-Leg) — Order 1; Rule 9 — Interpreted Commissions Of Inquiry Act (cap 102) — In general — Cited Constituencies Development Fund Act, 2013 (Act No 30 of 2013) — Section 4(1) — Interpreted Constitution of Kenya, 2010 — Article 1(1)(2)(3)(a);2;3;7(3)(b);10;21(2);22(1)(2)(c); 27(1)(2)(4)(5);25;33;35(3);38;41(1)(a)(2);43(1)(2);47(1);50(4);59(5);73(1)(a)(i);81(d);86;88(4);89(1)(4)(5)(6)(7)(b)(10)(12);94(3);95(3);97(1)(a);109(1)(2); 129;131(1)(e) (2)(c);132(4)(a);136(2)(a);140(1);142(1);143(2);163(6)(7);165(3)(b)(d);201(d);203;232(1)(g)(h)(i);234;238;249(1)(a);250(1);255(1); 256(1)(3);257(6)(7)(8)(9)(10);259(1);201;226(5);261(4)(7);267(7);283;304;346; Chapter 6; Chapter 4; Chapter 11 — Interpreted Constitution of Kenya(Repealed) — Section 41B(2);42(3 — Interpreted Constitution of Kenya Review Act, 1997 (cap 3 A) — Section 17(d);30;32(1)(a)(c);33(1)(2)(3)(4);34;35;37(1);43A — Interpreted Constitution of Kenya Review Act, 2008 — Section 30,33(1)(c)(2)(3)(4);35;37(1);43A — Interpreted Elections Act, 2011 (Act No 24 of 2011) — Section 4(2)(3); 6A;49-55 — Interpreted Elections (Registrar of Voters) Regulations 2012 (Act No 24 of 2011 Sub Leg) — Regulation 8 — Interpreted Evidence Act (cap 80) — Section 55,106,107 — Interpreted Fair Administrative Actions Act, 2015 (Act No 4 of 2015) — Section 4 — Interpreted Independent Electoral And Boundaries Commission Act, 2011 (Act No 9 of 2011) — Section 4, 5(1);8;36(4)(11) — Interpreted National Transport and Safety Authority ( Operation of Public Service Vehicles ) Regulations, 2013 (Act No 33 of 2012 Sub Leg) — In general — Cited National Transport and Safety Authority ( Operation of Public Service Vehicles ) Regulations, 2014 (Act No 33 of 2012 Sub Leg) — In general — Cited Political Parties Act, 2011 (Act No 11 of 2011) — In general — Cited Public Finance Management Act,2012 (Act No 18 of 2012) — In general — Cited Statutory Instruments Act, 2013 (Act No 23 of 2013) — Section 2, 5,6, 11,22 — Interpreted Supreme Court Act, 2011 (Act No 7 of 2011) — Section 3 — Interpreted Texts Albert,R., et al 2017, The Foundations and Traditions of Constitutional Amendment (London: Hart Publishing, p327, 331) Banon,AL., 2007, Designing a Constitution-Drafting Process: Lessons from Kenya (The Yale Law Journal, 1833.) Diepeveen, S., 2002, ’The Kenya we don’t Want’: Popular Thought over Constitutional Review in Kenya (The Journal of Modern African Studies, 233.) Garner, BA., Black, HC., (Ed) (2014), Black’s Law Dictionary (St Paul, Minnesota: Thomson Reuters 10th Edn) Harry Woolf, Sir; Jeffrey L Jowell; A P Le Sueur; S A De Smith, 2004, De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell (Sweet & Maxwell Ltd, page 609) Mackay, JPH., (Lord Clashfern) (Ed) (2009), Halsbury's Laws of England/Civil Procedure (London: LexisNexis Civil Procedure Vol 11 5th Edn paras 529) Murunga, GR., et al 2014, Kenya: The Struggle for a New Constitution Order (Zed Books) Mutua,M.,(Ed) (2008), Kenya’s Quest for Democracy: Taming the Leviathan (London:Lynne Rienner) Ohax, YP., McAuslan, JPWB., Eds (1970), Public Law & Political Changes in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Nairobi:Oxford University Press,) Sievers ,AH., Peters,RM., 2008, Kenya‘s 2007 General Elections and its Aftershocks, (43 AFRIKA SPECTRUM 133) Tribe, LH., (Ed) (1989), American Constitutional Law (University of Minnesota Law School 2nd Edn p 92) Advocates Mr Havi
Case Outcome:	Petition allowed.
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment)

David Ndii & others v Attorney General & others [2021] eKLR

Neutral citation: [2021] KEHC 9746 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)

JM Ngugi, GV Odunga, J Ngaah, EC Mwita & TM Matheka, JJ

May 13, 2021

Between

David Ndii & Others

Petitioner

and

Attorney General & others

Respondent

High Court declares that the BBI Steering Committee is unconstitutional and its efforts to amend the Constitution are also unconstitutional

The instant consolidated petitions challenged the Building Bridges Initiative (BBI) and the resulting Constitution Amendment Bill and its associated popular initiative. The court declared that the BBI Steering Committee was unconstitutional and its efforts to amend the Constitution were also unconstitutional. The court held that the basic structure doctrine is applicable in Kenya. The court went on and held that civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution. The court further held that the President did not have authority under the Constitution to initiate changes to the Constitution. The court also held that the entire BBI process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the people’s exercise of sovereign power.

Reported by Beryl Ikamari

Constitutional Law - interpretation of the Constitution - applicability of the basic structure doctrine on constitutional amendments to the Constitution - implications of the basic structure doctrine in Kenya for the amendment powers provided under the Constitution - whether certain provisions of the Constitution could only be amended through a referendum - Constitution of Kenya, 2010, articles 255, 256 and 257.Constitution Law - constitutional amendments - amendment through a popular initiative - persons that could be promoters of proposed constitutional amendments through a popular initiative - whether the President could be the promoter of a popular initiative to amend the Constitution – whether the President’s role in promoting national unity included promotion of constitutional amendments through a popular initiative – Constitution of Kenya, 2010, article 131(2)(c).Constitutional Law - national values and principles of governance - public participation - where there were allegations that the public was afforded an opportunity to append their signatures to a draft constitutional amendment bill before any civic education was conducted to enable them to make informed decisions - where the proposed draft bill was not translated into Kiswahili or Braille or availed in print format - whether there was adequate public participation in the BBI Steering Committee's process of initiating amendments to the Constitution - Constitution of Kenya, 2010, article 10.Constitutional Law - constitutional amendment - adequacy of the available legal and regulatory framework for constitutional amendment - what was the effect of not having an adequate legal regulatory framework to guide the process of undertaking a constitutional amendment through a popular initiative.Constitutional Law - public finance - use of public funds to conduct a constitutional amendment process - where there were allegations that the process as conducted was unconstitutional - whether the President and public officers who directed or authorized expenditure on the process should be ordered to refund the money spent - Constitution of Kenya, 2010, article 226(5).Constitutional Law - interpretation of constitutional provisions - amendments to the Constitution undertaken through a popular initiative - whether Parliament and County Assemblies could make changes to a popular initiative constitutional amendment bill - Constitution of Kenya, 2010, articles 255, 256 and 257.Constitutional Law - interpretation of constitutional provisions - referendum to amend the Constitution - where a constitutional amendment bill was an omnibus bill covering a range of subjects - whether it was necessary for specific subjects to be covered by different and separate questions which would allow the public to select the proposed amendments that they accepted and those that they rejected.Constitutional Law - national values and principles of governance - public participation - where a proposal was made for the creation of the Constitutional Health Service Commission but the proposal was left out of the constitutional amendment bill - whether the implementation of views collected from the public during a public participation exercise was mandatory.Constitutional Law - constitutional amendments - legality of proposed constitutional amendments - where a constitutional amendment bill provided for an additional 70 constituencies and directly allocated and apportioned the constituencies amongst certain counties, without having regard to the functions of the Independent Electoral and Boundaries Commission (IEBC) in the delimitation of boundaries under article 89 of the Constitution - whether the manner in which the constituencies were to be created under the proposed constitutional amendments was lawful - Constitution of Kenya, 2010, article 89.Constitutional Law - constitutional amendments - amendment undertaken through a popular initiative - referendum - role of the Independent Electoral and Boundaries Commission (IEBC) - lack of quorum at the IEBC and adequacy of the legal regulatory framework for the verification of signatures in a popular initiative for constitutional amendment by the IEBC- where the IEBC created a regulatory framework for signature verification without showing its authority to exercise legislative power- effect of lack of quorum and adequate legislative regulatory framework during the required signature verification exercise undertaken by the IEBC - whether it was necessary for the IEBC to conduct nationwide voter registration before a referendum was undertaken for purposes of effecting the constitutional amendments.Constitutional Law - fundamental rights and freedoms - right to health - whether the conduct of a referendum before the State had combated COVID-19 in Kenya exposed the public to potential COVID-19 infections and was a violation of the right to health - Constitution of Kenya, 2010, article 43.Civil Practice and Procedure - court orders - propriety of issuing orders where an issue was also at issue in another matter pending before another court - where the parties involved in the pending matter differed from the parties involved in the matter before the court - where the issue was about whether the court should issue an order for the President to dissolve Parliament pursuant to the Chief Justice’s Advice under article 261(7) of the Constitution - whether the court could issue that order given that it related to an issue that was under consideration in another court.

Brief facts After the intensely contested presidential election in 2017, there was a charged political climate. The President and Mr Raila Odinga, who participated in the elections as contestants, shared what was known as the handshake on March 18, 2018. The President later appointed the Building Bridges to Unity Advisory Taskforce (BBI Taskforce). The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building lasting unity in Kenya. In November 2019, the Taskforce came up with an interim report and on January 3, 2020, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee).The Steering Committee was required to engage in consultations with different segments of the public in order to validate the Taskforce Report and also to propose administrative, policy, statutory or constitutional changes that could be necessary for the implementation of the recommendations contained in the report, while considering contributions made during the validation exercise. The report of the BBI Steering Committee became the Constitution of Kenya Amendment Bill, 2020, (Constitution Amendment Bill) after it was handed over to the President. Signatures were collected in support of the popular initiative to amend the Constitution of Kenya, 2010 (Constitution). The signatures were submitted to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the county assemblies and Parliament for approval.There were eight consolidated constitutional petitions filed in court to challenge the Building Bridges Initiative and the resulting Constitution Amendment Bill and its associated popular initiative. The consolidated petitions were Petition Nos E282 of 2020, 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021.Petition No. E282 of 2020The petitioners in Petition No. E282 of 2020 argued that the judicial doctrines and theory of the basic structure of a constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution were applicable to the Constitution. They stated that certain provisions of the Constitution were incapable of amendment either under article 256 of the Constitution by Parliament or through a popular initiative under article 257 of Constitution. According to the petitioners, the unamendable provisions of the Constitution included Chapter One on sovereignty of the people and supremacy of the Constitution, Chapter Two on the Republic, Chapter 4 on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary.The contentions of the petitioners relating to the basic structure of the Constitution and unamendability were challenged by the Attorney General on two grounds. One was that the doctrines related to unamendability were inapplicable in Kenya. Secondly, the Attorney General stated that the issues raised were not justiciable and were speculative and not specific enough.The Speaker of the National Assembly filed grounds of opposition in response to all the eight consolidated petitions. He stated that the issues raised were non-justiciable as they were based on speculative future contingencies. He added that the amendment Bill was under consideration before Parliament and that the court lacked jurisdiction to intervene in an active parliamentary process. The Speaker explained that the only limitation to the people’s power to amend the Constitution was the procedure set out under the Constitution. The Speaker of the Senate argued that the people of Kenya were granted sovereignty under the Constitution and they had an inalienable right to determine their form of governance. The Constitution, according to the Speaker of the Senate, provided for how the Constitution could be amended directly through popular initiative or through democratically elected representatives of the people. He added that under article 255 of the Constitution provision was made for the basic structure of the Constitution which could only be amended by the people exercising their sovereign right directly in a referendum.The BBI secretariat together with Raila Odinga filed a joint response to the consolidated petitions and stated that the petitions were an abuse of court process and vexatious because they were speculative and offended the principles of pleading with precision. They added that the petition invited the court to encroach into the legislative mandate of Parliament in breach of the doctrine of separation of powers. They also stated that some issues raised were res judicata and others were sub judice. Other issues, according to the BBI Secretariat and Raila Odinga, were founded on a misinterpretation of the law and were speculative. They offended the political question doctrine and sections 106 and 107 of the Evidence Act as they were mere generalizations. They stated that the petitions did not demonstrate any violation or contravention of the law to warrant the intervention of the court.Petition No E397 of 2020In Petition No E397 of 2020, the Kenya National Union of Nurses stated that it had submitted various proposals to the BBI Steering Committee. The proposals included the establishment of an Independent Constitutional Health Service Commission, recognition of universal health care as a human right, expansion of free basic education and the removal of the Salaries and Remuneration Commission. The main aspiration of the nurses' union was for health sector personnel to be transferred from county governments to an Independent Health Service Commission to enable sharing of very limited health experts.An initial report from the BBI taskforce of October 2019 reflected those aspirations. However, a report released in October 2020 limited the functions of the proposed Health Service Commission to reviewing standards on the transfer of health workers, facilitation of resolution of disputes between employers and health workers and accreditation of health institutions through a proposed Bill to amend the Health Act as opposed to a constitutional amendment. The union felt that the failure to fully incorporate its proposals into the subsequent report meant that its legitimate expectations had been breached.In response to the union's contention, the BBI Steering Committee stated that the petition invited the court to usurp the role of Parliament and the county assemblies and substitute their views with those of the petitioner. The BBI Steering Committee said that it collected divergent views and not all of them could be accommodated. Further, according to the BBI Steering Committee, an entity could not be allowed to force its views on the popular initiative. The Attorney General also opposed the petition on grounds that all views collected during a public participation exercise needed not be implemented and that compelling the respondents to incorporate the views of the nurses' union would amount to an unlawful interference with their discretion.Petition No E400 of 2020In Petition No E400 of 2020, the petitioners contended that the collection of signatures for the Constitution Amendment Bill was hurriedly done. They stated that the public did not get civic education so as to enable them to make informed decisions and to exercise their free will. The petitioners further contended that the terms of reference of the BBI Taskforce did not contemplate proposals for the amendment of the Constitution. They stated that the appointment of the BBI Steering Committee was an afterthought and averred that the subsequent process of validation of the initial report, formulation and publication of the Amendment Bill was unconstitutional. The petitioners claimed that the initiation of the constitutional amendment process by the President violated the sovereign right of the people of Kenya to exercise power directly by proposing an amendment to the Constitution as it was disguised as a popular initiative when in fact it was not. It was contended that an amendment to the Constitution by popular initiative as envisaged in article 257 of the Constitution had to originate from the electorate devoid of the influence of any representative.The petitioners averred that under article 257(10) of the Constitution, it was necessary to allow the people to exercise their free will to approve or reject specific proposals and a mere "yes" or "no" to the entire Amendment Bill violated the exercise of free will by the people as they could not distinguish between proposals that they accepted and those that they rejected. They also claimed that the IEBC lacked capacity, to receive, verify and approve signatures of the alleged Kenyan voters who endorsed the impugned Bill and that Kenyans were not given reasonable time to process the over one thousand paged document which was only accessible online. They also said that since IEBC did not have specimen signatures of the registered voters in Kenya to warrant a comparison for verification and approval of the signatures collected, any attempt to carry out verification was unlawful.Petition No E401 of 2020The petitioner stated that amendments to the Constitution could only be done in accordance with the Constitution and that the National Executive, any state organ or taskforce could not initiate constitutional amendments through a popular initiative. Further, the petitioner stated that the National Executive could not use public resources to steer constitutional amendments through a popular initiative. The petitioner also stated that some of the proposed constitutional amendments were constitutionally defective. It stated that the collection of signatures and submission of the same to the IEBC by the National Executive for purposes of pursuing constitutional amendments through a popular initiative was not authorized.The Attorney General, in opposition, averred that the President's role included promoting unity in the nation and that the Constitution did not preclude any State organ, body, person or public entity from initiating a constitutional amendment. He also stated that the rationality or otherwise of the proposed amendments was subject to approval or disapproval by Kenya's legislative assemblies and by the people. On the issue of use of public resources, the Attorney General stated that there was no proof that principles of public finance had been breached and that it would be wrong under the doctrine of separation of powers for the court to intervene when the Constitution had assigned the management of public finance to specific constitutional bodies.Petition No E402 of 2020The petitioner's main contention was about the proposed constitutional amendments that would increase the number of constituencies by 70 from 290 constituencies to 360 constituencies. Section 74 of the Amendment Bill directed the IEBC on the manner of delimitation and distribution of the 70 constituencies in various counties, the time frame within which the constituencies had to come into existence and the criteria on how the constituencies would be distributed. Under the Second Schedule to the Constitution Amendment Bill the allocation of the 70 constituencies was pre-determined. The petitioners argued that the role of creating constituencies and delimiting the boundaries was within the competence of the IEBC and it could not be done in pre-determined manner without public participation.The Attorney General, in opposition, stated that the petition was not justiciable on account of want of ripeness. He argued that the issues raised on the new constituencies and their distribution entailed political questions and the legislative assemblies were best placed to decide on them. He added that the Constitution's provisions on amendments gave absolute sovereignty to the people to amend the Constitution either through a popular initiative or through directly elected representatives. The Attorney General also averred that the issue as to whether there was sufficient public participation in the constitutional amendment process was premature and could only be considered after a referendum.Petition No E416 of 2020The petitioner stated that there was no legislative framework to operationalize article 257 of the Constitution. The petitioner further stated that, the legal framework was necessary for purposes of providing for the submission of a Constitution Amendment Bill to the county assemblies and the Speaker of the two Houses of Parliament for consideration and how the referendum would be conducted. Further, the petitioners stated that it was necessary to stop efforts to process the Constitution Amendment Bill, including the conduct of a referendum, until the Covid-19 pandemic was combatted by the State. According to the petitioner, the IEBC had to conduct a nationwide voter registration exercise before any referendum could be conducted. They also averred that under section 8 of the Independent Electoral and Boundaries Commission Act (IEBC Act), there were requirements as to quorum and the IEBC as constituted lacked quorum and it could not verify signatures as it had purported to do or conduct a referendum. The petitioner alleged that there had been violations of articles 7, 10, 33, 35 and 38 of the Constitution when signatures were collected before members of the public were provided with copies of the Interim and Final BBI Report and the Constitution Amendment Bill in English, Kiswahili, indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. According to the petitioner, it was necessary to give the public reasonably sufficient time to read and understand the documents that should have been availed in various communication formats. The petitioner also stated that it was not constitutional for public funds to have been spent in order to promote the constitutional amendment initiative and that any public funds utilized should be refunded. The petitioner further contended that Bills for constitutional amendments should be prepared and tabled before Parliament by the Attorney General and that any other entity should not exercise that role.The petitioner sought various reliefs in the petition which included a mandatory injunction for the President to dissolve Parliament under article 267(7) in accordance with the advice of the Chief Justice to the President pursuant to article 261(7) of the Constitution dated September 21, 2020.Petition No E426 of 2020The petitioner averred that the court should find that the President could be sued, during his tenure of office, in civil proceedings for acts or omissions that were not authorized under the Constitution. The petitioner contended that the President lacked authority to initiate constitutional amendments that were to be undertaken through a popular initiative. He also alleged that the BBI Steering Committee established by the President was an unlawful entity under the laws of Kenya.The petitioner prayed for a declaration that the BBI Steering Committee lacked locus standi to promote constitutional changes under article 257 of the Constitution. He also sought orders related to the use of public funds during the constitutional amendment process including orders for the sums spent to be accounted for. Lastly, he also sought orders for the constitutional amendment process to be terminated.Petition No 2 of 2021On December 18, 2020, the petitioner requested IEBC to provide information about whether there were rules to guide and regulate the signature verification process, whether the IEBC held specimen signatures of all registered voters and whether funds had been allocated for the signature verification exercise. The IEBC responded and stated that it developed procedures for signature verification, that it had biographic and biometric data of registered voters but not specimen signatures and that it had funds from treasury for the signatures verification exercise which had been launched at the Bomas of Kenya.In a press statement published on January 21, 2020, the IEBC stated that it had published the names of persons who had appended their signature in support of the Constitution Amendment Bill, on its website. The IEBC invited the public to access the information on their website and in case of any complaint, it required the complaint to be made in writing to the IEBC by January 25, 2021. The signature verification exercise concluded with the IEBC saying that the requirements of article 257 of the Constitution in relation to the Constitution Amendment Bill had been met. The IEBC proceeded to submit the Bill to the 47 counties for consideration and approval or rejection.According to the petitioner, there was no regulatory framework governing the collection of signatures or their verification and any procedures applied by the IEBC were in violation of articles 10, 94 and 249 of the Constitution as the IEBC did not have legislative power. They said that the conduct of the signature verification exercise without a regulatory framework, was a violation of article 81 of the Constitution. Additionally, the petitioner stated that the procedures used were developed without legal authority and failed to comply with sections 5, 6, and 11 of the Statutory Instruments Act. The petitioner added that failure to maintain a database of specimen signatures of registered voters by the IEBC violated articles 257(4) and 257(5) of the Constitution as it had rendered IEBC incapable of discharging the mandate of signature verification.

Issues

Whether the basic structure doctrine on constitutional amendments was applicable in Kenya.
What were the implications of the basic structure doctrine in Kenya for the constitutional amendment powers provided under articles 255 to 257 of the Constitution?
Whether the President’s role in promoting national unity included promotion of constitutional amendments through a popular initiative.
Whether the President and public officers who directed or authorized the use of public funds for a constitutional amendment process that was alleged to be unconstitutional could be ordered to refund the monies used.
Whether there was an adequate legislative framework to guide the process of undertaking constitutional amendments through a popular initiative and whether, where such a framework was inadequate or lacking, it would render any constitutional amendment processes incurably defective.
Whether Parliament and county assemblies could propose changes to a constitutional amendment bill that was promoted through a popular initiative.
Whether it was necessary for specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions.
Whether it was lawful for the BBI Steering Committee to leave out a proposal on the establishment of the Constitutional Health Service Commission, which was proposed during a public participation exercise, from the constitutional amendments bill which was the outcome of the BBI Steering Committee's work.
Whether it was lawful for a constitutional amendment bill to set the number of constituencies and to effectively increase their number by 70 constituencies.
Whether it was lawful for a constitutional amendment bill to directly allocate and apportion the constituencies that it had created without requiring the conduct of a delimitation exercise using the criteria and procedure set out in article 89 of the Constitution.
Whether a referendum to effect proposed amendments to the Constitution could be undertaken without the conduct of a nationwide voter registration process by the Independent Electoral and Boundaries Commission.
Whether the Independent Electoral and Boundaries Commission comprised of the chairperson and two commissioners was properly constituted in terms of quorum for the verification of signatures for purposes of a popular initiative for constitutional amendment and submitting the proposed constitutional amendment bill to county assemblies and also conducting a referendum.
Whether a legal regulatory framework for the verification of signatures by the Independent Electoral and Boundaries Commission and other processes required under article 257(4) and 257(5) of the Constitution was necessary and in existence.
Whether the conduct of a referendum would provide an environment that was conducive to the spread of covid-19 and whether it was a violation of the right to health under article 43 of the Constitution.

Held 1. The Constitution of Kenya, 2010, had a transformative character. Transformative constitutionalism was an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. In its transformative character, the Constitution reconfigured the interplays between the State's majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance, consistent with dominant perceptions of legitimacy, be achieved.2. The transformative nature of the Constitution informed methods of constitutional interpretation in Kenya. In particular, four principles of constitutional interpretation emerged in Kenya's jurisprudence, namely;

The Constitution had to be interpreted holistically. That meant that in interpreting a constitutional provision, it was necessary to undertake a contextual analysis wherein that provision would be read alongside other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.
Formalistic approaches to constitutional interpretation were not favoured. The Constitution could not be interpreted in the same way that a statute would be interpreted.
The Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes.
Non-legal considerations were important in giving the Constitution its true meaning and value. The historical, economic, social, cultural and political context was fundamentally critical in discerning the various provisions of the Constitution.

3. The process that culminated in the promulgation of the Constitution of Kenya, 2010, was participatory. The public participated directly and meaningfully in the process and that was a different process from having experts write a constitution.4. The 1963 independence Constitution was negotiated to mark the end of colonial rule and to establish a Government elected by Kenyans and to ensure the devolution of powers among other checks and balances of excessive Executive and Presidential power. However, by the end of 1980 Kenya had effectively become an authoritarian state. By 1991 when Kenya officially became a multi-party state after close to a decade of being a de jure one-party state, the 1963 Constitution had been amended many times and stripped of most of its initial democratic and social justice protections. There had been a culture where the Constitution had been amended and changed profoundly and rapidly to the point that it lost its value content and significance.5. Kenyans intended to protect the basic structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments. That doctrinal illumination was discernible by correctly interpreting both the history of constitution-making and the structure of the Constitution Kenyans made for themselves. The process leading to the promulgation of the Constitution of Kenya, 2010, showed that Kenyans wanted a constitution in which an ordinary citizen took centre-stage in its debate and design. Kenyans were clear about the need for informed public participation in the process. The 2005 Wako Draft was rejected because it failed the public participation test and verged on political elite consensus.6. Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through an informed and participatory process. They also intended that the essence of the constitutional order they bequethed themselves in 2010 would only be changed in the exercise of primary constituent power (civic education, public participation, constituent assembly plus referendum) and not through secondary constituent power (public participation plus referendum only) or constituted power (Parliament only).7. There was no clause in the Constitution that explicitly made any article in the Constitution un-amendable. However, the scheme of the Constitution, coupled with its history, structure and nature created an ineluctable and unmistakable conclusion that the power to amend the Constitution was substantively limited.8. The text, structure, history and context of the Constitution all read and interpreted using the canon of interpretive principles decreed by the Constitution yielded the conclusion that the basic structure doctrine was applicable in Kenya. The basic structure doctrine protected certain fundamental aspects of the Kenyan Constitution from amendment through the use of either secondary constituent power or constituted power.9. Sovereignty of the people in constitution-making was exercised at three levels: -

The primary constituent power was the extraordinary power to form (or radically change) a constitution; the immediate expression of a nation and thus its representatives. It was independent of any constitutional forms and restriction and was not bound by previous constitutional rules and procedures.
The secondary constituent power was an abbreviated primordial constituent power exercisable by the whole polity in an abbreviated process to alter the constituting charter (Constitution) in non- fundamental ways, that was, without altering the basic structure. In Kenya, the secondary constituent power to amend the Constitution was exercisable through a referendum subsequent to public participation and parliamentary process.
The constituted power was created by the Constitution and was an ordinary, limited power, a delegated power derived from the Constitution, and hence limited by it. In Kenya, the constituted power was exercised by Parliament, which had limited powers to amend the Constitution by following the procedures set in articles 255-257 of the Constitution.

10. The essential features of the Constitution that formed the basic structure could only be altered or modified by the people using their primary constituent power. Primary constituent power was only exercisable after four sequential processes had been followed: -

Civic education to equip people with sufficient information to meaningfully participate in the constitution-making or constitution-altering process;
Public participation and collation of views in which the people – after appropriate civic education – generated ideas on the type of governance charter they wanted and gave their views about the constitutional issues;
Constituent assembly debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making or constitution- alteration; and
Referendum to endorse or ratify the draft constitution or changes to the basic structure of the Constitution.

11. The basic structure of the Constitution consisted of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules to the Constitution. That structure outlined the system of government Kenyans chose – including the design of the Judiciary, Parliament, the Executive, the independent commissions and offices and the devolved system of Government. It also included the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment including land and environment, leadership and integrity, public finance and national security. Read as a whole, those chapters, schedules and the Preamble formed the fundamental core structure, values and principles of the Constitution. That fundamental core, the constitutional edifice, thus, could not be amended without recalling the primary constituent power of the people.12. It was not every clause in each of the eighteen chapters and six schedules which was inoculated from non-substantive changes by the basic structure doctrine. Differently put, the basic structure doctrine protected the core edifice, foundational structure and values of the Constitution but left open certain provisions of the Constitution as amenable for amendment as long as they did not fundamentally tilt the basic structure.13. There were certain provisions in the Constitution which were inoculated from any amendment at all because they were deemed to express categorical core values. Those provisions were therefore, unamendable: they could not be changed through the exercise of secondary constituent power or constituted power. Their precise formulations and expressions in the Constitution could only be affected through the exercise of primary constituent power. Those provisions could also be termed as eternity clauses.14. An exhaustive list of eternity clauses was inadvisable in a vacuum. Whether a particular clause consisted of an eternity clause or not would be a fact-intensive determination to be made after due analysis of the Constitution, its foundational structure, its text, its internal coherence, the history of the clause and the constitutional history and other non-legal considerations permitted by Kenya's canons of interpretation.15. The power to amend the Constitution was prescribed in articles 255 to 257 of the Constitution. There were two ways in which a constitutional amendment could be initiated, either by parliamentary initiative or by popular initiative.16. Since under article 2(2) of the Constitution, no person could claim or exercise State authority except as authorised under the Constitution, it necessarily followed that, subject to the role of the primary constituent assembly, there was no other constitutionally permissible avenue available to any person to initiate a constitutional amendment except the prescribed ones.17. The Constitution Amendment Bill was an initiative of the President. It could not be otherwise since the BBI Taskforce was set up courtesy of his initiative and the subsequent BBI Steering Committee was tasked with implementing the BBI Taskforce Report and the membership of the two entities remained the same.18. Under the Constitution, the President was not a Member of Parliament and therefore he could not directly, purport to initiate a constitutional amendment pursuant to article 256 of the Constitution. That was because under article 94(1) of the Constitution, the legislative authority of the Republic at the national level, was vested in and exercised by Parliament. It followed that the President had no power under the Constitution, as President, to initiate changes to the Constitution under article 256 of the Constitution since Parliament was the only State organ granted authority by or under the Constitution to consider and effect constitutional changes. The President, if he so desired, could however, through the Office of the Attorney General, use the parliamentary initiative to propose amendments to the Constitution.19. Both a textual analysis of Kenya's Constitution and a historical exegesis of the clause on popular initiative made it clear that the power to amend the Constitution using the popular initiative route was reserved for the private citizen. Neither the President nor any State Organ was permitted under the Constitution to initiate constitutional amendments using the popular initiative option.20. Allowing the President to initiate constitutional amendments through the popular initiative would have the effect of granting him both the roles of promoter and referee. That was because article 257(5) of the Constitution provided that if a Bill to amend the Constitution proposed the amendment of matters specified in article 255(1) of the Constitution, before assenting to the Bill, the President had to request the IEBC to conduct, within 90 days, a national referendum for approval of the Bill.21. Article 257(5) of the Constitution, arguably, gave power to the President to determine whether or not a referendum was to be held. In circumstances where the President, whether in his official or personal capacity was the promoter of the Amendment Bill, his role in determining whether or not the Bill was to be subjected to a referendum could amount to a muddled up conflict of interest. The President could not be both a player and the umpire in the same match.22. It had been argued that the President was acting in his personal capacity and not as the Chief Executive of the Republic of Kenya. That argument was, however, betrayed by the very fact that the BBI Steering Committee was established via a gazette notice, an official publication of the Government of the Republic of Kenya and its report was addressed to the President in his official capacity.23. Article 257 of the Constitution was reserved for situations where the promoters of a constitution amendment Bill did not have recourse to the route contemplated under article 256 of the Constitution. If the President intended to initiate a constitutional amendment, he could do so through Parliament.24. A popular initiative to amend the Constitution, being a process of participatory democracy that empowered the ordinary citizenry to propose constitutional amendments independent of the lawmaking power of the governing body, could not be undertaken by the President or State organs under any guise.25. Previous constitution-making initiatives in 2005 and 2010 were sponsored by the State. That would not justify attempts to have the Constitution amended in a similar way because those previous initiatives were undertaken under the repealed Constitution which did not make provision for its amendment in a similar fashion as the Constitution of Kenya, 2010.26. Sections 6 and 7 of the Civil Procedure Act governed situations where a litigant raised issues that were either sub judice or res judicata. The rationale for staying matters on grounds of them being sub judice was that it was vexatious and oppressive for a claimant to sue concurrently in courts. Where two courts were faced with substantially the same issue, that issue should only be determined in one of the courts and the other court should stay the claim. Ordinarily, it was the second suit that would be stayed.27. For a suit to be stayed on grounds of sub judice, the matter in issue in the suit had to be directly and substantially in issue in the previously instituted suit and the parties in the two suits had to be the same parties or parties claiming under them or litigating under the same title.28. The matters in issue in Petition No 12 of 2020 (Omtatah Petition) were covered under the consolidated petitions. However, the consolidated petitions covered a wider range of issues than the Omtatah Petition. Therefore, only a segment of issues in the consolidated petition were directly and substantially in issue in the consolidated petitions. Additionally, the parties in the Omtatah Petition were different from the parties in the consolidated petitions.29. The consolidated petitions were wider in scope than the Omtatah Petition and could not be said to be an abuse of the process. There was no evidence that steps had been taken to prosecute the Omtatah Petition. The nature of the dispute that the consolidated petitions raised demanded an expedient determination and it was in public interest that they be resolved at the earliest opportunity.30. The provisions of section 7 of the Civil Procedure Act on res judicata were based on the fundamental doctrine that there had to be an end to litigation. The doctrine of res judicata could be pleaded by way of estoppel so that where a judgment had been given, and it was a matter of record, an 'estoppel by record' arose.31. The nature of the estoppel pleaded by the Attorney General was an issue estoppel to the effect that specific questions concerning the legality or constitutionality and the mandate of BBI Steering Committee had been resolved by the High Court in Third Way Alliance Kenya & another versus Head of Public Service & 2 others, Petition No. 451 of 2018, High Court at Nairobi (Third Way Alliance Case). The consolidated petitions asked questions that were not asked in the Third Way Alliance Case. For example, one question was on whether a popular initiative to amend the Constitution could be started by the President and the other was whether the BBI Steering Committee and any actions undertaken by it were constitutional. The judgment in the Third Way Alliance Case was incapable of answering such questions because the court in that instance was not asked to answer those questions. The court was therefore not estopped from discussing the constitutionality of the BBI Steering Committee and its mandate and thus, the issue was not res judicata.32. Article 143(1) of the Constitution was to the effect that criminal proceedings were incapable of being instituted against the President or a person performing the functions of that office, during their tenure of office. On the other hand, article 143(2) provided that civil proceedings could not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in exercise of their powers under the Constitution. The correct position was that the President could be sued in any civil proceedings and the only protection was against actions that were in respect of anything done or not done in exercise of his powers under the Constitution. In appropriate circumstances, for example where the President took actions in violation of the Constitution and also destructive to the nation, any person could invoke the jurisdiction of the court and sue the President whether in his personal or official capacity.33. The BBI Taskforce which eventually morphed into the BBI Steering Committee was the President’s and not the peoples’ initiative. The Bill to amend the Constitution was as result of the proposals of the BBI Steering Committee. Therefore, what had been presented as a popular initiative to amend the Constitution was in reality the presidency’s initiative which was certainly contrary to article 257 of the Constitution. To the extent that the BBI Steering Committee was created to perpetuate what was clearly an unconstitutional purpose, it was an unlawful, and at any rate, an unconstitutional outfit.34. Article 132(4)(a) of the Constitution provided that the President could only establish an office in the public service on the recommendation of the Public Service Commission. There was no evidence that the President complied with that provision when he created the BBI Steering Committee.35. A reading of the Constitution showed that only Parliament could enact legislation. However, that did not mean that only Parliament could draft Bills. Therefore, anybody including the BBI Steering Committee, if lawfully established, as promoter of the Constitution of Kenya Amendment Bill, could draft Bills. Under article 257(2) of the Constitution it was clear that the promoter of a popular initiative to amend the Constitution was required to come up with a draft amendment Bill. The Bill would then be submitted to the IEBC which would then send it to the Speakers of County Assemblies and Parliament for approval or rejection.36. Public participation was one of the principles of good governance; a constitutional right that had to be complied with at every stage of a constitutional amendment process.37. The right to make political decisions went beyond voting or deciding on whether to append a signature on a constitution amendment Bill. The right to make political decisions included the availability of information to citizens in order to enable them to make informed decisions.38. Kenyan voters were entitled, at a minimum, to copies of the Constitution of Kenya Amendment Bill to read and understand what the promoters were proposing to amend. At the very least, the copies ought to have been in the constitutionally required languages namely, English, Kiswahili and Braille. The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under article 7(3)(b) of the Constitution.39. The only copy of the Constitution Amendment Bill that was availed was in English and it was not printed and distributed to the people, it was only available online. Even if they had been distributed, those who did not understand English and persons with disabilities would not have been able to understand the contents of Bill. Therefore, there was no effort at all on the part of the BBI Steering Committee to make copies of the Constitution Amendment Bill available to the public.40. Since meaningful public participation and sensitization of people prior to collection of signatures in support of the Constitution Amendment Bill was not done, the exercise of collecting signatures in support of the Bill was constitutionally flawed.41. Before transmitting the Bill to the County Assemblies for voting, the IEBC was obligated to ensure that the BBI Steering Committee had complied with constitutional requirements on public participation.42. Under article 226(5) of the Constitution, if the holder of a public office, including a political office, directed or approved the use of public funds contrary to law or instructions, the person was liable for any loss arising from that use and had to make good the loss, whether the person remained the holder of the office or not. No evidence was tendered to show that the BBI Steering Committee spent public funds on its operations.43. What the President did through the BBI Steering Committee was a clear attempt to stretch his authority under article 131(2)(c) of the Constitution to include power to initiate constitutional amendments. The President's role in promoting and enhancing national unity did not include initiating constitutional amendments through a popular initiative.44. Article 35 of the Constitution guaranteed every citizen the right of access to information held by the State and information held by another person, which was required for the exercise or protection of a right or fundamental freedom. Access to information was a critical constitutional right for open and democratic conduct of governmental affairs. The State or State organ responsible was obliged to disclose information to citizens whenever sought.45. The petitioner in Petition No. E416 of 2020 had a right to seek information from relevant authorities while complying with the procedure set out in the Access to Information Act. The petitioner had not demonstrated that he had sought that information. He only prayed for orders from the court for publication of details of the budget and money allocated and used in promoting the BBI activities.46. In order to carry out the referendum process as contemplated under the Constitution, it was necessary that the legislation be enacted. The fact that the Constitution did not provide for the enactment of such legislation did not mean that the legislation was unnecessary. That legislation would deal with the manner in which county assemblies would process a constitution amendment Bill, including the number of readings for the Bill, the manner of conducting public participation, whether they could amend the Bill before approving it and whether such a Bill would be passed by a simple majority. It would also contain provisions on the correct procedure to be used by Parliament in approving the Bill.47. The legislation on the processing of a constitution amendment Bill and the referendum necessary for its passage, would deal with questions such as how an amendment Bill that had proposals that included those that required a referendum under the Constitution and those that did not require a referendum would be handled. Such legislation, if enacted would also answer questions as to whether specific aspects of the Bill required separate approval or rejection as opposed to having the entire list of proposals in the amendment Bill approved or rejected.48. Part V of the Elections Act dealt with referenda. It did not adequately cover the process contemplated under the Constitution for a referendum. For example, it did not address public participation requirements and it did not provide for how a constitution amendment Bill would be handled by county assemblies where the Constitution mandated consideration of such a bill by county assemblies. The lacuna in law was incapable of being addressed by Part V of the Elections Act.49. The absence of legislation to operationalize a constitutional provision would not render the provision inoperative or unenforceable. In the absence of enabling legislation for the conduct of a referendum, a referendum could be undertaken as long as constitutional expectations, values, principles and objects were met.50. The terms “consideration” and “approve” as used in article 257(5) and 257(7) of the Constitution did not give room to the legislative organs, whether at the national level or county level, to alter and or “improve” the contents of a constitution of Kenya amendment Bill. Such alteration could mean the constitution amendment Bill in the context of a popular initiative would be hijacked and even turned into what it could have been if it had been promoted as a parliamentary initiative.51. Depending on the proposed constitutional amendments, a multi-option referendum could be necessary. What the Constitution contemplated under articles 255 to 257, was that each proposed constitutional amendment had to be considered on its own merit and not within the rubric of other amendments. Some proposed amendments could be agreeable to voters while the same voters could find that they did not agree with other proposed amendments.52. A careful reading of article 255(1) of the Constitution showed that each proposed constitutional amendment clause ought to be presented as a separate question. That would avoid confusion and allow voters to decide on each presented amendment question on its own merit.53. Section 49 of the Elections Act supported the preposition that omnibus amendments ought to be presented as separate referendum questions. What should be subjected to a referendum was those questions and not the entire Constitution Amendment Bill.54. The fact that an entity was required to consider public views did not necessarily mean that those views had to be incorporated into the final decision. While the Kenya National Union of Nurses made proposals for the setting up of the Health Service Commission as a constitutional commission, it was not the case that the BBI Steering Committee made representations that their proposals would be incorporated in their report.55. A legitimate expectation arose where a clear and unambiguous promise had been given by a public authority. That authority had to have had the competence to make the promise and it would have to be lawful for it to make a promise. There could be no legitimate expectation against provisions of the law or the Constitution.56. Had there been a representation made by the BBI Steering Committee that the views of the Kenya National Union of Nurses would be incorporated in the Constitution of Kenya Amendment Bill, the union would have been justified in contending that it ought to have been afforded an opportunity of being heard. The union's claims that there was unreasonableness and unfair administrative action had to be disallowed.57. A constituency in Kenya was a unit of representation that was at the heart of Kenya's electoral process. It went to the root of the enjoyment of the democratic right to representation. It was seen as a unit for taking development to the people.58. The constitutionality of the Constitution Amendment Bill in terms of the proposal to create 70 new constituencies was challenged. The court would not exercise judicial restraint or apply the doctrine of constitutional avoidance but would instead proceed to consider the merits of that question. Threatened violations of the Constitution could found the basis of a constitutional petition. A litigant did not have to wait for an actual violation to occur before approaching the court.59. The doctrine of separation of powers did not bar the court from exercising jurisdiction under article 165(3)(d)(ii) of the Constitution. The court could determine whether the state, in pursuing certain policy decisions or undertaking certain actions, had failed to fulfil constitutional dictates.60. The argument by the Attorney General that the petitioners had alternative avenues of redress, such as persuading Parliament and the Kenyan people to reject the Constitution Amendment Bill, was a misapprehension of the doctrine of exhaustion. A party was only debarred from approaching the court where a statute or policy had created a mechanism for determining a dispute related to the subject matter in question. The political route of persuading Parliament, county assemblies and the Kenyan people, was not a dispute settlement mechanism within the meaning of the doctrine of exhaustion.61. The history and text of the Constitution showed that Kenyans were not particular about the number of constituencies. They were more concerned with the process, procedure, timelines, criteria and review process of the delimitation of electoral units. Article 89(1) of the Constitution – which provided for the exact number of constituencies – was not an eternity clause and it was capable of amendment while following the procedure set under articles 255 to 257 of the Constitution.62. The provisions of the Constitution of Kenya Amendment Bill which directly allocated and apportioned the 70 additional constituencies without a delimitation exercise as set out in article 89 of the Constitution, were unlawful and unconstitutional for the following reasons: -

they impermissibly directed the IEBC on the execution of its constitutional functions;
they purported to set criteria for the delimitation and distribution of constituencies which was at variance with that created under article 89(5) of the Constitution;
they ignored public participation as a key consideration in delimiting and distributing constituencies;
they imposed timelines for the delimitation exercise which were at variance with those in the Constitution;
they took away the rights of those aggrieved by a delimitation exercise to seek judicial review;
by having an additional 70 constituencies provided for under the Second Schedule while using a pre-set criteria, which did not accord with standards set in articles 89(4), 89(5), 89(6), 89(7), 89(10) and 89(12) of the Constitution, they had the effect of amending or suspending the intended impacts of article 89 of the Constitution, which was part of the basic structure of the Constitution which was unamendable.

63. Section 5(1) of the Independent Electoral and Boundaries Commission Act provided that the IEBC had to consist of the chairperson and six other commissioners. Further, paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act provided for a quorum of at least five members for the conduct of business at a meeting of the IEBC. The existing composition of the IEBC was the chairperson and two commissioners.64. The issue of quorum in the IEBC was decided in the case of Isaiah Biwott Kangwony v Independent Electoral & Boundaries Commission & another [2018] eKLR (Isaiah Biwott Kangwony case). The court in that case held that lack of quorum limited the IEBC'S operations when dealing with policy issues but that the IEBC could conduct by-elections as that did not require quorum to make decisions.65. The issue before the court was whether the IEBC was properly constituted for purposes of verifying signatures and did not have a quorum to conduct a referendum. It was different from the issues in the Isaiah Biwott Kangwony case.66. The Independent Electoral and Boundaries Commission Act was clear in providing that a quorum of five commissioners was required in order for the IEBC to conduct business. Therefore, the court respectfully departed from the holding in the Isaiah Biwott Kangwony case as the statute did not distinguish between the need for quorum in policy decisions as compared to other business.67. Verification of signatures and determining whether a constitution amendment Bill met constitutional requirements set out under article 257(4) of the Constitution was a policy issue that required determination by the IEBC as a commission. Such a serious constitutional question could not be determined by a committee of the IEBC. The IEBC needed quorum in order to make such a determination.68. The IEBC did not have the quorum of five members when it conducted verification of signatures and determined that the BBI Secretariat had met the constitutional threshold under article 257(4) of the Constitution to move the constitutional amendment process to the next stage. Therefore, all the decisions made by the IEBC in relation to the proposed constitutional amendments were invalid, null and void for lack of quorum.69. The mandate of the IEBC under article 257(4) of the Constitution was a two-step process. First, it was to ascertain the numbers of registered voters in support of a popular initiative to amend the Constitution, and secondly, it was to verify the authenticity of the signatures of registered voters claimed to be in support of the popular initiative.70. The existing regulatory framework was not sufficient for the verification of signatures by the IEBC under article 257(4) of the Constitution. To fill the gap, the IEBC developed Administrative Procedures approved on April 15, 2019. The Administrative Procedures were within the definition of statutory instruments provided under section 2 of the Statutory Instruments Act but they were not gazetted as required by section 22 of the Statutory Instruments Act. Therefore, the Administrative Procedures were invalid for lack of public participation as well as failure to comply with the provisions of the Statutory Instruments Act. They were also invalid for two other reasons: -

the Administrative Procedures were developed and revised without the IEBC having the quorum necessary to conduct its business; and
the Administrative Procedures did not have provisions or procedures for the authentication of signatures which was a necessary step in the verification process required under article 257(4) of the Constitution.

71. In carrying out the verification process, the IEBC did not comply with the Administrative Procedures. The IEBC published a list of persons who had appended their signatures in support of the Constitution Amendment Bill online and gave the public five days to raise any issues they had with the list. The period allowed for that process would be two weeks if the IEBC had complied with the Administrative Procedures.72. Holding a referendum without voter registration, updating the voters register, and carrying out voter education, would particularly disenfranchise citizens who had attained voting age but had not been given an opportunity to register as voters, thus violating their constitutional right to vote and make political choices. Holding a referendum without first conducting voter registration would violate the very essence of the right of a class of citizens who had not been given the opportunity to register and vote in deciding on their destiny.73. Article 43(1)(a) of the Constitution guaranteed every person the right to the highest attainable standard of health, which included the right to health care services and reproductive health. The right to health was different from the right to be healthy. The right to health meant the right to enjoy a variety of goods, services and conditions that was necessary to one's wellbeing. It was usually based on Government programmes and goals that were realized on a long-term basis, usually dependent on availability of resources.74. The petitioner in Petition No E416 of 2020 did not provide evidence to support his contention that the conduct of a referendum would provide an environment for the spread of coronavirus.75. The issue as to whether Parliament could consider the constitutional amendment Bill given that it was to be dissolved by the President was raised in Petition E416 of 2020. The basis for the dissolution of Parliament was the advice rendered by the Chief Justice on September 21, 2020, under article 261(7) of the Constitution. The issue was however pending before another bench of the High Court. It was being canvassed in the case of Milimani High Court Petition No. 302 of 2020 Third way Alliance v Speaker of the National Assembly & another (consolidated with JR No. 1108 of 2020 and Petition Nos. E291 of 2020 and 300 of 2020.) The petitioner could, therefore, apply to join that matter.

Petition partly allowed.

Orders i. A declaration that:

the basic structure doctrine was applicable in Kenya.
the basic structure doctrine limited the amendment power set out in articles 255 – 257 of the Constitution. In particular, the basic structure doctrine limited the power to amend the basic structure of the Constitution and eternity clauses.
That the basic structure of the Constitution and eternity clauses could only be amended through the primary constituent power which had to include four sequential processes namely: civic education, public participation and collation of views, Constituent Assembly debate and ultimately, a referendum.

ii. A declaration that civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.iii. A declaration that the President did not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment could only be initiated by Parliament through a parliamentary initiative under article 256 or through a popular initiative under article 257 of the Constitution.iv. A declaration that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President vide Kenya Gazette Notice No. 264 of January 3, 2020 and published in a special issue of the Kenya Gazette of January 10, 2020 was an unconstitutional and unlawful entity.v. A declaration that being an unconstitutional and unlawful entity, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, had no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.vi. A declaration that the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the people’s exercise of sovereign power.vii. A declaration that Mr. Uhuru Muigai Kenyatta had contravened Chapter 6 of the Constitution, and specifically article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.viii. A declaration that the entire unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report was unconstitutional, null and void.ix. A declaration that the Constitution of Kenya Amendment Bill, 2020 could not be subjected to a referendum before the Independent Electoral and Boundaries Commission carried out nationwide voter registration exercise.x. A declaration that the Independent Electoral and Boundaries Commission did not have quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification of signatures in support of the Constitution of Kenya Amendment Bill under article 257(4) of the Constitution submitted by the Building Bridges Secretariat.xi. A declaration that at the time of the launch of the Constitutional of Kenya Amendment Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation and verification of signatures nor a legal framework to govern the conduct of referenda.xii. A declaration that the absence of a legislation or a legal framework to govern the collection, presentation and verification of signatures and the conduct of referenda in the circumstances of the case rendered the attempt to amend the Constitution of Kenya through the Constitution of Kenya Amendment Bill, 2020 flawed.xiii. A declaration that County Assemblies and Parliament could not, as part of their constitutional mandate to consider a Constitution of Kenya Amendment Bill initiated through a popular initiative under article 257 of the Constitution, change the contents of such a Bill.xiv. A declaration that the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to predetermine the allocation of seventy constituencies was unconstitutional.xv. A declaration that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation was unconstitutional.xvi. A declaration that the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to have determined by delimitation the number of constituencies and apportionment within the counties was unconstitutional for want of public participation.xvii. A declaration that Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum made by the Independent Electoral and Boundaries Commission were illegal, null and void because they were made without quorum, in the absence of legal authority and in violation of article 94 of the Constitution and sections 5, 6 and 11 of the Statutory Instruments Act, 2013.xviii. A declaration that article 257(10) of the Constitution required that all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people.xix. A permanent injunction to restrain the Independent Electoral and Boundaries Commission from undertaking any processes required under article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020.xx. The prayer for an order for Mr. Uhuru Muigai Kenyatta to make good public funds used in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by Mr. Uhuru Muigai Kenyatta was declined.xxi. The prayer for the orders for the Honourable Attorney General to ensure that other public officers who had directed or authorised the use of public funds in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report to make good the said funds was declined.xxii. The rest of the reliefs in the Consolidated Petitions not specifically granted were deemed to have been declined.xxiii. Parties to bear their own costs.

Citations Cases

Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others (civ suit 1338 of 97;[2003]eKLR) — Explained
Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others (Civil Appeal 1338 of 97; [2003] eKLR) — Explained
Alila, Titus & 2 others (Suing on their own Behalf and as the Registered Officials of the Sumawe Youth Group) v Attorney General & another (Constitutional Petition 22 of 2018; [2019] eKLR) — Followed
Aluochier, Isaac Aluoch Polo v Uhuru Muigai Kenyatta & another (Petition 297 of 2016; [2016] eKLR) — Explained
Anam, Peter Ochara& 3 others v Constituencies Development Fund Board & 4 others (Petition No 3 of 2010;2011]eKLR) — Explained
Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979 [1979]eKLR) — Explained
Anarita Karimi Njeru v Republic (No1) ([1979] KLR 154; [1976- 80] 1 KLR 1272) — Explained
Apollo Mboya v Attorney General & 2 others (Petition 472 of 2017; [2018] eKLR) — Explained
Biowatch Trust v Registrar, Genetic Resources & 5 others — Explained
British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others (Civil Appeal No 112 of 2016; [2017] eKLR) — Explained
Center for Rights Education and Awareness & anothers v John Harun Mwau & 6 others ([2012] 2 KLR 261) — Explained
Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another (Petition Nos 628 & 630 of 2014; [2015] eKLR (Consolidated)) — Explained
Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others (Petition 496 of 2013 [2013] eKLR) — Explained
Communication Commission of Kenya & 5 others v Royal Media Services & 5 others (Petition Nos 14, 14A, 14B & 14C of 2014; [2014] eKLR (Consolidated))
Council of County Governors v Attorney General & another (Constitutional Petition 56 of 2017; [2017] eKLR) — Explained
Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba Institute & 2 others (Amicus Curiae) (Reference 3 of 2019 [2020] eKLR) — Followed
County Government of Nyeri & another v Cecilia Wangechi Ndungu (Civil Appeal 2 of 2015; [2015] eKLR) — Explained
D E N v PN (Civil Appeal 226 of 2012; [2015] eKLR) — Explained
Gakuru & others v Governor Kiambu County & 3 others ([2014] 3 KLR 3) — Followed
Galaxy Paints Co Ltd v Falcon Guards Ltd ([2000] EA 885) — Explained
Gikonyo,Wanjiru & another v National Assembly of Kenya & 8 others (Petition 178 of 2016;[2016] eKLR) — Explained
Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association Being sued on behalf of Kenya Bankers Association) & another (Petition 457 of 2015 ;[2018] eKLR) — Explained
Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others (Civil Appeal No. 224 of 2017; [2017] eKLR) — Explained
In re the Matter of the Interim Independent Electoral Commission ([2011] 2 KLR 32) — Explained
Institute of Social Accountability & another v National Assembly & 4 others (Petition No 71 of 2014; [2015] eKLR) — Explained
In the Matter of the Interim Independent Electoral Commission ([2011] 2 KLR 32) — Explained
In the Matter of the Kenya National Commission on Human Rights (Reference 1 of 2012; [2014] eKLR) — Explained
In the Matter of the National Land Commission (Advisory Opinion No 2 of 2014; [2015] eKLR)
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate ([2012] 3 KLR 718) — Explained
In the Matter of the Speaker of the Senate & another ([2013] 3 KLR 278) — Followed
Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others (Petition 4 of 2012; [2013] eKLR) — Cited in Dissenting Opinion
Julius Nyarotho v Attorney General & 3 others (Miscellaneous Civil Application 36 of 2012 ;[2013]eKLR) — Explained
Kabiru, Geoffrey Muthinja & 2 othes v Samuel Munga Henry & 1756 others (Civil Appeal 10 of 2015; [2015] eKLR) — Explained
Kamau, Jesse & 25 others v Attorney General (Miscellaneous Civil Application 890 of 2004; [2010] eKLR) — Explained
Kaminja, Daniel & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi (Judicial Review 441 of 2018; [2019] eKLR) — Explained
Kangwony, Isaiah Biwott v Independent Electoral and Boundaries Commission & another (Petition No 212 of 2018; [2018] eKLR) — Explained
Katiba Institute & another v Attorney General & another (Constitutional Petition No 209 of 2016; [2017] eKLR) — Explained
Kega, Hon Kanini v Okoa Kenya Movement & 6 others (Petition 427 of 2014;[2014] eKLR) — Explained
Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) & 8 Others v Cabinet Secretary For Transport & Infrastructure & 5 Others (Judicial Review Case 2 of 2014; [2014] eKLR) — Explained
Kenya Human Rights Commission & another vs Attorney General & 6 others (Civil Appeal 147 of 2015; [2019] eKLR) — Explained
Kenya Planters Co-operative Union Limited v Kenya Co-operative Coffee Millers Limited & another (ELC Constitutional Petition 7 of 2015;[2016] eKLR) — Explained
Kenya Revenue Authority v Universal Corporation Ltd (Civil Appeal 150 of 2018; [2020] eKLR) — Explained
Keroche Breweries Limited & 6 others v Attorney General & 10 others (Petition Nos 295, 309 & 314 of 2015; Judicial Review Nos 231, 242, 246 & 247 of 2015; [2016] eKLR (Consolidated)) — Explained
Kiambu County Government & 3 others v Robert N Gakuru & others (Civil Appeal 200 of 2014; [2017] eKLR) — Mentioned
Kilonzo, Diana Kethi & another v Independent Electoral and Boundaries Commission & 10 others (Petition 359 of 2013; [2013] eKLR) — Explained
Kivuitu ,Priscilla Ndululu & another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 others v Attorney General & 2 others (Petition 689 of 2008; [2015] eKLR) — Explained
Law Society of Kenya v Attorney General & another (Petition 4 of 2019; [2019] eKLR)
Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) (Petition 307 of 2018; [2019] eKLR) — Explained
Law Society of Kenya v Inspector General Kenya National Police Service & 3 others (Petition 9 of 2014;[2015] eKLR) — Explained
Law Society of Kenya v Kenya Revenue Authority & another (Petition 39 of 2017; [2017] eKLR) — Explained
Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya (Judicial Review Case 472 of 2014;[2015] eKLR) — Explained
Maingi ,John Kimanthiv Andrew Ligale & 4 others (Petition 72 of 2010;[2010]eKLR) — Explained
Manyasi v Gicheru & 3 others ([2009] KLR 687) — Explained
Mate, Justus Kariuki & another v Martin Nyaga Wambora & another (Petition 32 of 2014; [2017]eKLR) — Explained
Mate, Justus Kariuki & another v Martin Nyaga Wambora & another (Petition No 32 of 2014; [2017] eKLR) — Explained
Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others (Civil Appeal 290 of 2012; [2013] eKLR) — Explained
Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for StrategicLitigation in Africa (Amicus Curiae) (Petition 3 of 2018; [2021] eKLR) — Explained
Munya v Kithinji & 2 others ([2014] 3 KLR 36) — Explained
Murang’a County Government v Murang’a South Water & Sanitation Co. Ltd & another (Constitutional Petition 16 of 2019;[2019] eKLR) — Explained
Muriithi, Deynes & 4 others v Law Society of Kenya & another (Civil Application 12 of 2015; [2016] eKLR) — Explained
Muslims for Human Rights (Muhuri) & another v Inspector-General of Police & 4 others (Petition 19 of 2015;[2015] eKLR) — Explained
Muthinja, Geoffrey & another v Samuel Muguna Henry & 1756 others (Civil Appeal 10 of 2015; [2015] eKLR) — Explained
Mwende Maluki Mwinzi v Cabinet Secretary,Ministry of Foreign Affairs & 2 others (Petition 367 of 2019; [2019] eKLR) — Explained
Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others (Petition No 278 of 2011; [2013] eKLR) — Explained
National Assembly of Kenya & another v Institute for Social Accountability & 6 others (Appeal 92 of 2015; [2017] eKLR)
New National Party v Government of the Republic of South Africa and others ((1999) ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489) — Explained
Njoya and 5 others v Attorney General & others(No 2) ([2004] 1 KLR 261) — Explained
Non-Governmental OrganizationsCo-Ordination Board v EG & 5 others (Civil Appeal 145 of 2015;[2019] eKLR) — Explained
Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) (Petition 56, 58 & 59 of 2019; [2020] eKLR (Consolidated)) — Explained
Nyarotho,Julius v Attorney General & 3 others (Miscellaneous Civil Application 36 of 2012;[2013] eKLR) — Explained
Ojiayo, Samson Owimba v Independent Electoral and Boundaries Commission (IEBC) & another (Petition 104 of 2013; [2013] eKLR) — Explained
Okoiti, Okiya Omtatah v Communication Authority of Kenya & 8 others (Constitutional Petition 53 of 2017 ;[2018]eKLR) — Explained
Olum & another v Attorney General ([1995-1998] 1 EA 258) — Followed
Patrick Ouma Onyango & 12 others v Attorney General and 2 others (Miscellaneous Application 677 of 2005;[2005] eKLR) — Explained
Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others (Civil Appeal 11of 2018; [2018] eKLR) — Explained
Ramogi, William Odhiambo & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR (Constitutional Petition 159 of 2018 & Petition 201 of 2019 (Consolidated); [2020] eKLR) — Explained
Republic v Attorney General; Law Society of Kenya(Interested Party); Ex-parte: Francis Andrew Moriasi (Judicial Review Miscellanous Application 364 of 2018;[2019] eKLR) — Explained
Republic v County Assembly of Kirinyaga & another Ex-Parte Kenda Muriuki & another [2019] eKLR (Judicial Review Application 271 of 2019) — Followed
Republic v County Government of Kiambu Ex parte Robert Gakuru & another (Judicial Review Case 434 of 2015 ;[2016] eKLR) — Explained
Republic v County Secretary - Nairobi City County & another Ex Parte Tom Ojienda & Associates (Miscellaneous Application 306 of 2017; [2019] eKLR) — Explained
Republic v Independent Electoral and Boundaries Commission (IEBC) Ex parte National Super Alliance (NASA) Kenya & 6 others (Judicial Review 378 of 2017; [2017] eKLR) — Explained
Republic v Independent Electoral & Boundaries Commission and others ex- parte Cllr Elliot Lidubwi Kihusa and others (Misc Applic No 94 of 2012; [2012] eKLR) — Followed
Republic v Kenya Revenue Authority Ex Parte Cooper K-Brands Limited (Miscellaneous Application 458 of 2013; [2016] eKLR) — Explained
Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited (Judicial Review Application 74 of 2018 [2018] eKLR) — Explained
Speaker of the National Assembly v Karume ([1992] KLR 22; (2008) 1 KLR (EP) 425) — Explained
Speaker of the Senate & another v Attorney-General & 4 others (Advisory Opinion Reference No 2 of 2013; [2013] eKLR) — Explained
Stephen Somek Takwenyi & another v David Mbuthia Githare & 2 others (Civil Case No 363 of 2009) — Explained
Takwenyi, Stephen Somek & another v David Mbuthia Githare & 2 others (Civil Case No 363 of 2009) — Explained
Waititu, Ferdinand Ndung’uAlias Babaya v Republic (Civil Appeal No 416 of 2019;[2019]eKLR)
Wanjiru, Gikonyo & 2 others vs National Assembly of Kenya & 4 others (Petition 453 of 2015; [2016] eKLR) — Explained
Ndyanabo v Attorney General ([2001] 2 EA 485; (2002) AHRLR 243 (TzCA 2002)) — Followed
Rev Christopher Mtikila v Attorney General ([1994] TZHC 12) — Explained
Male Mabirizi & others v Attorney General ([2019] UGSC 6) — Explained
Nyanza Garage v Attorney General (Civil Suit No 450 of 1993) — Explained
Paul Ssemogerere and Others vs. The Attorney General (Constitutional Appeal no. 1 of 2002) [2004] UGSC10)) — Explained
Tinyefuza v Attorney General ((Constitutional Petition 1 of 1996) [1997] UGCC 3) — Followed
Doctors for Life International– vs- Speaker of the National Assembly and Others ((CCT12/05(2006) ZACC 11(2006) (12) BCLR 1399(CC); 2006 (6) SA 416(CC))
Matatiele Municipality and Others v President of the Republic of South Africa and Others (2) ([2006] ZACC 12; 2007 (1) BCLR 47; 2006 (5) SA 47 (CC)) — Explained
Pharmaceutical Manufacturers Association of SA and another: In re Ex parte President of the Republic of South Africa and others In President of the Republic of South Africa and others v South African Rugby Football Union and others; (; [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241) — Explained
President of the Republic of South Africa and Others v M & G Media Ltd ([2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011)) — Explained
United Democratic Movement v Speaker of the National Assembly and others ([2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC)) — Followed
AK Gopalan vs the State (AIR 1950 SC 27; 1950 SCR 88; (1950) 51 Cri LJ 1383) — Explained
Central Province (959 FC R 18 (39) AFC,) — Explained
Kesavananda Bharati v State of Kerala & another ((1973) 4 SCC 225 ;AIR 1973 SC 1461) — Explained
Keshava Memon v State of Bombay (1951 AIR 128; 1951 SCR 228) — Explained
James v Commonwealth of Australia ([1936] A C 578;[1936] UKPCHCA 4; 55 CLR 1; [1936] 2 All ER 1445) — Explained
R (Bibi) v Newham London Borough Council ([2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).) — Explained
R (Coughlan) v North and East Devon Health Authority ([1999] EWCA Civ 187) — Explained
Royal Bank of Scot-land Ltd v Citrusdal Investments Ltd ([1971] 3 All ER 558) — Mentioned
South Bucks District Council v Flanagan ([2002] EWCA Civ. 690 [2002] WLR 2601) — Explained
Thames Launches Ltd v Trinity House Corporation (Deptford Strond) ([1961] 1 All ER 26) — Followed
Re Judiciary Act 1903-1920 & In re Navigation Act (1912-1920 (1921) 29 CLR 257) — Explained
Apotex Inc v Canada Attorney General ([1994] 3 SCR 1100;1993 Can LII 3004 (FCA); [1994] 1 FC 742 (CA); aff'd 1994 CanLII 47 (SCC)) — Explained
Dragan v Canada (Minister of Citizenship and Immigration) ((2003), 228 FTR 52 (TD);2003 FCT 211 (CanLII); [2003] 4 FC 189 (TD)) — Explained
Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187) — Explained
Ravi s/o Madasamy v Attorney-General and other matters ([2017] SGHC 163) — Explained
Teo Soh Lung vs Minister of Home Affairs ([1989] 1 SLR(R) 461, HC ; [1990] 1 SLR(R) 347, CA) — Explained
Law Association of Zambia and another v Attorney General of the Republic of Zambia ([2019] ZMCC 18) — Explained

Statutes

Access to Information Act, 2016 (Act No 31 of 2016) — Section 4(2);8;9 — Interpreted
Civil Procedure Act (cap 21) — Section 6,7 — Interpreted
Civil Procedure Rules, 2010 (cap 21 Sub-Leg) — Order 1; Rule 9 — Interpreted
Commissions Of Inquiry Act (cap 102) — In general — Cited
Constituencies Development Fund Act, 2013 (Act No 30 of 2013) — Section 4(1) — Interpreted
Constitution of Kenya, 2010 — Article 1(1)(2)(3)(a);2;3;7(3)(b);10;21(2);22(1)(2)(c); 27(1)(2)(4)(5);25;33;35(3);38;41(1)(a)(2);43(1)(2);47(1);50(4);59(5);73(1)(a)(i);81(d);86;88(4);89(1)(4)(5)(6)(7)(b)(10)(12);94(3);95(3);97(1)(a);109(1)(2); 129;131(1)(e) (2)(c);132(4)(a);136(2)(a);140(1);142(1);143(2);163(6)(7);165(3)(b)(d);201(d);203;232(1)(g)(h)(i);234;238;249(1)(a);250(1);255(1); 256(1)(3);257(6)(7)(8)(9)(10);259(1);201;226(5);261(4)(7);267(7);283;304;346; Chapter 6; Chapter 4; Chapter 11 — Interpreted
Constitution of Kenya(Repealed) — Section 41B(2);42(3 — Interpreted
Constitution of Kenya Review Act, 1997 (cap 3 A) — Section 17(d);30;32(1)(a)(c);33(1)(2)(3)(4);34;35;37(1);43A — Interpreted
Constitution of Kenya Review Act, 2008 — Section 30,33(1)(c)(2)(3)(4);35;37(1);43A — Interpreted
Elections Act, 2011 (Act No 24 of 2011) — Section 4(2)(3); 6A;49-55 — Interpreted
Elections (Registrar of Voters) Regulations 2012 (Act No 24 of 2011 Sub Leg) — Regulation 8 — Interpreted
Evidence Act (cap 80) — Section 55,106,107 — Interpreted
Fair Administrative Actions Act, 2015 (Act No 4 of 2015) — Section 4 — Interpreted
Independent Electoral And Boundaries Commission Act, 2011 (Act No 9 of 2011) — Section 4, 5(1);8;36(4)(11) — Interpreted
National Transport and Safety Authority ( Operation of Public Service Vehicles ) Regulations, 2013 (Act No 33 of 2012 Sub Leg) — In general — Cited
National Transport and Safety Authority ( Operation of Public Service Vehicles ) Regulations, 2014 (Act No 33 of 2012 Sub Leg) — In general — Cited
Political Parties Act, 2011 (Act No 11 of 2011) — In general — Cited
Public Finance Management Act,2012 (Act No 18 of 2012) — In general — Cited
Statutory Instruments Act, 2013 (Act No 23 of 2013) — Section 2, 5,6, 11,22 — Interpreted
Supreme Court Act, 2011 (Act No 7 of 2011) — Section 3 — Interpreted

Texts

Albert,R., et al 2017, The Foundations and Traditions of Constitutional Amendment (London: Hart Publishing, p327, 331)
Banon,AL., 2007, Designing a Constitution-Drafting Process: Lessons from Kenya (The Yale Law Journal, 1833.)
Diepeveen, S., 2002, ’The Kenya we don’t Want’: Popular Thought over Constitutional Review in Kenya (The Journal of Modern African Studies, 233.)
Garner, BA., Black, HC., (Ed) (2014), Black’s Law Dictionary (St Paul, Minnesota: Thomson Reuters 10th Edn)
Harry Woolf, Sir; Jeffrey L Jowell; A P Le Sueur; S A De Smith, 2004, De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell (Sweet & Maxwell Ltd, page 609)
Mackay, JPH., (Lord Clashfern) (Ed) (2009), Halsbury's Laws of England/Civil Procedure (London: LexisNexis Civil Procedure Vol 11 5th Edn paras 529)
Murunga, GR., et al 2014, Kenya: The Struggle for a New Constitution Order (Zed Books)
Mutua,M.,(Ed) (2008), Kenya’s Quest for Democracy: Taming the Leviathan (London:Lynne Rienner)
Ohax, YP., McAuslan, JPWB., Eds (1970), Public Law & Political Changes in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Nairobi:Oxford University Press,)
Sievers ,AH., Peters,RM., 2008, Kenya‘s 2007 General Elections and its Aftershocks, (43 AFRIKA SPECTRUM 133)
Tribe, LH., (Ed) (1989), American Constitutional Law (University of Minnesota Law School 2nd Edn p 92)

AdvocatesMr Havi

Judgment

A. Part 1: Introduction

I. History of the Litigation

1.On March 18, 2018, President Uhuru Kenyatta and Mr Raila Odinga had what is now famously known as the “Handshake”. The President and Mr Raila Odinga had just come off a hard fought and intensely contested Presidential Elections in 2017 in which they were the main contenders. The first round of Presidential elections was held on August 8, 2017 and was characterized by allegations of vote fraud leading to its overturning by the Supreme Court. The repeat elections were held on October 25, 2017. Mr Raila Odinga boycotted the repeat elections handing the victory to the President.

2.These circumstances, however, hardly cooled the political climate which remained charged. It is on these grounds that the President started an initiative which he described as being “towards a united Kenya.” After the famous “Handshake” with Mr Odinga, the President appointed the Building Bridges to Unity Advisory Taskforce (hereinafter, “BBI Taskforce”) comprising of 14 committee members and 2 joint secretaries through Gazette Notice No 5154 of May 24, 2018. The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building a lasting unity in the country.

3.The terms of reference of this BBI Taskforce were to:a.Evaluate the national challenges outlined in the joint communique of 'Building Bridges to a New Kenyan Nation, and having done so, make practical recommendations and reform proposals that build lasting unity; (petitioner's emphasis throughout, unless otherwise stated).b.Outline the policy, administrative reform proposals, and implementation modalities for each identified challenge area; andc.Conduct consultations with citizens, the faith based sector, cultural leaders, the private sector and experts at both the county and national levels.

4.The BBI Taskforce came up with an interim report in November, 2019. On January 3, 2020, vide Gazette Notice No 264, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (hereinafter, the “BBI Steering Committee”) comprising of 14 members and 2 joint secretaries.

5.The terms of reference of the BBI Steering Committee were stated in the Gazette Notice as follows:The terms of reference of the Steering Committee shall be to:a.Conduct validation of the Taskforce report on Building Bridges to a United Kenya through consultations with citizens, civil society, the faith-based organizations, cultural leaders, the private sector, and experts; andb.Propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce report, taking into account any relevant contributions made during the validation period.

6.There is some controversy on how exactly the report of the BBI Steering Committee, after it was handed over to the President, became the Constitution of Kenya Amendment Bill, 2020 (herein after, “The Constitution of Kenya Amendment Bill”). However, it is not in dispute that the BBI Secretariat then put in motion the process to collect signatures in support of the popular initiative associated with the Constitution of Kenya Amendment Bill. Thereafter, the BBI Secretariat submitted the signatures to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the County Assemblies and Parliament for approval.

II. Procedural Posture

7.This judgment arises from eight consolidated constitutional petitions which challenge, in some fashion the Building Bridges Initiative and the resulting Constitution Amendment Bill and its associated popular initiative.

8.Seven of the eight petitions herein were consolidated on January 21, 2021 and the eighth petition- Petition No E002 of 2021 was consolidated on March 10, 2021. Petition No E282 of 2020 was designated as the lead file. The court also directed that each party be identified according to their named role in their respective petition.

9.On January 21, 2021 the Kenya National Commission on Human Rights and four law professors were enjoined as amici curiae in Petition No E282 of 2020. Kituo Cha Sheria was enjoined as an interested party in the same petition and Phylister Wakesho was enjoined as an interested party in Petition No E400 of 2020. The court also gave directions to perfect the consolidated petitions for hearing.

10.The consolidated petitions proceeded for hearing from the March 17, 2021 to the March 19, 2021 via video conference.

11.In the next section of this judgment, we summarize the eight petitions, their responses and the various briefs filed by the parties in support of their respective positions.

B. Part 2: The Consolidated Petitions And Their Responses:

I. Petition No E282 of 2020

12.The petitioners in Petition No E282 of 2020 are civic-minded Kenyans who have brought the petition in the public interest. They sought the following orders:i.A declaration be and is hereby issued that the legal and judicial doctrines 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" in a constitution are applicable in the Republic of Kenya.ii.A declaration be and is hereby issued that 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 Kenyan Constitution 2010 and therefore cannot be amended either under article 256 by Parliament or through popular initiative under article 257 of the Constitution.iii.A declaration be and is hereby issued that taking guidance from the doctrine of the "basic structure of the constitution, the constituent power" and the doctrines of "unconstitutional constitutional amendments", "the limits of the amendment power in the constitution" and the theory of unamendability of "eternity" clauses, there is an implicit or implied limitation to constitutional amendments in Kenyaiv.A declaration be and is hereby issued that 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.v.A declaration be and is hereby issued that Kenyan Parliament cannot pass any laws that alters 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.vi.Each party should bear its own costs.vii.Any other order that this honourable court may deem just and fit in the circumstances.

13.The petition is supported by the affidavits of the petitioners all sworn on September 16, 2020. It is expressed to have been brought under article 22(1)(2)(c) of the Constitution.

14.The petitioners’ lead argument is that the legal and judicial doctrines and theory of the basic structure of a constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution and the implied limitations of the amendment power in the Constitution are applicable in Kenya to substantively limit the ability to amend the Constitution under articles 255-257 of the Constitution.

15.The petitioners want the aforementioned doctrines applied to the Kenyan Constitution with the proposed result that the following chapters of the Constitution of Kenya, 2010 and the provisions therein be declared to be part of the basic structure, entrenchment clauses and eternity provisions of the Kenyan Constitution 2010 and that, therefore, cannot be amended either under article 256 by Parliament or through popular initiative under article 257 of the Constitution: chapter one on sovereignty of the people and supremacy of the Constitution, chapter two on the Republic, chapter 4 on the bill of rights, chapter nine on the executive and chapter ten.

16.It is also the petitioner’ case is that the amendment powers reposed in article 256 and article 257 of the Constitution of Kenya can only be used to amend the “ordinary provisions” of the Constitution and do not extend to the power to “destroy the Constitution nor does it include the power to establish a new form of government or enact a new constitutional order.” It is their case that article 256 and 257 are mere procedural tools which cannot be used to change the Constitution in manner akin to replacing it with a new Constitution. These procedural provisions, they insist, cannot be invoked to create a new constitutional order disguised as an amendment. They argue that the doctrine of basic structure and the corollary doctrines of constitutional unamendability and eternity clauses operate to prevent such a possibility.

17.The petitioners cited with approval works by Prof Richard Albert especially his seminal book, Constitutional Amendments: Making, Breaking and Changing Constitutions. In the book, Prof Albert introduces the concept of the concept of "constitutional dismemberment" as a contrast to the idea of "constitutional amendment". He traces the origins and evolution of unconstitutional constitutional amendment across multiple jurisdictions and explains how the theory and doctrine applies to modern constitutional democracies. He explains that the phenomenon of an unconstitutional constitutional amendment traces its political foundations to France and the United States, its doctrinal origins to Germany, and concludes that it has migrated in some form to modern constitutional democracies in every corner of the world. The petitioners argue that the history and structure of the Kenyan Constitution leads to the conclusion that the framers and Kenyans intended to import the doctrine to apply to our Constitution even though they did not explicitly state so in the Constitution.

18.The petitioners further argued that it is the role of Parliament to protect the Constitution against tainted amendment bills and that the court has the role to declare a constitutional amendment unconstitutional in the event Parliament fails in its role.

19.They relied on various treatises and written works in constitutional law and social contract including the famous writings of John Locke, Hume and Rosseau. They also cited at length the work of Prof Ben Nwabueze. The primary cases they cited included Njoya and 5 others v Attorney General & others [2004] eKLR for establishing the juridical status of the doctrine of the constituent power in Kenya. They also heavily relied on Kesavananda Bharati v State of Kerala & another [1973] 4 SCC 225 for establishing the basic structure doctrine and applying it to the Indian context.

20.Applying the basic structure doctrine to the proposed Constitution of Kenya Amendment Bill, the petitioners argued that the Bill proposes to discard the doctrine of separation of powers and checks and balances first, by threatening to reverse the presidential system of government, by threatening amend chapter 9 of the Constitution on the executive, which goes against the decisions and reasoning of the makers on the Constitution.

21.The petitioners also argued that the proposed Bill threatens to alter the functions of Parliament, the Judicial Service Commission, the County Assemblies as well as oust the mandate of the IEBC. That in view of the Chief Justice’s advice to dissolve Parliament, Parliament is improperly constituted to amend the Constitution.

22.In his oral submissions, Mr Havi, counsel for the petitioners, reiterated the contents of the petition and written submissions. He laid emphasis to paragraph 204 of the petition in which he pointed out that the Constitution is born mature and that it has no infancy to be fed by anecdotal amendments. He faulted the respondents’ reliance on the Rev Dr Timothy Njoya v Attorney General & others, Misc App No 82 of 2004. in reaching the conclusion that the basic structure doctrine is not applicable in Kenya. In the petitioners’ view, the basic structure of the constitutional order in Kenya is eternal and that it is only the people who can alter the basic structure by replacing the Constitution with a new Constitution in the exercise of their primary constituent power.

23.Describing the Constitution of Kenya 2010 as the most comprehensive rendering of the aspirations of Kenyans, the petitioners point out that the Constitution has received the judicial recognition by the Supreme Court as a “transformative charter” in cases such Speaker of the Senate & another v Hon Attorney General & another & 3 others and the Matter of the Principle of Gender Representation in the National Assembly and the Senate.

24.The petitioners further argue that both the history amendments to the retired Constitution between 1963 and 2010 and the history of attempted amendments to the present Constitution since its promulgation provide proof that the Kenyan Parliament lacks clear parameters to guide it in the exercise of authority vested by article 94(3) of the Constitution by which is enjoined to consider amendments to the Constitution. The petitioners are apprehensive that such an approach is likely to lead to Parliament adopting amendments to the essential features of the Constitution, whose amendability is outside the scope of amendments.

25.The 1^st respondent (the Honourable Attorney General) opposed the petition vide their grounds of opposition dated January 18, 2021. The grounds of opposition, reproduced verbatim, are as follows:1.That a declaration that the provisions of the constitution that deal with sovereignty of the people, supremacy of the constitution, the territory of Kenya , the executive, the judiciary, the bill of rights form the 'basic structure', 'entrenchment clauses' and 'eternity' provisions of the Kenyan Constitution and cannot be amended either under article 256 of through popular initiative under article 257 of the Constitution would be against the express provisions of the constitution including article 255 (1) which will have been rendered otiose.2.That the interpretation propounded by the petitioners runs contrary to the constitutionally prescribed purposive mode of interpretation by negating the express purposes of articles 255, 256 and 257 of the Constitution.3.That the declarations sought by the petitioners seek to give impermissible meaning to the text of the Kenyan Constitution.4.That any comparative analysis of foreign jurisprudence cannot be used to either contradict or supplement the text of the Constitution of Kenya (a written Constitution).5.That the determination of the petitioners’ questions as to whether 'legal and judicial doctrines' of 'basic structure', 'eternity clauses', theories of 'constitutional entrenchment clauses' and 'unamendable constitutional provisions' are applicable in the Republic of Kenya in the absence of any current specific factual matrix upon which the questions are to be determined as presented by the petitioners in the present case does not meet the established legal threshold of justiciability on account of want of ripeness.6.That to the extent that the petitioners are seeking from the honourable court a determination of what the law would be upon a hypothetical state of facts the petitioners are for all intents and purposes invoking an advisory opinion jurisdiction which jurisdiction the honourable court does not have, the same being a preserve of the Supreme Court under article 163(6) of the Constitution.7.The petitioners are improperly seeking a judicial declaration on the invalidity of anticipated acts of the legislature or the populace in the absence of cases or controversies of the sort traditionally amenable to and resolved by the judicial process.8.That the petition is improperly entirely premised on comparative analysis of foreign jurisprudence.9.That the petitioners have not made out a case for the application of the doctrines' of ‘basic structure', 'eternity clauses', theories of 'constitutional entrenchment clauses' and ‘unamendable constitutional provisions to the constitution of Kenya through the technique of comparative method for the following reasons;i.The petitioners have fails to take into consideration the distinct and unique cultural, historical, developed constitutional norms and national identity of the Kenyan Constitution.ii.That the petition is entirely premised on the petitioners' arbitrary selection of jurisprudence from a few countries purely on the basis of the petitioners’ personal ideologies.iii.There is no consideration by the petitioners of the limitations on comparative jurisprudence; including lack of sufficient familiarity with the foreign legal systems cited, lack of familiarity with the social, cultural and institutional systems in which the cited decisions are embedded to warrant any confidence in the accuracy or utility of the actual comparisons.iv.That the petition is entirely premised on constitutional borrowing and transplanting of foreign constitutional norms, structures, doctrines, institutions without any evaluation of the dynamics between similarities and differences across the separate constitutional orders.v.That the comparative analysis upon which the petition is premised is not based on common or functionally equivalent concepts and institutions.10.That all related provisions of the Constitution of Kenya provide for absolute sovereignty of the people of Kenya contrary to the theories and doctrines propounded by the petitioners these include;The preamble to the Constitution which provides inter alia that; “Exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this constitution;"Article 1(1) of the Constitution provides that; all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.Article 1(2) of the Constitution provides that; “The people may exercise their sovereign power either directly or through their democratically elected representatives.'Article 255 (1) of the Constitution provides that;“A proposed amendment to this Constitution shall be enacted in accordance with article 256 of 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to any of the following matters: -a.The supremacy of this constitution;b.The territory of Kenya;c.The sovereignty of the people;d.The national values and principles of governance referred to in article 10(2) (a) to (d)e.The bill of rights;f.The term of office of the President;g.The independence of the Judiciary and the commissions and independent offices to which chapter fifteen applies;h.The functions of Parliament;i.The objects, principles and structure of devolved government; orj.The provisions of this chapter.11.That to the extent that the petitioners presume contents of future amendments to the content of the constitution without specifying the specific proposed amendments the same is speculative and non-justiciable.12.That to the extent that the petitioners rely on previous failed attempts at amending the constitution the same is non-justiciable on account of mootness.13.That the petition is without merit

26.The Honourable Attorney General opposes the petition on two broad grounds: First, he argues that the doctrine of basic structure and the corollary doctrines of constitutional unamendability and eternity clauses which the petitioners invoke are inapplicable in Kenya. Second, the Honourable Attorney General argues that the issues raised in the case are not justiciable.

27.On the first issue the Honourable Attorney General asserts that the petitioners have not made out a case for the application of the doctrine of basic structure and the corollary doctrines of constitutional unamendability and eternity clauses. The Honourable Attorney General argues that the petitioner’s argument fails to consider “the unique cultural, historical developed constitutional norms and national identity of the Kenyan Constitution.” He argues that the petition is based on arbitrary selection of jurisprudence and further that it fails “to consider the limitations on comparative jurisprudence.” The Honourable Attorney General argues that the entire petition is premised on constitutional borrowing and transplanting of foreign constitutional norms which have no relevance to Kenya since the borrowed concepts are not based on common or functionally equivalent concepts and institutions.

28.The Honourable Attorney General objected to the notion that the borrowed and transplanted doctrines can be used to overcome clear and express provisions of the Constitution allowing the people of Kenya to amend their Constitution enshrined in articles 255 to 257 of the Constitution.

29.In highlighting the Honourable Attorney General’s submissions, Mr Bitta submitted that the petitioners did not locate within the Constitution of Kenya the applicability of the basic structure doctrine and its corollary doctrines and which specific articles where a deduction can be made that the doctrine exists.

30.The Honourable Attorney General associated himself with the submissions of the Building Bridges to a United Kenya Taskforce National Secretariat on the issue of the basic structure doctrine, to wit, that the same is not applicable in Kenya. They relied on the principle set out in the Indian cases of AK Gopalan v the State (1950) SCR 88, 120 (50) A Sc 27 and Central Province case 1959 FC R 18 (39) AFC, which encouraged the application of the ut res magis valeat quam pareat doctrine.

31.It was also the Honourable Attorney General’s submission that the Timothy Njoya case, acknowledged the sovereignty of the people and that the position on the issue can no longer be inferred by the courts. In his understanding, the Timothy Njoya case held that people were free to change their governing charter in a referendum.

32.The Honourable Attorney General submitted that the Constitution must be interpreted purposefully and holistically. He cited the cases of Re Matter of the Interim Independent Electoral and Boundaries Commission [2011] eKLR, the Matter of the National Land Commission [2015] eKLR and the Matter of Kenya National Commission on Human Rights [2014] eKLR.

33.On the issue of justiciability, the Honourable Attorney General contends that the petitioners’ case is speculative to the extent that the petitioners presume the contents of future amendments to the Constitution, without specifying the specific proposed amendments they object to and to the extent that the petitioners merely base their arguments on previous failed attempts at amending the Constitution. He submitted that the petition as presented is based on hypothetical scenarios and is devoid of factual matrix that would support the invocation of the court’s jurisdiction. He relied on Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others [2016] eKLR, John Harun Mwau & 3 others v AG and 2 others, and Jesse Kamau & 25 others v Attorney General Misc Application 890 of 2004, Coalition for Reform and Democracy & 2 others v Republic of Kenya & another [2015] eKLR, Daniel Kaminja & 3 others (Suing as Westland Environment Caretaker Group) v County Government of Nairobi [2019] eKLR, Okiya Omtatah v Communication Authority of Kenya & 8 others [2018] eKLR where, the Honourable Attorney General said, the courts endorsed the doctrine of justiciability.

34.The Honourable Attorney General also objected to the written submissions of the petitioners because, he said, they traversed issues which were not originally in their pleadings. On the issue of parties being bound by their pleadings, the 1^st respondent relied on the cases of Law Society of Kenya v Inspector General of Police and others, Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] eKLR and DEN v PNN [2015] eKLR, where it was held that a suit and the issues therein must flow from the pleadings.

35.The 2^nd respondent is the Speaker of the National Assembly. The Speaker opposed the consolidated petitions through its grounds of opposition dated February 15, 2021. The grounds of opposition cover all the eight petitions. They are as follows:1.The petitioners' petitions are not justiciable for violating the doctrine of ripeness which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies.2.This petition is premature and/or speculative and deals with prospective anticipatory circumstances to the extent that it anticipates that the National Assembly will pass the Constitution of Kenya Amendment Bill which Bill is yet to be introduced in Parliament.3.The petitioners seek to second-guess how the National Assembly will exercise its mandate with respect to the enactment of the Constitution of Kenya Amendment Bill.4.The issues raised in the petition could be raised by the Petitioners before Parliament during the public participation exercise before Parliament under the Constitution of Kenya and the Standing Orders of the houses.5.Granting orders gagging the Parliament from debating the said Bill which is an exercise of legislative authority will amount to usurping the powers of the respondents.6.Additionally, the constitutional scheme contemplates that challenges to the constitutional validity of a bill must await the completion of the legislative process.7.Therefore, Parliament's functions and processes must be allowed to run through to completion before the jurisdiction of the courts can be properly invoked.8.In any case, chapter 16 of the Constitution and more particularly articles 255, 256 and 257 sets in very precise, clear and concise manner in which the Constitution can be amended.9.Under the doctrine of separation of powers & the principles enunciated by the Supreme Court of Kenya in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, this honourable court lacks jurisdiction to intervene during active Parliamentary proceedings.

36.The gist of their grounds of opposition and submissions is that the petitioner’s case is not justiciable since, he argues, it is based on “speculative future contingencies.” They cited Commission for the Implementation of Justice v National Assembly of Kenya & 2 others [2013] eKLR, Doctors for Life International v The Speaker of the National Assembly & others (2006) ZACC 11 and Robert N Gakuru & another v Governor Kiambu County & 3 others [2013] eKLR.

37.The Speaker of the National Assembly also argues that the Constitution of Kenya Amendment Bill is under consideration before Parliament and that, therefore, the court lacks jurisdiction to intervene in an active Parliamentary process. They rely on the decision of Supreme Court in Justus Kariuki Mate & another v Martin Nyaga Wambora G another [2017] eKLR to urge the court not to intervene when the matter is pending before Parliament. The Speaker argued that the doctrine of separation of powers requires a mutual respect between the arms of government and counselled that the court should not take up a matter that is still under consideration in the two houses. The Speaker also cited Pevans East Africa Limited and another v Chairman, Betting Control and Licensing Board 7 others [2018] eKLR in this regard.

38.In the written submissions filed and the oral highlights by Mr Kuiyoni, the Speaker of the National Assembly elaborated on his grounds of opposition. On the issue of Amendability of the Constitution, the 2^nd respondent submitted that from the provisions of articles 255, 256 and 257, every part of the Constitution is amendable and the power of the people to amend the Constitution is unlimited. Mr Kuiyoni cited Priscilla Ndululu Kivuitu & another (suing as the personal representative of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 others v Attorney General & 2 others [2015] eKLR where, he said, the court recognized the power of the people in amending any part of the Constitution.

39.The only limitation to the people’s power to amend the Constitution, Mr Kuiyoni said, was the failure to comply with the Constitution’s own procedure. He argued further that the granting of a special procedure to amend the current constitution was as a result of the framers’ foresight on the need for future amendment.

40.Turning to the substance of the petition, Mr Kuiyoni argued that the Constitution is a living document that needs to respond to new needs and changing societal demand. He urged the court not to grant the prayer seeking to declare certain parts of the Constitution unamendable because article 1 recognizes the sovereignty the people who have the unlimited power to decide how they want to be governed.

41.He further submitted that the framers of the Constitution saw the need for amendments and included article 255, which sets in clear terms how the Constitution can be amended. He insisted that all articles are amendable under article 255. He also referred to the two modes of amendment provided for, that is, parliamentary or popular initiative and urged the court to dismiss the petitions.

42.The 3^rd respondent (Speaker of the Senate) opposed the consolidated petitions and filed his grounds of opposition dated February 10, 2021 to all the consolidated petitions. The grounds of opposition cover all the eight petitions. They are as follows:

1.That the Constitution of Kenya grants the people of Kenya sovereign and an inalienable right to determine their form of governance.

2.That the Constitution recognizes the sovereignty of the people of Kenya and provides how they can either directly or through their democratically elected representatives. In exercising sovereign power, the people or their democratically elected representatives can amend the constitution.

3.That the Constitution and more particularly articles 255, 256 and 257 sets in very precise, clear and concise manner in which the Constitution can be amended.

4.That article 255 of the Constitution has already provided for matters that form the "basic structure" of the Constitution which can only be amended by the people exercising their sovereign right directly in a referendum.

5.That to the extent that the petitioners challenges the sovereign power of the people to amend certain chapters of the Constitution, the same is a challenge to the validity and legality of the Constitution contrary to the provisions of article 2(3) of the Constitution.

6.That the petitioners seek an opinion of the honorable court on theoretical questions and not triable legal issues to be addressed by this honorable court hence is frivolous, incompetent, vexatious, misconceived and an outright abuse of the court process.

7.That the petition does not disclose any right that is being infringed or threatened with infringement as to affect the petitioners.

8.That the petition challenges legislative proposals that Parliament considered but were not enacted into law and the mere introduction of Bills in Parliament does not prima facie constitute a violation of the Constitution and as such the petition herein is an academic exercise.

9.That the petition offends the principle of justiciability and hence premature and moot.

10.That the petition and orders sought are defective and the court has no jurisdiction to grant the orders as framed as this would amount to prior judicial restraint.

11.Based on the foregoing, this honourable court lacks jurisdiction to entertain the petition as drafted and ought to strike out the petition with costs to the 3^rd respondent.

43.It was the speaker’s contention that the Constitution of Kenya grants the people of Kenya sovereign and an inalienable right to determine their form of governance and provides for how they can amend the constitution either directly or through their democratically elected representatives.

44.The Speaker argued that the Constitution and more particularly articles 255, 256 and 257, are clear about the way the Constitution can be amended. That article 255 of the Constitution has already provided for matters that form the “basic structure” of the Constitution which can only be amended by the people exercising their sovereign right directly in a referendum.

45.It is also the Speaker’s case that the petition does not disclose any infringement or threat to any right, and that the mere introduction of Bills in Parliament does not prima facie constitute a violation of the Constitution. Consequently, the Speaker argues that the petition and orders sought are defective and the court has no jurisdiction to grant the orders as framed as this would amount to “prior judicial restraint.”

46.The BBI Secretariat together with Hon Raila Amollo Odinga filed a joint Statement of response to the consolidated petitions. The list the following consolidated grounds:1.That the petitions herein are a mere afterthought, an abuse of the court process and vexatious.2.That the petitions are merely speculative, generalized, hypothetical, and have not been pleaded with specificity and hence they offend the principles of pleading with precision as stipulated in the Anarita Karimi Njeru v Republic [1979] KLR 154 case.3.That the petitions are an abuse of the court process and an invitation for the honourable court to encroach on the legislative mandate of the National Assembly, the County Assemblies, and the Senate, and hence the same offends the doctrines and principles of separation of powers.4.That the issues raised in the petitions herein are res judicata and some offend the doctrine of sub judice hence the provisions of sections 6 and 7 of the Civil Procedure Act, as they have been heard and determined by courts of competent jurisdiction with finality and/or some are pending hearing and determination on merits before courts of competent and concurrent jurisdiction.5.That the petitions are founded on a misinterpretation and misapplication of the Constitution of Kenya, 2010 and various legislation.6.That the petitions herein are speculative and pre-emptive as they are an invitation for the honourable court to pre- empt the outcome of an intended legislative process and to encroach on the mandate of the National Assembly, the Senate and the various County Assemblies.7.That the petitions are a mere after thought and offend the political question doctrine, wherein the petitioners are merely inviting the honourable court to encroach and substitute the views of the Legislature, the Executive and the people of Kenya.8.That the petitions offend the provisions of sections 106 and 107 of the Evidence Act on the burden of proof as mere generalized assertions and allegations have been made without any such supporting evidence and hence the petitions are fundamentally defective.9.That no such harm and/or prejudice has been demonstrated in any of the petitions and none of the petitioners has adduced any such evidence of violation and/or contravention of the law to warrant the interference and involvement of this honourable court in the constitutional amendment process.10.That 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 herein in light of the fact that there have been several attempts to amend the constitution and none of the petitioners herein ever sought to challenge and/or impinge the said past processes including, the Okoa Kenya Movement and the Punguza Mzigo Initiative among others.

47.The BBI Secretariat and Hon Raila Amollo Odinga also filed an affidavit sworn by Dennis Waweru in response to Petition E282 of 2020. The same is dated February 5, 2021. He depones that the petitions are an abuse of the court process. That the issues raised in the petition lack justiciability since they are speculative and invite the court to read into non-existent provisions of the Constitution.

48.BBI Secretariat and Hon Raila Odinga allege that the petitions are an abuse of the court process and are vexatious because they are speculative and offend the principles of pleadings with precision as stipulated in Anarita Karimi Njeru v Republic [1979] eKLR.

49.They contend that petitioners are inviting the court to encroach on the legislative mandate of Parliament which offends the doctrine of separation of powers. That the issues raised in the petitions are res judicata while some offend the doctrine of sub judice.

50.It is their case that the petitions are founded in misinterpretation of the law and are speculative and preemptive. That they offend the political doctrine question and section 106 and 107 of the Evidence Act on a burden of proof as they are mere generalizations.

51.They contend further that the petitions have not demonstrated or adduced any evidence of violation or contravention of the law to warrant interference by the court in the constitutional amendment process and the petitioners are seeking to exercise their fundamental right to the detriment of the respondents. This they say is because the petitioners never challenged previous attempts at amending the Constitution.

52.They submitted that the doctrines of basic structure; unamendability and eternity clauses do not apply in Kenya. They faulted the petitioners for mixing up the concepts of basic structure doctrine, the concept of unamendability and eternal clause, which they argue must be distinguished.

53.They attributed the origin of the doctrine of basic structure to the Indian decision in Kesavananda Bharati Spiradagalvaru v State of Kerala. They pointed out that in the said case, the Supreme Court of India appreciated the uniqueness of the Indian Constitution and the applicability of the doctrine within the Indian context.

54.They enumerated the distinguishing factors for the Indian context and argued that a combined reading of article one, chapter sixteen and the decision in the Rev Timothy Njoya case, make it explicit that the doctrine is inapplicable in Kenya.

55.They also faulted the doctrine for lacking universal acceptance. They cited the Singaporean cases of Teo Soh Lung v Minister of Home Affairs (1989) 1SLR (R) 461 and Ravi s/o Madasamy v Attorney General, OS No 548 of 2017 and Summons Nos 2619 and 2710 of 2017, the Ugandan cases of Paul K Ssemogerere and others v Attorney General: Supreme Court Constitutional Appeal No 1 of 2002 and Male Mabirizi and others v Attorney General of Uganda (Constitutional Petition 49 of 2017 (Consolidated with Petition Nos 3, 5, 10 and 13 of 2018) (2018) UGCC 4 (26 July 2018), the Zambian case of Law Association of Zambia and another v Attorney General of the Republic of Zambia 2019/CCZ/0013, Malaysian case of Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, in and the Tanzanian case of Honourable Attorney General of Tanzania v Reverend Christopher Mitikila, Civil Appeal No 45 of 2009.

56.On the issue of eternity clauses, counsel for BBI and Hon Raila Odinga submitted that the eternity clauses are actual constitutional provisions made in the text of the country’s constitution. Counsel concluded that the principle of eternal clauses does not therefore apply in Kenya since the Constitution of Kenya does not contain eternal clauses.

57.On the concept of unamendability, counsel argued that the concept is an academic one, not supported by Kenyan Constitution. He relied on the Timothy Njoya case in which, he argued, the court affirmed the Indian case of Keshava Memon v State of Bombay. He claimed that the court warned against the use of the concept. He further argued that chapter 16 itself is a statement of amendability and that reservation of some matters for the people through a referendum acts as a safeguard.

58.In conclusion, they warned the court against allowing the prayers in Petition 282. According to them, it would amount to usurping the powers of article 255 and offending article 2(3) of the Constitution.

59.The amicus curiae, Kenya Human Rights Commission (KHRC) made both written and oral submissions. Their written submissions are dated March 15, 2021. The submissions were adopted by Kituo Cha Sheria, an interested party in the matter.

60.The KHRC sided with the petitioners on the applicability of the doctrines herein in Kenya reached the conclusion that there was an implied limitation on constitutional amendments.

61.They contended that the proposed constitutional amendments would alter pure presidential system in the 2010 Constitution as well as the basic structure of the executive, the concept of separation of powers, undermine the independence of independent commissions and threaten the devolved system of government.

62.The amicus curiae also supported the petitioner’s argument that chapters one, two, four , nine and ten form part of the basic structure of the Constitution, that cannot be amended under article 256 or 257 and that the BBI steering committee does not fall under the category of citizens’ initiative as such, it could not initiate a popular initiative.

63.The amicus curiae, therefore, concluded that that spirit and tenor of the Constitution ought to permeate the process of judicial interpretation as stated in the matter of the Interim Independent and Electoral Commission Constitutional Application No 2 of 2021. They proposed full implementation of the Constitution rather than an amendment

64.Duncan Oburu Ojwang, John Osogo Ambani, Linda Andisi Musumba and Jack Busalile Mwimali were also admitted as amici based on their expertise in Constitutional law. Their amici brief is dated September 11, 2020. In their brief, they offered to assist the court in adjudicating on the issues raised in the consolidated petitions.

65.They identified what they called “international legal standards of amendments of constitutions” by which, they said, Kenya is bound and which apply to this case. They also presented comparative jurisprudence and best practice in respect of the Constitution and standards such as public participation.

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

67.The amici also filed submissions to the consolidated petitions. The same is dated March 9, 2021. On the issue of the applicability of the legal and judicial doctrines herein, 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.

68.Ms Nyiguto made oral submissions on behalf of the amici, and reiterated the contents of their brief and written submissions. She urged the court to zealously protect the Constitution from what she called a “hyper-amendment culture” as had been in the past. She reiterated that doctrine of basic structure shielded all provisions that form the basic structure of the Constitution and not the specific chapters listed in the petition.

II. Petition No E397 of 2020

69.The petitioners in Petition No 397 of 2020, The Kenya National Union of Nurses, pleaded that following the establishment of the Steering Committee, and upon invitation to the public to submit memoranda by the Steering Committee, the petitioner duly submitted its proposal on four thematic areas, to wit: The establishment of an Independent Constitutional Health Service Commission; Recognition of Universal Health Care as a Human Right; Expansion of Free Basic Education; and the removal of the Salaries and Remuneration Commission. The petitioners’ proposal was contained in a detailed memorandum dated August 8, 2019 and submitted on the August 9, 2019 and the said proposals we in form of a Bill.

70.After hearing the petitioner together with other healthcare workers on the above pertinent issues, the Taskforce released a report in October, 2019 in which it fully captured the aspirations of the health care workers to the extent that it was extremely necessary to transfer the health sector personnel element from the County Governments to an Independent Health Service Commission to enable sharing of the very limited health experts. The meaning, tenor and effect of the said proposal, according to the petitioners, was that an Independent Health Service Commission could only be achieved by amending the relevant parts of the Constitution. Those amendments would encompass recognizing it as an independent constitutional body with the same status as other constitutional bodies for other professionals and careers such as the Parliamentary Service Commission, The Judicial Service Commission, the Teachers Service Commission and the National Police Service Commission. It was therefore the legitimate expectation of the petitioner and others within the health care profession and all Kenyans at large that their proposal and aspiration for an independent constitutional body that would be in charge of training, recruitment, deployment, transfers, and promotions so that health workers are not at the mercy of Governors would be achieved. Accordingly, the petitioners legitimately expected that the taskforce’s report of October 2019 would be fully captured in the subsequent report of October 2020 which would then lead into the Amendment Bill.

71.The petitioners lamented that contrary to the said legitimate expectations, the Steering Committee released a second report in October, 2020 in which it fundamentally altered the October, 2019 report and has now purported to limit the proposed Health Service Commission’s mandate to reviewing standards on the transfer of health workers, facilitation of resolution of disputes between employers and health workers and accreditation of health institutions through a proposed bill to amend the Health Act as opposed to a constitutional framework which would involve amending the Constitution of Kenya and specifically enlisting the Health Service Commission as an independent body outside the scope and powers of the Public Service Commission. The proposed statutory framework, it was contended, is glaringly weak, reducing the commission to a mere advisory panel as opposed to a strong independent and constitutional body.

72.The petitioners faulted the justification by the Steering Committee in doing so based on purported receipt of divergent views, stating that the decision to remove the proposal to institutionalize an Independent Constitutional Health Service Commission is unreasonable, unlawful and procedurally unfair in blatant breach of article 47 of the Constitution of Kenya as read with section 4 of the Fair Administrative Action Act. In their view, the inclusion of these spurious allegations of opposition in the final report was intended to deny their proposals and water them down from a constitutional amendment into an amendment of an Act of Parliament. Accordingly, the self-serving referendum proposed by the principals who set up the Steering Committee ought not to be permitted to stand in the way of real reforms and that it is only just, reasonable and fair that the whole referendum exercise under chapter 16 of the Constitution be stopped until the documents proposed for referendum are legalized. If not, the whole process now being undertaken will consummate an unconstitutional illegality by the Steering Committee.

73.It was argued that by not giving any attention to the proposal, the Steering Committee’s action was an unfair administrative neglect of duty and abuse of powers and that to ignore the proposals of the petitioner and go only with a few proposals would be a great waste of state resources.

74.In support of their case, the petitioners relied on Coughlan & Ors, R (on the application of) v North & East Devon Health Authority [1999] EWCA Civ 1871, para 61 to 82, Republic v Kenya Revenue Authority Ex Parte Cooper K-Brands Limited [2016] eKLR, Kenya Revenue Authority v Universal Corporation Ltd [2020] eKLR and argued its aspirations and wishes together with those of the health care fraternity ought to have been captured through the proposed Constitution of Kenya (Amendment Bill), 2020 and not through the Health (Amendment) Bill, 2020. They also relied on Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR and argued that the decision is blatantly discriminatory and a direct affront to article 27(1), (2), (3), (4), and (5) of the Constitution and also in breach of national values and principles of governance. Further, the decision to remove their proposals were Wednesbury unreasonable and the legitimate expectations of health care workers to have an independent commission were shattered and as such discriminatory under article 27 of the Constitution.

75.The petitioners therefore sought the following orders:a.A declaration that the decision of the 1^st and 2^nd respondents to omit the petitioner’s proposal for an Independent and Constitutional Health Service Commission from the October, 2020 report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report offends articles 10, 27(1), 27(2), 27(4), 27(5),27(6), 27(8), 41(1),(2),43(1)(2) and 47(1) of the Constitution.b.The 1^st and 2^nd respondents be compelled to publish a fresh Constitution (Amendment) Bill inclusive of the petitioner’s proposal for an Independent Health Service Commission.c.That the 3^rd respondent be directed to stop the process towards any referendum including receiving the signatures, verifying the same, and/or doing any act towards actualizing the process of realizing a referendum and/or from submitting the draft Bill to each County Assembly for consideration until the 1^st and 2^nd respondent publishes the constitutional Bill including the petitioner’s proposals.d.This honourable court be pleased to issue an order permanently restraining the 4^th and 5^th respondents from receiving copies of the impugned draft bill from the County Assemblies and/or from receiving certificates approving the draft bill that emanate therefrom and/or from discussing, and/or deliberating and/or voting on the same on the floor of the respective Houses in any way or at all.e.Costs of the petition.

76.The petition was opposed by the BBI Steering Committee, which took the view that the petition herein is a mere invitation by the petitioner for the court to usurp the role of Parliament and County Assemblies and substitute their views with that of the petitioner on what they want and their preferred selfish private interests. It was averred that whereas the Building Bridges Taskforce collected various divergent views on several issues, not all such views could be incorporated and/or accommodated. This is so because the amendment of the Constitution by popular initiative is one of the processes under which a person and/or an institution may amend the Constitution and as such, it choses what to include and what not to include. Being a voluntary process, a party cannot force its views and/or opinion to be included in any such popular initiative.

77.To the BBI Steering Committee, by submitting views to the BBI Taskforce, there was no such legitimate expectation created and/or promise made to the petitioners as alleged in the petition. This court was urged to invoke the doctrine of avoidance as the issues raised by the petitioners are mere political and policy questions which do not fall within the ambit of the court. According to the BBI Steering Committee, the proposed constitutional amendment is not a wide open-ended amendment to cure all such issues as proposed by the petitioners and it is not within the mandate of the Building Bridges Initiative to do so. Further, the petitioners have not exhausted all such remedies available to them and in any event, it can always petition Parliament for any such legislative changes they seek. In the BBI Secretariat’s view, the petitioners did not make out a case to warrant the grant of the orders herein and/ or the intervention by the court.

78.While conceding that the petitioners indeed appeared and submitted their views to the BBI Taskforce and made suggestions that there be established an independent constitutional health service commission, it was noted that the substratum of the petition is based on the contents of the BBI Report and the report of October, 2020 by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce report. From the Report, it was contended the petitioners’ views were duly considered by the Taskforce and Steering Committee as indicated in the Steering Committee’s report, and the Committee concluded that there was need to set up a Health Service ‘Commission and provision thereof was made in the report. The only difference in the report and the petitioner’s argument is that the petitioners want the Commission established directly under the Constitution which is unnecessary since under article 59(5) of the Constitution of Kenya, 2010, one can by statute establish Commissions that have the same powers equivalent to constitutional Commissions.

79.As regards the allegations of violation of articles 10, 27 and 47 of the Constitution, it was the Steering Committee’s position that the Petitioners have not pleaded with precision and or adduced any such evidence in support of the allegations therein. It was contended that prayers [A] and [B] in this petition are an invitation by the petitioner for this honourable court to take over the constitutional amendment process pursuant to article 257 while prayers [C] and [D] in this petition have been overtaken by events and are therefore moot.

80.The Steering Committee submitted that in respect to the conduct of a popular initiative pursuant to article 257 of the Constitution of Kenya, 2010, the promoters of the Bill are under no obligation to capture the views of nobody else other than those supporting the initiative. The constitutional recourse for petitioners if they feel that the proposal is unpopular, is either to lobby County Assemblies, the National Assembly and the Senate to reject the same or mobilize its membership to reject the same during the referendum and that the petitioners cannot use the court to fulfil for them their civic obligations. It was submitted that pursuant to article 257 (5) and (7) of the Constitution, the County Assemblies and Parliament do not have the powers to alter and or improve the contents of the Constitution Amendment Bill so as to incorporate divergent views raised through public participation. Since Bill did not originate from the County Assembly but from a promoter, the Counties cannot therefore hijack the process and take over such a Bill since by purporting to do so, the Bill would lose its meaning within the meaning of a popular initiative amendment. In any event, it would be a travesty if all County Assemblies would amend any such Bills hence there would be 47 amended Bills leading to lack of clarity as to which one of them would go to Parliament for consideration.

81.Accordingly, if County Assemblies would amend, then it would also mean that even Parliament and the senate would amend and hence the final Bill to be subjected to a referendum would not be the same Bill that was submitted to the IEBC by a promoter.

82.In support of the submission that there is lack of precision, the Steering Committee relied on Anarita Karimi Njeru v The Republic (1976-80) 1 KLR 1283 and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, and contended that the court ought to have downed its tools once it found that the case was not pleaded with sufficient precision.

83.This petition was similarly opposed by the Attorney General based on the following grounds:1.That the mere fact that the petitioner’s particular views did not prevail in the 1^st respondent’s report does not justify the invalidation of the 1^st respondent’s report.2.That there is no legal duty imposed upon the respondents to unreservedly accept all proposals received through public participation.3.That the issuance of the orders sought would constitute unlawful usurpation of the respondents discretion.4.That the petition does not evince how the petitioner’s rights under article 27(1), (2), (4), (5), (6), (8), 41(1), (2), 43(1) (2) and 47(1) of the Constitution was infringed.5.The 1^st respondent’s action did not in any way impair the petitioner’s right to initiate and promote its proposal for an Independent Health Services Commission.6.The respondents cannot be compelled to publish a Constitution of Kenya Amendment Bill with particular content as that would amount to directing the respondents to exercise discretion in a particular manner.7.The respondents cannot be compelled to publish a fresh constitutional bill including the petitioners proposal as there is no legal duty imposed upon the respondents to publish a constitutional bill in the first instance.8.That the provisions of article 257(5) of the Constitution confers upon the Independent Electoral and Boundaries Commission the responsibility to determine in the first instance whether a proposed amendment of the constitution by way of popular initiative has met the requirements of article 257 before submitting the draft Bill to each County Assembly for consideration.9.That the honourable court lacks the jurisdiction to impose upon a promoter of a Constitution of Kenya Amendment Bill the contents of such a bill.10.That under the constitution of Kenya the power to determine the merits or demerits of the contents of a proposed constitution amendment bill is reposed upon legislative assemblies and the Kenyan voter.11.That the petition is without merit.

84.It was submitted by the Honourable Attorney General that petitioners’ claim is premised on a mis-appreciation of the law on public participation as it is erroneously premised that all views of participants in a public fora or in a pre-legislative process must be incorporated into a draft Bill. In support of this position the Attorney General relied on Republic v County Government of Kiambu Ex Parte Robert Gakuru & another [2016] eKLR and British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] eKLR.

85.It was the Attorney General’s submission that to the extent that the entire petition is premised on the one ground that the petitioner’s views were not ultimately expressed in the draft constitutional Bill and not on the basis that there was no public participation, the same is without merit and ought to be dismissed. According to him, the provisions of article 257 allow any person to propose an amendment to the constitution through a popular initiative, the same article provides that it is the promoter of the popular initiative who shall formulate it into a draft Bill and in the instance case, the petitioners are not the promoters of the popular initiative and that further, the fact that there is a proposed amendment of the Constitution does not in any way prevent the petitioners from initiating their own popular initiative to amend the Constitution to include their proposal. The Attorney General further submitted that there is no constitutional or statutory provision of the law that compels the promoters of the ongoing popular initiative process to include the petitioners’ proposal in the manner that they are desirous of and would be amiss if it were the court to issue the injunctive orders sought in the absence of a legal duty imposed upon the respondents by express provision of law.

86.The Attorney General argued that the order sought against it are essentially judicial review orders of mandamus and prohibition and submitted that they don’t meet the criteria for issuance of such orders. Based on the decisions in Republic v County Secretary - Nairobi City County & another Ex Parte Tom Ojienda & Associates [2019] eKLR, Apotex Inc v Canada Attorney General 1993 Can LII 3004 (FCA), [1994] 1 FC 742 (CA), aff'd 1994 CanLII 47 (SCC), [1994] 3 SCR 1100 and Dragan v Canada (Minister of Citizenship and Immigration) 2003 FCT 211 (CanLII), [2003] 4 FC 189 (TD), aff’d 2003 FCA 233 (CanLII), 2003 FCA 233). Based on Manyasi v Gicheru & 3 others [2009] KLR 687, it was contended that the promoters of a popular initiative Constitution of Kenya Amendment Bill have the discretion to determine what to include in their proposed Bill and that the court cannot compel them to exercise their discretion in a particular manner as proposed by the petitioners.

87.Regarding the allegation of breach of the petitioners’ legitimate expectation, the Attorney General submitted that the petitioner had not established the basis of such expectation and reliance was placed on Communication Commission of Kenya v Royal Media Services Ltd & 5 others [2014] eKLR, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 [2002] 1 WLR 237 and De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6^th Edn Sweet & Maxwell page 609.

88.In this case it was the Attorney General’s submissions that no express promise has been demonstrated to a have been made to the petitioners and secondly, there is no evidence that the promoters of the Constitution of Kenya Amendment Bill have acted unlawfully in relation to any commitments given to the petitioners.

89.It was noted by the Attorney General that some of the reliefs sought have been overtaken by events and there is no merit in issuance of the same. In sum, 2^nd respondent contended that the instant petition is devoid of merit and ought to be dismissed with costs.

90.The Independent Electoral and Boundaries Commission (the IEBC) similarly opposed the petition. According to it the petition has been overtaken by events to the extent that it challenges a process of a constitutional character which have already taken place. Having forwarded the Constitution of Kenya Amendment Bill, to the respective county assemblies vide their letter dated January 26, 2021, by which time there were no orders barring it from doing so, prayers being sought against it are moot.

91.It was the IEBC’s position that it complied with the verification and conformity mandate and the referendum mandate as enshrined in the Constitution and urged this court to permit continuation of the activities carried out by the Steering Committee and relied on Samson Owimba Ojiayo v Independent Electoral and Boundaries Commission (IEBC) & another [2013] eKLR as well as Diana Kethi Kilonzo & another v Independent Electoral and Boundaries Commission & 10 others [2013] eKLR, Titus Alila & 2 others (suing on their own behalf and as Registered Officials of the Sumawe Youth Group) v Attorney General & another [2019] eKLR.

92.The National Assembly and the Senate substantially adopted the positions taken by the foregoing respondents.

III. Petition No E400 of 2020

93.According to the petitioners in Petition No E400 of 2020, there are several proposed amendments on a raft of issues that the impugned Constitution Amendment Bill seeks to amend. In their view, the hurried and rushed launch of the signature collection prior to availing the said Bill to the public for them to study, internalize and understand in details what issues are proposed to be amended is a clear attempt to subvert the people’s free will to exercise their sovereign power since there is a likelihood of the public making uninformed choices over such an important exercise. It was contended that a deliberate failure by the state to undertake thorough civic education prior to the collection of signatures in support of the impugned Bill is a blatant compromise on the people’s ability to exercise free will which is a violation of national values and principles of good governance as espoused under article 10 of the Constitution. To the petitioners, the public have a right to abundantly understand the issues proposed for amendment and fully participate in matters affecting their governance hence the need to be meaningfully consulted in policy making as opposed to them being coerced using state machinery into embracing a constitutional amendment process.

94.It was averred that the process of endorsement of the Amendment Bill and the collection of signatures thereof is being championed, campaigned for and pushed by the National and the County Governments as well as other state and public officers acting in their official capacities using public resources to finance, marshal and mobilize support for the said Amendment Bill.

95.It is contended that the BBI process that has resulted in introducing the Amendment Bill that was not flagged by the citizens of Kenya and the petitioners took issue with the role of the Government and other state and public officers in matters constitutional amendment within the auspices of article 255, 256 and 257 of the Constitution. According to them, the BBI process was informed by ulterior motives where the political class usurped the sovereign power of the citizens of Kenya. This was informed by the fact that the object of BBI as spelt out in the terms of reference set out in the Gazette Notice Number 5154 dated May 24, 2018 did not foresee a proposal for amendment of the Constitution. Accordingly, the turn of events in the second appointment of the Steering Committee was an afterthought and a clandestine process to hoodwink Kenyans.

96.Since the recommendation of the BBI Taskforce was in form of an advice to the President, the attempt to formulate constitutional amendment were and are a derogation from its mandate and scope hence the subsequent process of validation of the initial report, formulation and publication of the Amendment Bill is unconstitutional.

97.The petitioners are aggrieved that the said BBI process was made in total disregard of the national values and principles and in particular, without granting members of the public and/or relevant stakeholders their constitutionally guaranteed opportunity to contribute to the said decision. In their view, the BBI-prompted amendment of the Constitution violates the sovereignty of the people safeguarded under article 1 of the Constitution.

98.In this petition, this court is being invited to make a determination whether the state, through a government sponsored initiative, for purposes of a constitutional amendment can purport to directly exercise sovereign power by virtue of article 1 of the Constitution. To the petitioners, the BBI process violates the spirit of article 256 and 257 of the Constitution which are the two avenues prescribed in article 255 by which the constitutional amendment can be initiated. In the petitioner’s view, a parliamentary initiative as envisaged under article 256 is a constitutional amendment process where sovereign power of the people is exercised indirectly through the people’s democratically elected representatives via Parliament as the legislative arm of Government. On the other hand, a popular Initiative as envisaged under article 257 is peoples –driven constitutional amendment process devoid of the political class where sovereign power of the people is exercised directly. In this case, the BBI-initiated constitutional amendment process falls in neither of the two processes as the same was not prompted by Parliament nor Wanjiku and as such the process derogates from the set out constitutional principles and procedure.

99.The BBI, it is further contended, having been initiated by the President (an elected representative of the people) violates the sovereign right of the people of Kenya to exercise power directly by proposing an amendment to the constitution that is disguised as a popular initiative when it is not. It was contended that an amendment of the Constitution by a popular initiative as envisaged in article 257 must originate from the electorate devoid of influence of any representative. In this case, the Steering Committee’s recommendation was in form of an advice to the President and any attempt to formulate a constitutional amendment were and are a derogation from its mandate and scope as their operations were not sanctioned by the people of Kenya. This, it is submitted, demonstrates that Kenyans were induced and/or coerced to endorse a document that they were not aware of and that what was availed to the public were signature booklets and not the physical copies of the Bill.

100.It follows, according to the petitioners, that the Steering Committee’s involvement in drafting the impugned Constitution of Kenya Amendment Bill was beyond its scope as it lacked capacity since its operations were not sanctioned by the sovereign will of the people of Kenya in violation of articles 1(1) and 157 of the. It was the petitioners’ position that elected representatives of the people of Kenya, led by the President have usurped the sovereign power of the people of Kenya by pushing a constitutional amendment in a manner devoid of the principles laid down in the Constitution. In support of their submissions the petitioners relied on Katiba Institute & another v Attorney General & another [2017] eKLR and Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR and submitted that, by allowing a process devoid of adherence to the constitutional provisions, the President has violated article 3 of the Constitution and as such he has failed in his duty to preserve, protect and defend the Constitution.

101.In the petitioners’ view, the power to amend the Constitution through a popular initiative must be exercised directly and not by anyone on behalf of the people. In this case, it was submitted, there is evidence showing that BBI is neither a parliamentary nor popular initiative but it is an idea conceived by the President, an elected representative of the people who cannot exercise legislative power for or on behalf of the people. According to the petitioners, the only instance that the people have reserved legislative authority is on matters of amending the Constitution and that under article 257 of the Constitution the legislature only plays a ceremonial role.

102.Citing the manner in which the Amendment Bill was passed in some counties such as Siaya, the petitioners questioned the speed at which the County Assemblies passed the Bill and contended that the process is quite clandestine in nature and if not declared unconstitutional, the provisions will become unchallengeable law as provided under article 2 of the Constitution.

103.It was submitted that owing to the fact that the President has an oversight role on Parliament, he cannot initiate a process leading to drafting of Bills including the impugned Constitution of Kenya Amendment Bill. In this regard the petitioners relied on Doctors for Life International v Speaker of the National Assembly and others and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10; others [2015] eKLR.

104.According to the petitioners, under the third schedule to the Constitution, the President took an oath and solemn affirmation of allegiance to, inter alia, obey, preserve, protect and defend the Constitution and all other laws of the Republic and to protect and uphold the sovereignty, integrity and dignity of the people of Kenya. That oath, it was asserted, prohibits him from being involved in a process of altering the current state of the Constitution. This argument is based on the fact that the ordinary English meaning of the word “preserve” is to maintain something in its original or existing state.

105.It was contended that the Bill contravenes article 257 of the Constitution in that it is the initiative of the holder of Presidency who is the head of state and government, therefore lacking in form and structure that befits a popular initiative. Having not originated from Parliament, as neither of the two houses’ initiated the process, the Bill is devoid of constitutional backing stipulated under article 257 of the Constitution and that this was admitted by the President on the November 25, 2020, during the launch of the Bill where he disclosed that the BBI process culminated from talks between two people with the purpose to stabilize the country and find peace. In the circumstances, the drafting of the Bill, the publication, the launching and distribution and the roll out of signature collection is unconstitutional.

106.It was opined by the petitioners that by dint of article 257 (5) and (7) the term “consideration” and “approve” herein provides room to County Assemblies to alter and or improve the contents of a Constitution of Kenya Amendment Bill so as to incorporate divergent views as is always the case in a proper legislative process. In their opinion, the Constitution cannot have envisaged the term approve to mean a blanket acceptance or rejection of the bill as that would claw- back the legislative role of County Assemblies and Parliament.

107.It was further contended that by dint of article 257(10), the IEBC is constitutionally required to submit to the people all the proposed amendments as distinct and separate referendum questions so that the people can exercise their free will to approve or reject specific proposals to the amendment as opposed to a mere “Yes” or “No” questions to the entire amendment bill. In their view, a mere “Yes” or “No” to the entire Amendment Bill violates the peoples exercise of free will in that it hinders the voter from making a choice between a good amendment proposal from a bad one since the good proposals could be rejected with the bad proposals and vice versa.

108.It was submitted that in the spirit of the Constitution where there are several amendments, as in this case where the impugned Bill has more than 18 amendments touching on different clauses of the Constitution, the IEBC is obliged to formulate several referendum questions as envisaged under section 49 in the Election Act, so as to give a chance to the people of Kenya to choose which of each proposed amendment they would vote in support of or against.

109.This argument was partly based on the fact that a referendum being a costly affair which will cost the taxpayer billions of shillings, the exercise should be undertaken in strict conformity with principles of Public Finance which, under article 201(d), dictates that public money shall be used in a prudent and responsible way. If the people are given an opportunity to approve specific proposals to the amendments that are acceptable to them and at the same time being afforded a chance to reject the unacceptable ones, no money shall have been used in an imprudent manner as is likely to be case where there is a “No” vote to the entire bill on account of a few proposals that are unacceptable.

110.The petitioners also aver that the amendment of the Constitution process ought to be guided by legislation right from the drafting of the amendment bill, to the collection and verification of signatures all the way to presentation of the bill to County assemblies as well as Parliament and up to the referendum stage. However, there is no national law on referendum that is to guide on collection, receiving, verification and approval of signatures by IEBC as well as the manner of forwarding and debating of the Amendment Bill by the County Assemblies and Parliament.

111.It was submitted that the IEBC lacks capacity, to receive, verify and approve signatures of the alleged Kenyan voters who endorsed the impugned bill and that Kenyans were not given reasonable time to process the over one thousand paged document, only accessible on the website. Further, it was contended that the County Assemblies, are barred by the Constitution from debating a document whose purpose is to amend the Constitution when the said document is null ab initio for failing to meet the provisions of the Constitution. According to the petitioners, the County Assemblies acted ultra vires article 10 of the Constitution, as majority of the County Assemblies did not carry out public participation and reliance was placed on Doctors for Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) and Robert N Gakuru & others v Governor Kiambu County & 3 others [2014] eKLR.

112.Before us, it was submitted that neither Parliament nor County Assemblies have had guiding principles on how to conduct their business while debating a Bill of great magnitude as an amendment to the Constitution and reliance was placed on Republic v County Assembly of Kirinyaga & anor Ex-Parte Kenda Muriuki & anor [2019] eKLR, and Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR.

113.In addition, since IEBC does not have specimen signatures of the registered voters in Kenya to warrant a comparison for verification and approval of the signatures collected, any attempt to carry out verification is unlawful and/or illegal. To the petitioners, IEBC ought to demonstrate that it has laid down procedures and mechanisms for signature verification and whether Kenyans shall be accorded opportunity to confirm that they wilfully endorsed the Amendment Bill and whether the citizens of Kenya have been accorded an opportunity to understand the amendments being prompted in the Amendment Bill.

114.In the petitioner’s view, the IEBC has made it clear that it is running away from its constitutional duty to verify that the bill was supported by more than 1 million voters and that verification must connote and include the need to check if the persons named in the list are genuine. They proposed that the provisions under article 8 on the duty of IEBC in elections and referenda should also be employed in article 257 because it is a higher duty. This therefore means that verification must include going beyond the names presented. The petitioners noted the admission by the IEBC that the last time they updated their register was during the Kibra by elections making it obvious that there is a room for malpractice. Since anyone can come up with 1 million names, the IEBC should be not just be satisfied as long as those 1 million names are voters. According to the petitioners, whereas article 86 requires IEBC to put in place systems to eliminate electoral malpractice, it admitted that there is no legal framework on the same.

115.The petitioners lamented that there are no measurements in place on the part of the respondents to ensure that the proposed amendments contained in the Amendment Bill shall be the same proposed amendments that will be subjected to Kenyans through referendum.

116.Similar issues were raised by the petitioners in Petition No 401 of 2020, No 416 of 2020 and No 426 of 2020. According to the petitioners in Petition No 401 of 2020, the launch of the drive to collect signatures is without authority under the Constitution or any other law. Since a government entity exercises a delegated power, it can only exercise its authority in accordance with the Constitution whose edict does not expressly place the duty to pursue or initiate any amendment to the Constitution on the National Executive or any state organ, but on Parliament. The National Executive may therefore only initiate constitutional amendment by petitioning Parliament, in accordance with the Constitution, the National Assembly and Senate Standing Orders. However, since the National Executive or any of its agents is not a person in the context and meaning of a promoter of a popular initiative as envisaged under the Constitution, the process of signature collection is a violation of the Constitution the potential use of public resources to promote a constitutional amendment initiative under the popular initiative is unconstitutional and amounts to abuse of power, violates the constitutional principles on public finance, and leadership and integrity.

117.As for the petitioner in Petition 426 of 2020, it was his case that whereas the BBI Taskforce, which in his opinion was established under the spirit of article 131(1)(e) and (2)(c) of the Constitution did not include proposing constitutional changes, its latter reincarnation, the Steering Committee, whose terms of reference included proposing constitutional changes, had no constitutional or other legal authority for its establishment. Since it was established by the 1^st respondent, vide Gazette Notice No 264 dated January 3, 2020, the Steering Committee’s said proposed constitutional amendment is neither by parliamentary initiative, pursuant to article 256, nor is it by popular initiative, pursuant to article 257. This according to him is because under the parliamentary initiative, the President has no authority or role whatsoever prior to presentation by the Speakers of Parliament of an enacted Bill on constitutional change to him for assent since a parliamentary initiative for constitutional change originates with Parliament. Likewise, a popular initiative for constitutional change, as envisaged in article 257, originates with the populace outside the structures of the state. It does not originate with a state organ, whether Parliament, the executives at both national and county levels, the Judiciary, county assemblies or even constitutional commissions or independent constitutional offices.

118.The petitioner noted that the attempt by the Steering Committee to convert an illegal Presidential constitutional change initiative into a popular initiative, pursuant to article 257, falls woefully short of the requirements of article 257 constitutional change by popular initiative. Therefore, the Steering Committee’s promoted constitutional amendment is not a constitutional change by popular initiative, but a purported constitutional change unlawfully initiated by the Steering Committee masquerading as a popular initiative under the provisions of article 257. However, it was contended that a closer look at Steering Committee’s constitutional change process shows that it is indeed an attempt to usurp the role of Parliament in the constitutional change process contrary to article 256(2)21 of the Constitution.

119.Regarding Petition No 451 of 2018 alluded to by the respondents as raising similar issues, the Petitioners contended that the said petition is purely challenging the establishment of the defunct Building Bridges Initiative to a united Kenya Taskforce and has nothing to do with the amendment of the Constitution of Kenya 2010 and that the respondents have not shown any nexus between the two petitions. On whether an opportunity for verification of the signatures was afforded by the Independent Electoral and Boundaries Commission, it was deposed that on Thursday, January 21, 2021, the IEBC released what they called an interim verified list of BBI supporters asking members of the public whose endorsement of the said BBI might have been captured without their consent to report to it latest 5pm on Monday January 25, 2021 thus only giving the said process a weekend to peruse through the 1.2 million signatures. Three days later the 3^rd respondent, issued a press statement confirming that they were satisfied that the Amendment Bill had met the requisite threshold having been supported by 1,140,845 registered voters and that they had already submitted the draft bill to each of the 47 County Assemblies for consideration.

120.It was averred that the acts of demanding for incentives by the MCAs and the act of ceding to the said demands by the government is a blatant breach of article 10 of the Constitution on national values and principles of governance.

121.Regarding the issue whether the court can grant the reliefs prayed the petitioners cited the cases of Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR, Doctors for Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11 and Institute of Social Accountability & another v National Assembly & 4 others High Court Petition No 71 of 2014 [2015] eKLR and urged the court to consider the supremacy of the Constitution as envisaged in article 2 of the Constitution and also be alive to the provisions of the preamble of the Constitution that, inter alia, the people of Kenya in enacting the Constitution, exercised their sovereign and inalienable right to determine the form of governance of the country.

122.In opposition to the petition, the BBI Steering Committee and the BBI Secretariat averred that the BBI Steering Committee was created and mandated with the task of initiating constitutional amendment process.

123.It was their view that the petitioners have not pleaded with precision and have failed to specify the nature of the infringement and the alleged values and principles infringed, if any. Further, they have failed to adduce any evidence in support of their allegations and that their petition is fundamentally defective as the evidence therein consists of newspaper cuttings, documents whose source cannot be authenticated or vouched for and illegally obtained letters and communication to which the petitioners are not party to. According to them, evidence obtained in a way that violates any right to fundamental freedom as envisioned under article 50(4) of the Constitution shall be excluded if admission of the same would render the trial unfair or would otherwise be detrimental to the administration of justice.

124.In support of the challenge to the authenticity of the annexed documents reliance was placed on the case of National Super Alliance v The Independent Electoral and Boundaries Commission and others, NAI High Court JR No 378 of 2017 and the Court of Appeal case of IEBC v National Super Alliance (NASA) Kenya & 6 others, Civil Appeal 224 of 2017.

125.It was averred that the petitioners through Nairobi High Court Petition No 451 of 2018, Thirdway Alliance Kenya v Attorney General and others attempted to challenge the establishment of the Building Bridges Initiative to United Kenya Taskforce but the same was dismissed which dismissal was never challenged or appealed against. According to them, no evidence and/or complaints have been received or lodged in support of the allegations that the Taskforce rushed to collect signatures.

126.According to them, no evidence has been adduced to prove the assertions that the Amendment is being championed by the National and County Governments or any state or public officers using public resources. In their view, petitioners having failed to submit their views to the taskforce cannot be heard to complain that there was no adequate public participation, particularly, as there is no specific complaint by “Wanjiku” of being locked out from participating in the process.

127.Having misconstrued the provision of articles 255 to 257, the petitioners, according to the said respondents, cannot purport to impose a pre-condition that a constitutional amendment process by popular initiative is a preserve of specific persons. In their view, chapter sixteen of the Constitution of Kenya, 2010 does not in any way specify who may move a constitutional amendment process by popular initiative and that the Constitution grants the State the responsibility to undertake any such measures to fulfil its function. According to the them, most of the previous constitutional amendment processes have been initiated and sponsored by the State and that the Constitution under various provisions and mandates requires and/or demands for the State to take legislative and other measures to ensure the achievement of certain constitutional objective for instance articles 21(2), 27(8) and 55 among others.

128.The petitioners were faulted for adopting a narrow approach wherein they seek to advance their selfish interest in a parallel process through their attempts to amend the Constitution through the Punguza Mzigo Bill, 2020. Since the Constitution provides a broad and self- executing process in regard to the amendment of the Constitution by popular initiative, it was averred that the petitioners cannot purport to impose and/ or introduce new terms and /or pre-conditions not expressly stipulated under article 257 of the Constitution. Further, no evidence had been adduced to support the allegations on the use of billions of shillings.

129.Contrary to the assertions of lack of legal framework, the said respondents’ position was that there exist various laws and regulations to govern such referenda in Kenya and that over the years the IEBC has conducted and engaged in similar exercise. It was disclosed that the IEBC put in place mechanisms for signature verification and that it invited members of the public to verify and confirm as evidenced by the public notice issued in that regard.

130.In the said respondents’ view, this petition is a mere invitation for the court to encroach on the legislative mandate of the National Assembly, the Senate and the County Assemblies. Since the Senate, National Assembly and the County Assemblies were yet to receive, debate and deliberate on the Amendment Bill, and thereafter approve or reject it, is their view was that the petitioners have prematurely invoked the jurisdiction of this court.

131.It was submitted that the BBI Secretariat is a voluntary political alliance that can only be judged under chapter sixteen of the Constitution and that it is on record that at least one million signatures were collected and there is no suggestion that the process did not conform to the requirements of chapter sixteen of the Constitution. It was also submitted that the court cannot substitute the IEBC’s opinion that the process commenced was a popular initiative.

132.According to them, the absence of a legislative framework is not fatal for the Amendment Bill since there is no suggestion that the provisions of chapter sixteen of the Constitution of Kenya are inadequate and the Constitution itself does not require any special legislation to be enacted for purposes of implementing chapter sixteen. It was further submitted that once the Bill has been approved by at least 24 counties and at least one of the Houses of Parliament, the Commission cannot be barred from conducting a referendum based on the findings in the case of Titus Alila & 2 others (suing on their own behalf and as Registered Officials of the Sumawe Youth Group) v Attorney General & another [2019] eKLR.

133.Regarding the contention that the Steering Committee is an unlawful entity, it was submitted that this matter is awaiting determination before the court in the case of Kakamega High Court Petition No 12 of 2020 (Formerly Nairobi High Court Petition) Okiya Omtata v Attorney General & another and that it is distinct from the BBI National Secretariat which is a promoter of the Amendment Bill.

134.As regards public participation in the constitutional amendment process it was submitted that the draft proposed Constitution of Kenya Amendment Bill, The Building Bridges to a United Kenya Taskforce Report October, 2020 and The Building Bridges to a United Kenya from a Nation of Blood Ties to a Nation of Ideas-A Report by the Presidential Taskforce on Building Bridges to Unity, Advisory 2019, are a product of a wide comprehensive and broad consultative engagement and public involvement all over Kenya, which process entailed voluntary nationwide public participation. Reliance was placed on Republic v County Assembly of Kirinyaga & another Ex parte Kenda Muriuki & another [2019] eKLR for the position that the effect of the lack of public participation can only be determined upon the conclusion of the process envisaged in article 257 of the Constitution.

135.According to the BBI Steering Committee and the BBI Secretariat, there cannot be an omnibus challenge on the issue of public participation as each County Assembly has enacted its own Standing Orders on the process of engaging the public and as such the petitioners are under an obligation to plead with specificity and adduce evidence on the failure to involve the public and the magnitude of the same can only be ascertained at the end of the entire process once the County Assemblies, Parliament and the Senate have concluded their deliberations. To support this submission, they cited the Timothy Njoya case.

136.On the issue of verification of signatures, it was submitted that article 257(4) of the Constitution does not place any obligation upon the Commission to verify the authenticity of the signatures but to simply ascertain that at least one million signatures have been provided in support of the initiative. According to them, world over, similar initiatives are verified using two main methodologies which are either publishing names for persons who have appended their signatures in support of the initiative to confirm their support towards the initiative or requiring the promoters of an initiative to depose affidavits at the pain of perjury and possible criminal indictment where the said signatures were collected without the prior consent of the bearers. It was submitted that in the USA sampling of a certain percentage of signatures for verification is used and in other states 100% verification of signatures would be required.

137.Regarding the question whether specific proposed amendments to the Constitution ought to be submitted as separate and distinct referendum questions to the people in the referendum ballot papers, it was submitted that in the absence of a framework to guide this court or the Commission in carrying out a referendum, the power and mandate to interpret the procedure to be used in conducting a referendum is specifically granted to the Legislature under article 94. Therefore, courts are expected to avoid interpretations that seem to clash with constitutional values, purposes and principles. It was argued that this court cannot purport to interpret a statute which has not been enacted to guide the Commission on how to carry out a referendum and reliance was placed on the case of Apollo Mboya v Attorney General & 2 others [2018] eKLR for the proposition that the legislature enacts statutes and the judges interpret them.

138.In their view, the purposive interpretation as has been suggested by the petitioners can only be utilized by this court in order to reveal the intention of the statute as was appreciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. As to the considerations in determining the intention of a statute, reliance was placed on the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR.

139.Section 49 of the Elections Act, it was submitted, gives the Commission the mandate to frame the question or questions to be determined through a referendum whether or not they would have “non- separable preference”, or an “issue by issue” question or “sequential voting.” It was submitted that issue by issue referenda or sequential voting would be an extremely expensive process compared to instances where there is one composite question and that this court cannot deal with the issue since it has been held In Re: In the Matter of the Interim Independent Electoral Commission [2011] eKLR, that this court lacks advisory jurisdiction.

140.On its part the Independent Electoral and Boundaries Commission (the IEBC) contended that in the exercise of its powers under article 257, it enjoys operational, administrative, decisional and financial independence. Accordingly, it does not seek the direction or permission from any other person or authority in the performance of its constitutional mandate. In buttressing this argument reliance was paced on Re The matter of the Interim Independent Electoral Commission [2011] eKLR, Samson Owimba Ojiayo v IEBC & another [2013] eKLR, Diana Kethi Kilonzo & another v IEBC & 10 others [2013] eKLR and Communications Commission of Kenya and 5 others v Royal Media and 5 others [2014] eKLR and the court was urged to allow the continuation of the activities carried out by the Steering Committee.

141.According to IEBC, this court’s supervisory jurisdiction can only be exercised as against it where it is found that it did not carry out its mandate in accordance with the Constitution. The IEBC was of the view that all the consolidated petitions have failed to link it with the alleged violations to the Constitution. It insisted that it carried out its constitutional mandate of verifying that the initiative was supported by at least 1 million registered voters and proceeded to publish 3 million signatures. According to it, no one has come out to claim that their names were included fraudulently.

142.It was submitted on behalf of the IEBC that the assertion by the petitioners that there is no legal framework for verification does not hold any water as the provisions of article 257 make it possible for the actors to know their obligations. In addition, the Elections Act is sufficient enough as it sets out the steps to be followed in conducting a referendum.

143.On his part, the Attorney General, in response to the petition argued that since the Constitution recognizes the sovereignty of the people of Kenya and provides for how they can either directly or through their democratically elected representatives amend the Constitution, there is nothing is unconstitutional about the people of Kenya seeking to do so. To the Attorney General, the Constitution of Kenya provides an elaborate process of constitutional amendments with in-built multi-institutional checks throughout the amendment process, which provide competent fora for redressing all the issues raised by the petitioners herein. The Attorney General further argued that the doctrine of ‘constitutional avoidance’ is applicable in the circumstances of the present petition and that the petitioners have failed to apply a contextual analysis of relevant and applicable constitutional provisions. In his view, the Constitution does not expressly preclude a government at the national or county level, a state organ or a public officer from promoting an amendment to the Constitution through a popular initiative. In addition, various provisions of the Constitution place a positive obligation on the state to take legislative and other measures (which may include initiating constitutional amendments) to ensure the achievement of certain constitutional objectives. According to him, the objective of the Constitution in establishing the instrument of amendment by popular initiative was to ensure that any actor, private or public, would have the opportunity to initiate proposals.

144.It was contended that all persons who have signed in favour of the proposed amendment bill are presumed to have read and assented to the contents therein and therefore the legal and evidential onus of proving otherwise is upon the petitioners who have not discharged the same at all. Further, the allegations that the sovereign power of the citizens of Kenya has been usurped are false since article 1(2) of the Constitution provides that the people may exercise their sovereign power either directly or through their democratically elected representatives. It was however argued that the entire constitutional amendment process provides various mediums and opportunities for public participation including before County Assemblies, the National Assembly and the Senate and culminating with the ultimate expression of public participation that is a referendum.

145.The Attorney General was of the view that the petitioners seek to prevent the people of Kenya either directly or through their directly elected representatives from making political choices through court action. He maintained that the petitioners will not be prejudiced in any way if the current process proceeds to its logical conclusion since they together with similarly minded citizens have the right to not only campaign against the proposals but vote against them.

146.In the same vein, the petitioners’ right to make and promote their own constitutional amendment initiatives will not be affected by the current process in any way and in addition to this, the petitioners who are not directly elected representatives of the people cannot purport to be more authoritative in speaking on behalf of the Kenyan people than democratically and directly elected representatives of the people including the President who is not only a democratically elected representative of the people but one whose threshold for election ensures that he has a popular mandate as provided under article 138(4) of the Constitution. According to the Attorney General, the fact that the process has been endorsed by over one million voters prima facie disapproves the premise of the petition that the same has excluded ‘Wanjiku’. Further, the petitioners’ arguments as to what County Assemblies may or may not do and as to which questions or how questions are to be posed in a referendum are speculative, non- justiciable and an affront to the doctrine of separation of powers.

147.The Attorney General contended that the applicability of articles 255, 256 and 257 of the Constitution is not dependent on any legislative enactment and is clearly not part of the legislation contemplated under article 261 and the fifth schedule to the Constitution.

148.It was disclosed that there are pending proceedings before the Supreme Court, being Supreme Court Reference No 3 of 2020 instituted by the County Assemblies of Nandi and Kericho and Supreme Court Reference No 4 of 2020 instituted by the Governor of Makueni County. The Attorney General submitted that the subject matter of the two references are requests for the Supreme Courts advisory on the process by which the County Assemblies are required to handle a Constitution of Kenya Amendment Bill through a popular initiative under article 257. The advisory also seeks a determination on the process envisaged by the Constitution in regard to Parliament for the consideration of a Constitution of Kenya Amendment Bill presented under article 257 and specifically; if the procedure stipulated in article 256(1) & (3) are the proper and correct procedure that Parliament must use in consideration and passage of the Constitution of Kenya Amendment Bill that relates to the popular initiative under article 257 of the Constitution.

149.The said advisory also seeks a determination as regards Bills containing a mixture of matters/issues some requiring referendum under article 255(1) and others not requiring referendum the implication of the Amendment Bill partly succeeding in a referendum, the basis of a single Constitution of Kenya Amendment Bill proposing to amend numerous provisions of the constitution, whether constitution requires a single or multiplicity of questions to be presented for a vote at the referendum especially delineated on the basis of provisions sought to be amended, provisions grouped on the basis of subject matter implicated and other objectivity articulable criteria that aligns with the constitutional amendment principle of “unity of content”.

150.The Attorney General urged this court to consider the issues/questions pending before the Supreme Court and the issues for determination before it and specifically to exercise deference to the Supreme Court on the question pending consideration before the Supreme Court respecting the hierarchy of courts in Kenya as envisaged in article 163(7) of the Constitution. To further buttress the above contention the Attorney General relied on the decision of the Supreme Court in Petition No 4 of 2019 between the Law Society of Kenya v Attorney General & another [2019] eKLR.

151.Based on article 257 and the decision by Lord Wright in James v Commonwealth of Australia [1936] A C 578, AK Gopalan v The State (1950) SCR 88, 120 (50) A Sc 27, Central Province Case 1959 FC R 18 (39) AFC, it was submitted that where there is no ambiguity in the section being interpreted, the ordinary meaning ought to be adopted. Accordingly, the court was urged to find that the Constitution of Kenya does not expressly preclude a government at the national or county level, a State organ or a public officer from promoting an amendment to the Constitution through a popular initiative and taking a lead role in the initiation of an amendment by popular initiative. According to the Attorney General, beyond the National and County Governments, there are a host of other actors in the Constitution such as constitutional commissions and independent offices that could potentially initiate amendments to the Constitution and the Constitution in establishing the instrument of amendment by popular initiative was to ensure that any actor, private or public, would have the opportunity to initiate proposals.

152.It was argued that many of the landmark constitutional amendments in Kenya have been the product of state initiatives. In 2005, for instance, the then government adopted a position in support of the draft constitution. The same situation obtained in 2010, when the Government led the constitutional reform efforts, including supporting the constitutional referendum. It was submitted that various provisions of the Constitution require the state to take legislative and other measures to ensure the achievement of certain constitutional objectives hence the Constitution contemplates that the State can initiate amendments to the Constitution, through popular initiative, to achieve, for example, the objectives of the Constitution and it would not be out of turn for state-initiated amendment proposals to be financed by the State, which may be done, in the context of the principles of public finance management as articulated in the Constitution and in the Public Finance Management Act, 2012, among other laws.

153.For purposes of the Constitution, it was argued that personality is attributed to all entities irrespective of their legal status and that under article 260 the Steering Committee and the Secretariat have the constitutionally conferred personality to initiate and promote a popular initiative after which the population will be given ample opportunity to participate in the constitutional amendment process at the County Assembly stage, at the parliamentary stage and ultimately at the referendum stage with promoters of the proposals expected to engage and persuade both the electorate and their directly elected representative at every stage of the process.

154.The Attorney General’s view was that it would be contrary to the principles of harmonious interpretation of the Constitution for a President to be barred from any participation in a popular initiative process of a political nature since the Constitution is not just a legal document but also political document which must be appreciated as such.

155.On the legality of the formation of Steering Committee and the Secretariat, it was submitted that it is sub judice since it’s a subject in Nairobi Constitutional Petition No 12 of 2020 Okiya Omtata Okoiti v the National Executive and others and reliance was placed on the case Kenya Planters Co-operative Union Limited v Kenya Co-operative Coffee Millers Limited & another [2016] eKLR, Stephen Somek Takwenyi & another v David Mbuthia Githare & 2 others Nairobi (Milimani) HCCC No 363 of 2009, Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya [2015] eKLR, and Murang’a County Government v Murang’a South Water & Sanitation Co Ltd & another [2019] eKLR and this court was urged to decline an invitation to determine matters pending determination before a competent court of in pending prior instituted proceedings.

156.It was argued that the President’s decision to set out ad hoc committees to advise on his constitutionally conferred state functions has been subject of judicial scrutiny and approval based on the decision in Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others; Martin Kimani & 15 others (Interested Parties) [2020] eKLR to the extent that the utilization of public funds to facilitate the work of such ad hoc taskforces was found to be lawful and prima facie not in breach of the principle of public finance under the Constitution. For such allegation to stand in the present case it is incumbent upon the petitioner to adduce evidence of the same which evidence was not adduced. It was submitted that there was no allegation or proof of any prejudice occasioned to the petitioners by sole reason of initiation of the amendment process by the respondents.

157.On the issue of sovereignty, the Attorney General relied on article (1) (2)(3) and (4) of the Constitution and submitted that it is difficult to understand the petitioners’ submissions that the exercise of executive or legislative authority by elected representatives is an interference with the sovereignty of the people of Kenya, the very same people who have through elections delegated the exercise of sovereignty to their elected representatives. According to him, a reading of the provisions of article 257 of the Constitution demonstrates that the Constitution assigns specific roles to the elected representative of the people both at the county and national levels, including the President in the constitutional amendment process and therefore their involvement in the process cannot be said to be a usurpation of the people’s power.

158.It was further submitted that the petitioners failed to adduce any evidence to prove the allegation of coercion, and allegations that people were signing on to a process they did know anything about or that the people who signed on to the popular initiative were unable to exercise their free will on the matter. Reliance for this submission was placed on the case of Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association Being sued on behalf of Kenya Bankers Association) & another [2018] eKLR for the principle that he who asserts must prove.

159.The Attorney General similarly took issue with the newspaper reporting as a source of evidence of coercion and made similar submissions on the issue as the Steering Committee and the Secretariat.

160.Regarding the costs, it was submitted that the same ought not to be awarded in public interest litigation, more so not against the tax payer on whose behalf the case is allegedly being brought as in Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR. On the other hand, there is no basis for the Kenyan tax payer to be compelled to pay costs to private individuals who out of their own volition have filed a case purportedly on their behalf.

161.The County Assembly of Mombasa, contended that the County Assemblies play a critical role in democracy, governance and decision-making processes without fundamental violation of the Constitution. Due to the mandatory involvement and participation of County Assemblies in the process in the process of amending a constitution by way of a popular initiative under article 257 of the Constitution, it was averred that the County Assemblies play a critical role in the process hence they ought to be allowed to exercise the sovereign power of the people as delegated by the people.

162.According to the County Assembly of Mombasa, the Amendment Bill was borne out of the views collected from a majority of Kenyans and that the Constitution does not preclude government, state organ or public officer from taking a leading role in the initiation of amending the Constitution. In its view, a state-initiated amendment proposal could be financed by the State though the same has to be done in strict adherence to the principles of public finance management as articulated in the Constitution and the Public Finance Management Act. According to the Assembly, the said Bill having been brought before the County Assemblies enjoys a presumption of constitutionality as well as that of legality and the same can only be rebutted by cogent evidence. It was averred that the Bill is not ordinary legislation and that the role of the Assemblies is only to approve or reject it within the stipulated 3 months based on the views collected from the residents hence they cannot purport to introduce any clauses. Therefore, the failure to incorporate any suggestions by members of the public or the County Assembly does not amount to violation or abrogation of the right to public participation as the same is legally permitted.

163.On its part, the County Assembly of Nairobi contended that the Constitution requires that a Bill to amend a Constitution by a popular initiative be approved by a majority of the County Assemblies before transmission to Parliament for approval. In this case its view was that the petitioners have not sufficiently demonstrated the alleged violation of the provisions of the Articles alleged to have been violated by the respondents as no evidence has been adduced to demonstrate the same. According to Mombasa County Assembly, it would be premature to make a decision as to the effect of lack of public participation at this stage given the different actors in the promotion and passage of an Amendment Bill. It was contended that it would be necessary to consider the cumulative efforts of public participation before deciding on its sufficiency or otherwise.

164.On behalf of the law professors who were granted leave to participate in these proceedings as amici curiae, they through Ms Nyiguto urged the court to find that any constitutional amendments process promoted by entities other than voters or by voters in concert with other entities violates the spirit of popular initiative. Similarly, any process that relies on the support of the State in any way violates the same principle and the prudent use of resources. To learned counsel, any action of the State in furtherance of popular initiative is a violation of the principle of equality and proportionality.

165.On his part, Dr Khaminwa for Kenya Human Rights Commission, some amicus curiae, invited the court to take note of the fact that whereas articles 255, 256 & 257 of the Constitution talk about an amendment in singular – not in plural - the Bill in Parliament are in plural – showing very clearly that the Bill is not in compliance with the articles 255 – 257. Further, the BBI amendments are not as a result of popular initiative but State initiatives and it is the State that began the process hence unacceptable under the constitutional framework.

166.On the part of the National Assembly, it was submitted by Mr Kuiyoni that since the only qualification under article 257 is that the initiative be supported by 1 million signatures, the text does not prohibit any State agent or organ from originating a constitutional amendment. Hence, there is no constitutional foundation to the argument that the President can not originate any amendments he wishes.

167.Regarding the absence of an enabling provision reliance was placed on sections 49 of the Elections Act as well as the decision in Titus Alila & 2 others (Suing on their own Behalf and as the Registered Officials of the Sumawe Youth Group) v Attorney General & another [2019] eKLR. It was submitted that any person can petition Parliament to enact any law including the referendum law. It was contended that the issues before the court are not justiciable since Parliament is still considering the BBI Bill and to decide the issues posed herein would amount to speculating on what Parliament would do. Accordingly, the process should be allowed to run its course before the jurisdiction of this court can be invoked. Related to this is the doctrine of separation of powers and it was submitted that the court should allow independent organs to exercise their constitutional mandates before it can act as any attempt to interfere would violate that doctrine.

168.The petitioners therefore identified the following legal questions arising out the Amendment Bill that require determination this court pursuant to article 165 (3)(b) and (d) of the Constitution:i.Whether the President has power under the Constitution, as President, to initiate changes to the Constitution, or is Parliament the only State organ granted authority by or under the Constitution to consider and effect constitutional changes?ii.Whether the Constitution of Kenya (Amendment) Bill 2020 being a state sponsored initiative qualifies as a popular initiative as envisaged under article 257 of the Constitution.iii.Whether an unconstitutional and unlawful entity, such as deemed in the instant petition of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, have locus standi in promoting constitutional changes pursuant to article 257 of the Constitution?iv.Whether the entire BBI process culminating with the launch of the Constitution of Kenya (Amendment) Bill 2020 was done unconstitutionally in usurpation of the peoples exercise of sovereign power.v.Whether the respondents and the interested parties have the legal framework to proceed with their respective roles towards the achievement of the constitutional amendment process.vi.Whether by dint of article 257 (5) and (7) of the Constitution the term “consideration” and “approve” provides room to County Assemblies and Parliament to alter and or improve the contents of the Amendment Bill so as to incorporate divergent views raised through public participation as is always the case in a proper legislative process.vii.Whether article 257(10) requires all the specific proposed amendments to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper.

169.It is therefore proposed that this court grants the following reliefs:a.The President does not have power under the Constitution, as President, to initiate changes to the Constitution, and that the only State organ granted authority by or under the Constitution to consider and effect constitutional changes is Parliament.b.A declaration that the entire BBI process culminating with the launch of the Constitution of Kenya (Amendment) Bill 2020 was done unconstitutionally in usurpation of the peoples exercise of sovereign power in contravention of articles 1, 2, 3,10, 255 and 257 of the Constitution of Kenya 2010.c.A declaration that the Constitution of Kenya (Amendment) Bill 2020 being a state sponsored initiative does not qualify as a popular initiative as envisaged under article 257 of the Constitution hence the same is unconstitutional, unlawful incompetent and flawed.d.That an unconstitutional and unlawful entity, such as the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, does not have locus standi in promoting constitutional changes pursuant to article 257 of the Constitution.e.A declaration that as at the time of launch of the Constitution of Kenya (Amendment) Bill 2020 and the collection of endorsement signatures, there was no legislation governing the collection, presentation, and verification signatures nor a legal framework or administrative structure to govern the conduct of referenda in the Country.f.A declaration that the 3^rd respondent (IEBC) and the 1^st to the 49^th interested parties cannot exercise their powers under article 257 of the Constitution to receive, verify and approve the Constitution (Amendment) Bill 2020 in the prevailing circumstances.g.An order of injunction barring the 1^st and 2^nd respondent from submitting The Constitution of Kenya (Amendment) Bill 2020 together with the collected signatures to the 3^rd respondent for verification.h.An order barring the 3^rd respondent from receiving, verifying and approving the signatures collected by the 2^nd respondent.i.An order barring the 1^st to 49^th interested parties from receiving and debating the Constitutional of Kenya Amendment Bill, 2020 until all Kenyans have been accorded reasonable time to read and/or have the amendment bill explained to in a language they understand in a meaningful public participation exercisej.A declaration that by dint of article 257 (5) and (7) of the Constitution the term “consideration” and “approve” provides room to County Assemblies and Parliament to alter and or improve the contents of the Constitution of Kenya Amendment Bill so as to incorporate divergent views raised through public participation as is always the case in a proper legislative process.k.A declaration that article 257(10) requires all the specific proposed amendments of the constitution to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper.l.In the alternative an order compelling the 1st and 2nd respondents to undertake a meaningful civic education and sensitization of the Constitution of Kenya (Amendment) Bill 2020 for a reasonable period of time prior to collection and submission of endorsement signatures.m.An order compelling the 3^rd respondent to immediately upon receipt of the collected signatures publish within reasonable time a list of all endorsers of the Constitution of Kenya (Amendment) Bill 2020 with a clear authentication and response mechanism to address emerging queries from the collected signatures.n.Costs of this petition.

IV. Petition No E401 of 2020

170.The petitioner in Petition No E401 of 2020 is 254Hope, an unincorporated body suing in the public interest. The petition seeks the following reliefs:a.A declaration be issued that amendment power is delegated sovereign power and is limited only in accordance the Constitution.b.A declaration be issued stipulating that the National Executive or any state organ or taskforce to not initiate an amendment to the Constitution through popular initiativec.A declaration be issued stipulating that in a popular initiative to amend the Constitution, the National Executive may not use public resources.d.A declaration be issued that any amendment to the constitution by any state organ is subject to article 10 of the Constitution and hit ought to be justified.e.A declaration be issued that any proposed amendments must not violate the textual integrity of the constitution.f.A declaration be issued that some of the proposed amendments in the proposed Amendment Bill are constitutionally defective.g.An order be issued that any collection of signatures and submission of the same to IEBC with a view of pursuing amendment of the Constitution by the National Executive through a popular initiative is not authorized.

171.The Honourable Attorney General filed grounds of opposition to the petition and raised the following grounds:a.That the petitioner is a non-existent entity in law; incapable of suing or being sued in the name proposed.b.That the petition is premised on the wrong premise; that the President’s authority is limited to that of being the Head of the executive arm of government thereby totally ignoring the President’s role as Head of State and his attendant role of inter alia promoting the unity of the nation.c.That the petitioner neither sought nor was denied any reasons for any of the proposed amendments by the steering committee.d.That the rationality or otherwise of some of the proposal’s in the recommended bill are subject to approval or disapproval by the legislative assemblies and ultimately the Kenyan people as envisaged in the constitutional process.e.That grammatical errors if any cannot threaten the integrity of a constitutional text as alleged or at all.f.That the Constitution of Kenya does not preclude any state organ, body, person or public entity from initiating a constitutional amendment.g.That there is no constitutional imperative on the National Executive to petition Parliament for any proposed constitutional amendment.h.That the Constitution expressly provides that state may take legislative or other measures to implement some of its envisaged principles and goals.i.That the only requirement for an initiative to be a popular initiative is that it must be signed by at least one million registered voters.j.That the National Assembly and the Senate are the most appropriate fora for determination of the question whether standing orders of either houses have been observed or not.k.That the Constitution of Kenya has allocated specific constitutional bodies the primary role on management of public finance, it would be contrary to the constitutional architecture and the doctrine of separation of powers for the honourable court to exercise primary jurisdiction over the same as proposed by the petitioner.l.There is no proof of any breach of the principles of public finance.m.That the petition is not merited.

172.The petitioner made the following consequential and cumulative arguments in support of his main grounds. First, he argues that the BBI Secretariat is an agent of the National Executive, and that since an agent of the National Executive cannot undertake constitutional amendment, it must be concluded that the BBI amendment process is unlawful and unconstitutional. The petitioner noted that, the respondent (BBI Secretariat) does not deny that they were formed in furtherance of the objectives of the National Executive as stated in its petition. The petitioner relied on the case of Constitutional Petition No 6 of 2018, at the High Court in Machakos for the proposition that the National Executive cannot exercise any power or authority beyond the power given in a positive law.

173.Further, the petitioner maintains that aside from process, the substance of the constitutional amendment being pursued through the BBI process is unlawful for at least two reasons. First, he argues that the whole process has been done in violation of the Fair Administrative Action Act because the people have not been given a fair opportunity to contest the proposals.

174.Second, the petitioner argues that the proposed constitutional amendments are unconstitutional because they defy the basic structure of the Constitution and because they attempt to take away the sovereignty of the people.

175.The petitioner submitted that, a decision to amend any provision of the Constitution by any governmental entity falls squarely in the definition of an administrative act because it not only would affect the interplay of the fundamental rights and freedoms contained in the Constitution, it would affect any legal interests and rights that existed prior to such an amendment.

176.The petitioner relied on the Court of Appeal in Centre for Human Rights and Awareness v John Harun Mwau & 6 others that expounded on the theory of constitutional interpretation, holding what has been accepted as good law in Kenya from Tinyefuza v Attorney-General of Uganda thus:“that the entire Constitution has to be read as an integral whole and no one particular provisions destroying the other but each sustaining the other as to effectuate the great purpose of the instrument”.The petitioner also relied on the Timothy Njoya case (supra).

177.With this holding in mind, the petitioner submitted that any change to any one part of the Constitution will inevitably alter the meanings of the whole whether intended or not intended. Any proposed amendments, when carried out by authority that is delegated, must at the very least be justified, and must be necessitated in order to avoid unnecessarily altering the constitutional framework and integrity. He argued that the proposed constitutional amendments fail this important test and are, therefore, unlawful.

178.In response, the Honourable Attorney General submitted that the Constitution of Kenya does not expressly preclude a government at the national or county level, a State organ or a public officer from promoting an amendment to the Constitution through a popular initiative and that, therefore, there is nothing that prevents any of the entities and officers concerned from taking a lead role in the initiation of an amendment by popular initiative.

179.The Honourable Attorney General submitted that it is to be noted that many of the landmark constitutional amendments in Kenya have been the product of state initiatives. In 2005, for instance, the then government adopted a position in support of the draft Constitution as it did in 2010, when the Government led the constitutional reform efforts, including supporting the constitutional referendum. Further, submitted that article 21 (2) of the Constitution directs that"State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43."

180.The respondent relied on the following decisional authorities:a.The Court of Appeal’s decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR which, the Honourable Attorney General says affirmed the doctrine of separation of powers and the need for the exercise of deference by the court to the branch of government or agency which has been granted authority over the matter in question by the Constitution.b.Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others; Martin Kimani & 15 others (Interested Parties) [2020] eKLR where the Honourable Attorney General says the court held that the Building Bridges to National Unity Taskforce was constitutionally and legally established.c.In Fedsure Life Assurance v Greater Johannesburg Metropolitan Council, where the court held that budgetary resolutions made by a local authority were clearly legislative and not administrative action and were, therefore, beyond judicial review.

181.The Honourable Attorney General also relied on the following cases: Pharmaceutical Manufacturers Association of SA and another: In Re Ex parte President of the Republic of South Africa and others; In President of the Republic of South Africa and others v South African Rugby Football Union and others; Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR.

182.The interested party submitted that this honourable court should only intervene in circumstances where the Commission steps outside its mandate, particularly where there is a violation of the Constitution, which it has not done. Relied on the case of Samson Owimba Ojiayo v Independent v Electoral and Boundaries Commission (IEBC) & another [2013] where the court held that“it is not for this court to compel the independent commission to flex its muscles and exercise discretionary powers and least of all dictate to it when and how it is to flex those muscles.”

183.The interested party submitted that this hounourable court lacks an advisory jurisdiction. The advisory opinion of the Supreme Court must be distinguished from interpretive jurisdiction of the High court. Relied on the case of Re: In the Matter of the Interim Independent Electoral Commission [2011] eKLR.

184.The BBI Secretariat submitted that it is the promoter of the Constitution of Kenya Amendment Bill, 2020 and the associated popular initiative. The BBI Secretariat is a voluntary political alliance of various political players in Kenya. Counsel for BBI Secretariat, Mr Mwangi argued that the BBI Secretariat is not gazetted and is completely distinct to the BBI Taskforce and BBI Steering Committee.

185.Counsel for the BBI Secretariat further submitted that the controversy over whether the National Executive may use public resources in promoting the Constitution of Kenya Amendment Bill would only arise if the National Executive initiated such a process. Counsel further argued that the petitioner has not pleaded with any specificity on how much of the resources have been misused, who has misused, in what manner have such resources been misused and in the absence of this information the court can’t make any determination.

V. Petition No E402 of 2020

186.The 1^st petitioner in Petition No E402 of 2020, Justus Juma, is a resident of Nairobi County and a member of the Justice Freedom Party of Kenya. The 2^nd petitioner is Isaac Ogola who, also lives and works for gain in Nairobi.

187.The petition is dated December 6, 2020 and is supported by the affidavit of Justus Juma, on his behalf and on behalf of his co petitioner. It is anchored on the article1, article 2(1), article 3(1), article 10, article 20, article 22, article 23, article 38, article 73, article 88, article 89, article 94, article 95, article 165, article 248, article 255 to 257, article 258 and article 259 of the Constitution of Kenya, 2010, and section 4, and 36 of the IEBC Act and section 11 of the Statutory Instruments Act.

188.The brief facts of the petition are that in October, 2020 the report on the Implementation of the Building Bridges to a United Kenya Taskforce was released. This report led to the publishing of the Constitution of Kenya (Amendment) Bill.

189.At section 10 the Bill proposes to amend article 89(1) of the Constitution increasing the number of constituencies from 290 to 360, through an additional 70 constituencies.

190.With regard to these created constituencies, the Constitution of Kenya Amendment Bill in the second schedule provided for under section 74, the Bill purports to directs the IEBC in three ways: one, the manner of the delimitation and distribution of the 70 constituencies to various counties, two, in the time frame within this must be done, and three, on the criteria that IEBC must apply in the said distribution..

191.The petitioners contend that the Constitution under article 89 and the IEBC Act envision that the function of the constituency boundary delimitation is the function of the IEBC, and in any event there is a pending Bill (the Independent Electoral and Boundaries (Amendment)) Bill 2019, before Parliament that is intended to enact the procedures in conformity with section 36 of the IEBC Act.

192.It is the petitioners position that the effect of the Constitution of Kenya (Amendment) Bill, 2020, is to compound the issue of boundary delimitation and constitutional authority so as to spearhead boundary delimitation in an irregular, illegal and unconstitutional manner. In any event the apportionment of any constituencies within the counties cannot be done as the IEBC (Amendment) Bill is yet to become law

193.That these provisions in the draft Bill amount to a violation of article 89 of the Constitution, by supplanting, usurping the powers and roles assigned to IEBC by the same constitution, article 10, by taking away the right to public participation, which is an indispensable imperative for boundary delimitation. This renders the provisions of the Draft Bill to be illegal, unlawful and unconstitutional

194.The petitioners argue that that constituency boundary delimitation is not a purely political matter and that there are constitutional parameters obligated by the Constitution which have not been followed.

195.The petitioners further argue that boundary delimitation cannot be done without public participation, before, during and after the IEBC has conducted the same. It is their position that the requisite public participation has not been undertaken rendering the provisions of the second schedule of the Constitution of Kenya Amendment Bill to be afoul of the Constitution.

196.The petitioners contend that this court has jurisdiction to under article 165(3) (d) (ii) of the Constitution to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; hear any question with respect to whether anything said to be done under the authority of the Constitution or whether any law is inconsistent with or in contravention of the Constitution. To that extent the court has jurisdiction to determine whether the second schedule of the Constitution of Kenya Amendment Bill is in contravention of the Constitution

197.In addition this court is also empowered to hear applications relating to the infringement and/or threat to any rights in accordance with article 23(1).

198.Further, the court may also grant reliefs such as a declaration of rights, a conservatory order, an injunction, a declaration of invalidity of law, an order for compensation and an order for judicial review in accordance with article 23(3) of the Constitution.

199.The petitioners have therefore filed the present petition challenging the second schedule of the constitution of Kenya (Amendment) Bill, which they contend violates the spirit and letter of the Constitution and they therefore seek the following orders: -a.A declaration that the impugned second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to set at 70 the number of constituencies is unconstitutional and/or illegal and/or irregular.b.A declaration that the impugned second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to predetermine the allocation of seventy constituencies (as highlighted in paragraph (a) herein above) is unconstitutional and/or illegal and/or irregular.c.A declaration that the impugned second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports direct the IEBC in so far as the function of constituency delimitation is concerned is unconstitutional and/or illegal and/or irregular.d.A declaration that the impugned second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to have determined by delimitation the number of constituencies and apportionment within the counties to be unconstitutional and illegal for want of public participation.e.That an order be and is hereby issued for the expunging of the impugned Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far any exercise relating to delimitation and apportionment of constituency boundaries and indeed any electoral boundaries are concerned.f.That an order for costs and incidentals be provided for.g.That the honourable court be at liberty to grant any other orders/reliefs that may be just and expedient.

200.In the supporting affidavit sworn by Justus Juma and dated December 6, 2020 the petitioners state their case as follows:a.That IEBC is a chapter 15 Commission whose independence is protected by the constitution and cannot be directed or controlled by any other office or person under the Constitution.b.That the Constitution of Kenya (Amendment) Bill in its purport to prescribe and instruct the IEBC on the manner of delimitation and allocation the created 70 constituencies among the counties is a threat to the constitutional authority of the IEBC.c.That the purported constituency delimitation was a violation of the principle of separation of powers.d.That the Constitution of Kenya Amendment Bill purports to amalgamate the issue of constituency boundary delimitation with the amendment of the constitutional authority to the IEBC, without actually saying so. It is the petitioners ‘position that any such amendment that affects the independence of the IEBC must follow the prescription in the Constitution and be dealt with as an independent question.e.That unless the impugned second schedule to the Constitution Amendment Bill is quashed, the perception it creates is that the Parliament and politicians have plenary powers which place them in functional control over other constitutional institutions such as the IEBC, causing danger of imminent and irreparable harm to the Constitution.

201.The respondent in the petition is the Honourable Attorney General. He filed grounds of opposition dated February 7, 2021. He opposed the petition on the following grounds:a.First, that the petition as framed is not justiciable on account of want of ripeness.b.Second that under the doctrine of separation of powers the honourable court ought to exercise deference to the County Assemblies, the National Assembly and Senate.c.Third that the petitioners seek to have the honourable court usurp the constitutional function of the legislative branch as provided under the Constitution by pre-empting their consideration of the bill to amend the Constitution.d.four th, that to the extent that any amendment seeks to alter the character of existing legal provisions, the proposed Bill cannot be ipso facto unconstitutional for the sole reason that it seeks to change existing constitutional provisions.e.Fifth, that the that the petitioners are ignorant of the express provisions of the constitution that recognize the absolute sovereignty of the people to amend their constitution which may be expressed directly as is the case in a referendum or through their directly elected representatives like the County Assemblies, the National Assembly and the Senate.f.Sixth, that the people of Kenya in the exercise of their sovereign power can amend the Constitution and since the IEBC exercises delegated powers, provide for additional constituencies, provide how the additional constituencies are to be allocated.g.Seventh that the decision to approve or reject the contents of the proposed Constitution of Kenya Amendment Bill is the constitutional prerogative of the people in a referendum.h.Eighth, that the petition is in violation of the political question doctrine where the petitioners have invited the court to determine what essentially is a political question that has been constitutionally reserved for determination by the political organs and the court ought to exercise judicial restrainti.Ninth, that the petitioners have other reliefs available to them as the issues raised here , it is may be better addressed in the various legislative Assemblies, and that the court ought to exercise constitutional avoidancej.Tenth, the petitioners have not joined the promoters of the Constitution of Kenya Amendment Bill and therefor seek to undermine the principles of democracy through their petition, while undermining the principle of universal suffrage through the courts.k.Eleventh, that the claims that there was no public participation in respect to the proposed constitutional amendment are pre mature and can only be properly considered after a referendum.l.Twelfth, on costs, that there is no basis for awarding costs to parties instituting proceedings in the public interest.

202.In their submissions the petitioners submitted that there were four (4) questions that should guide this court in determining the petition before it and these are as follows;i.Whether the issues herein are justiciable?ii.What is the nature and scope of amendment powers generally and in respect of the Constitution 2010?iii.What is the constitutional import of the authority granted to the Independent Electoral and Boundaries Commission under the Constitution 2010?iv.Whether costs should be awarded to the petitioners?

203.Counsel for the petitioners cited the case of Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] eKLR, where the court held that the justiciability doctrine requires that courts and tribunals at the earliest opportunity should consider whether the facts before them espouse a proper question for determination In buttressing this argument counsel also cited the Supreme Court case of Coalition for Reform of Democracy (CORD) & 2 others v Republic of Kenya & another HCCCP 628 of 2004 [2015] eKLR, where the court while citing with approval the case of Patrick Ouma Onyango & 12 others v AG & 2 others Misc App 677 of 2005 endorsed the doctrine of justiciability as stated by Lawrence H Tribe in his treatise, American Constitutional Law, 2nd Ed page 92.

204.The petitioners also relied on Petition No 496 of 2013 Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others [2013] eKLR Justice Lenaola held that the High Court had jurisdiction to determine the matter on a proposed constitutional amendment before Parliament despite the question of the doctrine of separation of powers and justiciability.

205.Counsel submitted that the fundamental rules for the effective exercise of state power and protection of individual human rights should be stable and predictable, and not subject to easy change. Constitutional change is, however, necessary in order to improve democratic governance or adjust to political or economic and social transformations. The procedure for changing it becomes in itself an issue of great importance and it can only therefore be amended in accordance with established rules and procedures.

206.Counsel submitted that in a democratic constitutional context there are three kinds of powers namely primary constituent power, secondary constituent power and constituted power. Further, it was submitted that primary constituent power is not part of everyday ordinary politics and that it is unbound by constitutional rules and may create a new constitutional order. Secondary constituent power on the other hand is the track of constitutional politics through which bodies entrusted with authority to amend the constitution may enact, add, annul or amend constitutional provisions. The Constitution cannot restrict the primary constituent power, as it does not reside in it.

207.It was the petitioners submission that the popular initiative track as well as the legislative method are both constituted powers under the Constitution and that secondary power will manifest in the context of article 255 where the affirmation of the people is required through a referendum. Both powers are amenable to judicial scrutiny by reason of article 165.

208.Counsel submitted that the authority of Parliament in chapter 16, is a solemn responsibility that must be done in concert with others as Parliament shares constitutional amendment responsibilities with other constituted entities. Under the doctrine of Supremacy of the Constitution, constitutions are seen by modern constitutional theory as expressions of the will of the people, a will which acts as a limit to the day-to-day preferences of ordinary legislatures or any other constituted power.

209.It was further submitted that public participation cements a critical and foundational principle of the Constitution – sovereignty of the people. Article 249(1) (a) of the Constitution, implies that IEBC being one of the constitutional Commissions is primarily charged with protecting the sovereignty of the people.

210.Counsel submitted that the principle of separation of powers understands that in order to avoid a concentration of power in the hands of a minority in a political system, the three principal constituents of government should be separate and enjoy equal and well defined powers and independence. It was submitted that chapter 15 commissions are therefore intended to be independent and impartial that is not only outside government, but also outside partisan politics and free from interference by other organs of state.

211.It was submitted that the question of independence of the IEBC is most important and warrants examination and that article 249 of the Constitution ensures the functional and financial independence of the IEBC. In buttressing this argument Counsel cited the Supreme Court Advisory Opinion Reference No 2 of 2014, In the Matter of the National Land Commission [2015] eKLR where the court held that these Commissions ought to be identified separately from the other arms of government through the functions they undertake.

212.Further on administrative independence of the IEBC counsel cited the South African constitutional case of New National Party v Government of the Republic of South Africa and others (1999) ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 at paras 74 and 162. where the court went on to state that any engagement by the Executive or Parliament with chapter 9 institutions must be done in such a manner that does not interfere with the operations of the institution or the fulfilment of their constitutional obligations.

213.It was the petitioners’ submissions that the promoters of the Constitution of Kenya Amendment Bill, enjoy State support and that the impugned Second Schedule of the Constitution of Kenya Amendment Bill in its current format and as promoted by the State amounts to the interference of the functional authority of the IEBC and it must be found wanting for constitutional infirmity. It was submitted that In Re the matter of the Interim Independent Electoral Commission; Supreme Court Advisory Opinion No 2 of 2011; [2011] eKLR the court stressed on the purpose of “independence clause” and held that its purpose was to safeguard the Commissions against interference by other persons or government agencies.

214.With regards to the question of costs, the petitioners relied on the South African case of Trustees for the Time Being of the Biowatch Trust v Registrar, Genetic Resources & 5 others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232 (CC) where the court held that where the State has been shown to have failed to fulfil its duty the State should bear the costs of the successful litigants.

215.It was further submitted that that the applicable doctrine here is that of constitutional supremacy and not the political question doctrine; that that public participation in the context of article 89 as read together with article 10, allows the people of Kenya to exercise their sovereign power through the IEBC and if dissatisfied they could come to this court for review; and that the constitution is a pre- commitment to specific rules aimed at controlling uncontrollable urges by men and that article 89 is a model which must be adhered to in terms of constitution making.

216.The petitioners urged the court ought to conduct an assessment of the Constitution of Kenya Amendment Bill on two grounds that is on the substantive ground –which is the values of the constitution and procedural ground –which is the process.

217.The petitioners submitted that the constitution has separation of powers because it prevents tyranny and this allows for specialization. It was submitted further that no person or organ can be able to act beyond their constitutional authority and that the Hon Attorney General’s suggestion that the people could do anything to amend the Constitution provided that the people agree in a referendum was incorrect.

218.The respondent in submissions dated March 11, 2021 submitted that the Constitution of Kenya provides a clear procedure for constitutional amendment; under article 257 and that the IEBC had established that the BBI Initiative had met the requirements of this provision. It was submitted that the draft bill was submitted to each of the forty-seven (47) County Assemblies for consideration within three months of the date of submission.

219.Further, that at the institution of the petition, the draft Bill had not been submitted to the County Assemblies and that it was to be introduced in Parliament without delay after it was approved by the County Assemblies. It was the respondent’s submission that the court ought to decline to exercise jurisdiction over the matter as the issue is pending consideration before the legislative branch of government.

220.In addressing the issue of jurisdiction counsel cited the case of Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others [2016] eKLR where Onguto, J as he then was held that courts should only determine matters that are ripe to avoid engaging in abstract arguments require and that the court ought not to determine a matter prematurely.

221.Counsel also cited the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & another HCCP 628 of 2014 [2015] eKLR, where the court cited with approval the case Patrick Ouma Onyango & 12 others v AG & 2 others Misc Appl No 677 of 2005 wherein the court endorsed the doctrine of justiciability as stated by Lawrence H Tribe in his treatise American Constitutional Law, 2^nd Edn page 92.

222.The respondent submitted that it was abundantly clear that at the time of institution of the case there were no guarantees that the Constitution of Kenya Amendment Bill would be approved by the legislative branch and ultimately the people of Kenya and that considering the circumstances of this case and the substratum of the petitioners’ case herein the same is not justiciable on account of want of ripeness. To support the position on ripeness, counsel cited the Court of Appeal case of National Assembly of Kenya & another v Institute for Social Accountability & 6 others [2017] eKLR.

223.It was submitted that the petitioners have a constitutionally designed and available avenue for challenging the contents of the proposed Constitution of Kenya Amendment Bill and this is both at the County Assemblies and Parliament and finally to the Kenyan voter in the referendum. The respondent cited the Court of Appeal case of Non-Governmental Organizations Coordination Board v EG & 5 others [2019] eKLR Civil Appeal No 145 of 2015 where Waki, J held that where the Constitution provides for redress of grievances a party must first exhaust the same before resorting to the courts. This position was also upheld in the cases of Speaker of the National Assembly v Karume [2008] 1 KLR 425 and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR.

224.Counsel submitted that the Supreme Court in the case of Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, after analyzing various decisions concluded that no governmental agency should burden another agency in an attempt to subvert its constitutional amendments. The court must therefore practice precaution in determining each case. The respondent also placed persuasive reliance on the dissent of Hon Lady Justice Njoki Ndungu of the Supreme in the case of Speaker of The Senate & another v Attorney General & others where the learned judge held that courts should only take up matters that are justiciable and that they should exercise caution so as not impede the operation of the other arms of Government save for what is constitutionally provided.

225.It was submitted that the sovereignty of the people and their constituent power to replace a Constitution was well settled in the celebrated case of Njoya & 6 others v Attorney-General & 3 others. The respondent submitted that the people of Kenya in the exercise of their sovereignty may amend any provision of the Constitution provided that they follow the prescribed procedure. The respondent further submitted a reading of article 255 (1) (g) clearly provides that independent commissions and independent offices to which chapter fifteen applies are amendable by way of a Constitution of Kenya Amendment Bill.

226.It was the respondent’s submission that the constitution of Kenya must be appreciated not just as a legal document but also as a political document. This calls for deference to constitutionally mandated institutions to deal with the specific roles ascribed to them. In Advisory Opinion No 2 of 2013 In the Matter of the Speaker of the Senate & another [2013] eKLR Njoki Ndungu JSC stated that“…. The interpretation of the Constitution, therefore, is not an exclusive duty and preserve of the courts but applies to all State organs including Parliament.”

227.It was submitted that there are in existent legislative procedures that have given effect to the constitutional requirement of public participation which the legislative assemblies have been employing in the exercise of their respective legislative mandates. Counsel submitted that the process envisages the ultimate mode of public participation before the proposed amendments become law, that is a referendum and that it is reckless for the petitioner to allege that the proposed amendments may be enacted without public participation.

228.In buttressing this argument counsel cited the case of Robert N Gakuru & others v County Government of Kiambu & another [2016] eKLR where the court while addressing its mind to public participation cited with approval the case of Doctor’s for life International v The Speaker National Assembly and others where the court held that the words public involvement or public participation refers to the process by which the public participates in something. The court held that the person alleging must show that it was clearly unreasonable for Parliament not to have given them an opportunity to be heard.

229.Counsel also cited the case of Commission for The Implementation of the Constitution v Parliament of Kenya & another & 2 others [2013] eKLR where Majanja, J held that the National Assembly has a broad discretion on how it achieves the object of public participation and that this varies from case to case, and what matters is the public has been offered an adequate opportunity to know about the issues and to express themselves on the same.

230.On the issue of costs, the respondent cited the case of Nairobi Civil Appeal No 147 of 2015 Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR where the Court of Appeal held that courts are slow in awarding costs in matters that involve public interest.

VI. Petition No E416 of 2020

231.The petitioner in Petition No E416 of 2020 is Omoke Morara, a public-spirited lawyer. He filed a petition dated December 15, 2020, against the Hon Raila Odinga; the Hon Attorney general, BBI Steering Committee, the National Assembly, the Senate and the IEBC as the respondents

232.The petition challenged the actions taken by the President in conjunction with Hon Raila Odinga and BBI Steering Committee towards amending the Constitution, and sought the following reliefs:a.A declaration that in the absence of an enabling legislation operationalizing the provisions of article 257 of the Constitution of Kenya 2010, there is no legislative and administrative framework within and through which the Constitution of Kenya (Amendment) Bill, 2020 can be submitted to the County Assemblies, delivered to the Speakers of the two Houses of Parliament for consideration and subjected to a referendum.b.To safeguard article 43, an order is hereby issued stopping the efforts by the respondents to process the Constitution of Kenya (Amendment) Bill, 2020 more specifically the carrying out of a referendum until Covid-19 pandemic is fully combatted by the State.c.A declaration that the Constitution of Kenya (Amendment) Bill, 2020 cannot be subjected to a referendum before the 6^th respondent carries out a nationwide voter registration exercise.d.A declaration that the 6^th respondent is not properly constituted and it therefore lacks the required quorum under section 8 of the IEBC Act for consideration and approval of policy matters relating to the conduct of referenda including verification of signatures under article 257(4); and it is hereby barred from verifying signatures submitted by the 3^rd respondent and from submitting the Constitution of Kenya (Amendment) Bill, 2020 to the County Assemblies.e.A declaration that the President, the 1^st and 3^rd respondent violated articles 7, 10, 33, 35 and 38 of the Constitution by collecting signatures before providing the people with copies of the Interim and Final BBI Report and the Constitution of Kenya (Amendment) Bill, 2020 in English, Kiswahili, indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities ; and allowing them reasonably sufficient time to read and understand the said documents.f.An order compelling the President of the Republic of Kenya, HE Uhuru Kenyatta, the 1^st and 3^rd respondent to publish and/or to cause to be published in a gazette notice detailed budget and financial statements of all the public funds allocated to and utilized by the 3^rd respondent.g.A declaration that the use of public funds by the President, the 1^st and 3^rd respondent to promote their initiative to amend the Constitution is unconstitutional; and the President, the 1^st and 3^rd respondents are hereby ordered to jointly and severally refund the national treasury the public monies allocated and utilized by the 3^rd respondent.h.A mandatory injunction directing the President of the Republic of Kenya, HE Uhuru Kenyatta to comply with the article 267(7) by dissolving Parliament in accordance with the Chief Justice’s advice to the president pursuant to article 261 (7) of the Constitution dated September 21, 2020.i.A declaration that the 4^th and 5^th respondents cannot take any steps pursuant to article 257 (6), (7), (8), (9) and (10) including receiving and passing the Constitution of Kenya (Amendment) Bill, 2020 as it stands to be mandatorily dissolved in accordance with the Chief Justice’s advice to the President issued pursuant to article 261(7) of the Constitution dated September 21, 2020.j.A declaration that the authority to prepare and table before Parliament the relevant Bills required to implement the Constitution vests in the Attorney General and thus the 3^rd Respondent it is hereby ordered to forthwith cease drafting Bills for Implementation of its envisioned constitutional amendments.k.A declaration that sections 10, 13(a)(i), 33, 37(b), 39, 41 and 44 of the Constitution of Kenya (Amendment) Bill, 2020 are unconstitutional.l.That each party bears its own costs.

233.Petition No E416 of 2020 was supported by the petitioner’s affidavit sworn on December 15, 2020, a supplementary affidavit sworn on February 19, 2021 and written submissions dated February 26, 2021. The petitioner’s case is that the President’s decision to establish the BBI Steering Committee with the mandate to implement policy decisions affecting all Kenyans without public participation was in contravention of articles 2, 3 and 10 of the Constitution. He averred and submitted that Gazette Notice Nos 5154 of May 24, 2018 and 264 of January 3, 2020, were also unconstitutional for lack of public participation.

234.The petitioner also argued that by organizing massive rallies for signature collection during Covid-19 pandemic, was in breach of the Covid-19 regulations set by the Ministry of Health and directives by the President, leading to spread of the disease, a violation of article 43(1) (a) of the Constitution. In his view, the exercise is a waste of public resources that should be used to combat the Covid-19 pandemic.

235.The petitioner further argued that the BBI Steering Committee drafted and continues to draft multiple bills to give effect to the proposed constitutional changes without mandate, contrary to article 261(4) of the Constitution as read with the fifth schedule to the Constitution. According to this petitioner, the first schedule to the Constitution of Kenya Amendment Bill, there will be a rush to amend hundreds of legislations between six months and one year after passage of the Constitution of Kenya Amendment Bill, which will violate the requirement of public participation. He also argued that the activities being carried out under instructions of the President and Hon Raila Odinga, to amend the Constitution, offend the principle of public participation.

236.It is also the petitioner’s case, that the Hon Attorney General breached article 156(6) of the Constitution by failing to advise the President to use his authority and perform his functions in a constitutional manner, thus violating articles 129, 131, 73(1), 43(1) and 261(7) of the Constitution. He stated that the President, Hon Raila Odinga and BBI Steering Committee violated the principle of public finance under article 201 of the Constitution, by using public funds to pursue private arrangement.

237.It is the petitioner’s further case that there is no legislation operationalizing article 257 of the Constitution, through which the Constitution of Kenya Amendment Bill can be processed, and that following the Advice by the Chief Justice under article 261(7) of the Constitution, the current Parliament is unconstitutional and cannot process the Constitution of Kenya Amendment Bill.

238.The petitioner held the firm view, that Hon Raila Odinga and BBI Steering Committee violated article 7 of the Constitution by failing to give the public the Taskforce and final BBI reports and the Constitutional Amendment Draft Bill in Kiswahili, indigenous languages, braille and sign language, in violation of articles 10, 27 and 35 of the Constitution. He stated that collection of a single set of signatures to endorse all the contemplated constitutional amendments was also a violation of articles 33 and 38 of the Constitution.

239.According to the petitioner, the President, Hon Raila Odinga and BBI Steering Committee posted copies of the interim and final BBI reports and the Constitution of Kenya Amendment Bill on the internet, thereby violating the right of access to information thus hindered public participation. He maintained that the President, Hon Raila Odinga and BBI Steering Committee collected signatures in preparation for a referendum before the register of voters had been updated, thereby undermining the principle of public participation and the right of millions of Kenyans to register and vote during the referendum.

240.The petitioner again averred and submitted that sections 10, 32, 33, 37(b), 39 and 41 of the Constitution of Kenya Amendment Bill are unconstitutional for being either inconsistent with or violate existing provisions of the Constitution and should therefore not be allowed.

241.Regarding Independent Electoral and Boundaries Commission, he argued that it lacks quorum to process the Constitution of Kenya Amendment Bill, and verification of signatures which are policy matters that it discharges under section 8 of the Independent Electoral and Boundaries Commission Act, 2011 (IEBC Act) and the second schedule to the Act. According to the petitioner, IEBC cannot discharge this mandate without quorum

242.Honourable Raila Odinga and The Building Bridges Steering Committee filed a replying affidavit by Denis Waweru sworn on February 5, 2021 and a statement of response to the consolidated petitions of the same date. They also filed written submissions dated March 15, 2021 in opposition to Petition No E416 of 2020. It was deposed and submitted that the petitions are founded on generalized assertions, misinterpretation, misapplication and narrow interpretation and application of the Constitution and legislations. They relied on Anarita Karimi Njeru (No 2) v Republic [1979] eKLR. They contended that no evidence had been adduced to support the allegations in the petitions and that the petitions offend the doctrines of res judicata and sub judice; they are speculative and an encroachment on the mandate of Parliament and the executive.

243.They argued that the validity and legality of BBI process and use of public funds is res judicata, having been determined in the case of Third way Alliance case (supra). They also argued that the legality of Gazette Notice No 264 of 2020, is pending before court in the case of Omtata case (supra) and, therefore, sub judice.

244.Honourable Raila Odinga and The Building Bridges Steering Committee maintained that petitioner in Petition E416 of 2020 neither pleaded with specificity nor adduced evidence on spread of Covid-19 through holding of rallies and public gatherings to be a violation of article 43(1)(a). According to them, allegations with regard to contravention of Covid-19 directives and regulations, ought to have been reported to the relevant authorities. The court cannot usurp the roles of the Director of Criminal Investigation, the National Police Service and the Director of Public Prosecutions.

245.Honourable Raila Odinga and the Building Bridges Steering Committee again argued that the petitioner in Petition E416 of 2020 misinterpreted article 257 of the Constitution and was using his petition to halt the ongoing legislative process while speculating and preempting the decisions County Assemblies and Parliament may arrive at.

246.On the legality of Parliament to deal with the Constitution of Kenya Amendment Bill, they contended that the allegation in Petition E416 of 2020 that Parliament is unconstitutional, is misplaced and offends the doctrine of sub judice since the issue is pending before a court of competent and concurrent jurisdiction in Thirdway Alliance v the Speaker of the National Assembly and others (Nairobi High Court Petition No E 302 of 2020) as consolidated with other suits.

247.Honourable Raila Odinga and the Building Bridges Steering Committee denied violating articles 7, 27 and 35 of the Constitution on public participation. They contended that the interim report, the final report and the Constitution of Kenya Amendment Bill are a result of wide, comprehensive and broad consultative engagement and public involvement all over the country which entailed voluntary nationwide public participation.

248.It was their submission that the petitioner in Petition No E416 of 2020 is inviting the court to encroach on the legislative arena and engage in law formulation, which is a preserve of Parliament and the County Assemblies. They also argued that the petitioner is inviting court to pre-empt parliamentary debates and deliberations on the merit of the Constitution of Kenya Amendment Bill, after which a referendum would be held to enable the people decide on it.

249.Honourable Raila Odinga and The Building Bridges Steering Committee termed this Petitioner’s arguments as unfounded and baseless apprehensions because the question of, if or when the referendum will be held is not a matter for the court to determine. They relied on the decision in Hon Kanini Kega v Okoa Kenya Movement & 6 others, (Nairobi High Court Petition No 427 of 2014, [2014] eKLR).

250.They also contended that the quorum of the Independent Electoral and Boundaries Commission is res judicata, having been settled in Isaiah Biwott Kangwony v Independent Electoral and Boundaries Commission& another (Nairobi High Court Petition No 212 of 2018; [2018] eKLR). In their view, verification of signatures and conduct of elections or referenda are not policy decisions requiring quorum, but constitutional mandate under article 88(4) of the Constitution.

251.Honourable Raila Odinga and The Building Bridges Steering Committee further argued that the Independent Electoral and Boundaries Commission has administrative procedures for verification of signatures which was adopted in previous attempts to amend the Constitution by Okoa Kenya Movement and Punguza Mzigo respectively. According to them, the Independent Electoral and Boundaries Commission has put in place mechanisms for verification and authentication of signatures, which include invitation of members of the public to submit complaints with regard to inclusion of their names in the list of supporters for any proposed constitutional amendments initiative without their knowledge.

252.Regarding the argument in Petition No E416 of 2020 that there is no enabling legislation to operationalize articles 255, 256 and 257, Honourable Raila Odinga and The Building Bridges Steering Committee argued that there is no requirement under article 261 (1) as read with the fifth schedule to the Constitution for such legislation. In their view, the argument by this petitioner is unfounded and baseless since there are adequate election laws and procedures for the conduct of elections and referenda. Nothing stops the Independent Electoral and Boundaries Commission from conducting a referendum. They relied on the decision in Titus Alila case (supra).

253.They maintained that Petition No E416 of 2020 is inviting the court to pre-empt the National Assembly, the Senate and the Independent Electoral and Boundaries Commission from discharging their constitutional mandates. They argued that the petitioner in this petition had not demonstrated contravention of the Constitution or the law, thus failed to discharge his burden of proof as required under sections 106 and 107 of the Evidence Act.

254.The Honourable Attorney General filed grounds of opposition dated March 12, 2021 and written submissions dated the same day in response to this petition. The Honourable Attorney General argued that the Constitution recognizes the sovereign will of the people and provides how they can either directly or through their democratically elected representatives, amend the Constitution; provides for the process of constitutional amendment with in-built multi–institutional checks throughout the amendment process and provides competent fora for redressing all the issues raised by the petitioner in Petition No E416 of 2020.

255.The Honourable Attorney General contended that this petitioner had not applied a contextual analysis of relevant and applicable constitutional provisions, and that the Constitution does not preclude the national government or county government, state organ or a public officer from promoting an amendment to the Constitution through popular initiative.

256.The Honourable Attorney General argued that all the people who signed in favour of the Constitution of Kenya Amendment Bill are presumed to have read and agreed with the contents therein. In his view, the petitioner in Petition No E416 of 2020 will not be prejudiced if the constitutional amendment process proceeded to conclusion since he will have the right to vote against it.

257.It was the Honourable Attorney General’s case that this petitioner not being a directly elected representative of the people, cannot purport to be more authoritative in speaking on their behalf than the people’s democratically and directly elected representatives, including the President. The Honourable Attorney General argued that this petitioner’s concern as to what county assemblies may or may not do and which questions or how the questions are to be posed in a referendum are speculative, non-justiciable and an affront of separation of powers.

258.According to the Honourable Attorney General, the applicability of articles 255, 256 and 257 is not dependent on any legislative enactment, and is not part of the legislations contemplated under article 261 and the fifth schedule to the Constitution. The only requirement is one million or more voters to endorse constitutional amendment initiative.

259.The Honourable Attorney General contended that the petition in Petition No E416 of 2020 is urging the court to usurp constitutional functions of the legislative branch by pre-empting its consideration of the Constitution of Kenya Amendment Bill and undermine the principles of democracy and universal suffrage.

260.The Honourable Attorney General maintained that the issue of the formation of the Building Bridges Steering Committee is res judicata; that political rights and government processes have not been suspended and that the allegations regarding health were not substantiated. He relied on several decisions to support his position. These included; Law Society of Kenya v Inspector General National Police & others (Petition No 120 of 2020); Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] eKLR; DEN v PNN [2015] eKLR; Njoya & 6 others v Attorney General and 3 others [2004] eKLR and Coalition for Reform and Democracy (CORD) & another v The Republic of Kenya & another.

261.The National Assembly also filed grounds of opposition dated February 15, 2021 to the consolidated petitions, but and submitted orally in opposition to the consolidated petitions. The National Assembly contended that the petitions are non-justiciable for violating the doctrine of ripeness; that the petitions are speculative for anticipating that it will pass the Constitution of Kenya Amendment Bill which was yet to be introduced in Parliament and the consolidated petitions were seeking to second-guess how it would exercise its mandate in the enactment of the Constitution of Kenya Amendment Bill. According to the National Assembly, the issues raised in the consolidated petitions could be raised before Parliament during public participation as provided for in the Constitution and Standing Orders.

262.The National Assembly contended that gagging Parliament from debating the Constitution of Kenya Amendment Bill would amount to usurping its powers, since the constitutional scheme contemplates that challenges to constitutional validity of a bill await completion of the legislative process. According to the National Assembly, articles 255, 256 and 257 stipulate how the Constitution is to be amended. It relied on Justus Kariuki Mate & another v Martin Nyaga Wambua & another [2017] eKLR, to argue that the court lacks jurisdiction to intervene during active parliamentary process.

263.The Senate also filed grounds of opposition dated February 10, 2021 in response and adopted the submissions by the National Assembly. It contended that the Constitution grants the people sovereign and inalienable right to determine their form of governance and provides how they can either directly or indirectly through their democratically elected representatives, amend the Constitution, and that articles 255, 256 and 257 stipulate how the Constitution should be amended.

264.According to the Senate, the issues raised in the consolidated petitions are non-justiciable and offend the principle of justiciability; the consolidated petitions do not disclose infringement or threat of infringement of any right; that the orders sought are defective and that the court lacks jurisdiction to grant orders as framed and the court should exercise judicial restraint.

265.The Independent Electoral and Boundaries Commission filed a replying affidavit sworn by Michael Goa as well as written submissions dated March 12, 2021 in opposition to the petition. The Independent Electoral and Boundaries Commission argued that it complied with its constitutional and statutory mandate and verified signatures to confirm compliance with the constitution and was ready to conduct a referendum.

266.On verification of signatures to confirm compliance with constitutional requirements, the Independent Electoral and Boundaries Commission contended that it received the Constitution of Kenya Amendment Bill on December 10, 2020 and 4.4 million supporting signatures from the Building Bridges Steering Committee; that it conducted verification and prepared an interim report after undertaking data cleaning exercise and uploading a list of verified signatures of supporters into its website to enable voters confirm their details.

267.The Independent Electoral and Boundaries Commission maintained that after confirming that that the Building Bridges Steering Committee had met the threshold under article 257(4) of the Constitution, it forwarded the Constitution of Kenya Amendment Bill to the Speakers of the respective County Assemblies and Parliament for consideration as required by article 257(5) of the Constitution.

268.Regarding holding of the referendum, the Independent Electoral and Boundaries Commission contended that its mandate can only be invoked when either houses of Parliament fails to approve the Constitution of Kenya Amendment Bill or the Constitution of Kenya Amendment Bill touches on articles mentioned in article 255(1) of the Constitution. It also maintained that the issue of its composition had been resolved in the Isaiah Biwott case (supra).

VII Petition No E426 of 2020

269.By a petition dated December 21, 2020 filed in this honourable court on January 18, 2021, the petitioner in Petition No E426 of 2020 has sought for several declarations and orders which he has framed as follows:“Hereforeyour petitioner humbly prays that this honourable court-

1.Finds that civil court proceedings can be instituted against the President or a person performing the functions of the office of President during tenure of office in respect of anything done or not done in the exercise of claimed powers beyond those authorised under the Constitution, that is for actions or omissions not authorised under the Constitution.

2.Finds the President does not have authority under the Constitution, as President, to initiate changes to the Constitution, and that the only State organ granted authority by or under the Constitution to consider and effect constitutional changes is Parliament.

3.Finds that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President as notified in Gazette Notice No 264 dated January 3, 2020 and published in a special issue of the Kenya Gazette dated January 10, 2020, with terms of reference for considering and promoting constitutional changes, is an unlawful entity under the laws of Kenya.

4.Declares that an unconstitutional and unlawful entity, such as the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, does not have locus standi in promoting constitutional changes pursuant to article 257 of the Constitution.

5.Orders that the 1^st respondent make good public funds used in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the 1st respondent, the amount as computed by the Auditor-General.

6.Orders that the 2^nd respondent to ensure that other public officers who have directed or authorised the use of public funds in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report make good the said funds, the amounts as computed by the Auditor-General.

7.Orders that on account of the constitutional amendment process resulting from the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report not being in accordance with article 257 of the Constitution, the Independent Electoral and Boundaries Commission should not submit the resultant draft Bill to any county assembly, and should the draft Bill have been submitted to any county assembly, the same should be recalled from any and all such county assemblies.

8.Finds that the 1^st respondent has contravened chapter 6 of the Constitution, and specifically article 73(1)(a)(i), by claiming authority in initiating and promoting a constitutional change process, authority that is constitutionally vested in only one State organ, Parliament, and is not vested in the office of President.

9.Orders that the entire unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report be terminated, and thereby save further wastage of public funds in an unconstitutional constitutional change process.

10.Orders costs against the 1^st respondent. Or that such other orders as this honourable court shall deem just.”

270.The petition has combined both the facts and the legal basis upon which it is based; and, to some degree, the petitioner’s arguments in support of the petition notwithstanding that he has filed written submissions separately.

271.All that the petitioner has said in his affidavit in support of the petition is this:I, the undersigned, Isaac Aluoch Polo Aluochier, of Suite 1, Behind AA Stores Building, Kamagambo Police Station Road, P O Box 436-40404, Rongo, and email address aluochier@gmail.com, do affirm and state as follows:“I believe that the facts contained in the accompanying petition dated December 21, 2020, both those known to me of my knowledge, and those known to me from sources disclosed therein, are true.

272.It is stated in the petition that vide Gazette Notice No 5154 of May 24, 2018, and published in the Kenya Gazette dated May 31, 2018, Vol CXX – No 64, Mr Joseph K Kinyua who is the Head of the Public Service informed the public that HE Hon Uhuru Kenyatta, the President of the Republic of Kenya had established a taskforce known as the Building Bridges to Unity Advisory Taskforce comprising of 14 committee members and 2 joint secretaries. The terms of reference of this Taskforce were to:“(a)evaluate the national challenges outlined in the Joint Communique of 'Building Bridges to a New Kenyan Nation, and having done so, make practical recommendations and reform proposals that build lasting unity; [petitioner's emphasis throughout, unless otherwise statedb.outline the policy, administrative reform proposals, and implementation modalities for each identified challenge area; andc.conduct consultations with citizens, the faith based sector, cultural leaders, the private sector and experts at both the county and national levels.”

273.The terms of reference did not include constitutional amendment proposals but were only limited to “policy, administrative reform proposals”.

274.By a special issue of the Kenya Gazette of May 3, 2019, Vol CXXI – No 55, the President published his 6^th Annual Report, 2018 in which he stated, inter alia:“... Chapter three presents the measures undertaken by public institutions in the realisation of national values and principles of governance. To enhance national unity, HE the President and the former Prime Minister signed a Memorandum of Understanding (MoU) symbolized by the 'Hand Shake' to put the country on the path to national unity, reconciliation and enhance nationhood. To implement the MoU, the Presidency established and operationalized a taskforce on Building Bridges Initiative (BBI) aimed at addressing the 9 key challenges identified in the MoU namely, ethnic antagonism and competition, lack of national ethos, inclusivity, devolution, divisive elections, safety and security, corruption, shared prosperity, and responsibility and rights …“... 63. To promote reconciliation and harmonious relations, HE President Uhuru Kenyatta and HE Raila Odinga signed a Joint Communique titled 'Building Bridges to a New Kenyan Nation' to affirm their commitment to work together to find lasting solutions to ethnic antagonism and divisive politics. Further HE the President and HE Raila Odinga established the 14-member Building Bridges Initiative (BBI) Taskforce whose terms of reference include evaluating national challenges outlined in the joint communique and making practical recommendations and reform proposals to enhance national unity.“... 932. To enhance national unity, the rule of law, democracy and participation of the people and sustainable development, the Government commits to continue supporting the BBI and to fully implement its recommendations. Public institutions shall align their policies, legislation, programmes and activities with the recommendations of the BBI and other initiatives aimed at promoting national unity and nationhood.”

275.According to the implementation matrix, the Presidency, Parliament all Ministries, Departments and Agencies of Government, Independent Offices and Commissions, County Governments and the National Government Administration were to support the Building Bridges to National Unity Initiative (BBI) and implement its recommendations and other initiatives aimed at promoting national unity and nationhood.

276.And in a special issue of the Kenya Gazette published on January 10, 2020, Vol CXXII – No 7, in Gazette Notice No 264 dated January 3, 2020, the Head of the Public Service, once again, notified the public that the President had appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report comprising of 14 members and 2 joint secretaries. The terms of reference of this particular were stated in the Gazette as follows:The terms of reference of the Steering Committee shall be to:a.conduct validation of the Taskforce Report on Building Bridges to a United Kenya through consultations with citizens, civil society, the faith-based organizations, cultural leaders, the private sector, and experts; andb.propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report, taking into account any relevant contributions made during the validation period.”

277.Whereas the BBI’s terms of reference did not include proposals for constitutional changes, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (BBI 2 Steering Committee), included statutory or constitutional changes in its terms of reference.

278.The petitioner argues that if the original Building Bridges to Unity Advisory Taskforce (BBI 1 Steering Committee), that was gazetted in Kenya Gazette Notice No 5154 of May 24, 2018, was established in the spirit of article 131 (1)(e) and (2)(c) of the Constitution, there was no constitutional or other legal basis upon which the 1^st respondent established the BBI 2 Steering Committee with the expanded mandate to propose constitutional changes. Article 131 (1)(e) and (2)(c) of the Constitution reads as follows:131.

(1)The President –(e)is a symbol of national unity.

2.The President shall –(b)…promote and enhance the unity of the nation.

279.Following its gazettement the BBI 2 Steering Committee proceeded to make statutory and constitutional proposals in the form of a draft Bill and other publications and, among other things, purportedly procured over 4 million registered voters supporters' signatures and handed the same to the Independent Electoral and Boundaries Commission; as at the time of filing the petition, the list of voters was awaiting verification of the said signatories pursuant to article 257 (4) and (5) of the Constitution and that the National Treasury had approved the expenditure in excess of Kshs 93 million for the verification exercise.

280.The Constitution, according to the petitioner, has not only been contravened but there is also a threat to further violation. It is for this reason that the petitioner has invoked article 258 of the Constitution to bring this petition on his own behalf and also in the public interest.

281.As far as the capacity in which the respondents have been sued is concerned the petitioner has averred that the 1^st respondent is sued because he contravened the Constitution and that he is sued in his personal capacity, and not as President of the Republic of Kenya and Commander-in-Chief of the Kenya Defence Forces. The 2^nd respondent, on the other hand, has been joined to the suit on the basis of article 156 (4)(b) and (6)5, 2 article 257 (4) and (5) of the Constitution which essentially provide that the promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the IEBC, which then has to verify that the initiative is supported by at least one million registered voters. If the IEBC is satisfied that the initiative meets the requirements of this article, it is to submit the draft Bill to each county assembly for consideration; the consideration exercise is to be undertaken within three months from the date of submission by the Commission.

282.The 3^rd respondent is sued because it is the constitutionally authorised State organ for conducting referenda pursuant to articles 88(4)6 and 257 while the interested parties have been included in the petition in this capacity on account of their roles as articulated in articles 132(4)(a)7 and 229 of the Constitution.

283.The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report has been deliberately omitted because, though its activities are material to this petition, it is, according to the petitioner, an unconstitutional and illegal entity under the laws of Kenya, and therefore it “does not have locus standi before this honourable court.”

284.Other provisions which the petitioner has cited in support of his petition are article 88(4) on the IEBC’s obligation to conduct and supervise referenda and elections; article 132(4)(a) which provides that the President may perform any other executive function provided for in this Constitution or in national legislation and, subject to the Constitution, he may establish an office in the public service in accordance with the recommendation of the Public Service Commission; article 229 on the functions of the Auditor-General that include auditing and reporting on the accounts of any entity that is funded from public funds and whether those funds have been applied lawfully and in an effective manner; and, article 50(1) on the resolution of disputes by an independent and impartial tribunal or body.

285.On the specific question whether civil proceedings can be validly instituted in court against the person occupying the office of President in his personal capacity, the applicant has invoked article 143(2) of the Constitution; this provision of the law reads as follows:143.(2)Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.

286.It is the petitioner’s argument that while it is true that the 1^st respondent, cannot, during his tenure as the President be validly sued whether in his official or personal capacities in respect of anything done or not done in the exercise of their powers under the Constitution, he is not so insulated from court proceedings in respect of actions or omissions outside the Constitution.

287.To illustrate his point, the applicant invoked article 140(1), 142 (1) and 136 (2) (a) which, in his view, demonstrate circumstances under which the President may be sued while in office. Article 140(1), for instance, provides that a person is permitted to file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the Presidential election. Under article 142(1), the sitting President continues holding office until after the President-elect, has been sworn in and assumed office. According to article 142(2) there is a possibility that a sitting President may secure a second term as the President-elect while in office.

288.The petitioner’s argument is that when a sitting President is sued in circumstances contemplated in article 140 (1) as was the case when the current President was sued in 2017 after the General Elections conducted in that year, he was so sued in his personal capacity because, so the petitioner urged, seeking the presidential office in a presidential election is not an exercise of presidential powers under the Constitution; indeed any person meeting the requirements of contesting for presidency in a presidential election can do so and by so doing the contestant cannot be said to be exercising presidential powers under the Constitution.

289.With this analogy, it is the petitioner’s position that the 1^st respondent has been rightly sued in his personal capacity considering that, in his actions which provoked this petition, the 1^st respondent cannot be said to have been exercising his powers under the Constitution. The petitioner urged this honourable court to follow its decision in Isaac Aluoch Polo Aluochier v Uhuru Muigai Kenyatta & another [2016] eKLR where it was held that the 1^st respondent could indeed be sued for conduct outside the exercise of the presidential authority.

290.Speaking of the President’s authority and his powers, the petitioner cited articles 129 and 131 as the constitutional basis for these attributes. Even then, article 131 (2)(a) demands of the President to “respect, uphold and safeguard this Constitution” and this, the President did not do when he addressed the nation on December 12, 2020; in that address he promoted the draft constitutional Bill published by the BBI 2 Steering Committee which, according to the Petitioner, is an affront to the Constitution.

291.On the constitutionality or legality of the establishment of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (BBI 2 Steering Committee), the petitioner made reference to article 132(4)(a) of the Constitution which permits the President to perform any other executive function provided for in the Constitution or in national legislation; under this provision, he is permitted to establish an office in the public service but he can only do so in accordance with the recommendation of the Public Service Commission. It is the petitioner’s case that in establishing BBI 2 Steering Committee, the 1^st respondent did not act in accordance this article because there was no recommendation from the Public Service Committee for such a body. The establishment of the Committee in violation of the constitution means that the 1^st respondent acted beyond the authority given to him by the Constitution and therefore article 143(2) of the Constitution cannot provide him with any refuge.

292.Again, the petitioner urged that the manner in which the Constitution may be amended is provided for in article 255 of the Constitution; to be precise, it prescribes that it can only be amended in accordance article 256 or 257. By establishing a committee whose terms of reference included proposals for constitutional changes, the 1^st respondent violated these constitutional provisions because the manner in which the 1^st respondent has sought to change the Constitution is inconsistent with the constitutionally prescribed means; it is neither a parliamentary initiative under article 256 nor is it a popular initiative prescribed in article 257 of the Constitution. The violations of the Constitution in this respect is yet another reason why article 143(2) cannot come to the 1^st respondent’s aid.

293.The authority and role of the President under article 256 is limited to assent to a duly passed Constitution of Kenya Amendment Bill which has been submitted to him by both Speakers of Parliament; he has no role whatsoever in the taking any initiative for conception of such a bill and whatever action is necessary before it is presented to him for his assent.

294.According to the petitioner, a popular initiative for amendment of the Constitution, cannot not originate from a State organ irrespective of whether it is Parliament, the executives of either the national or county Government or any other state organ; such an initiative can only originate from the people themselves outside the structures of the State.

295.Although the proposed constitutional amendments promoted by the BBI 2 Steering Committee have been packaged as a popular initiative, the process by which they have been initiated and undertaken including the establishment of the BBI 2 Steering Committee that was tasked with making proposals for constitutional changes is alien to the Constitution itself.

296.Article 1 of the Constitution states that all sovereign power belongs to the people of Kenya and according to article 1(2), the sovereign power may be exercised directly or through their democratically elected representatives. As far as legislative functions are concerned, this power has been delegated to Parliament and the county assemblies; the amendment of the Constitution by a parliamentary initiative under article 257 is a clear example of the delegation of this power to Parliament with respect to amendment of the constitution otherwise the people may choose to exercise this power directly as a popular initiative under article 257 of the Constitution.

297.While stressing the supremacy of the Constitution and the 1^st respondent’s vulnerability to court action whenever he breaches the Constitution, the petitioner has cited articles 2(1), 2(2) and 2(4) of the Constitution. These provisions are clear on the supremacy of the Constitution and, for this reason, any person, including the 1^st respondent is bound by its provisions. It follows that anything done in violation of any of the provisions of the Constitution is not only unconstitutional but it is of no legal effect. The 1^st respondent’s actions in initiating constitutional changes and establishing a committee for that purpose fall into that category of actions which article 2(4) of the Constitution frowns upon as being invalid to the extent that they are inconsistent with the Constitution. By the same token, nothing legal or valid can come out of the BBI 2 Steering Committee and whatever it has done is of no legal consequence.

298.There cannot, therefore, be any claim that there has been a valid popular initiative to amend the Constitution in accordance with article 257 of the Constitution. It is the petitioner’s case that, under article 257 (6), the IEBC was bound to satisfy itself that the initiative met the requirements of this particular article; however, since it is obvious that the article and other provisions of the Constitution had been infringed, the IEBC ought not to have taken any action on the draft Bill submitted to it in purported compliance with article 257 (4) of the Constitution.

299.Further, while the National Assembly represents the people of the constituencies and special interests in the National Assembly in accordance with article 95 (1) of the Constitution, no such power has been given to the 1^st respondent and therefore the latter cannot claim to be acting as the peoples’ representative in initiating constitutional amendments through means that are unknown in law.

300.It follows that the attempt by the BBI 2 Steering Committee, to convert an illegal presidential constitutional change initiative into a popular initiative, allegedly in accordance with article 257, falls short of the threshold in this article for constitutional change by popular initiative.

301.The BBI 2 Steering Committee constitutional change process is nothing more than an attempt to usurp the role of Parliament in the constitutional change process. Apart from Parliament, no other State organ has been accorded this constitutional authority under article 256(2) to publicise any Bill to amend the Constitution. Contrary to this provision of the Constitution, the BBI 2 Steering Committee usurped this role of Parliament and used public funds to publicise its draft Bill and facilitate public discussion on the same.

302.Regrettably, Parliament which is enjoined by article 94(4) to protect the Constitution, woefully failed to protect its own constitutional stature and is going along with the unlawful constitutional change process spearheaded by the BBI 2 Steering Committee.

303.On this question of use of public funds, the petitioner invoked article 226 (5) of the Constitution which provides as follows:226 (5)If the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not.

304.The petitioner contends that the 1^st respondent bears responsibility for public funds that have been used in the unlawful and unconstitutional process of which the BBI 2 Steering Committee is part; following the provisions of this article, the 1^st respondent must make good the loss that may have been incurred.

305.Likewise, the submission by the IEBC of the unconstitutionally promoted draft Bill to the county assemblies has exposed it to liability and it is also required to make good any funds that have been expended on the initiative.

306.It is the petitioner’s case that according to article 73(1) (a) (i) of the Constitution, the authority assigned to a state officer is a public trust and which must be exercised in a manner that is consistent with the purposes and objects of the Constitution. The 1^st respondent, the petitioner has argued, has acted contrary to the purposes and objects of the Constitution and therefore he has breached the public trust entrusted to him.

307.The 1^st respondent never responded to the petition in any manner but as will become clear in due course the 2^nd respondent’s response and a large part of his submissions were dedicated to the 1^st respondents defence.

308.The 2^nd respondent filed grounds of objection; he has opposed the petitioner’s petition on the grounds that the 1st respondent is currently the President of Kenya of the Republic of Kenya and ipso facto cannot be sued in his personal capacity for any acts during the pendency of his presidency; that the 1^st respondent, may not be sued in his personal capacity during his incumbency as President of the Republic of Kenya; that petitioner is approbating and reprobating-on the one hand, he has sued the 1^st respondent in his personal capacity and on the other hand, he has sued him as the sitting President; and that, this petition is res judicata because the issues in respect to the legality and mandate of the Steering Committee have been determined by this honourable court, in Nairobi Constitutional Petition No 451 of 2018; Third Way Alliance v The Hon Attorney General & others [2020] eKLR.

309.Other grounds are that the petitioner has not appreciated the constitutional definition of a ‘person; that he has not furnished any material that demonstrates breach of the provisions of article 73 of the Constitution by the 1^st respondent; that this honourable court has affirmed the constitutionality of the President’s functions and the same is res judicata; that monies expended on the President’s constitutional functions fall within the permissible budget; and, that the petitioner is inviting the court to perform functions of Auditor-General and find that there has been improper use of government funds and, in any event, there is no evidence of misuse of public funds.

310.Again, the 2^nd respondent has objected to the petition on the grounds that it is sub-judice because it seeks to litigate over matters pending hearing and determination in Nairobi High Court Constitutional Petition No 12 of 2020 between Okiya Omtata Okoiti v the National Executive of the Republic of Kenya and others; that the petition is premised on misinterpretation of the law; that the petition is premised on generalised assertions with no supporting evidence adduced; and, finally, that the petition is without any merit.

311.In his submissions in support of the 2^nd respondent’s case, Mr Bitta, the learned counsel for the 2^nd respondent urged that the 1^st respondent is protected from court proceedings by article 143 (2) of the Constitution; as earlier noted, this article is to the effect that civil proceedings cannot be instituted in any court against the President or the person performing the functions of that office during their tenure of office but only in respect of anything done or not done in the exercise of their powers under this Constitution. This article, it was submitted, confers immunity to the 1^st respondent, both in his personal capacity and also as the President of the Republic of Kenya during his tenure.

312.The decision of the Supreme Court of Kenya, in Deynes Muriithi & 4 others v Law Society of Kenya & another [2016] eKLR was cited in support of the 2^nd respondent’s position; in that decision the court held that that proceedings commenced by way of constitutional petitions are in the nature of civil proceedings. A similar holding had been made by this honourable court, sitting in Kisii, in Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others, Constitutional Petition No 3 of 2010; [2011] eKLR. Cited for the similar position were the decisions in Abdul Karim Hassanaly & another v Westco Kenya Ltd & 3 others [2003] eKLR; Ferdinand Ndung’u Waititu Babayao v Republic [2019] eKLR) and Julius Nyarotho v Attorney General & 3 others [2013] eKLR.

313.It was submitted further on behalf of the 2^nd respondent that the presidency is a creature of the Constitution and according to articles 1(3) (a), 129 and 130, the executive authority is derived from the people and is exercised in accordance with the Constitution. The presidency is bound to, among others, promote and protect the Constitution; observe national values and principles of governance; observe principles of executive authority; maintain integrity for leadership; observe legal requirements; and, respect the authority of the judiciary.

314.The 2^nd respondent also addressed the question whether judicial review proceedings can be taken against a sitting President and in an attempt to answer it, the learned counsel considered this questions from three perspectives the first of which is the constitutional duty of the President to adhere to, promote and protect the Constitution and all laws made under the Constitution. The second perspective is that judicial review is a public law remedy under the Constitution; and the third is the role of public law.

315.The learned counsel for the 2^nd respondent echoed the provisions of the constitution and urged that the presidency is not only a creature of the Constitution but also that under articles 1(3) (a), 129 and 130, the executive authority is derived from the people and is exercised in accordance with the Constitution. Accordingly, the presidency should, among other things, adhere to, promote and protect the Constitution; it must observe national values and principles of governance as prescribed in article 10 of the Constitution; it must observe principles of executive authority; it must maintain integrity for leadership in accordance with chapter 6 of the Constitution; and, it must observe the rule of law and respect the authority of the judiciary.

316.Counsel urged that if the presidency violates the Constitution in particular and the rule of law generally, the Constitution is not left helpless; it provides a remedy; for instance, judicial review will lie against an order of appointment made by a sitting President in contravention of the law. This is a public law remedy and will be directed to the state itself if, in making the appointment, the President purported to exercise the executive authority of the state. A narrow and strict interpretation of article 143 of the Constitution would offend article 259 of the Constitution which demands a purposive interpretation in order to give effect to the objects, purposes and values of the Constitution.

317.It was also urged that, according to article 73 of the Constitution, authority assigned to a state officer is a public trust and for this reason, the executive has a responsibility to serve the people rather than rule them; it has the responsibility, under article 129 of the Constitution, to be accountable to the people, and respect the rule of law.

318.It is the 2^nd respondent’s position that strict interpretation of article 143 of the Constitution without regard to the objects, values, purposes and spirit of the Constitution, as suggested by the respondents, particularly the Attorney General will first, deprive the public the right to demand for public answerability from the office of the President on the exercise of the sovereign authority they have delegated to the executive; and, second, disparage the Constitution and promote impunity.

319.These matters, according to the 2^nd respondent, are placed in the public law of the state as a deliberate constitutional approach in order to enable the Constitution to avoid an absurd state of affairs that would otherwise be created by a narrow interpretation of article 143. The duty of the courts is to reconcile the dichotomy of ensuring that there is no violation of the Constitution or the law that goes without a remedy while at the same time maintaining the integrity of the presidency which is a symbol of the Republic of Kenya by simply upholding and protecting the Constitution. In those circumstances, the Attorney General would be the proper party to a suit where the President has to be sued.

320.It was also urged that in countries with robust Constitution, such as Kenya, courts have questioned actions or inaction by the President in so far as the deed or omission thereof has violated the law. Although in the instances where courts have invoked judicial review to right the wrongs by the executive have been equated by some pundits to judicial activism, counsel urged that it is simply a judicial path that is permitted by the Constitution itself as a way of attaining checks and balances within the doctrine of separation of powers. On this point, the learned counsel for the 2^nd respondent referred to a case only cited BGM HCCC No 42 of 2012 [2012] eKLR and the case of Centre for Rights Education & Awareness & 6 others v Attorney General Nairobi High Court Petition No 208 & 209 of 2012.

321.It was the learned counsel’s position that based on his understanding of the law, he is not persuaded by the argument that since a sitting President enjoys immunity from legal proceedings under article 143 of the Constitution, no proceedings in the nature of public remedy should commence to put right a clear violation of the law in the exercise of a public power by the President. The public power is derived by the President from the Constitution and statute law as delegated by the people. Judicial review being a public law remedy is available in the Constitution to ensure due process has been followed, and it will not be rendered ineffective because the impugned exercise of public power was committed by the President. Such proceedings, where it is claimed a state officer acted in contravention of the law, are in the nature of constitutional remedy under articles 22 and 23 of the Constitution, and are legally instituted and maintained against the Attorney General unless the Constitution or an Act of Parliament governing the particular state office provides otherwise, or where liability is of a criminal nature. These proceedings are not proceedings against the President but against the State itself and any ensuing liability would certainly be liability of the State within the public law of the State.

322.On the question of sub judice, the learned counsel for the 2^nd respondent urged that the petitioner unequivocally admitted in paragraphs 26, 27, 28 and 29 of his ‘’replying affidavit’ affirmed on February 17, 2021 that all the issues in his petition are sub judice Nairobi Constitutional Petition No 12 of 2020 Okiya Omtata Okoiti v the National Executive & others which was instituted sometime during the month of January 2020 and amended on August 3, 2020 well before the institution of the present petition.

323.While relying on the decision of Olao, J in Kenya Planters Co-operative Union Limited v Kenya Co-operative Coffee Millers Limited & another [2016] eKLR, counsel urged that this petition amounts to an abuse of process and ought to be struck out apparently for offending the sub judice rule. On this same point, he cited Kerugoya Environment and Land Court Civil Appeal No 60 of 2014. Counsel also cited section 6 of the Civil Procedure Act, cap 21 and Black’s Law Dictionary 10^th Edition on what sub judice entails and submitted that a matter which is pending in court for determination sub judice and that is precisely the position with regard to Nairobi Constitutional Petition No 12 of 2020 Okiya Omtata Okoiti v the National Executive & others. It is his contention that a constitutional petition is subject to the sub judice rule just like any other civil proceeding particularly considering the inclusion of the words “or proceedings” in section 6 of the Civil Procedure Act.

324.The decision in Stephen Somek Takwenyi & another v David Mbuthia Githare & 2 others Nairobi (Milimani) HCCC No 363 of 2009 was cited for the position it is the inherent jurisdiction of every Court of justice to prevent an abuse of its process and it has the duty to intervene and stop such proceedings as have been instituted in its abuse. The case of Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya [2015] eKLR; the High Court of Uganda decision in Nyanza Garage v Attorney General Kampala HCCS No 450 of 1993; Re the Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011 [2011] eKLR; Australian decision in Re Judiciary Act 1903-1920 & In Re Navigation Act 1912-1920 (1921) 29 CLR 257 were also cited by the learned counsel for the 2^nd respondent to augment his position on the doctrine of sub judice and the abuse of the process of the court with particular reference to this petition. In this latter Australian decision, it was held that the word ‘matter’ in the phrase matter in issue, means not a legal proceeding but rather the subject matter for determination in a legal proceeding. It follows that in determining whether the matter is sub judice and therefore an abuse of the process of the court, it is the substance of the claim that ought to be looked at rather than the prayers sought. This court was invited to consider Murang’a County Government v Murang’a South Water & Sanitation Co Ltd & another [2019] eKLR on the same point and decline the invitation to determine matters pending determination before a court of competent jurisdiction.

325.It was further urged on behalf of the 2^nd respondent that, despite offending the sub judice doctrine, the petition raises issues that have been determined by this court in Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others and Martin Kimani & 15 others (Interested Parties) [2020] eKLR. It is the 2^nd respondent’s position that the legality and rationality of the exercise of presidential authority in commissioning a taskforce to advice the presidency on some of the constitutionally prescribed functions, are matters that have been determined in the former case and, in any case, cannot be said to be unconstitutional. However, the learned counsel for the 2^nd respondent admitted that the decision having been made by a court of concurrent jurisdiction is only persuasive.

326.As far as the question of funding the Steering Committee is concerned, counsel urged that the question of funding such ad hoc committees was also disposed of in the Third Way Alliance case where the court held that the utilization of public funds to facilitate the work of ad hoc taskforces is lawful and not in breach of the principle of public finance management as stipulated in the constitution. In any case, for the allegation of misappropriation of funds to stand, it was incumbent upon the petitioner to adduce evidence of such misappropriation; this, according to the 2^nd respondent, was not done.

327.Based on the same Third Way Alliance case, it was submitted that this honourable court should decline the invitation to usurp the constitutional functions of the office of the Auditor General and Parliament on public finance.

328.The learned counsel for the 2^nd respondent also submitted that the Constitution does not expressly preclude a government at the national or county level, a State organ or a public officer from promoting an amendment to the Constitution through a popular initiative. Accordingly, nothing prevents any of the entities and officers concerned, including the 1^st respondent from taking a lead role in the initiation of an amendment of the Constitution by a popular initiative.

329.The objective of the Constitution in establishing the instrument of amendment by popular initiative was to ensure that any actor, private or public, would have the opportunity to initiate proposals and, in amending the constitution, all that matters is that all the procedural requirements for such an amendment have been satisfied.

330.To illustrate his point, the learned counsel for the 2^nd respondent noted that many of what he described as ‘landmark constitutional amendments’ in Kenya have been a product of state initiatives. In 2005, for instance, the then government adopted a position in support of the draft constitution. The same situation obtained in 2010, when the Government led the constitutional reform efforts, including supporting the constitutional referendum.

331.He submitted further that various provisions of the constitution require the state to take legislative and other measures to ensure the achievement of certain constitutional objectives; for instance, article 21 (2) of the Constitution directs that"State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43."Again, in article 27(8), the Constitution directs that“in addition to the measures contemplated..., the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”And, according to article 55 of the Constitution, the state is enjoined to take affirmative action programs, to ensure that the youth access relevant education and training; have opportunities to associate, be represented and participate in political, social, economic and other spheres of life; access employment; and, are protected from harmful cultural practices and exploitation. These measures, according to the learned counsel, may include initiation of constitutional amendments.

332.Consequently, the existence of such positive obligations on the State to ensure the taking of certain measures can only mean that the Constitution contemplates that the State can initiate amendments to the Constitution, through popular initiative, to achieve the objectives of the Constitution. When this happens, there would be nothing wrong for state-initiated amendment proposals to be financed by the State, as long as this is done in line with the principles of public finance management as articulated in the Constitution and in the Public Finance Management Act, 2012, amongst other laws.

333.The act of amending the constitution, it was urged, is an expression of the sovereignty of the people of Kenya; going by article 1 of the Constitution, sovereignty may be exercised directly by the people themselves or through their democratically elected representatives. The import of having at least one million registered voters supporting the initiative is that that number qualifies the initiative as a popular initiative.

334.On the question of breach of the provisions of article 73 of the Constitution, it was submitted that the petitioner has not adduced any evidence to support the allegations abuse of or breach of trust and further, it would be a usurpation of the constitutionally ascribed role of the Ethics and Anti-Corruption Commission for the honourable court to exercise primary jurisdiction over these allegations without reference to the Commission.

335.As far as the issue of disclosure of expended funds is concerned, it was submitted that the petitioner never sought any information on this issue and neither has he demonstrated that such information was declined if he ever requested for it and therefore the petitioner’s claim, to the extent that it is based on perceived misuse of funds, is premature.

336.And with that the 2^nd respondent’s learned counsel asked this honourable court to dismiss the petitioner’s petition with costs.

337.Micheal Goa, the Director, Legal and Public Affairs of the IEBC swore a replying affidavit on behalf of the 3^rd respondent; he did not dispute the facts that provoked this petition but stated that since IEBC had already forwarded the Constitution Amendment Bill, 2020 to the speakers of the respective County Assemblies for consideration by the County Assemblies vide a letter date January 26, 2021, the prayers sought against it are now moot. In any event, the 3^rd respondent has complied with its constitutional and statutory mandate as far as the initiative to amend the constitution which is the subject of this petition.

338.In particular, the 3^rd respondent complied with what has been described as ‘verification and conformity mandate’ which is one of the two limbs of the 3^rd respondent’s mandate under article 257. According to Goa, this mandate entails the 3^rd respondent’s receipt of a proposed amendment Bill accompanied by its supporters’ signatures for verification that the same conforms to the requirements in article 257. The other limb of the mandate is the ‘referendum mandate’ when the Bill is subjected to a referendum, for one reason or the other.

339.The 3^rd respondent’s mandate commenced on December 10, 2020 when the 3^rd respondent received the Constitution of Kenya (Amendment Bill), 2020 and 4.4 million supporters’ signatures from the promoters of the popular initiative. The 3^rd respondent announced receipt of the Bill and the supporters’ signatures through a press release issued on Friday December 18, 2020.

340.The 3^rd respondent duly confirmed that the initiative was supported by the signatures of at least one million registered voters in order to ensure compliance with the requirements of article 257 (4) of the Constitution.

341.Upon completion of the process to confirm that the initiative had been supported by the signatures of at least one million registered voters, the 3^rd respondent prepared an interim report; it also undertook data cleaning exercise by removing incomplete records including missing signature, identification numbers and names, duplicates and those not in the Register of Voters maintained by the 3^rd respondent. The 3^rd respondent then uploaded a list of verified supporters on its website, to enable them to check and confirm their details. The purpose of uploading the list of verified supporters on the 3^rd respondent’s website was to provide anyone who may have been captured as a supporter without their consent, an opportunity to report to the 3^rd respondent by writing to its acting Commission Secretary indicating their objections. This was a necessary exercise to rid the 3^rd respondent's exercise of any errors and inadvertent mistakes giving it a clean bill of health.

342.Upon completion of this process, it was established that the initiative had met the requisite threshold as provided for under article 257(4) of the Constitution. Thus, in conclusion of its mandate as contemplated under the Constitution, the 3^rd respondent forwarded the Constitution of Kenya (Amendment) Bill 2020 to the Speakers of the respective County Assemblies for consideration by the County Assemblies. This was done through a letter dated January 26, 2021 in execution of the 3 respondent’s constitutional mandate as provided for under article 257(5) of the Constitution.

343.Having submitted the draft Bill to the County Assemblies in line with article 257(5) of the Constitution, the 3^rd respondent no longer has any other role to play in the subsequent process of consideration by the County Assemblies.

344.The 1^st interested party did not file any response and neither were any submissions filed on its behalf.

345.The 2^nd interested party, on the other hand, filed a replying affidavit and also written submissions. The affidavit was sworn by the Milcah A Ondiek, who has been described as the ‘head of legal at the office of the Auditor General’. She swore that the Office of the Auditor General does not compute financial statements and reports of auditees but only ensures that public expenditure is in compliance with the Constitution, the Public Audit Act, the Public Finance Management Act and any other legislation relevant to the Auditee in question. At the time of filing her affidavit on March 16, 2021, the 2^nd interested party was auditing the finances for the year 2019/2020 and it is possible that the entities in question will be audited in line with article 229(5) which states that the Auditor General may audit and report on the accounts of any entity that is funded from public funds.

346.In what is clearly a submission on a point of law, though camouflaged as a deposition in an affidavit, the 2^nd interested party has urged that it is not in the powers of the court to order an independent office to exercise its discretion; the deponent went even further and cited the case of Samson Owimba Ojiayo v Independent Electoral and Boundaries Commission (IEBC) & another [2013] eKLR for this proposition.

VIII. Petition No 2 of 2021

347.On December 10, 2020, the IEBC confirmed receipt of the Constitution of Kenya Amendment Bill 2020 and signatures in support of the Bill to amend the Kenyan Constitution 2010 by popular initiative.

348.On December 18, 2020, the petitioner, Muslims for Human Rights (MUHURI), with regard to the signatures so collected, requested the IEB) to provide information whether:a.There existed Rules to guide and regulate signature verification process;b.IEBC held specimen signatures of all registered voters;c.Funds had been allocated and authorized for the conduct of signature verification;

349.By a letter dated December 23, 2020, the IEBC responded that:a.it had developed procedures for the verification of signatures;b.it did not have a data base of all the signatures of registered voters but only held their biographic and biometric data;c.The treasury had authorized Kshs 93, 729, 800/= to cover expenses relating to signature verification;d.On December 30, 2020, the IEBC through its twitter handle informed the public of the launch of signature verification at the Bomas of Kenya.

350.Through a press statement released on January 21, 2020, the IEBC notified the public that it had published, on its website, the names of persons who had appended their signatures in support of the BBI Bill inviting the public to access the information on the website and incase of any complaint, to write to the commission by Monday, January 25, 2021.

351.On January 26, 2021 IEBC announced to the public that it had conducted the verification process and the preliminary findings were that the BBI Bill had satisfied the requirements of article 257 of the Constitution. IEBC proceeded to submit the BBI bill to the 47 counties for consideration, approval or rejection.

352.The petitioner was concerned that the whole process from the collection of the signatures to the verification process were all not supported and or guided by any regulatory framework. Secondly, that any alleged Procedural Rules or guidelines made and applied by the IEBC to carry out the exercise were in violation of articles 10, 94 and 249 of the Constitution, as the IEBC does not have legislative powers under the Constitution.

353.The petitioner took the view that IEBC had contravened article 81 of the Constitution by purporting to conduct the verification procedure required by article 257 (4) and (5) without a that regulatory framework to guide the actual process on how the verification should be undertaken.

354.It was also the petitioner’s case that the so called administrative procedures were developed without legal authority and therefor failed to comply with sections 5, 6 and 11 of the Statutory Instruments Act rendering them legally infirm.

355.The petitioner also contended that by failing to maintain a database of specimen signatures of registered voters the IEBC was in violation of article 257 (4) and (5) of the Constitution as it was rendered incapable of discharging its mandate on the signature verification process.

356.The petitioner’s case was supported by the affidavit of Khelef Khalifa and the annexures therewith.

357.In view of the above the petitioner makes the following prays: -i.That a declaration be issued that IEBC cannot undertake the verification process of signatures and registered voters supporting a popular initiative without a legal/ regulatory framework or adequate legal/ regulatory framework to regulate the verification and other processes required under article 257(4) and (5) of the Constitution.ii.That a declaration be issued that any process undertaken by IEBC purportedly under article 257(4) and (5) in regard to Constitution of Kenya (Amendment) Bill 2020 promoted by the Building Bridges Initiative violates the rule of law under article 10 for lack of an enabling and guiding legal/ regulatory framework and or adequate enabling and guiding legal/ regulatory framework and is therefore invalid.iii.That a declaration issue that Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum are illegal because they are made without legal authority and in violation of article 94 of the Constitution and sections 5, 6 and 11 of the Statutory Instruments Act, 2013.iv.That an order issue quashing the Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum.v.That an order issue quashing all the processes and decisions made by the IEBC purportedly under article 257 (4) and (5) concerning the Constitution of Kenya (Amendment) Bill, 2020 promoted by the Building Bridges Initiative.vi.That a permanent order of injunction do issue permanently restraining IEBC, its Commissioners, staff or agents from forwarding the Constitution of Kenya (Amendment) Bill, 2020 promoted by the Building Bridges Initiative to the County Assemblies.vii.That a permanent order of injunction do issue restraining the IEBC from undertaking any processes required under article 257 (4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020 or any other Bill presented to it under article 257 (4) until the 2^nd respondent herein enacts a comprehensive legal and regulatory framework to regulate and guide the constitutional processes mandated under article 257 (4) and (5) of the Constitution.viii.That in the alternative, this honourable court be pleased to suspend the verification process of signatures and registered voters supporting a popular initiative by IEBC and other processes required under article 257 (4) and (5) of the Constitution until the 1^st and 2^nd respondent enacts an adequate statutory and regulatory framework to regulate the verification of signatures and other processes required under article 257 (4) and (5) of the Constitution.ix.That the respondents file in court an affidavit detailing the steps they have undertaken in enacting the requisite statutory and regulatory framework regulating the verification of signatures and other processes required under article 257 (4) and (5) of the Constitution within 21 days of enacting the aforesaid regulatory framework.x.That this honourable court be pleased to grant such further order of orders as may be just and appropriate.

358.IEBC’s response to the petition was contained in an affidavit dated January 22, 2021, sworn by Michael Goa opposing the petition on the grounds that:i.The that IEBC had complied with the Constitution;ii.That upon receipt of the Draft Bill and record of registered voters in support of the Bill, from the promoters of the BBI initiative, it notified the public through various media platforms of the launch of the verification exercise of the record of voters in support of the Initiative;iii.That in line with section 55 of the Elections Act and through extensive public participation, it developed administrative procedures for the verification process similar to the administrative procedures used in the verification of signatures in Okoa Kenya and Punguza Mizigo initiatives;iv.That upon inviting the public to view the record of voters in support of the initiative on its website and to submit confirmation and complaints if any, it had verified the that the Initiative was supported by more than 1 million registered voters, as no complaints had been submitted;v.IEBC urged the court to find that since the exercise was at advanced stages and a lot of money had already been used it would be imprudent to stop it;vi.That the petition was sub judice as there were five similar cases ongoing seeking similar remedies;vii.That the petition was immature and lacked merit and should be dismissed with costs as it presumed that Parliament would pass the draft Bill the way it was.

359.Both the Senate and the National Assembly filed grounds of opposition dated February 15, 2021. They contended that:1.The petition offends the principle of justiciability for want of ripeness;2.The petition was challenging the legislative proposals to be considered by Parliament and that the mere introduction of the Bills in Parliament does not constitute a violation of the Constitution.3.As per the doctrine of separation of powers, the court lacks jurisdiction to intervene during active parliamentary proceedings. To that end the petition violates the doctrine of separation of powers as per the Supreme Court case of Justus Kariuki Mate & another v Martin Wambora & another [2017] eKLR where the court held that each arm of government should restrain itself from directing another on how to undertake its mandate.4.The petitioners would have the opportunity to raise the issues raised in this petition before Parliament during the public participation exercise as provided for in the Constitution and Standing Orders of the Houses.5.Orders sought would amount to gagging Parliament from debating the Draft Bill hence usurping its constitutional powers.6.That challenges to the constitutional validity of the BBI Bill were pre mature and would have to await the completion of the legislative process.7.Articles 255, 256 and 257 stipulates the manner in which the Constitution is to be amended.

360.The interested party opposed the petition vide a replying affidavit sworn on February 5, 2021 by Dennis Waweru the Co-Chairperson. In answer to the issue of lack of an existing legal framework, it took five positions.

361.One supported by the holding in the case of Titus Alila & 2 others (Suing on their own behalf and as the Registered Officials of the Sumawe Youth Group) v Attorney General & another [2019] eKLR where the court held that the Constitution has already set up a proper legislative framework for holding a referendum. The IEBC’s case was that:i.There is no lacuna in the law.ii.The Bills pending in Parliament were merely for the amendment of the referendum.iii.There are adequate laws and explicit provisions in the Elections Act which govern the conduct of a referendum in Kenya.

362.The second position with regard to the procedure to be applied when considering the Draft Bill, that this court held in Republic v County Assembly of Kirinyaga & another Ex- Parte Kenda Muriuki & another [2019] eKLR, it was upon the County assemblies to employ their own procedures for the consideration and approval of Bills.

363.Third, that the jurisdiction of the court was prematurely invoked as the Senate, National Assembly and County Assemblies were yet to receive and debate on the Draft Bill and thereafter approve or reject the same.

364.four th, that court’s jurisdiction is limited to determining whether there is a violation of law and not dictate to Parliament and the IEBC the content of such legislation.

365.Fifth, that the proceedings offend the doctrine of sub judice as the issues raised herein were also raised in Petitions E400 of 2020 and E416 of 2020 which are alive and pending before a court of competent jurisdiction.

366.The petitioner filed submissions dated March 12, 2021. On the issue whether IEBC requires a database of specimen signatures of all registered voters to verify the Constitution of Kenya Amendment Bill is supported by at least one million registered voters, the petitioner submitted that by virtue of article 257 (4) of the Constitution, the IEBC was obligated to verify that a Bill or general suggestion to amend the Constitution through popular initiative is signed by at least one million registered voters. That the terms signatures and signed were not defined by any legislation, neither was the verification process set out in any law.

367.That without a regulatory framework defining the terms “signed” and “signature” required under article 257 of the Constitution mean, the IEBC contravened articles 94 and 257(4) of the Constitution by imposing the meaning to be ascribed to the term signature without Parliament’s authorization.

368.That by using other identifiers in the verification process other than signatures of registered voters the IEBC was in violation of article 257(4) of the Constitution. Without a database of signatures it could not carry out the verification process as required.

369.On the issue whether there is a legal and regulatory framework to regulate the verification process as required under article 257(4) and (5) of the Constitution, the petitioner’s position was that there is no law, regulation or guideline providing for the actual procedure on how verification is to be undertaken. Without a regulatory framework to guide the process on verification procedures, there were many regulatory gaps

370.The petitioner relied on Muslims for Human Rights (MUHURI) & another v Inspector General of Police & 5 others [2015] eKLR where the court held that the principle of constitutionalism and rule of law lie at the root of our system of government, and are fundamental postulates of our constitutional architecture.

371.That the fact that there are pending bills in Parliament on a referendum law means that Parliament, noted that there was a vacuum. That Parliament knows the needs of its people and does not legislate in a vacuum. For this it relied Kenya Human Rights Commission v Attorney General [2015] eKLR.

372.The petitioner submitted further that that lack of a regulatory framework makes the verification and certification process unaccountable to any law and unverifiable at every stage in violation of article 81 of the Constitution.

373.On the appropriate remedy, the petitioner urged the court to, inter alia suspend the performance of the verification process until a proper and adequate regulatory framework was put in place. For this the petitioner relied the case of Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR where the court held that the biometric data and personal data in NIIMS should only be processed if there is an appropriate legal framework in which sufficient safeguards are built in to protect fundamental rights.

374.On whether the Administrative Procedures for the Verification of Signatures in support of Constitutional Amendment Referendum are illegal, the petitioner submitted that that sections 55 of the Elections Act and section 31 of the IEBC Act did not empower the IEBC to make the administrative procedures as Parliament had not enacted laws on verification and certification of signatures as required under article 257(4) of the Constitution.

375.It was also submitted that IEBC had not provided evidence to demonstrate that the said administrative procedures had been subjected to public participation or that they had the approval by Parliament as required by the Statutory Instruments Act.

376.On the requirement public participation with regard to the making of legislation including subsidiary legislation the petitioner relied on British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] eKLR and Keroche Breweries Limited & 6 others v Attorney General & 10 others [2016] eKLR.

377.On the argument that the administrative procedures did not have parliamentary approval, the petitioner relied on the case of Kenya Country Bus Owners Association (Through Paul G Muthumbi Chairman, Tax Network- Africa v Cabinet Secretary for National Treasury & 2 others [2019] eKLR, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer ) & 8 others v Cabinet Secretary for Transport & Infrastructure & 5 others JR No 2 of 2014 [2014] eKLR where the court held that the failure to comply with section 11 of the Statutory Instruments Act rendered the National Transport and Safety Authority (Operation of Public Service Vehicles) Regulations, 2013 null and void.

378.On the reliefs sought in the petition, the petitioner submitted that the respondents had violated the Constitution and that if the court found that the conduct of the respondents was in contravention of the Constitution, it is mandated to remedy the contravention by granting the appropriate relief as the situation demands. The petitioner cited the case of Mitubell Welfare Society v Kenya Airports Authority & others, Petition No 3 of 2018 where the Supreme Court held that in granting a relief, the court must be creative in fashioning appropriate relief tailored to the circumstances of the case.

379.The IEBC submitted that the Constitution should be given a purposive, liberal interpretation and that the provisions of the Constitution must be read as an integrated, whole, without any particular provision destroying the other. On this the IEBC relied on articles 88 and 259 of the Constitution and the court decision in Council of Governors v Attorney General & another [2017] eKLR, and In the Matter of Kenya National Commission on Human Rights [2014] eKLR

380.On whether the IEBC had complied with article 257(4) of the Constitution, the IEBC submitted its responsibility was simply to ascertain whether the supporters of the draft Bill was supported by a million signatures of registered voters and not the validity their signatures.

381.On the issue of whether there is need for a database of specimen signatures for verification to be conducted, the IEBC submitted it was it was not correct that the signature was the only unique identification to be used for verification under article 257(4) of the Constitution. This was because sections 4(2) and (3) of the Elections Act, 2012 and regulation 8 of the Elections (Registrar of Voters) Regulations 2012 provides that a register of voters must contain biometric data and particulars set out in form A. Further, that promoters of the initiative were required to submit the names, ID, constituencies, county, ward, polling station, mobile no and email address of voters in support of the initiative. That it was that these were used in the verification process hence it was not necessary for the IEBC to keep a database of specimen signatures. In addition that there was no law requiring it to maintains a database of signatures for purposes of article 257(4).

382.On the issue of whether there is a legal framework for verification, the IEBC submitted that there exists a legal framework on the conduct of elections and referenda. That the fact that Parliament had not exercised its powers under article 94 of the Constitution did not mean there was a legal vacuum. That the administrative procedures for the verification of signatures in support of constitutional amendment were not illegal, as they are not statutory instruments as stipulated in the Statutory Instruments Act. IEBC argued that these were internal procedures which it was empowered to make for the ease of execution of its mandate. It relied on the case of Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte Francis Andrew Moriasi [2019] eKLR where the court was of the view that not all guidelines, orders, or directions given by the respondent are legislative in character and therefore statutory instruments, and that there may be guidelines and directions that are purely executive in character, in the sense that their objectives are solely administrative in guiding implementation off standards in laws and policies. The IEBC also submitted that legislations are not perfect as was held in Law Society of Kenya v Kenya Revenue Authority & another [2017] eKLR, where Justice Mativo stated that the court interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters.

383.The 2^nd respondent, the Senate submitting on whether there is sufficient legal framework to facilitate amendment of the Constitution through a popular initiative, argued that the Constitution and sections 49-55 of the Elections Act provide sufficient guidelines and procedures for undertaking constitutional amendments through popular initiative or referendum. Further that there was no requirement under article 257 of the Constitution for either the National Assembly or the Senate to come up with Legislative framework to guide the IEBC on verification of signatures or to regulate the constitutional amendment process through a popular initiative.

384.The 3^rd respondent, the National Assembly ‘s position was that article 257 of the Constitution and sections 49-55 of the Elections Act, 2011 give a complete legislative framework for holding a referendum. In any event the issue of the legislative framework was settled in the case of Titus Alila & 2 others (Suing on their own behalf and as the Registered Officials of the Sumawe Youth Group) v Attorney General & another [2019] eKLR.

385.On its part the interested party, the BBI Secretariat, submitting on the verification of signatures and the role of IEBC article 257 of the Kenyan Constitution does not impose any requirement for verification of signatures. The Commission’s mandate is to verify that an initiative is supported by at least one million votes. Further, that there is no requirement by any law, constitution or regulation to have any specified form of signature.

386.IEBC further argued that unless it was shown that the system it was using for verification was faulty, the court could not purport to perfect the IEBC’s administrative system. And without any allegations that an unconstitutional outcome has resulted from the IEBC’s discharge of its mandate, the court could not interfere.

387.The IEBC further submitted that it was imperative to apply a meaning of the word “signed” within the context of the population upon whom it is being used and the purpose.

C. Part 3: The Issues for Determination

388.After considering all the pleadings in the eight petitions, the written briefs by the parties and their oral submissions, we have delineated the following questions for determination in the consolidated petitions:i.Is the basic structure doctrine of constitutional interpretation applicable in Kenya?ii.If the basic structure doctrine applies in Kenya what are its implications for the amendment powers in articles 255 to 257 of the Constitution of Kenya?iii.What is the constitutional remit of amendment of the Constitution through a popular initiative? This issue further twins into two sub-issues:a.Who can initiate a popular initiative under our constitutional set up?b.Is the BBI process of initiating amendments to the Constitution in conformity with the legal and constitutional requirements?iv.Should the President and public officers who directed or authorized the use of public funds for the BBI constitutional amendment process be ordered to refund the monies so used?v.Was the President in contravention of article 73(1)(a) of the Constitution for claiming authority and purporting to initiate constitutional changes through the BBI process?vi.Is there an adequate legislative framework in place to guide constitutional amendments through popular initiative; and if not, is that fatal for the on-going constitutional amendment processes?vii.Is it permissible for County Assemblies and Parliament to incorporate new content into or alter existing content in a Constitution of Kenya Amendment Bill through a popular initiative following public participation exercises?viii.Does the Constitution envisage the possibility of a bill to amend the Constitution by popular initiative to be in the form of an omnibus bill or must specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions?ix.Was it unlawful for the promoters of Constitution of Kenya Amendment Bill to leave out the proposal for an Independent Constitutional Health Services Commission from the Constitution Amendment Bill?x.Is it lawful for a Constitution of Kenya Amendment Bill to set a specific number of constituencies under article 89(1) of the Constitution?xi.Is it lawful for a Constitution of Kenya Amendment Bill to directly allocate and apportion the constituencies it creates without a delimitation exercise using the criteria and procedures as set out in article 89 of the Constitution?xii.Has the IEBC carried out nationwide voter registration? If not, can the proposed referendum be carried out before the IEBC has done so?xiii.Is the IEBC properly constituted to conduct the proposed referendum including verifying the minimum voter support required for the popular initiative and submitting the Constitution of Kenya Amendment Bill to the County Assemblies?xiv.Is a legal/regulatory framework to regulate the verification and other processes required under article 257(4) and (5) of the Constitution? If so, does such a legal/regulatory framework exist?xv.Is it a violation of article 43 rights for the promoters of the Constitution of Kenya Amendment Bill and the respondents to be pursuing constitutional amendments in the midst of Covid-19 pandemic?xvi.Should an order issue directing the President to dissolve Parliament pursuant to the Chief Justice’s advice issued pursuant to article 261(7) of the Constitution?xvii.What reliefs, if any, should be granted?

389.Our analysis and determinations based on these framed issues follow.

D. Part 4: Analysis And Determinations

I. The Basic Structure Doctrine And Its Application To Kenya

390.The basic question presented by Petition No E282 of 2020 is whether the Constitution of Kenya, 2010 comprehends the “doctrine of basic structure” and if so what its implications are for the amendment powers and rights in articles 255–257 of the Constitution. In particular, does the doctrine of basic structure, if it applies to the Constitution of Kenya, import the idea of limitations whether explicit or implicit on the constitutional amendment power?

391.A related question presented by this petition is whether the Constitution of Kenya contains any specific provisions which are, by text, context or proper interpretation, deemed to be “unamendable” or could otherwise be described as “eternity clauses”: foundational constitutional clauses which are irrevocable; which cannot be amended despite the amendment provisions existing in the Constitution.

392.In order to adequately respond to these defining questions, from the pleadings filed; submissions by the parties; and authorities cited, we have delineated three key lines of inquiry whose cumulative analysis would yield answers to the defining questions. They are as follows:i.First, an understanding of the nature of Kenya’s Constitution. This provides the context for understanding the Constitution’s various textual and implicit provisions including the constitutional amendment provisions.ii.Second, a brief look at the history of the making of Kenya’s Constitution. This, equally, provides historical context which is imperative for giving proper meaning to the constitutional text.iii.Third, the implications for these first two lines of inquiry to the question of interpreting the extent and limits of the constitutional amendment powers under the Constitution.

393.It is now widely accepted that the Kenyan Constitution is a transformative charter. Heinz Klug has described the idea of a transformative constitution as the adoption of“a constitutional order which is expected to ‘transform’ the existing pre-constitutional order. To this extent, these constitutions are aspirational and are meant to empower the newly democratized state to make significant changes to the existing social and economic order….[in order] to overcome the legacies of conflict and the social conditions that divided the society.”¹¹Klug, Heinz, Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa 67 Buffalo Law Review, 701 (2019).

394.Or as Karl Klare has described it, transformative constitutionalism is“an enterprise of inducing large-scale social change through nonviolent political processes grounded in law….[deploying a Constitution which is] social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural and self- conscious about its historical setting and transformative role and mission.”²²Karl E Klare, Legal Culture and Transformative Constitutionalism, 14 S AFR J ON HUM RTS 146 (1998).

395.The Supreme Court has described the transformative nature of our Constitution In the Matter of the Speaker of the Senate & another [2013] eKLR thus:51.Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy. This is clear right from the preambular clause which premises the new Constitution on –“Recognising the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”And the principle is fleshed out in article 10 of the Constitution, which specifies the “national values and principles of governance”, and more particularly in chapter four (articles 19-59) on the bill of rights, and chapter eleven (articles 174-200) on devolved government.51.The transformative concept, in operational terms, reconfigures the interplays between the States majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance, consistent with dominant perceptions of legitimacy, be achieved.

396.One of the imports of recognition of the nature of the transformative character of our Constitution is that it has informed our methods of constitutional interpretation. In particular, the following four constitutional interpretive principles have emerged from our jurisprudence:a.First, the Constitution must be interpreted holistically; only a structural holistic approach breathes life into the Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated in In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No 1 of 2012; [2014] eKLR thus (at paragraph 26):But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.b.Second, our transformative Constitution does not favour formalistic approaches to its interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle in Re Interim Independent Election Commission [2011] eKLR, para [86] thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern bill of rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the preamble, in article 10, in chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the courts.c.Third, the Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the retired CJ Mutunga expressed in his concurring opinion in In In Re the Speaker of the Senate & another v Attorney General & 4 others, Supreme Court Advisory Opinion No 2 of 2013; [2013] eKLR. (paragraphs 155-157):155.In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai& 3 others v Tarlochan Singh Rai and 4 others Sup Ct Petition No 4 of 2012, I argued that both the Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.156.The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the court as the searchlight for the illumination and elimination of these legal penumbras.d.Fourthly, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya case. It stated thus:356.We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on chapter four – the bill of rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to articles 4(2), 33, 34, and 35 of our Constitution has been given above in paragraphs 145-163.357.We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 2B of 2014 left off (see paragraphs 227- 232). In paragraphs 232 and 233 he stated thus:232.…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.233.It is possible to set out the ingredients of the theory of the interpretation of the Constitution: the theory is derived from the Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of the Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya.

397.With these interpretive principles in mind, which we will call the canon of constitutional interpretation principles to our transformative Constitution, we will presently return to the transcendental question posed in these consolidated petitions: Does the Constitution of Kenya, 2010 comprehend the basic structure doctrine; and does that theory implicitly or explicitly limit the amendment powers in articles 255-257 of the Constitution?

398.We think that the appropriate response to this question can only be given after one fully understands the history of the making of the Constitution of Kenya, 2010. That history provides the appropriate context for answering the transcendental question posed.

399.The making of Constitution of Kenya, 2010 has been described as a “model” of “participatory constitution building process.”³ It has been described as “a story of ordinary citizens striving and succeeding to reject or as some may say, overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. Some have spoken of the new Constitution as representing a second independence.”⁴³See, for example, Vivien Hart, ‘Constitution Making and the Right to Take Part in a Public Affair’ in Miller, Laurel E and Aucoin, Louis (Eds), Framing The State in Times of Transition: Case Studies in Constitution Making (United States Institute of Peace Press, 2010), 2.⁴Willy Mutunga, The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court’s Decisions.

400.Participatory constitution building encapsulates the idea that the public directly and meaningfully participates in the process of making a constitution. This is contra-distinguished from expert- written constitutions in the pre- to mid-20^th century. In many pre- and 20^th century constitution making processes, it was generally agreed that political leaders who held power would make and write constitutions.⁵ Thus the process of drafting the Constitution was expert work with the public relegated to giving consent to the final version of the draft before promulgation.⁶⁵Vivien Hart, ‘Constitution Making and the Right to Take Part in a Public Affair’ in Miller, Laurel E and Aucoin, Louis (eds), Framing The State in Times of Transition: Case Studies in Constitution Making (United States Institute of Peace Press, 2010) 20-56.⁶Ibid.

401.To understand the process of and the need for public participation in Kenya one must understand the background of Kenya’s constitutional history.⁷ The 1963 Independence Constitution was negotiated to mark the end of formal colonial rule, establish a government elected by Kenyans and to ensure the devolution of powers among other checks and balances of excessive executive and presidential power.⁸⁷Robert M Maxon, Kenya’s Independence Constitution: Constitution-Making and End of Empire (Fairleigh Dickinson University Press, 2011).⁸Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps: constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on April 14, 2021).

402.By 1991 when Kenya officially became a multi-party state after close to a decade of being a de jure one-party state, the 1963 Constitution had been amended many times and stripped of most of its initial democratic and social justice protections.⁹ By the end of 1980 Kenya had effectively become an authoritarian state. Criticism of the government was forcefully repressed including through detention without trial and abuse of legal process. The system of government was personalized with heavy reliance on patronage, the resources of the State were plundered through massive corruption, the police was used as a force of oppression, judicial independence had been severely curtailed and judiciary was subordinated to the executive, and many communities suffered discrimination and marginalization.¹⁰⁹Yash Pal Ghai and JPWB McAuslan, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Oxford University Press, 1970).¹⁰Yash Pal Ghai and JPWB McAuslan, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Oxford University Press, 1970); See also Makua Mutua, Kenya’s Quest for Democracy: Taming the Leviathan (Lynne Rienner Publishers 2008); See also James T, Gtahii, ‘Kenya’s Legislative Culture and the Evolution of the Kenya Constitution‘ in Yash Vyas et al eds, Law and Development in The Third World (1994).

403.This turn towards autocracy in Kenya was facilitated through what the amici curiae (the Law Professors Duncan Ojwang’; John Osogo Ambani; Linda Musumba; and Jack Mwimali) describe in their written brief as a culture of hyper-amendment. They correctly point out that:….[T]his culture of hyper-amendment that existed in Kenya’s history left the then Constitution a hollow shell: present but futile. In this era, Parliament could and did amend the Constitution to a point where it lost its supremacy and its identity. The individual amendments, collectively, exceeded the articles of the Constitution itself. The Constitution became a document unable to reflect the desires and aspirations of the people; or to positively affect and….improve the reality of people’s lives.

404.This culture of hyper-amendment mid-wifed in Kenya a constitutional curiosity which Prof Okoth Ogendo famously described as “Constitutions without constitutionalism”; a culture where the Constitution “underwent changes so profound and so rapid as to alter its value content and significance beyond repair….” It was a culture which reflected, in the words of Duncan Okubasu, a “misuse of constitutional politics that degrades the Constitution into something more akin to a statute.”¹¹¹¹Duncan Okubasu, “The Implication of Conflation of Normal and ‘Constitutional Politics’ on Constitutional Change in Africa,” in Richard Albert, Xenophon Contiades, & Alkmene Fotiadou, The Foundations and Traditions of Constitutional Amendment (Hart Publishing, 2017) 327, 331.

405.This history is well known and has found description in our past judicial opinions. Maraga, CJ, for example, described the history in Council of Governors & 47 others v Attorney General & 3 others; Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR in the following words:[107]Although, like those of most other African States, the Kenyan independence Constitution embraced the doctrine of separation of powers that mainly focused on securing the sovereignty of State and setting up the governance machinery. After that was achieved, shortly after independence, the political elite, driven by greed and selfish ambitions, jettisoned the concept of constitutional implementation and instead embarked on, and succeeded in, making numerous amendments, the overall objective of which was to consolidate all state power and authority in the Executive arm of Government, and in particular the presidency. That led to patrimonialism that did not tolerate any form of opposition, and established what, in the Kenyan parlance, is referred to as the ‘imperial presidency’.…….[110]As a result of the said acts of impunity, authoritarianism and skewed development, “Kenyans lost respect for … [their] Constitution and confidence in the political system. Few public institutions enjoyed legitimacy and most [of them] lost the ability to resolve differences among the people or political parties ….” (internal quotations omitted)

406.The effects of the twenty-six constitutional amendments between 1964 and 1991 are pithily described in the CoE Final Report thus:In 1964, the first post-independence government successfully introduced amendments to the Constitution that changed it fundamentally: The parliamentary system of government was converted to a predominantly presidential one. The following year the system of devolution was largely dismantled in an amendment backdated to independence.Further gradual amendments to the Constitution between 1964 and 1982 increasingly concentrated power in the office of the President. The cumulative effect of these amendments undermined democracy, eroded the idea of limited government, and removed from the independence Constitution the important principle of checks and balances, which is the hallmark of constitutionalism. An imperial presidency emerged as the positions of the Head of State and Head of Government were unified without the attendant checks that exist in a Presidential system that respects principles of constitutionalism.

407.It is against this background that Kenya’s quest for concrete constitutional reform begun in the early 1980s and peaked in the early 1990s.¹² The drastic changes that took place in the early 1990s including the fall of the Berlin Wall and regime changes in Eastern and Central Europe gave impetus for the clamor to end one-party rule in Kenya which had been established vide a constitutional amendment.¹³Civil society groups such as the Supreme Muslim Council of Kenya (SUPKEM), the National Council of Churches of Kenya (NCCK), the National Convention Executive Council (NCEC) and professional groups such as the Law Society of Kenya (LSK) led the process that made Kenya a multiparty state in December 1991.¹⁴¹²James T Gathii, ‘Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (2008) William and Mary Law Review, 1116.¹³Ibid.¹⁴Ibid; see also Willy Mutunga, Constitution-making from the Middle: Civil Society and Transition Politics in Kenya, 1992-1997 (Mwengo, 1999).

408.After initial resistance from the government, the Constitution of Kenya Review Act, 1997 (cap 3A) was enacted.¹⁵ However, between 1998 and 1999, due to disagreements between the ruling party, the Kenya African National Union (KANU) working with the Raila Odinga- led National Development Party (NDP) on the one hand, and Civil Society Organizations and some opposition MPs led by former President Mwai Kibaki on the other hand, the constitutional reforms process hit a snag.¹⁶The former group was arguing for a parliamentary-led process while the latter was arguing for a participatory, citizen-centric process.¹⁷ This dissension led to a parallel reform process led by religious organizations (NCCK, SUPKEM, Hindu council, MCC and others). This group met at Ufungamano House in Nairobi to strategize on how to resist KANU’s Parliamentary-led reform process. This led to what is now known as the Ufungamano Initiative which established a People’s Commission of Kenya (PCK) led by Dr Oki Ooko Ombaka as chairperson.¹⁵James T Gathii, ‘Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (2008) William and Mary Law Review, 1117.¹⁶Laurence Juma, 'Ethnic Politics and the Constitutional Review Process in Kenya' (2002) 9 Tulsa J Comp & Int'l L 517.¹⁷Ibid.

409.Meanwhile, the government had gone ahead and appointed Commissioners under the CKRC Act. Prof Yash Pal Ghai was appointed the Chair by the President. This division between the initial Constitution of Kenya Review Commission (CKRC) commissioners led by Yash Pal Ghai resulted in a 2001 consensus that facilitated a constitutional review process that combined the Moi-appointed commissioners and the Ufungamano Initiative commissioners.¹⁸¹⁸James T Gathii, ‘Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (2008) William and Mary Law Review, 1117.

410.In debating the Constitution of Kenya Review Commission Act, President Moi clashed with the Community and grassroots leaders, Civil Society Organizations (CSOs), opposition leaders and religious leaders who preferred a constitution process led by the people and not an appointed commission of experts. It was during this debate that former President Moi sarcastically and rhetorically asked: “What does Wanjiku know about the Constitution?”¹⁹ This marked the birth of the name “Wanjiku” in Kenyan political lingua as a generic reference to ordinary Kenyans.²⁰¹⁹Kenya Human Rights Commission (KHRC), ‘Wanjiku’s Journey: Tracing Kenya’s Quest for New Constitution and Reporting on the 2010 National Referendum’ (November 2010),https:www.khrc.or.ke/publications/38- wanjiku-s-journey-tracing-kenya-s-quest-for-a-new-constitution-reporting-on- the-2010-referendum/file.html (assessed on 14 April 2021).²⁰Paul Goldsmith, ‘Daniel arap Moi and the Politics of Kenya’s Reorganization’ 14 February 2020, The Elephant,https:www.theelephant.info/features/2020/02/14/daniel-arap-moi-and-the- politics-of-kenyas-reorganisation/ (assessed on 14 April 2021).

411.Earlier in 1994, the NCA had already coalesced into an assertive and popular constitutional reform movement under the auspices of the Citizens Coalition for Constitution Change (4Cs).²¹ Thus, a “Wanjiku-driven” process was at the heart of constitutional reforms in Kenya since the mid-1990s. It was the search for legitimacy and need of a people-driven Constitution initiated more robustly by the Ufungamano Initiative that set the stage for a strong people-driven constitutional review process.²¹Ibid.

412.The appropriate starting point to demonstrate the participatory nature of the making of the Constitution of Kenya, 2010, is the Constitution of Kenya Review Act, 1997 (cap 3A). By design the Act was set up to be an Act of Parliament “to facilitate the comprehensive review of the Constitution by the people of Kenya; to provide for the establishment, powers and functions of the Commission (Constitution of Kenya Review Commission (CKRC)), District Constitutional Forums and the National Consultative Forum, and connected purposes.”²²²²The Constitution of Kenya Review Act, 1997 (cap 3A), long title.

413.The CKRC was to be constituted as follows: Chairperson, 13 persons nominated by the political parties to be represented in the Inter-Parties Parliamentary Committee of whom at least 2 shall be women, one person nominated by the Muslim Consultative Council and the Supreme Council of Kenya Muslims, one person nominated by the Kenya Episcopal Conference; one person nominated by the protestant churches on Kenya as represented by: the National Council of Churches of Kenya, the Seventh Day Adventist Church; the Church of God; the Kenyan Indigenous Christian Churches; the Evangelical Fellowship of Kenya, 5 nominated by women’s political organizations through the Kenyan Women’s Political Caucus of whom 1 shall be a woman with disabilities, 4 persons nominated by the civil society through the National Council of Non-Governmental Organizations, particular regard being had to the youth, the disabled, professional associations in Kenya, of whom at least 1 shall be a person with a disability and 1 a woman, the Attorney-General or his representative who shall be an ex-officio commissioner.²³ The Commission also included at least 2 representatives from the 8 provinces in Kenya.²⁴²³Ibid, article 3(2).²⁴Ibid, article 3(3).

414.The Commission was required to be give preference to persons with relevant professional and technical qualifications, have regard to Kenya’s ethnic, geographical, cultural, political, social and economic diversity, and save for women organization take into account the principle of gender equity.²⁵²⁵Ibid, article 3(4).

415.The Commission was also required to conduct and facilitate civic education in order to stimulate public discussions and awareness, collect and collate views of the people of Kenya on proposals to alter the Constitution and on that basis draft a Bill to alter the Constitution presented to the National assembly, carry out or cause to be carried out research and evaluations concerning the Constitution, and to ensure that the people of Kenya gave views on the organs of the government, examine the federal and unitary systems of government, examine constitutional commissions and offices, examine the electoral system, and the judiciary.²⁶²⁶Ibid, article 16.

416.The Constitution of Kenya Review Act, 1997 also established a District Forum in each district comprising of elected representatives, religious representatives, persons with disabilities, members of Parliament and members of every local authority.²⁷ The Act also set up a National Constitutional Consultative Forum comprising of all members of Parliament as ex-officio members; all members of the Commission as ex-officio, 3 representatives from each district nominated from the district forum 1 of who must be a woman, 2 representatives from political parties, religious organizations, women’s organization, and civil society, and other members to represent other interests to be determined by the Commission.²⁸²⁷Ibid, article 12A.²⁸Ibid, article 12A.

417.It is clear that the design of the constitution making process under the Constitution of Kenya Review Act, 1997 conformed to a “home-grown” process by laying an institutional framework for consultation with ordinary Kenyans and by requiring extensive deliberation among drafters.²⁹ The Act as designed prevented both parliamentary and presidential interference and put a lot of emphasis on broad public participation at every stage of the process.³⁰²⁹Alicia L Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1833.³⁰Ibid.

418.However, despite this participatory design, the Act as implemented by the then-government sought to limit rather than facilitate widespread participation and consultation with community and grassroots community leaders, opposition parties and CSOs.³¹ These groups were insistent on wider public participation than was provided in the legislation.³² These groups, (especially those that had come together under the Ufungamano Initiative described above) wanted and insisted on even more grass-roots public participation in constitution-making. When the Ufungamano Initiative started the collection of views in Kenyan provinces, President Moi decided to kick-start the official constitutional review process by appointing Yash Pal Ghai as chairperson of CKRC.³¹Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps: constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on 14 April 2021).³²Ibid.

419.As aforesaid, Prof Ghai wisely delayed his official appointment to negotiate a merger of the Ufungamano Initiative’s Peoples Constitution Review Commission (PCRC) led by Dr Ooki Ombaka and the formal CKRC.³³ After Prof Ghai’s efforts of reconciliation backed by public pressure, he succeeded in bringing the two sides together in March 2001.³⁴³³Preston Chitere, Ludeki Chweya et al, ‘Kenya Constitutional Documents: A Comparative Analysis’ (2006) Chr Michelson Institute.³⁴Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps:constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on 15 April 2021).

420.The Constitution of Kenya Review Act was amended in May 2001 to accommodate Prof Ghai’s reconstituted commission that included PCRC members.³⁵ The amended Review Act had guiding principles that included accountability to the people, ensuring that the process accommodates the people’s diversity, providing Kenyans with an opportunity to actively, freely and meaningfully participate in generating debates conducted in an open manner and guided by respect for the universal principles of human rights, gender equity and democracy.³⁶ Furthermore, section 17(d) of the Act required that the Commission ensures that the people give consideration and make recommendations on various issues, including on the compositions and functions of the organs of the State, government structure, constitutional commissions, electoral systems, local commissions, and the Judiciary, Local government, property and land rights, management and use of public finances, citizenship and socio- cultural obstacles, among others.³⁷³⁵Report of the Constitution of Kenya Review Commission, Vol 1 (2003),https:constitutionnet.org/sites/default/files/KERE-423.pdf (accessed on 30 April 2021)³⁶Ibid, 82.³⁷Ibid.

421.The CKRC was deeply invested in a participatory process. The Commission prepared civic education materials, including a book authored by Prof Yash Ghai on an analysis of Kenya’s constitutional history, the independence and the then-current constitution and options for reform.³⁸ Papers and documents originally prepared in English were also translated to Kiswahili and widely distributed to make meaningful civic education possible.³⁹ Widespread civic education was undertaken by CKRC commissioners, CKRC staff, and a large number of NGOs nationwide. This civic education processes were done at district and constituency forums, and documentation centers to promote education and debate.⁴⁰ The CKRC also undertook the following step by step process as required under the Review Act:³⁸Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps:constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on 30 April 2021).³⁹Ibid.⁴⁰Ibid.a.Civic education: preparing the people for participation;b.Research, studies and seminars: defining the issues;c.Public consultations: listening to the people;d.Writing the report and preparing the draft bill;e.Debating the Commissioners’ Report and Recommendations.

422.The CKRC Commissioners travelled and collected views from all over Kenya, addressed numerous meetings of professional, gender, religious and administrative and social organizations about the reform agenda and the constitution-making process.⁴¹ The public response was overwhelming since the Commission received over 35,015 submissions from institutions, groups, and individuals.⁴² The Commission also conducted hearings in each of 210 constituencies then present in Kenya.⁴³⁴¹Ibid.⁴²Stephanie Diepeveen, ‘’The Kenya we don’t Want’: Popular Thought over Constitutional Review in Kenya (2002) 48:2 The Journal of Modern African Studies, 233.⁴³Ibid.

423.In its final report, the CKRC underlined the importance of the participatory process in its approach:The highest importance is attached to participation by the people. The organs of review must provide the people ‘with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution’ (section 5(c)(i)). Moreover, they must ensure that the ‘final outcome of the review process faithfully reflects the wishes of the people of Kenya’ (section 5)(d)).⁴⁴⁴⁴Report of the Constitution of Kenya Review Commission, p 28.

424.Despite many political and legal challenges including suits filed against its work, the draft of the CKRC Draft Constitution that emerged in October, 2002 just before the General Elections, was a reflection of the true will of the people of Kenya as far as the Commission could tell.⁴⁵ Despite this commendable progress, President Moi scuttled the constitutional review process before the 2002 general elections by dissolving Parliament.⁴⁶⁴⁵Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps:constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on 30 April 2021).⁴⁶Alicia L Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1824; James T Gathii, ‘Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (2008) William and Mary Law Review, 1117.

425.The new political administration that came to power in Kenya following the 2002 General Elections was a coalition of opposition parties which had ousted the ruling KANU regime via the ballot for the first time since independence.⁴⁷ The National Rainbow Coalition (NARC) promised a new constitution in 100 days.⁴⁸ However, the new President initially reneged on this promise. As a result, the National Constitutional Conference (NCC) to debate the CKRC Draft and Report did not begin until April 2003.⁴⁹ The conference met at the Bomas of Kenya theater facility (thus named the Bomas Conference). The Bomas Conference brought together delegates from all over the country. The National Constitutional Conference was an assembly of over 600 members composed as follows: all 223 members of Parliament; 210 representatives of districts elected by county councils; 29 members of the Review Commission as nonvoting members; 41 persons each representing a political party; 12 representatives of religious, professional, and women's groups; trade unions; nongovernmental organizations; and other interests selected by the Review Commission.⁵⁰⁴⁷Ibid (Gathii), 118; see also Michela Wrong, It’s Our Turn to Eat: The Story of a Kenyan Whistleblower (HarperCollins, 2009).⁴⁸Ibid.⁴⁹Alicia L. Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1824; see also Eric Kramon and Daniel Posner, ‘Kenya’s New constitution’ 22(2) Journal of Democracy, 2011, 89-103.⁵⁰Jill Cottrell & Yash Pal Ghai, ‘The Role of Constitution-Building Processes in Democratization’ (2004) IDEAhttps:constitutionnet.org/sites/default/files/cbp_kenya.pdf (assessed on 30 April 2021).

426.The Bomas Conference was often acrimonious in its proceedings but it still delivered a draft of the Constitution in 2004. Part of the division was financial with delegates demanding remuneration to be at the top of the agenda.⁵¹At Bomas, public participation of women and marginalized groups was also at the fore. The specific examples are ethnic groups such as the Somalis, Nubians, Ogieks and Goans that gave their views.⁵² The Commission also provided sign language interpretation to accommodate the needs of persons with disability.⁵³⁵¹Ibid.⁵²Ibid.⁵³Ibid.

427.The Bomas Draft was, however, never enacted by Parliament or presented to the public for a referendum.⁵⁴ Instead, the then President facilitated a process for revision of the Bomas Draft by the political elite. This resulted in amendments to the Bomas Draft enacted through a parliamentary initiative resulting in the Wako Draft.⁵⁵⁵⁴Alicia L Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1824.⁵⁵Eric Kramon and Daniel Posner, ‘Kenya’s New Constitution’ 22(2) Journal of Democracy, 2011, 89-103.

428.Just as the Bomas Conference was concluding its work, the High Court of Kenya through a now famous decision in Timothy Njoya & others v Attorney General & others [2004] eKLR held that any new Constitution needed to be ratified through a national referendum. The High Court held that the right to a referendum was a fundamental right of the people in exercise of their constituent power. Ringera, J (as he then was) observed that the right to a referendum essentially derives from the peoples sovereignty and is the basis for the creation of the Constitution.

429.In response to the decision in the Timothy Njoya case, Parliament amended the Constitutional Review Act to add a provision for a referendum subsequent to Parliamentary ratification of the draft.⁵⁶ However, rather than subject the Bomas Draft as it had emerged for the referendum, the Kibaki government tinkered with the Bomas Draft especially on executive power through a series of retreats that the opposition led by Raila Odinga boycotted.⁵⁷ This process led to the emergence of the Wako Draft named after the then Attorney General Amos Wako.⁵⁸⁵⁶Alicia L Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1824.⁵⁷Ibid.⁵⁸Eric Kramon and Daniel Posner, ‘Kenya’s New Constitution’ 22(2) Journal of Democracy, 2011, 92.

430.The Wako Draft changed the executive structure by weakening the premiership vis-à-vis the presidency, provided for a limited system of devolved government, and added an unspecified number of seats based on a party-list to the National Assembly.⁵⁹ These amendments were done by Members of Parliament in Kilifi and in Naivasha.⁶⁰ This is the draft that was submitted to a referendum in 2005. It was defeated by a 58 percent vote against with only 42 percent of those voting approving it.⁶¹⁵⁹Ibid.⁶⁰Preston Chitere, Ludeki Chweya et al, ‘Kenya Constitutional Documents: A Comparative Analysis’ (2006) Chr Michelson Institute.⁶¹Eric Kramon and Daniel Posner, ‘Kenya’s new constitution’ 22(2) Journal of Democracy, 2011, 92; Alicia L Banon, ‘Designing a Constitution-Drafting Process: Lessons from Kenya’ (2007) The Yale Law Journal, 1824; James T Gathii, ‘Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (2008) William and Mary Law Review, 1119-20.

431.Opposition to the Wako Draft gave birth to a new alliance called the Orange Democratic Movement (ODM) that went on to challenge Mwai Kibaki in the 2007 general elections.⁶² These general elections turned to be the most contentious that Kenya has ever had and a dispute on the winner of the Presidential contest led to post-election violence on a scale never seen in Kenya before.⁶³ The violence led to the death of more than 1,100 people and the internal displacement of more than, 600,000 people. It shook the country to the core.⁶⁴.⁶²Ibid (Kramon and Posner).⁶³Nic Cheeseman, ‘The Kenyan Elections of 2007: An Introduction’ (2008) 2:2 Journal of Eastern African Studies, 166-184; see also David Anderson & Emma Lochery, ‘Violence and Exodus in Kenya’s Right Valley, 2005: Predictable and Preventable? 2:2 Journal of Eastern African Studies, 328-243.⁶⁴Pual Tiyambe Zeleza, ‘The Protracted Transition to the Second Republic in Kenya’ in Godwin R Murunga, Duncan Okello & Andres Sjögren, eds, Kenya: The Struggle for a New Constitution Order (Zed Books, 2014), 17; Jacqueline Klopp & Prisca Kamungi, Violence and Elections: Will Kenya Collapse? 24 WORLD POL‘Y J 11 (2008); Maarit Mäkinen & Mary Kuria, Social Media and Post-Election Crisis in Kenya, 13 INT‘L J Press/Politics 328, (2008); Michael Chege, Kenya: Back from the Brink?, 19 J Democracy 125 (2008); Axel Harneit-Sievers & Ralph-Michael Peters, Kenya‘s 2007 General Elections and its Aftershocks, 43 Afrika Spectrum 133 (2008); Herve Maupeu, Revisiting PostElection Violence, in the General Elections In Kenya 187 (Jérôme Lafargue ed, 2009).

432.The crisis of the 2007 election led the African Union (AU) to lead international support for the resolution of the post-election crisis. The main opposition party Orange Democratic Movement (ODM) had claimed that the President Mwai Kibaki led Party of National Unity (PNU) had rigged the election.⁶⁵ The AU constituted a Panel of Eminent African Personalities headed by the former UN Secretary General Kofi Annan to mediate the dispute between PNU and ODM.⁶⁶ The crisis was resolved by a peace agreement entered on February 1, 2008 between the government/Party of National Unity (PNU) and the Orange Democratic Movement (ODM) under the mediation of the Kenya National Dialogue and Reconciliation (KNDR).⁶⁷⁶⁵Gilbert M Khadiagala, ‘Forty Days and Nights of Peacemaking in Kenya’ (2008) 7:2 Journal of African Elections, 4-31.⁶⁶Karuti Kanyinga & James D Long, ‘The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution’ (2012) 55:1 African Studies Review, 31-51.⁶⁷Jeremy Horowitz, Power-sharing in Kenya: Power-sharing Agreements, Negotiations and Peace Processes (Oslo: Centre for the Study of Civil War, 2008).

433.The KNDR was an outfit bringing together representatives from the two sides of the dispute in order to mediate the conflict.⁶⁸ The parties signed an agreement to end the political violence that ensued after the 2007/8 elections.⁶⁹ Through the mediation by the African Union’s (AU) Panel of Eminent African Personalities the parties agreed to form a coalition government and thereafter undertake far- reaching reforms to secure sustainable peace, stability, and justice through the rule of law and respect for human rights.⁷⁰ On March 4, 2008, the parties agreed to form two commissions – the Independent Review Committee (IREC) also known as the Kriegler Commission and the Commission of Inquiry on Post-Election Violence (CIPEV) also known as the Waki Commission.⁷¹⁶⁸Karuti Kanyinga & James D Long, ‘The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution’ (2012) 55:1 African Studies Review, 31-51.⁶⁹Jérôme Lafargue et Musambayi Katumanga, ‘Kenya in Turmoil: Post-Election Violence and Precarious Pacification’ (2008) 38 The East African Review, 11-32.⁷⁰The Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project Draft Review Report (2011).⁷¹The Commission of Inquiry into the Post-Election Violence (CIPEV) began on 23 May 2007 with an announcement published in the Kenya Gazette Notice No 4473 Vol cx-No 4. The members of the Commission as appointed were its Chair, Mr Justice Philip Waki, a judge of Kenya’s Court of Appeal and two Commissioners, Mr Gavin McFadyen and Mr Pascal Kambale respectively nationals of New Zealand and the Democratic Republic of Congo respectively. two Kenyans, Mr David Majanja and Mr George Kegoro, were appointed the Counsel Assisting the Commission and Commission Secretary. The Independent Review Committee (IREC) begun its

434.The two would be non-judicial investigatory bodies mandated to investigate and report on different aspects of the problematic issues in the crisis. The Commission of Inquiry into the Post-Election Violence (CIPEV) began its work on 23 May 2007 with an announcement published in the Kenya Gazette Notice No 4473 vol cx-No 4. The Independent Review Committee (IREC) had eight (8) members. The CIPEV commissioners and key secretariat members was consensually identified and formally appointed by former President Kibaki under the Commissions of Inquiry Act (cap 102) and IREC’s terms of reference (ToRs) were published in Gazette Notice 1983, Kenya Gazette of March 14, 2008.

435.The KNDR agreement was embedded in the National Accord and Reconciliation Act, 2008. The preamble to the Act acknowledged that the crisis that had hit the country and the need for both sides of the political divide to work together. It acknowledged that there needed to be real power sharing in order to move the country forward.⁷² The Act formed a coalition government establishing the office of the Prime Minister to be held by Raila Odinga and that of the President to be held by Mwai Kibaki. The mediation process presented the parties with a framework comprised of four main components:⁷²National Accord and Reconciliation Act, No 4 of 2008, preamble.a.Agenda One: Immediate action to stop violence and restore fundamental human rights;b.Agenda Two: Addressing the humanitarian crisis and promoting national reconciliation;c.Agenda Three: Negotiations on how to overcome the current political crisis; andd.Agenda Four: Developing long-term strategies for durable peace.

436.Lack of constitutional reform was identified under agenda four at the Kenya National Dialogue and Reconciliation Team (KNDR) meeting in February 2008 as one of the long term issues that caused conflict in Kenya. The principal signatories to the National Accord, President Mwai Kibaki and the Prime Minister Raila Odinga committed themselves to instituting legal and political measures of reform to effectively address all the Agenda four concerns. Both CIPEV and IREC also recommended constitutional reforms as crucial to ensuring durable peace as part of Agenda four. Both specifically required undertaking constitutional, legal and institutional reform; tackling poverty and inequality; combating regional development imbalance; tackling unemployment among the youth; consolidating national cohesion and unity; undertaking land reform; and addressing transparency, accountability, and impunity.

437.This catapulted constitutional reform back to the forefront and led to the enactment of the Constitution of Kenya Review Act, 2008. The Act was intended to facilitate the completion of the review of the Constitution of Kenya.⁷³ The object and purpose of the Act included to: provide a legal framework for the review of the Constitution of Kenya, provide for the establishment of the organs charged with the responsibility of facilitating the review process, establish mechanisms for conducting consultations with stakeholders, provide a mechanism for consensus-building on contentious issue in the review process, and preserve the materials, reports and research gathered under the expired Act.⁷⁴⁷³The Constitution of Kenya Review Act (cap 3A), 2008, long title.⁷⁴Ibid, section 3.

438.One of the objects and purposes of the revamped constitutional review process was to promote peoples’ participation in the governance of the country through democratic, free and fair elections and the devolution and exercise of power, ensuring the full participation of people in the management of public affairs, and committing Kenyans to peaceful resolution of national issues through dialogue and consensus.⁷⁵⁷⁵Ibid, section 4.

439.Importantly, the Constitutional Review Act, 2008 set up 4 organs for the constitutional review:a.The Committee of Experts (CoE);b.The Parliamentary Select Committee (PSC);c.The National Assembly;d.The referendum.⁷⁶⁷⁶Ibid, section 5.

440.The CoE was to comprise 9 persons nominated by the National Assembly and appointed by the President of whom three were to be non-citizens of Kenya nominated by the National Assembly from a lists of five names submitted to the Parliamentary Select Committee by the Panel of Eminent African Personalities, in consultation with the NDRC; six citizens of Kenya nominated by the National Assembly in accordance with a prescribed Schedule to the Act; the Attorney- General and the Director as ex-officio members.⁷⁷⁷⁷Ibid, section 8.

441.The CoE was appointed on February 23, 2009 and constituted Mr Nzamba Kitonga, as Chairperson, Ms Atsango Chesoni as Vice Chairperson, Mr Otiende Amollo, Mr Bobby Munga Mkangi, Mr Abdirashid Abdullahi, Hon Njoki Ndung’u; Prof Christina Murray from South Africa, Dr Chaloka Beyani from Zambia; Prof FE Sspembwa from Uganda, Dr Ekuru Aukot as director, and the former Attorney-General Amos Wako.⁷⁸The CoE worked by building on the work of the CKRC.⁷⁹ The Review Act required the CoE to study all existing Draft Constitutions and such other materials as it may consider appropriate and prepare a report that would identify: the issues that were not contentious and were agreed upon; and the issues that were contentious and not agreed upon.⁸⁰⁷⁸Committee of Experts on Constitutional Review, ‘Final Report of the Committee of Experts on Constitutional Review’ (October 2010), https:katibaculturalrights.files.wordpress.com/2016/04/coe_final_report- 2.pdf (accessed on 30 April 2021).⁷⁹Ibid.⁸⁰The Constitution of Kenya Review Act (cap 3A), 2008, section 30.

442.The CoE considered the following documents to identify the contentious issues: The CKRC Draft, the Bomas Draft; the Proposed new Constitution (Wako Draft); the Kilifi Report; the Naivasha Accord; the Kiplagat Report; the Referendum Debates; the Kriegler Report; and the Waki Report.⁸¹⁸¹Daily Nation Advertising Feature, ‘Committee of Experts on Constitutional Review’ Monday October 26, 2009,https:constitutionnet.org/sites/default/files/CoE_ProgressReport.pdf (accessed on 3 May, 2021).

443.The CoE, like the CKRC before it, collated a total of 26,451 memoranda and presentations from members of the public as compared to the CKRC which received 35,000 written memoranda.⁸² Of these, 5,212 were received from organized groups (2073 from CSOs and 107 from women’s groups), 88 from political parties, 50 from the private sector, 2969 from religious organizations, and 32 from statutory bodies.⁸³ The CoE also conducted regional hearings where a further 1,917 presentations were made.⁸⁴ The CoE attended hearings in all the 8 provinces of Kenya and had many consultations with various stakeholders directly on specific issues.⁸⁵⁸²Committee of Experts on Constitutional Review, ‘Final Report of the Committee of Experts on Constitutional Review’ (October 2010),https:katibaculturalrights.files.wordpress.com/2016/04/coe_final_report- 2.pdf (accessed on 30 April 2021), 41.⁸³Ibid.⁸⁴Ibid.⁸⁵Ibid.

444.Despite these efforts, a report by the Kenya Human Rights Commission (KHRC) concluded that the CoE did not conduct far- reaching and effective civic education as was possible.⁸⁶ According to the KHRC, the CoE was limited by time, bureaucratic hurdles, and difficulty in accessing financial resources. The CoE was thus not able to produce enough drafts of the Proposed Constitution of Kenya in Kiswahili, civic education was sporadic and not sustained, in some areas like Turkana, Marakwet, Samburu, and Kuria, due to low literacy levels in English and Kiswahili never engaged meaningfully with the process.⁸⁷ This criticism is an indication of how seriously Kenyans took the requirement that the Constitution-making process be participatory.⁸⁶Kenya Human Rights Commission (KHRC), ‘Wanjiku’s Journey: Tracing Kenya’s Quest for New Constitution and Reporting on the 2010 National Referendum’ (November 2010),https:www.khrc.or.ke/publications/38- wanjiku-s-journey-tracing-kenya-s-quest-for-a-new-constitution-reporting-on- the-2010-referendum/file.html (assessed on 4 May, 2021).⁸⁷Ibid.

445.The CoE successfully completed the following 12 part-stage process as required under the Review Act, 2008 towards the promulgation of the 2010 Kenya Constitution:a.It identified the agreed and contentious issues, harmonised those that are agreed, proposed resolutions to the contentious issues and published a harmonized draft constitution (Review Act section 30).b.After publishing the harmonized draft constitution and a preliminary report, the public was given 30 days within which to give their views (Review Act section 32(a)).c.The CoE then had 21 days to incorporate the views of the public (Review Act section 32 (c)). It then presented the revised draft to the PSC for deliberation and consensus building on contentious issues (Review Act section 33(1)(c)).d.The PSC then had 21 days to reach agreement and then return the Constitution with recommendations to the CoE (Review Act section 33(1)).e.The CoE then revised the draft constitution taking account of the consensus achieved by the PSC and then submit the revised draft and its final report to the PSC within 21 days (Review Act section 33(2)).f.The PSC then submitted the draft to the National Assembly within 7 days for approval (Review Act section 33(3)).g.The National Assembly then approved the draft and proposed amendments within 30 days of its tabling to the PSC (Review Act section 33(4)).h.The Attorney-General then published the Draft Constitution within 30 days of receipt from the National Assembly and was prohibited from effecting any alterations to the draft except for editorial purposes and in consultation with the PSC (Review Act section 34).i.Within 7 days of the publication of the draft Constitution the Independent Electoral Commission (IIEBC)⁸⁸ published the question to be determined by the referendum. The question was framed in consultation with the PSC (Review Act section 37(1)).⁸⁸This Commission replaced the Electoral Commission of Kenya (ECK) after the 2007 elections.j.The IIEC was to organize, conduct and supervise the referendum to be held 90 days after the publication of the Constitution by the Attorney-General. During this 90-day period the CoE was to conduct civic education for a period of 30 days (Review Act, section 35).k.The IIEC was to publish the results of the referendum within two days of the referendum (Review Act, section 43).

446.If the final result of the referendum was that the people of Kenya ratified the draft constitution, the President was to proclaim the new Constitution to be law not later than 14 days after the publication of the final result of the referendum (section 43A). Failing this, the ratified Constitution would come into effect on the 15th day after the announcement of the result.⁸⁹⁸⁹Committee of Experts on Constutional Review, ‘Final Report of the Committee of Experts on Constitutional Review’ (October 2010),https:katibaculturalrights.files.wordpress.com/2016/04/coe_final_report- 2.pdf (accessed on 30 April 2021).

447.The referendum to vote in the Revised Harmonized Draft from the CoE and the PSC was held on August 4, 2010. 68.55 percent of Kenyans voted to accept this draft that was officially promulgated on August 27, 2010 as the Constitution of Kenya, 2010. This endorsement by Kenyans culminated a process of more than 20 years of constitutional reform for a Constitution that was for Wanjiku. This was an overwhelming acceptance by Kenyans of the Constitution of Kenya, 2010.

448.What does this history of constitution making in Kenya tell us about the basic structure doctrine and the limits of the powers of constitutional amendment?

449.In the present case, the petitioners’ argument is simple enough: they argue that the Constitution of Kenya, 2010 contains essential features and fundamental characters and foundational values that enjoy transcendental existence, whose derogation is not contemplated in the Constitution by way of constitutional amendments. These, features, they argue, form the basic structure of the Constitution and includes the following chapters of the Constitution: 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.

450.The petitioners argue that while other parts of the Constitution can be subjected to improvements and modifications to meet the needs of all generations, the basic structure they have identified cannot be amended. The basic structure forms, they argue, eternity clauses or unamendable provisions of the Constitution. We can identify the basic structure, the petitioners argue, by looking at the text, spirit, structure and history of the Constitution.

451.The petitioners further argue that the basic structure can only be altered through the formation of a new Constitution by the people in the exercise of their constituent powers; not even a referendum subsequent to parliamentary action can be used to change the basic structure of the Constitution. In their own words which they describe as the core of their petition, the petitioners say that:The doctrine [of basic structure] holds the argument that after the initial and the first ever promulgation of a constitution especially in emerging democracies, the basic features of that constitutional order under which the people are governed and to which the people owe allegiance to are to endure for all time. The Constitution is born mature. The Constitution has no infancy and therefore cannot be fed with amendments founded on the changing political and socio-economic interest.

452.Arguing that the doctrine of basic structure derives directly from the concept of the people’s sovereignty and how it is exercised in constitution-making, the petitioners argue for the inherent limits in the amending powers in the following words:Certain fundamental provisions enacted and passed by consensus during a constitution making process are therefore non-amendable through the constitutional amending procedures and powers established by the parent Constitution. These "basic structures" of the constitution are given a transcendental position under the Constitution and are kept beyond the reach of the political processes spearheaded either by the people or Parliament.

453.With respect to the application of the doctrine of basic structure to Kenya, the petitioners draw their arguments from the structure of the Constitution; the history of its making; and from comparative constitutional jurisprudence and international law. They have also cited cases from India, Germany, Denmark, Hungary as well as other jurisdictions.

454.Turning to our local jurisprudence, the petitioners argue that the proposition that only the people conferencing as a primary constituent assembly can alter the basic structure of the Constitution can be directly gleaned from the holding in the Timothy Njoya case (supra). They also point out that our past cases have identified a certain core of the Constitution which the cases have described as “basic structure”. In this regard, the petitioners point to Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others [2013] eKLR.

455.In that case, the petitioners challenged the constitutionality of Kenya Gazette Supplement

Case Search

Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)

Case Metadata

Advocates