Court of Appeal affirms the High Court's decision on the constitutionality of the Constitution of Kenya (Amendment) Bill 2020.
The instant case was an appeal of the High Court’s judgment. At the High Court, the petitioners challenged the content of and the process by which the Constitutional Amendment Bill was formulated and the steps that had been and were intended to be taken in an effort to amend the Constitution. They contended that the contents and the processes of arriving at the Constitutional Amendment Bill violated the Constitution and the Basic Structure Doctrine.
The High Court had partly allowed the petition. It declared that the basic structure doctrine was applicable in Kenya and 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. The High Court also faulted the process in which the amendment process was instituted, by declaring that the President did not have authority under the Constitution to initiate changes to the Constitution. The High Court also declared 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 was unconstitutional and that the entire 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.
Aggrieved, the appellants filed four appeals in which they claimed that the High Court erred in law for finding that the basic structure doctrine was applicable in Kenya and for finding that eternity clauses and un-amenability doctrines were applicable under the Constitution of Kenya, 2010; for declaring that the appellant had contravened Chapter 6 of the Constitution by initiating and promoting constitutional amendment process under article 257. The appellant further faulted the High Court for finding that the appellant (IEBC) ought to have carried out a nation wide voter registration exercise for the purpose of the intended referendum; for misconstruing the process of certification of the register of voters under sections 6 and 6(a) of the Elections Act with the requirements for continuous voter registration under section 5 of the Elections Act; for finding that the appellant had an obligation to ensure that the promoters of the Bill had complied with the requirements, public participation before transmitting the Amendment Bill to the County Assemblies.
- Whether the basic structure doctrine was applicable in Kenya.
- Whether the basic structure doctrine limited the amendment power set out under articles 255 – 257 of the Constitution?
- Whether the basic structure of the Constitution could only be altered 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.
- Whether civil proceedings could be instituted against the President or a person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary to the Constitution.
- Whether the President had the authority under the Constitution to initiate changes to the Constitution, and whether 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.
- Whether the Steering Committee on the Building Bridges to a United Kenya Taskforce Report (the BBI steering committee) had no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.
- Whether the Constitution of Kenya Amendment Bill, 2020, was unconstitutional and a usurpation of the People’s exercise of sovereign power.
- Whether the Constitution of Kenya Amendment Bill, 2020, could not be subjected to a referendum in the absence of evidence of continuous voter registration by the Independent Electoral and Boundaries Commission (IEBC).
- Whether the IEBC had the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification of whether the initiative as submitted by the Building Bridges Secretariat was supported by the requisite number of registered voters in accordance with article 257 (4) of the Constitution.
- Whether at the time of the launch of the Constitution of Kenya Amendment Bill, 2020, and the collection of endorsement signatures there was neither legislation governing the collection, presentation, and verification of signatures, nor an adequate legal/regulatory framework to govern the conduct of the referenda.
- Whether County Assemblies and Parliament could, as part of their constitutional mandate, change the contents of the Constitution of Kenya Amendment Bill, 2020, initiated through a popular initiative under article 257 of the Constitution.
- Whether the second schedule to the Constitution of Kenya Amendment Bill, 2020, in so far as it purported to predetermine the allocation of the proposed additional seventy constituencies, and to direct the Independent Boundaries and Electoral Commission on its functions of constituency delimitation was unconstitutional.
- Whether the administrative procedures, for the verification of signatures in support of the Constitution Amendment Bill, made by the IEBC were illegal, null and void because they were made without quorum and in violation of sections 5, 6 and 11 of the Statutory Instruments Act, 2013.
- Whether a permanent injunction could be issued to restrain the IEBC from undertaking any processes required under article 257 (4) and (5) in respect of the Constitution of Kenya (Amendment) Bill, 2020.
Relevant provisions of the law
Constitution of Kenya, 2010
Article 255 - Amendment of this Constitution
- A proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment relates to any of the following matters—
- the supremacy of this Constitution;
- the territory of Kenya;
- the sovereignty of the people;
- the national values and principles of governance referred to in Article 10(2)(a) to (d);
- the Bill of Rights;
- the term of office of the President;
- the independence of the Judiciary and the commissions and
- independent offices to which Chapter Fifteen applies;
- the functions of Parliament;
- the objects, principles and structure of devolved government; or
- the provisions of this Chapter.
Article 257 - Amendment by popular initiative
- An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.
- A popular initiative for an amendment to this Constitution may be in the form of a general suggestion or a formulated draft Bill.
- If a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill.
- The promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.
- If the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.
- If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.
- If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay.
- A Bill under this Article is passed by Parliament if supported by a majority of the members of each House.
- If Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Article 256(4) and (5).
- If either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in Article 255(1), the proposed amendment shall be submitted to the people in a referendum.
- Article 255(2) applies, with any necessary modifications, to a referendum under clause (10).
Per DK Musinga, JA
1. The basic structure doctrine was a concept of implied limitation on Parliament’s power to amend the Constitution. After considering various factors including the history of making the Constitution in Kenya, the people's participation, the text and structure of the Constitution, the transformative structure of the Constitution and the interpretive principles provided for under article 259 of the Constitution, the High Court concluded that the doctrine was applicable to Kenya. According to the High Court, 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. The High Court described Primary Constituent Power as the extraordinary power to form (or radically change) a constitution. At the Court of Appeal, there were no serious contentions amongst the parties about whether the Constitution of Kenya had a basic structure. What the parties did not agree on was about the matters that formed the basic structure.
2. Constitutional amendments were either corrective or elaborative. A constitutional amendment was a correction made to better achieve the purpose of the existing Constitution. It could also be an elaboration which went beyond simply repairing a fault or correcting an error in the constitution-making project but did so in line with the existing design of the Constitution.
3. Any amendment that altered constitutional fundamental values, norms and institutions could not pass as an amendment; it was in the nature of a dismemberment. The omnibus constitutional Amendment Bill that sought to fundamentally alter certain constitutional pillars of the supreme law like the concept of separation of powers and the independence of the Judiciary was not an ordinary constitutional amendment. It amounted to a dismemberment of the Constitution.
4. Certain aspects of the impugned Amendment Bill interfered with the concept of separation of powers. Those amendments included the following: -
a) The proposed Judiciary Ombudsman was to be an appointee of the President and that fact entrenched executive control in the Judicial Service Commission (JSC) and also the Judiciary. The Ombudsman's office would receive and conduct inquiries into complaints against judges, magistrates, registrars and all judiciary staff and play a critical role in the removal of the judges. Such a situation could make judicial officers cautious of going against the will of the President. It would interfere with the independence of the Judiciary. Additionally, as concerned the handling of complaints against judges, there was a possibility of two parallel incompatible centres of power (the Ombudsman and the JSC) and the possibility that they would arrive at different conclusions on the question of the judges' removal from office.
b) The Constitution of Kenya, 2010, provided for a pure presidential system and the proposed amendments contemplated a situation where members of the Executive would also be members of Parliament. That would interfere with the concept of separation of powers.
c) Clauses 10 and 74 of the Amendment as read with the Second Schedule of the Amendment Bill, proposed to increase the number of constituencies from 290 to 360. The provisions proposed the allocation of 70 additional constituencies to 29 counties but gave the IEBC the role of delimiting the boundaries of the additional constituencies. Article 89(5), 89(6) and 89(7) of the Constitution provided for the criteria that would guide the IEBC in delimiting boundaries and deciding which county should get additional constituencies. Entrusting such a role to persons with declared political interests was tantamount to gerrymandering which was described a process of dividing political units in ways that deliberately created advantages for incumbents or their political allies, by pacing voters based on their predicated behaviour at the polls in districts that diluted the vote of some voters and consolidated the votes of others.
5. Unamendable, immutable, unchangeable, unutterable, irrevocable or eternity clauses were neither eternal or unchangeable, they only limited amendment power. They were subject to changes introduced by extra-constitutional forces (primary constituent assembly of the people) or through judicial interpretation. Unamendable provisions reflected the idea that certain constitutional subjects ought to be protected from alteration.
6. The basic structure doctrine was applicable in Kenya and certain fundamental aspects of the Constitution of Kenya, 2010, were incapable of amendment except through the sovereign primary constituent power of the people. Any provision that was part of the basic structure of the Constitution could be amended by the people through exercise of the primary constituent power after civic education, public participation, constituent assembly debate and a referendum. Articles 255 to 257 of the Constitution applied to pure amendments of the Constitution that did not alter any feature that formed the basic structure.
7. There was a difference between an initiator and promoter. The Cambridge English Dictionary stated that an initiator was an instigator or the one who begun something and it also meant a person who caused something to begin. Under the Black's Law Dictionary, 9th Edition, a promoter was a person who encouraged or incited something and could also be defined as a supporter of a cause.
8. Having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee, the President was the initiator of the BBI initiative. The High Court rightfully found that the Amendment Bill was an initiative of the President.
9. The Co-Chairpersons of the BBI Secretariat wrote to the IEBC on November 18, 2020 indicating their intentions to collect one million signatures in support of the Amendment Bill. IEBC acknowledged receipt of the letter on November 24, 2020 via another letter. On December 10, 2020, the BBI Secretariat Co-Chairpersons handed the signatures and the Amendment Bill to the IEBC Chairperson. Therefore, there was no dispute that the promoter of the Amendment Bill was the BBI National Secretariat.
10. The Constitution of Kenya, 2010, provided for two ways in which it could be amended. The first was by parliamentary initiative under article 256 of the Constitution and the second one was by popular initiative under article 257 of the Constitution.
11. A popular initiative was a process of participatory democracy that empowered people to propose legislation and to enact or reject the laws at the poll independent of law-making power of the governing body.
12. Considering the way the Amendment Bill was developed and processed, it could not pass muster as a popular initiative. The Bill came into being after the President appointed the BBI Taskforce which prepared a report and presented it to the President who in turn set up the BBI Steering Committee that eventually drew the Bill. The BBI Steering Committee toured all counties and received views from various stakeholders but that did not mean that the process was a popular initiative. There was no indication that the process was initiated by citizens. It was led and driven by the Executive.
13. The BBI Steering Committee had no constitutional mandate to initiate constitutional changes through a popular initiative under article 257 of the Constitution. The impugned amendments were initiated by the political elite and not the people of Kenya.
14. Article 7(1) of the Constitution provided that Kiswahili was the national language of Kenya while article 7(2) of the Constitution provided that the official languages of the Republic were Kiswahili and English. The promoters of the Amendment Bill posted English versions of the Bill over the internet. The appellant did not inform the High Court about the number of Kenyans that had reliable internet access and were able to read and understand the English version of the impugned Bill. Considering the place of Kiswahili as a national language, it was dishonest for the promoters to purport to have reached out to the masses by simply posting an English version of the Amendment Bill on the internet.
15. Under article 10 of the Constitution participation of the people had to be done in a transparent manner. Although more than one million voters appended signatures in support of the Amendment Bill, it was not demonstrated that the exercise was conducted in a transparent manner. Transparency required that before signatures were collected, proper civic education had to be done. During that civic education the 74 proposed amendments had to be explained to the people well to make sure they understood and appreciated the ramifications of each of them.
16. Some of the proposed constitutional amendments were best placed to be proposed as statutory amendments. An example was clause 3 of the Amendment Bill which was about the economy and shared prosperity. The drafters of the Amendment Bill also drew the Micro and Small Enterprises (Amendment) Bill, 2020 which inter alia proposed to give youth-owned enterprises a seven-year tax break. Another example was the proposed amendment of the Higher Education Loans Board Act, 1995, to give loanees a grace period of four years from the date of completion of their studies and to exempt loanees without a source of income from paying interest on loans advanced to them. Such proposals were intended to entice young registered voters to support the Amendment Bill, without proper civic education on all the contents of the entire Bill.
17. It was on record that Members of County Assemblies (MCAs) demanded and were given car grants of Kshs. 2, 000, 000 before an overwhelming majority of County Assemblies passed the Amendment Bill. The timing of the grants raised suspicions that it was intended to influence MCAs to pass the Amendment Bill.
18. In the processing of the Amendment Bill, there were violations of article 10 of the Constitution and in particular, participation of the people, inclusiveness, integrity, transparency and accountability. The amendment of a country's Constitution ought to be a very sacrosanct public undertaking and its processes had to be undertaken very transparently and in strict compliance with the country's law. Deliberate compromise of the process would invalidate even a well-intentioned proposal.
19. The Amendment Bill was not a popular initiative and although there was a degree of public participation in its development, it was not passed in accordance with the national values and principles enumerated under article 10 of the Constitution.
20. The High Court rightfully held 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 a constitutional amendment through the popular initiative. Through the office of the Attorney General, the President could use the parliamentary initiative to propose amendments to the Constitution, if he wished, but he could not initiate a process for the dismemberment of the Constitution disguised as a popular initiative.
21. Article 88 of the Constitution had provided that the IEBC had to exercise its powers and perform its functions in accordance with the Constitution and national legislation. Article 250(1) of Constitution stipulated that each Commission had to consist of at least three but not more than nine members. Section 5(1) of the Independent Electoral and Boundaries Commission Act provided inter alia that the Commission had to consist of a Chairperson and eight other members. Section 8(5) of the Independent Electoral and Boundaries Commission Act provided that quorum for the conduct of business at a meeting of the Commission had to be at least five members of the Commission. When four commissioners of the IEBC resigned after the 2017 general election, the IEBC was left with the Chairman and two commissioners. Thereafter the Election Laws Amendment Act, 2017, reduced quorum to half the existing members of the Commission, provided that the quorum would not be less than three members. However, the quorum issues at the IEBC persisted as the High Court in Katiba Institute & 3 Others v Attorney General & 2 Others, declared the material provisions of the Election Laws Amendment Act, 2017, unconstitutional and the decision was not appealed against.
22. The conduct of all processes of a referendum that had the potential to change a country's constitutional landscape was an exercise of paramount importance. It had to be conducted by an institution that was properly constituted in accordance with the law of the land and the institution had to make sound decisions that were quorate.
23. Quorum at the IEBC was fixed by legislation at five members. The resignation of four commissioner took place in 2017 and since then the vacancies had not been filled.
24. Under article 257(4) of the Constitution the role of the IEBC in a constitutional amendment process through a popular initiative, included verification that the popular initiative was supported by at least one million voters and if that was the case, the IEBC was to submit the draft Bill to each county assembly. The question that arose from that role was what verification meant.
25. The IEBC required supporters of the popular initiative to indicate their name, identity card number or passport number, constituency, county, ward, polling station, mobile telephone number and e-mail address. Those were certainly some of the unique identifiers of a registered voter. It was not difficult to compare the information contained in Form A of a registered voter with information captured in the form for collection of signatures of supporters of the popular initiative to determine whether the supporters were registered voters.
26. There was no constitutional or statutory requirement for a legal framework for verification of signatures under article 257(4) of the Constitution. A legal/regulatory framework for verification of signatures was necessary. However, the Administrative Procedures developed by the IEBC for such purposes were invalid because they were developed without public participation and by a Commission that did not have quorum.
27. Section 5 of the Elections Act provided for the registration of voters and revision of the register of voters on a continuous basis. Voter registration was an essential facilitator of the exercise of citizens' constitutional right to vote in any election or referendum and to be candidates in any elective political office for which they were qualified.
28. The IEBC did not adduce sufficient evidence that it had been conducting continuous voter registration. The IEBC also failed to show that it had been sensitizing the public about its role of conducting continuous voter registration and the importance of having voter registration by citizens.
29. There was no constitutional or statutory requirement for the IEBC to carry out nationwide voter registration before any proposed referendum, but the IEBC had an obligation to do continuous registration of voters in each constituency. In furtherance of its obligations, the IEBC had to continually sensitize Kenyans about its role and encourage them to continually register as voters, except at such periods as specified by statute when voter registration was not to be done.
30. Article 257(10) of the Constitution provided that if either House of Parliament failed to pass an Amendment Bill, or the Bill related to a matter specified in article 255(1) of the Constitution, the proposed amendment had to be submitted to the people in a referendum. The view that specific proposed amendments were to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper was informed by the provisions of section 49 of the Elections. Section 49 of the Elections Act was not applicable to referenda related to constitutional amendments by popular initiative. Article 257 of the Constitution set out the entire process. Under article 257 of the Constitution what was to be submitted to the people in a referendum was not a question or questions, it was a Bill. However, the IEBC could require people to approve or disapprove the Bill by answering a question or questions, in the affirmative or in the negative.
31. The Black’s Law Dictionary, 9th Edition at page 943 defined the word justiciability as the quality or state of being appropriate or suitable for adjudication by a court. For a matter to be justiciable, it had to be one that was properly brought before a court and capable of being disposed of judicially. In other words, the issue had to be ripe for determination and devoid of any mootness.
32. Black’s Law Dictionary, 9th Edition at page 1442 defined the term ripeness as a state that a dispute reached, but had not passed, when the facts had developed sufficiently to permit an intelligent and useful decision to be made. The doctrine precluded the court from entertaining issues when it was too early, out of apprehension, when they were not yet ripe, meaning apprehended abstract disputes. On the other hand, the doctrine of mootness dictated that a court of law should not hear a matter in which a controversy no longer existed; one that presented only an abstract question that did not arise from existing facts.
33. The right to institute proceedings to challenge a contravention or threatened contravention of the Constitution, was provided for under article 258(1) of the Constitution. The petitioner had to demonstrate, with some degree of precision, the rights, fundamental freedom or provision of the Constitution that it alleged was violated or threatened with violation and the relief that the petitioner sought for the violation or threatened violation.
34. An examination of the consolidated petition showed that the issues raised were not mere political questions but were in the nature of constitutional issues requiring determination by a constitutional court. The High Court had jurisdiction to entertain the issues under article 165 of the Constitution and they could only be properly and adequately adjudicated upon in a judicial process.
35. The petitioners were apprehensive of the violation of certain fundamental constitutional rights and freedoms through the constitutional amendment process that culminated in the Amendment Bill and approached the court to seek various orders to safeguard their rights against the intended violations. The issues in the consolidated petitions were not academic or theoretical claims but were issues that posed a real threat of constitutional violations.
36. The task of delimiting constituencies, reviewing their names and boundaries was assigned to the IEBC by the Constitution. The Second Schedule to the Amendment Bill in so far as it purported to pre-determine the allocation of 70 constituencies was unconstitutional.
37. The drafters of the Constitution recommended that Parliament should enact a Referendum Act to govern the conduct of referenda. Such an Act was not in effect. Notwithstanding that legal vacuum, a referendum could be undertaken as long as constitutional values, principles and objects were met.
38. The Constitution, the Elections Act and the Independent Electoral and Boundaries Commission Act contained broad provisions that could be used to conduct a referendum as long as commitment to adhere to the stipulated principles, values and statutory dictates was observed.
39. Under article 143(2) of the Constitution, the President had absolute immunity against civil proceedings in respect of anything done or not done in exercise of the president's powers under the Constitution. The President was however subject to the Constitution and not above the law.
40. If the President, in his or her own private capacity, not in the exercise of the President's constitutional powers, were to do anything against a person's private rights, that person would have liberty to file a civil suit against the President in his personal capacity during the tenure of office of the President. If the president, in the execution of his constitutional functions violated the Constitution, he could be sued in his governmental or official capacity through the Attorney General. Such proceedings were usually instituted by way of judicial review or a constitutional petition.
41. The rules of natural justice required that every person had to be accorded a reasonable opportunity to be heard before an adverse decision was made against them. If that was not done, any resultant decision that aggrieved that person was a nullity.
42. There were questions as to whether the President was served with the petition. The petitioner filed an affidavit of service in which he stated that he served the President electronically via email as it was impossible to effect personal service upon him. The petitioner did not tell the court where he got the email address from and he did not demonstrate that it was the President's personal email address.
43. The trial court did not inquire into the issue of service. In all proceedings where a party was alleged to have been served with a hearing notice or other court process in any manner, before a court could proceed to commence a hearing, in the absence of such a party, even if there was an affidavit of service indicating that all parties in the matter had been duly served, the court, in the interests of justice and to ensure a fair hearing, had to satisfy itself that there was proper service before it commenced a hearing. The record of the court ought to have reflected that.
44. The email address provided by the petitioner was claimed to be the official one for the Office of the President or State House. The petitioner did not demonstrate that it was proper to sue the President in his personal capacity but purported to effect service upon him through the official email address of the President. The petitioner should have sought leave to effect substituted service by way of advertisement in the local newspapers if he could not get the President's personal email address.
45. Considering the nature of orders sought against the President and the effect of the grant of the orders, the trial court ought to have been satisfied that there had been proper service of court process. There was no proof of service of the petition and the hearing notice upon the President. Therefore, there was a breach of the right to a fair hearing and the President was condemned unheard. Consequently, all orders made against the President could not stand and were set aside.
46. The issue as to whether the President could establish a committee to initiate a change or an amendment of the Constitution outside the remit of articles 255 to 257 of the Constitution had not been raised in an earlier petition. The decision in the case of Thirdway Alliance Kenya & another v The Head of Public Service, Joseph Kinyua & 2 others did not mean that the court could not determine that issue on grounds of res judicata.
47. While public rallies attended by thousands of people militated against the measures meant to curb the spread of Covid-19, there was no empirical data or scientific evidence provided to the trial court to enable them to make a determinative finding that such events per se amounted to a violation of article 43(1)(a) of the Constitution.
48. There was no sufficient evidence adduced to enable to trial court to make a finding that expenditure for purposes of the proposed constitutional amendments amounted to a constitutional violation.
49. Chief Justice (Rtd) David Maraga gave advice to the President for dissolution of Parliament. The advice was issued pursuant to the provisions of article 261(7) of the Constitution. Parliament had failed to enact legislation required to implement the two thirds gender rule and that omission meant that it could be dissolved. Under article 261(7) of the Constitution, if Parliament failed to enact such legislation within the prescribed timeframe, the Chief Justice had to advise the President and the President had to dissolve Parliament.
50. The High Court in Petition No. E291 of 2020 as consolidated with Petitions Nos. E300 of 2020, E302 of 2020, E305 of 2020, E314 of 2020, E317 of 2020, E337 of 2020, 228 of 2020, 229 of 2020 and JR E1108 of 2020 issued orders suspending the implementation of the advisory opinion by the Chief Justice pending the hearing and determination of the application by a bench of not less than three judges. When the Amendment Bill was considered by both Houses of Parliament, the High Court orders were in force and there was no indication that they had been vacated. Accordingly, none of the Houses of Parliament were infirmed from considering and/or debating the Amendment Bill owing to the advisory opinion of the Chief Justice.
51. The BBI Taskforce did not have the mandate to receive proposals on constitutional amendments as that mandate was given to the BBI Steering Committee which was established on January 3, 2020. As at the date the Kenya National Union of Nurses (KNUN) made proposals to the BBI Taskforce, August 8, 2019, the BBI Steering Committee was yet to be established. The proposals of KNUN which related to constitutional amendments were made to the BBI Taskforce and they were about the establishment of an Independent Constitution Health Service Commission recognition of universal healthcare as a human right, expansion of free basic education and the removal of the Salaries and Remuneration Commission.
52. The BBI Taskforce did not create a legitimate expectation that the proposals of KNUN would be incorporated into the Amendment Bill. It could not be said that KNUN had any legitimate expectation since no representation and/or promise was made to it to the effect that their proposals would be incorporated in the intended Amendment Bill.
53. The fact that the proposals of KNUN were not incorporated into the Amendment Bill could not be a basis for invalidating the Amendment Bill.
54. The petitioner prayed for information relating to the budget and public funds allocated and utilized in promoting the impugned Bill to be published. The prayer was anchored on article 35 of the Constitution. However, the petitioner failed to demonstrate that he had sought the information for which he wanted the court order for publication and it was denied. It was only after access to the information had been sought unsuccessfully that a petitioner could move the court for a determination as to whether his right of access to information had been infringed and to seek appropriate orders.
55. The High Court could not be faulted for not issuing orders for the publication of the information sought. The petitioner had not followed the laid down procedure or made a formal application seeking the publication of that information.
56. An amicus curiae was defined in the Black's Law Dictionary, 11th Edition, as a person who was not a party to a lawsuit but who petitioned the court or was requested by the court to file a brief in the action because that person had a strong interest in the matter.
57. In Petition No E282 of 2020, the Kenya Human Rights Commission and four law professors sought admission as amicus curiae. The amici were admitted on account of their wealth of knowledge on constitutional issues, to assist the trial court in its appreciation of the rather novel doctrines of the basic structure, unamendability of the Constitution and eternity clauses.
58. There were contentions that the amici were partisan. A perusal of the amicus curiae briefs in the record of appeal showed that they were constitutional law experts possessed of extensive experience as constitutional law practitioners, academicians and law lecturers in various universities.
59. An amicus curiae had to be impartial and owed fidelity only to the court and no one else. An amicus curiae should not be considered partisan simply because his or her expert opinion or analysis was favourable or advanced one party's case and was disadvantageous to the other. The important consideration was whether the amicus' conclusion or position was adequately supported by the expert analysis of the issues in controversy. The fact that there was a convergence of views between a party and an amicus did not per se indicate that the latter was biased or partisan.
60. There was no evidence that the amici who were admitted into High Court proceedings were biased. Their respective briefs were of great assistance to the High Court in determining the issues.
Per RN Nambuye, JA
61. Basic structure was a judicial principle that guided courts in their exercise of their judicial mandate to guard against sanctioning amendments to constitutions likely to have the effect of either dismembering or changing their identity completely. The phrase basic structure of a constitution meant the constitution itself and what it contained. Therefore, the basic structure doctrine applied to the Constitution of Kenya, 2010.
62. The impugned Bill attempted to alter fundamental aspects of the Constitution of Kenya, 2010, akin to completely overhauling certain provisions and clauses which if passed, would explicitly change the Constitution of Kenya, 2010 and give it a new identity, affecting the constitutional pillars namely; separation of powers, independence of the Judiciary and the independence of independent constitutional commissions, among others.
63. The historical context that gave rise to the Constitution of Kenya, 2010, was a clear demonstration that Kenyans were categorical during that constitution making process through public participation that resulted in the Constitution of Kenya, 2010 and that they intended to insulate the Constitution of Kenya, 2010, against hyper-amendability characterized by the old independence Constitution of Kenya order.
64. A constitutional change could be deemed unconstitutional, even if accepted according to the prescribed constitutional procedures, if it conflicted with unamendable constitutional provisions, or collapsed the existing order and its basic principles, and replaced them with new ones thereby changing its identity. Provisions upholding the democratic order were often unamendable and unamendable provisions also protected other principles such as separation of powers, rule of law, independence of courts and judicial review of statutes. Those clauses did not and could not limit the primary constituent power as the same were subject to changes introduced by extra constitutional forces (primary constituent assembly of the people) or through judicial interpretation.
65. The eternity and unamendable clauses did not exist in the Constitution of Kenya, 2010 because in jurisdictions where these clauses were found to exist, they were expressly provided for in the respective jurisdictions’ constitutions.
66. The people reserved in themselves the power to amend the Constitution of Kenya, 2010, which included the power to overhaul it as they did to the former Constitution or partially amend it subject to compliance with the prerequisites of the amendment power. Going by the guiding principles in article 10 of the Constitution, there was nothing therein to suggest that the Kenyan society would remain static in its life span so as to stick to the value system as obtained in the year 2010 when the Constitution of Kenya was promulgated. Good prudence demanded that there be constitutional changes which would in turn inform changes in the law to meet societal needs as and when such need arose.
67. The Cambridge English Dictionary described an initiator as an instigator or one who begun something or who caused something to begin. On the other hand, Black’s Law Dictionary, 9th Edition described a promoter as a person who encouraged or incited. In simple terms, it could be said that a promoter was a supporter/campaigner of a cause or aim. Therefore, the initiators and promoters of the BBI initiative were the two principals as supported by those who shared in the BBI ideals.
68. The President’s action in coming up with the BBI initiative with a view to coming up with modalities on how to forge national unity following the handshake was not only lawful but constitutional as it was within the President’s mandate to forge national unity as a presidential duty. The process was therefore legal, regular, lawful and constitutional up to that point. It became tainted and unlawfulness set in at the Steering Committee level when the President included an item on constitutional amendment in the mandate of the Steering Committee which contravened articles 255 – 257 of the Constitution of Kenya, 2010.
69. The sovereign right to replace the Constitution was vested collectively in the people of Kenya and should have been exercisable by the people of Kenya through a referendum. An amendment to the Constitution could be proposed by a popular initiative signed by at least one million voters and thus the right to a popular initiative was only meant for voters.
70. A popular initiative could not be initiated by the Government when it was the same entity that would be compelled to undertake the amendment process and the same could only be undertaken under article 1(2) of the Constitution which provided explicitly that all sovereign power belonged to the people of Kenya and should be exercised only in accordance with the Constitution of Kenya , 2010, namely that the people could exercise their sovereign power to amend the Constitution either directly or through their democratically elected representatives. The sovereign power of the people was delegated to Parliament and the legislative assemblies in the County Governments, the national executive and the executive structure in the county and the Judiciary exercisable at the National and County levels.
71. 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 our Constitution to initiate constitutional amendments using a popular Initiative. The Constitution had to be read as a whole and in a manner that promoted its purposes, values and principles.
72. The President could use the parliamentary initiative to propose amendments to the Constitution if he so wished, but he could not initiate a process of an amendment(s) to the Constitution disguised as a popular initiative. The President could not therefore utilize article 257 as a private citizen as there was nothing in article 131(1) that created the mandate of the national executive in the President, Deputy President and the Cabinet; article 131(1) vested authority in the President which among others created that office as a symbol of national unity. The function therein thus enjoined him to discharge them in his capacity as a symbol of national unity.
73. The President was required to uphold and safeguard the Constitution, sovereignty of the people, promote and enhance the unity of the nation, provide respect for the diversity of the people and communities of people, ensure the protection of human rights and fundamental freedom and the rule of law. Article 131(3) of the Constitution was explicit that the President should not hold any other official capacity under the Constitution and that included the capacity of an ordinary citizen.
74. There was no legal framework governing a constitutional referendum. On prerequisites for preparation of statutory instruments, the Statutory Instruments Act required statutory instruments to be prepared by a Cabinet Secretary or a body with power to make them, e.g. a commission, authority or a board. The Independent Electoral and Boundaries Commission as a commission therefore fell into that category. There was a requirement that the statutory instruments had to conform to the Constitution by requiring that regulation making authorities had to ensure that the provision in the statutory instrument were in tandem with the principles, values and general spirit of the Constitution. In particular, statutory instruments should not in any way have reduced the rights of an individual or those who would be affected by them. They had to also pass the requirement that they had to conform to the provisions of the Interpretation and General Provisions Act in regard to construction, application and interpretation.
75. The Independent Electoral and Boundaries Commission did not conduct continuous voter registration and regular revision of the voter register as provided under article 88(4)(a) of the Constitution of Kenya, 2010. The commission was responsible for conducting or supervising referenda and election to any elective body or office established by the Constitution and any other election as prescribed by an Act of Parliament. It also had the mandate to ensure the continuous registration of citizens as voters, regular revision of the voters’ register, voter education and to exercise its powers and perform its functions in accordance with the Constitution and national legislation and section 5 of the Elections Act No. 24 of 2011.
76. The Independent Electoral and Boundaries Commission failed in its duty of continuous registration of citizens as voters, regular revision of the voters’ register and voter education by disenfranchising 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 as guaranteed under article 38 guaranteeing political rights to every citizen.
77. The Independent Electoral and Boundaries Commission required a regulatory framework distinct from that provided for under the Elections Act to guide it in the discharge of its mandate for purposes of a constitutional amendment. It also had a database of specimen signatures to facilitate the verification exercise, which was mandatory as without a database it was difficult to ascertain what IEBC verified. Lack of provision for the process would make the discharge of functions by IEBC unaccountable to any law and was thus a violation of article 257(4) of the Constitution.
78. The requirement of the law was that the exercise was meant to be continuous so as to accord the citizenry an opportunity to participate in the exercise that would have resulted in the ideals proposed in the impugned amendment becoming binding in the constitutional provisions likely to affect the citizens for life. There was therefore need for all those eligible to vote to be given an opportunity to contribute in either way as deemed fit.
79. The Constitution of Kenya, 2010, was a transformative charter, the Constitution had to be interpreted holistically, rules of constitutional interpretation did not favour formalistic or positivistic approaches to constitutional interpretation and neither was the Constitution to be interpreted in the manner legislative statutes were interpreted. The court had to bear in mind what the Supreme Court termed as inbuilt interpretation frameworks upon which fundamental hooks, pillars and solid foundation on which the interpretation of the Constitution should be based, namely: each matter had to be considered on its own set of circumstances bearing in mind constitutional interpretation had to be done in a manner that advanced its purposes, gave effect to its intents and illuminated its contents, the court had to bear in mind that Constitution making required compromise and constitution making did not end with the promulgation of the Constitution but continued with its interpretation.
80. The principle of unity of content meant that, except in the case of a total revision of the Constitution or another piece of legislation, there had to be an intrinsic connection between the various parts of each question put to the vote in order to guarantee freedom of suffrage (the voter had to not be expected to accept or reject proposed amendments as a whole without an intrinsic link between them.)
81. The voters had a right, to free choice and expression of their will in a referendum which could only be achieved if care was taken to ensure that a voter was not disadvantaged by exposure to a situation where by he/she would be in a dilemma brought about by an omnibus amendment bill.
82. The Constitution of Kenya envisaged that a referendum on constitutional amendment should have been on a single subject matter thus had to respect the unity of content principle.
83. When a bill was limited to a single subject, it was easier for the public to more fully understand the impact of the enactment. It also prevented fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst of complex multi-subject measures that the common man might not be able to grasp and understand.
84. Omnibus constitutional amendment questions were likely to cause problems that could lead to the adoption of measures that did not enjoy true majority support by the people leading to a serious failure of expression of the constituent choice. Furthermore, they would also be violating the principles of sovereignty meant to be enjoyed by people as provided by articles 1(1) and (2) of the Constitution of Kenya, 2010. The omnibus constitutional amendment questions could easily qualify to be termed as arbitrary, undemocratic, and a demand and limit to the people’s voice in expressing the public will.
85. A single-subject rule in referenda stipulated that the proposed legislation should have dealt with one subject only to allow the voter to form and express their opinion freely and genuinely in respect to one issue so that if a proposed constitutional amendment included several substantive questions, the voter may not have a free choice and to avoid any hidden proposals that voters may miss when reading the proposed constitutional amendments lumped together and to prevent proponents of constitutional amendments from attaching unpopular provision to an unrelated popular one, in the hope of covering/hiding the unpopular one, or in the hope of causing the popular one to be rejected.
86. The High Court had jurisdiction to entertain the consolidated petitions having scaled the walls of want of jurisdiction on account of justiciability, mootness, ripeness, sub judice and political question doctrine more particularly because the issues raised involved a threat to breach of constitutional rights. Furthermore, the did not require a political decision but a judicial decision to decide on the existence or otherwise of the breach.
87. Article 257(10) of the Constitution required all the specific proposed amendments to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper and to be voted for or against separately and distinctively.
88. The superior courts had jurisdiction to adjudicate on disputes founded on completed and incomplete breaches or infringements of the Constitution. Since section 89 of the Elections Act expressly permitted the courts to adjudicate on the validity of referenda, it was inconceivable that processes leading up to referenda could be said to be immune to judicial review. The dispute before the superior courts was neither abstract nor academic. The impugned Bill had been published and processes to have it become law had been set in motion and were pending approval by the County Assemblies.
89. The citadel of the power to determine disputes through the exercise of judicial authority and the capacity to commence action for such determination was based however on the rather universal concept or principle of justiciability. The concept had found much favor in most jurisdictions. It also gathered much support from the engraved supplementary doctrines of ripeness, avoidance and mootness.
90. Whether or not an issue was justiciable would depend on the legal principles surrounding the particular act done as discernible from the legal instruments appurtenant to the action. When the law proceeded to impose on the executive legally prescribed duties and responsibilities, the performance of which depended upon the enhancing or handling of public interest, the political officers of the executive had to act consistently and according to the laws of the land. Since the performance of certain duties and responsibilities was dependent upon individual rights and responsibilities, there was a duty to act consistently with and according to the law. If public officers failed to so act, and their failure harmed the interests of the public and rights of individual citizens, their actions and omissions were subject to judicial review.
91. Section 10 of the impugned Bill proposed to amend article 89 of the Constitution (on delimitation of electoral units), first, to increase the number of constituencies from two hundred and ninety to three hundred and sixty; and second, to delimit the extra 70 constituencies. That violated the principles, procedures and safeguards for the delimitation of electoral units set out in the Constitution. Section 10 of the impugned Bill (as read with the Second Schedule thereof) sought to defeat article 89 (2) of the Constitution by compelling IEBC to delimit boundaries before the time set by the Constitution, and without going through the procedures and safeguards set out in the Constitution.
92. The duty to enact a legal and regulatory framework for purposes of undertaking verification and certification processes stipulated in article 257(4) and (5) fell within the mandate of Parliament as provided in article 82(1) of the Constitution of Kenya, 2010. A legal and regulatory framework was required to operationalize and give effect to the provisions of article 257(4) and (5) of the Constitution. Elections law applied to matters of elections and in the absence of a constitutional provision stating that they could be applied in a constitutional referenda for purposes of an amendment to the Constitution they could not be imported to facilitate conduct of referenda touching on issues to do with amending the Constitution in the wake of a constitutional requirement that a law would be put in place to actualize that specific provision, namely the constitutional provision on referenda.
93. Criminal proceedings could not be taken out against the President of the Republic of Kenya during his tenure as President. As far as civil proceedings were concerned, the President could not be sued during his tenure of office if whatever he was sued for was something done or not done in the exercise of the powers he was clothed with by the Constitution.
94. Proceedings, whether criminal or civil, that could be taken against the President after his tenure were subject to a limitation period. Time did not run until the expiration of his tenure. The President could however be prosecuted during his tenure if the crime for which he was prosecuted was defined by a treaty to which Kenya was a party and which prohibited immunity from prosecution.
95. The elements of res judicata had been held to be conjunctive rather than disjunctive. All the elements below had to be present before a suit or an issue was deemed res judicata on account of a former suit;
a. The suit or issue was directly and substantially in issue in the former suit.
b. That former suit was between the same parties or parties under whom they or any of them claim.
c. Those parties were litigating under the same title.
d. The issue was heard and finally determined in the former suit.
e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
96. The rule or doctrine of res judicata served the salutary aim of bringing finality to litigation and afforded parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that had already been determined by a competent court. It was designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.
97. Legitimate expectation arose for example where a member of the public as a result of a promise or other conduct expected that he would be treated in one way and the public body wished to treat him or her in a different way. It was a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation had to in the first place be legitimate in the sense of an expectation which would be protected by law. The doctrine of legitimate expectation was based on considerations of fairness, even where the benefit claimed was not procedural and it should not be invoked to confer an unmerited or improper benefit.
98. The principle of a legitimate expectation to a hearing should not be confined only to past advantage or benefit but should be extended to a future promise or benefit yet to be enjoyed. It was a principle, which should not be restricted because it had its roots in what was gradually becoming a universal but fundamental principle of law namely the rule of law with its offshoot principle of legal certainty. If the reason for the principle was for the challenged bodies or decision makers to demonstrate regularity, predictability and certainty in their dealings, that in turn enabled the affected parties to plan their affairs, lives and businesses with some measure of regularity, predictability, certainty and confidence. The principle had been very ably defined in public law in the last century but it was clear that it had its cousins in private law of honouring trusts and confidences. It was a principle, which had its origins in nearly every continent. Trusts and confidences had to be honoured in public law and therefore the situations where the expectations should have been recognised and protected had to of necessity defy restrictions in the years ahead. The strengths and weaknesses of the expectations had to remain a central role for the public law courts to weigh and determine.
99. The guidelines in relation to the role of amicus curiae included:-
a. An amicus brief should be limited to legal arguments.
b. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
c. An amicus brief ought to be made timeously and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The court could therefore, and on a case- by- case basis, reject amicus briefs that did not comply with the principle.
d. An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
e. The court could call upon the Attorney-General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General was not defeated solely by the subsistence of a State interest, in a matter of public interest.
f. Where, in adversarial proceedings, parties alleged that a proposed amicus curiae was biased or hostile towards one or more of the parties, or where the applicant, through previous conduct, appeared to be partisan on an issue before the court, the court would consider such an objection by allowing the respective parties to be heard on the issue .
g. An amicus curiae was not entitled to costs in litigation. In instances where the court requested the appearance of any person or expert as amicus, the legal expenses could be borne by the Judiciary.
h. The court would regulate the extent of amicus participation in proceedings, to forestall the degeneration of the amicus role to partisan role.
i. In appropriate cases and at its discretion, the court could assign questions for amicus research and presentation.
j. An amicus curiae should not participate in interlocutory applications, unless called upon by the court to address specific issues.
Per H. Okwengu, JA
100. The basic structure doctrine was a principle according to which the power to amend a constitution was expressly or impliedly limited to constitutional amendments that did not alter or change the basic structure of a constitution. There were two propositions from the definitions. First, that a constitution had a basic structure, and second, that amendment of that basic structure by any amending body under a constitution was not permissible if it would substantially alter or destroy the basic structure or identity of that constitution. Consequently, a limitation on the power to amend the basic structure would be inferred. The latter was the basic structure doctrine.
101. The challenge in considering whether the basic structure doctrine applied to a constitution was to unpack the basic structure. In other words, what was the basic structure in reference to a constitution, or differently put, how did one identify the basic structure of a constitution so as to come to the conclusion that the intended amendment would alter or change that basic structure such as to bring the basic structure doctrine into play?
102. The basic structure had been variously described as the foundation, the core, or the pillar of a constitution. Those were all descriptive adjectives. However, when it boiled down to a particular constitution, those descriptions appeared too general as parties could not agree on what the foundation, the core or the pillar of that constitution was.
103. A strict interpretation of the basic structure doctrine, as postulated by the trial court, would mean that the basic structure of the Constitution, which literally consisted of the whole Constitution, could not be amended in a way that altered or changed the Constitution. That was because the trial court described the foundational structure as covering the preamble, the eighteen chapters and the six schedules of the Constitution, essentially meaning that the basic structure covered the whole Constitution.
104. People in exercise of constituent power could abrogate their constitution or make a new constitution, and the exercise of that constituent power demanded the participation of the people through civic education, public participation, constituent assembly debate, consultation and public discourse, and finally a referendum in which the people endorsed the new constitution or the abrogated constitution. That was the exercise of the primary constituent power.
105. Primary constituent power was distinct from secondary constituent power. Alteration of a constitution did not involve the substitution thereof with a new one or the destruction of the identity or existence of the constitution altered. Constituent power was reposed in the people by virtue of their sovereignty and the hallmark was the power to constitute or reconstitute the framework of government, in other words, make a new constitution.
106. Parliament being one of the creatures of the Constitution could not make a new constitution. Its power was limited to the alteration of the existing Constitution only. It had no power to amend or change the basic features of the Constitution, or abrogate and enact a new one.
107. The people could exercise their sovereignty in constitution making through their secondary constituent power, by either delegating to Parliament or reserving to themselves the power to amend the Constitution. That was what the framers of the Constitution did in articles 255 to 257 by delegating the power to Parliament to amend the Constitution under article 256(1) - (5) through a parliamentary initiative and allowing the people to exercise their reserved powers to amend the Constitution through a popular initiative under article 257. That meant that a popular initiative was a citizen driven process. In both instances, the people remained involved in both the popular initiative and parliamentary initiative through public participation, and were the ultimate determinant through the referendum process on whether the amendment was carried.
108. The Constitution also empowered Parliament to exercise constituted power under article 94(3) with regard to the amendment of constitutional provisions other than those mentioned in article 255.
109. An amendment was an alteration of the Constitution that was carried out within the confines of the existing Constitution. It altered the Constitution in a way that did not radically change the nature of the Constitution. That meant that it had to remain consistent with the objectives and purpose of the Constitution. That was different from changing or remaking of a constitution which involved a complete review and/or substitution of the former Constitution with a new one, and that could only be done through the exercise of primary constituent power.
110. Dismemberment meant completely tearing the Constitution apart by removing its significant parts so that it no longer had the same identity. Thus, it was more drastic than amendment.
111. The history of Kenya with regard to amendment of the Constitution was replete with abuse of the amendment provisions and a hyper-amendment culture that resulted in the mutilation of the former constitutions. The amendments culminated in dismemberment of the original Constitution. It was in that context that chapter 16 of the Constitution was made and had to be understood. The framers of the Constitution wanted to make sure that a situation did not arise where the amendment provisions were abused in a way that resulted in dismemberment of the Constitution or negated the spirit and purpose of the Constitution. Nonetheless, they incorporated a specific chapter in the Constitution dealing with amendment of the Constitution, leaving no doubt that they accepted the fact that there would be situations in which there would be need to amend the Constitution.
112. The amendment provisions in chapter 16 of the Constitution were made with abundant caution, as article 255 provided not only for amendment of the Constitution to be made either through Parliament or through a popular initiative, but also provided a higher threshold for amendments relating to certain thematic areas of the Constitution. The thematic areas identified in article 255 of the Constitution were;
a) the supremacy of the Constitution
b) the territory of Kenya
c) the sovereignty of the people
d) the national values and principles of governance
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 15 applied
h) the functions of parliament
i) the objects, principles and structures of devolved government
j) the provisions of chapter 16.
113. The framers of the Constitution either consciously or unwittingly identified the basic structure of the Constitution through article 255. The thematic areas that had been identified were crucial and formed the pillars of the Constitution. Without the thematic areas on the supremacy of the Constitution, the territory of Kenya and the sovereignty of the people, the document would not have its identity and would be a completely different document from what was envisaged by the people and the framers of the Constitution. Without the national values and principles of governance, the Bill of Rights, and the independence of the Judiciary, the Constitution would be a hollow document, not protecting the rights of the people or serving the interest of the people of Kenya, as was intended.
114. The framers of the Constitution, conscious of the thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of those thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. That was a clear indication that in regard to amendments, the Constitution was explicit and self-sufficient.
115. The key question in considering whether the basic structure doctrine applied in Kenya was whether, notwithstanding the express provisions for constitutional amendment contained in chapter 16 of the Constitution and the limitations imposed therein, additional implied conditions that limited the amendment power, could be inferred relying on the basic structure doctrine, and whether there were any eternity clauses or provisions of the Constitution that were unamendable.
116. Each constitution responded to different circumstances in a social set up that was not necessarily the same as another. Constitutions could not be the same. Many times as happened during the constitutional review process in Kenya, compromises and concessions had to be made in order to arrive at an agreement. Furthermore, although the people made the Constitution with assistance from experts, the views of experts, important as they were, were not always followed. Those were all important factors in the interpretation of the Constitution.
117. Amendments of constitutions were often necessary to respond to situations, or changing circumstances in a particular society. Likewise, the framers of the Constitution recognized the need for development of the Constitution, and provided for it in article 259. Article 259 of the Constitution obligated an interpretation of the Constitution in a manner that not only promoted its purposes, values and principles, but also advanced the rule of law, the human rights and fundamental freedoms, permitted the development of the law and contributed to good governance. The Constitution had to be interpreted in a balanced way that achieved all those aims.
118. Article 255 of the Constitution provided a limitation to the amendment power in the identified thematic areas. It provided a higher threshold for alteration of any part of the basic structure identified in the article. Such amendments could only be done within the constitutional boundaries so that the amendment did not distort or deviate from the original purport of the Constitution. Under article 257 of the Constitution, the people could call in their reserved secondary constituent amendment powers through a popular initiative. But, the exercise of that power had to remain subservient to the Constitution because it was a power that unlike the primary constituent power, emanated from the Constitution. The amendment had to serve the Constitution to the extent of developing it without deviating from its original purport. The amendment had to remain faithful to the Constitution.
119. The exercise of the secondary constituent power under article 257 of the Constitution through an amendment by a popular initiative was not inconsistent with the basic structure doctrine though slightly different from the application in India to the extent that the power was expressly provided for in the Constitution, and the amendment initiative neither originated from Parliament, nor did Parliament have the final say. That amendment process was inclusive as it not only involved the people in its initial stages, but also provided room for participation of Parliament and the national assembly. The people retained the power of approving the final product at the referendum. It was, therefore, an amendment that was done by the people but with a limitation that being a secondary constituent power, it was subservient to the primary constituent power and had to remain true to the original purport of the Constitution.
120. The Constitution had not specifically identified any particular clause as an unamendable clause or an eternity clause. Therefore, there were no express eternity clauses or unamendable provision in the Constitution. However, there was restriction of amendment power in chapter 16 of the Constitution, such that under articles 255 to 257, there were procedural and substantive limitation to the amendment power. Amendments involving the specified thematic areas could only be done if there was compliance with the strict procedure provided. The provisions in the thematic areas were amendable because the Constitution had provided for amendability subject to the limitation indicated in chapter 16 of the Constitution.
121. Although the trial court’s position that there were unamendable clauses in the Constitution could be disagreed with, there could be a general implicit unamendability that ran through the Constitution to protect the original purport and spirit of the Constitution.
122. The aspirations and objectives contained in the preamble to the Constitution were the purport and spirit of the Constitution that had to remain alive in its implementation. The exercise of any legislative power to enact an amendment that was contrary to the purport and spirit of the Constitution could not pass muster.
123. Although all the core parts of the Constitution were amendable under chapter 16 of the Constitution, there was an implied limitation that amendment of the Constitution would only be permissible if compliant with the purport and spirit of the Constitution. Thus the court disagreed with the argument that reliance upon the spirit of the Constitution was misconceived and that once the procedure in the amendment process was adhered to, the amendment was constitutionally unassailable. Any proposed constitutional amendment had to pass both the procedural and the substantive test.
124. The fact-intensive determination adverted to by the trial court, ought not to have been the one to determine the unamendability of any particular constitutional clause, or core parts of the Constitution, but a substantive examination of the purported amendment, in order to determine whether the amendment met the substantive test in regard to the spirit and purport of the Constitution as revealed in the preamble. That was the threshold of the general implied unamendability that would render an amendment an unconstitutional constitutional amendment if it did not meet the substantive test.
125. The preamble to the Constitution was not a constitutional clause that could be amended. It was an introductory statement which remained the reference point in terms of the Constitution’s aims and objectives. It was therefore the GPS from which each constitutional clause got direction and any amendment had to be measured accordingly.
126. The Constitution had a basic structure which had been identified by way of thematic areas in article 255(1) of the Constitution. Chapter 16 of the Constitution provided for amendment of any part of the Constitution including the basic structure and no express unamendable constitutional provisions or eternity clauses had been provided in the Constitution. The basic structure doctrine was applicable in Kenya to the extent that the exercise of secondary constituent power and constituted power to amend the Constitution was impliedly limited by the Constitution as evident in its spirit and purport, and therefore the exercise of amendment powers under articles 255-257 of the Constitution was impliedly limited as such amendment had to conform to the spirit and purport of the Constitution.
127. An initiative was a process through which voters took control by compelling a vote on a specific legislation. That meant that the process had to be a process initiated by a voter or voters as opposed to their representatives. The definition was consistent with article 257 of the Constitution that required a promoter of the Bill to galvanize support for it, and establish that it was supported by at least 1 million registered voters. The definition was also consistent with article 1(2) of the Constitution that provided that the people could exercise their sovereign power either directly or through their democratically elected representative.
128. The framers of the Constitution having provided under article 256 of the Constitution for a parliamentary initiative, it followed that the second avenue of popular initiative was intended for the people, and not their representatives such as members of Parliament or the President.
129. The word promoter had been used in article 257(3) & (4) of the Constitution where the promoter was obligated respectively to formulate a general suggestion into a draft Bill and to deliver the draft Bill and the 1 million supporting signatures to the Independent Electoral and Boundaries Commission (IEBC).
130. A promoter of a popular initiative under article 257(3) of the Constitution would not necessarily be the originator of the idea of a popular initiative, but one who took the lead in putting the idea together in the form of a Bill and encouraging other voters to support the idea. In line with the objective of a popular initiative, such a promoter had to be an ordinary citizen and not a parliamentarian or state officer.
131. The trial court rightly held that a popular initiative was an initiative of the ordinary citizenry as opposed to the law-making bodies and that it was intended to be used where the law making bodies were unable or unwilling to act. Neither the President nor any state organ could initiate an amendment through a popular initiative under article 257 of the Constitution.
132. A constitutional amendment by a popular initiative was a citizen driven process. While a promoter could come up with a proposed amendment, he/she could not move without the support of citizens. The Constitution had put the initial threshold at 1 million registered voters. Therefore, the public could not await the participation provided for during legislation in the county assemblies or the two Houses of Parliament. It had to start at the very commencement of the initiative.
133. A popular initiative was anchored on the exercise of the people’s sovereign power. The initiative had to start with sensitization and engagement with the people. That was important because the people had to know what the initiative entailed before they could support it. The trial court properly directed itself using appropriate authorities. The bottom line was that public participation had to include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation.
134. Public participation was one of the principles of good governance and it was a constitutional right that had to be complied with at every stage of a constitutional amendment process. That was apparent from article 10(2) of the Constitution that provided for public participation as one of the national values and principles of governance as well as articles 118 and 196 of the Constitution that provided for public participation in regard to legislation and other business of Parliament and its committees.
135. In regard to a constitutional amendment through a popular initiative, public participation was particularly crucial at the commencement of the initiative, because the people had to have appropriate information regarding the initiative to enable them make an informed choice on whether to support it or not. The adequacy of public participation at the outset was crucial since if at the outset the people were not well informed and properly engaged, then the initiative was not a citizen process. The issue, thus, was how to enlist the citizens in the public initiative process and a determination of how much information was to be given to the citizens. Public participation had to be real and not elusory, hence the trial court’s holding on the same could not be faulted.
136. Section 112 of the Evidence Act provided that in civil proceedings, when any fact was especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact was upon that party. Whether there was public participation carried out in regard to the popular initiative, was a fact within the special knowledge of the appellants who were promoting the Constitution of Kenya Amendment Bill, 2020 (the Bill). The appellants could not shift the blame on to the respondents.
137. No evidence was laid before the court to prove that there was any meaningful public participation before the collection of signatures in support of the proposed Bill. To the contrary, there was evidence that the public administration through the chiefs were involved in the collection of signatures without any program for civic education or sensitization on the Bill. The trial court’s finding that the BBI Steering Committee, as the promoter of the Bill failed to comply with the key constitutional requirement of giving people information and sensitizing them prior to the collection of signatures, and that rendered the process constitutionally unsustainable, was upheld.
138. On the procedure for a popular initiative in the county assemblies and Parliament, article 257(5) and (6) of the Constitution provided that IEBC had to submit the draft Bill to the county assembly for consideration, and that if the county assembly approved the draft Bill, it was submitted to the two Houses of Parliament. The mandate of the county assembly at that stage was only to consider and either approve or reject the draft Bill. It had no mandate to make any alterations to the draft Bill.
139. Regarding the issue of res judicata, the court in Thirdway Alliance Kenya and Anor vs Head of the Public Service, Joseph Kinyua & 2 others; Martin Kimani & 15 Others  eKLR, (Thirdway Alliance case) was concerned with the exercise of powers conferred upon the President by the Constitution in regard to the appointment of the BBI Advisory Taskforce. The trial court distinguished the appointment of the BBI Advisory Taskforce from the BBI Steering Committee on the basis that unlike the BBI Advisory Taskforce, one of the mandates of the BBI Steering Committee was to propose the initiation of constitutional changes. Unfortunately, that was not supported by the facts before the court.
140. One of the terms of reference of the BBI Steering Committee was to propose administrative, policy, statutory, or constitutional changes that could be necessary for the implementation of the recommendations contained in the Taskforce Report. Its mandate in that regard was first to propose changes. In other words, the Committee was to make a proposal for change. Secondly, the proposed changes were to be administrative, policy, statutory, or constitutional changes. The mandate was not to make a constitutional change, but to make recommendations on whatever changes that were necessary.
141. The use of the word 'or' indicated that the changes did not necessarily have to include constitutional changes. Thirdly, it was not part of the mandate of the BBI Steering Committee to implement the constitutional changes, if proposed, but to give advice on how such changes could be implemented. The purported distinction between the BBI Advisory Taskforce and the BBI Steering Committee, thus, did not exist as the BBI Steering Committee was not established for the sole purpose of initiating and promoting constitutional changes.
142. Although the Thirdway Alliance case related only to the appointment of the BBI Advisory Taskforce, the issue raised in that case substantially related to the President’s powers to appoint a taskforce or committee. In that regard, the finding on that issue related to the appointment of the BBI Steering Committee which was appointed before the judgment, as much as it related to the BBI Advisory Taskforce. More so, because the mandate of the BBI Steering Committee as appointed did not include initiating and promoting constitutional changes. The matter before the trial court regarding the legality of the appointment of the BBI Steering Committee was res judicata and not open for consideration.
143. The President was at the forefront in the facilitation of the BBI process including the appointment of the BBI Advisory Taskforce and the BBI Steering Committee. The gazette notices were duly signed by the Head of Public Service confirming that the appointments were made by the President in his official capacity.
144. Article 131 of the Constitution provided for the authority of the President. The process leading to the handshake between the President and Hon. Raila Odinga, the formation of the BBI Taskforce, the BBI Steering Committee and the consequent Bill, was akin to the National Accord or peace initiative that was signed between former President Mwai Kibaki and Hon. Raila Odinga, with a view to implementation of a reform agenda to bring peace and address the recurrent conflict in the country. It resulted in the former President appointing an Independent Review Commission. The Commission recommended fundamental amendments to laws governing conduct and management of elections. The report, commonly known as the Kriegler report, resulted in the enactment of the Constitution of Kenya (Amendment) Act No. 10 of 2008. Given that background, the formation of the BBI Taskforce and the BBI Steering Committee, all appeared to have been done in good faith in an effort to foster unity.
145. It was appreciated that President Kibaki was operating under a different constitutional dispensation from that of President Uhuru, the former being under the repealed constitution which provided for presidential supremacy. The Constitution of Kenya, 2010, provided for constitutional supremacy and was clear on the process of legislation and the role of the President. Under article 131(1)(e) and 2(c), the President was the symbol of national unity and had the authority to promote and enhance the unity of the nation.
146. No evidence was produced to show that the appointment of the BBI Advisory Taskforce and the BBI Steering Committee was approved by the Public Service Commission as required under article 132(4)(a) of the Constitution. However, both committees were ad hoc committees appointed to advise the President. The appointments were actually officially gazette under the hand of the Head of Public Service. The authority of the President in articles 131 and 132 of the Constitution ought not to be constrained as long as the exercise of that power was rationally related to the purpose for which the power was given. The President could not be faulted for initiating the BBI process, appointing the BBI Advisory Taskforce and the BBI Steering Committee in an effort to foster unity which was an initiative that was within his constitutional mandate.
147. Articles 256 and 257 of the Constitution provided for amendments by way of a parliamentary initiative and a popular initiative respectively. Those articles provided for the constitutional procedures that had to be followed in procuring the constitutional amendment. They did not provide for proposals for making an amendment by a parliamentary or popular initiative. Before the drafting and promotion of a parliamentary or popular initiative, a lot of preliminary work had to be done.
148. There was nothing that prevented the procurement and consideration of proposals for amendment by any person. The President was therefore free to obtain proposals for constitutional change from any quarters including the BBI Steering Committee. Such proposals could have been used in lodging a parliamentary initiative or even a popular initiative by appropriate persons, following the procedures provided under articles 255, 256 and 257 of the Constitution.
149. The BBI Steering Committee, having given its proposals on changes which included a proposed constitutional amendment bill, its mandate was expended at that stage. The trial court not only erred in considering the legality of the BBI Steering Committee as the issue was res judicata, but also erred in finding that the BBI Steering Committee was an unconstitutional and an illegal entity created to perpetuate an unconstitutional purpose.
150. Constitutional changes by means of an amendment to the Constitution fell under articles 255 - 257 of the Constitution, and there was no provision for the President to initiate proposals for amendment of the Constitution in the name of a popular initiative. While it was the President’s efforts to foster the unity of the nation were appreciated and commended, the President was not an ordinary citizen. He remained the President in the political arena throughout his tenure. He could not temporarily remove his executive mantle in order to engage in a popular initiative, which was a process that had been reserved for citizens.
151. The President’s role in the amendment of the Constitution was at the tail end of the process, as provided under articles 256(5) and 257(9) of the Constitution, and that was in his capacity as President, to assent to an amendment bill once passed by Parliament or the people through a referendum. It was all well for the President to appoint the BBI Steering Committee and receive the recommendations for legislative and constitutional changes, but having done so, the President ought to have engaged the government machinery or his party in pursuing those changes through a parliamentary initiative.
152. BBI was a peace initiative by the President. The appointment of the Advisory Taskforce and the Steering Committee, including the experts and the drafting team that backed those committees, all confirmed that BBI was an executive driven process and not a citizen driven process. Although the court disagreed with the trial court’s finding that the BBI Advisory Taskforce and the Steering Committee were unlawful, it found that the BBI Steering Committee had no capacity to promote a Bill under article 257 of the Constitution.
153. The promoters of the Bill was indicated as Building Bridges Initiative. Under article 257(4) of the Constitution, the promoter of a popular initiative was the one required to formulate it into a draft Bill and thereafter deliver it to the IEBC with supporting signatures. Although it was contended that the BBI Secretariat was a voluntary political alliance, there was nothing that was laid before the trial court to confirm that or to establish the existence of the BBI Secretariat or connect it to BBI that was indicated on the Bill as the promoter.
154. As found by the trial court, the drafting of the Bill was done by the BBI Steering Committee and was the culmination of the BBI process initiated by the President. While Dennis Waweru and Junet Mohamed could have been the agents who communicated with the IEBC regarding the collection of signatures in support of the intended popular initiative, there was no nexus established between them and the BBI process such as to confirm that the two were the promoters of the Bill.
155. Junet Mohammed, who was a sitting Member of Parliament, did not qualify to use the popular initiative route. Both the President and Hon. Raila continued popularizing the BBI process and encouraged the collection of signatures in support of the constitutional change proposed through the BBI process. The attempt to distinguish the BBI Secretariat as a separate entity from the BBI Steering Committee was not convincing.
156. The BBI process remained executive driven and the promoter of the Bill was the President through the BBI Steering Committee. As a popular initiative was a citizen initiative, the attempt by the President to pursue a popular initiative through the BBI Steering Committee was unconstitutional and unlawful, and to that extent, neither the BBI nor the BBI Steering Committee had the competence to promote the draft Bill.
157. The BBI Steering Committee, though not unconstitutional or an unlawful entity, had no legal capacity to promote constitutional changes under article 257 of the Constitution. Consequently, the promotion and launch of the Bill was done unconstitutionally and in usurpation of the people’s exercise of sovereign power.
158. According to article 143(1) and (2) of the Constitution, the President was protected from criminal and civil proceedings during his tenure as President. However, the immunity in regard to civil proceedings was qualified in that it was only available where the action subject of the proceedings had been done or not done in the exercise of the President’s constitutional powers. The immunity was limited to the President’s term in office and only applied in regard to acts done in pursuance of the President’s constitutional powers. That meant that the President could be sued during his tenure for acts which were not done in pursuance of his constitutional duties.
159. A comparison of article 143 of the Constitution and section 14 of the repealed Constitution revealed that whereas the repealed constitution provided immunity for anything done or omitted to be done by the President which would include official and unofficial acts, the Constitution only provided immunity for anything done or not done by the President in exercise of constitutional powers. It thereby covered only official acts or omission leaving the President open to civil proceedings during the term of his office for unofficial acts or acts not consistent with the exercise of his constitutional powers.
160. The distinction was deliberate and well considered as it was consistent with article 2 of the Constitution on the supremacy of the Constitution and article 1(2) that delegated powers to the President and required him to perform his functions in accordance with the Constitution. It was also consistent with the obligation bestowed upon the President as a state officer under article 73(1) in regard to leadership and integrity.
161. The trial court’s finding that the President was subject to civil proceedings during the tenure of his office whenever he acted outside the parameters of the Constitution or omitted to do that which he was bound to do under the Constitution was upheld.
162. A party could only be able to enjoy the benefit of a fair trial, first, if he was served with a petition so that he was made aware of the allegations against him to enable him respond to the petition. Secondly, he had to be served with a hearing notice so that he was able to prepare himself for the hearing and either attend or ensure the presence of his counsel on the date of the hearing.
163. The issue of personal service on the President was not addressed by the trial court during the hearing of the petition, even though it noted that the President was unrepresented. While the trial court was right in holding that the President ought to have been represented in his personal capacity by his own personal counsel and not the Attorney General, there was nothing odd with the Attorney General attempting to defend or explain the non-appearance of the President in court. The Attorney General was simply trying to be helpful to the court, being the principal legal adviser of government of which the President was the Chief Executive.
164. Attached to the 78th respondent’s affidavit of service was a notice of empanelment of the Bench and virtual mention, signed by the Deputy Registrar of the High Court and served on the parties in the consolidated petitions through email. However, the purported email of the President was not among the list of the parties served with the notice. The 78th respondent had urged that he used an email list created by the trial court for service of all parties. The court wondered how the email address was procured by the trial court when the President did not enter any appearance and the Deputy Registrar did not use the email address purported to be that of the President. It was difficult to establish if it was in actual fact the President’s personal email address, or an address in regard to which mail would reach the President.
165. The President was not served with the petition filed by the 78th respondent nor was he personally served with a hearing notice. Without service, the President could neither enter appearance nor file a reply to the petition, nor could he participate at the hearing. His right to a fair trial and right to natural justice were contravened and the trial court was wrong in making adverse orders against him and the orders could not stand.
166. The trial court’s finding that the President violated article 73(1)(a)(i) of the Constitution was anchored on the petition that was filed against the President in his personal capacity by the 78th respondent. As the President was not served with the petition, he was condemned unheard and that finding could not stand.
167. The cross-appeal regarding the orders of the trial court declining to order the President and unnamed public officers to pay back the public funds spent on the constitutional review process also failed.
Per PO Kiage, JA
168. As if fully aware of the easy slide-to-dry formalism in construction, an obsession with text and lexical renderings, and oblivious to history and context, the Constitution of Kenya, 2010 (Constitution) provided the keys to its construction in explicit terms. Fealty to the constitutional text itself threw open the pathways of interpretation to the end that one had to look at what the Constitution provided in a manner that was wide and imaginative so that it should be given the fullest amplitude of meaning and intent. The interpreter had to have the purposes, values and principles of the Constitution ever in mind as he undertook the task. What was called for was a purposive, value-laden and principled approach to constitutional interpretation as opposed to a narrow, neutral and ultimately neutered formalism.
169. Those charged with interpreting and giving effect to the Constitution could not shut their eyes to, or be indifferent to or, worse, evince a hostility towards the rule of law, human rights and fundamental rights. The Constitution commanded judges to be active participants in those causes and it behooved the court to constantly introspect and deliberately push forward the rule of law and human rights project. It would be a serious dereliction of duty, productive of deleterious results, were those charged with the solemn duty of advancing those causes be found wanting through carelessness or inattention, thereby either stalling or reversing them.
170. Those who swore by the Constitution had to be prepared to live by it and defend it as commanded, or else give the offices that came with such burdensome demands on their loyalties and consciences, a wide berth. The approach to constitutional interpretation that persuaded, indeed bound the court, was a purposive and holistic one which repudiated the text as the alpha and omega on the divination of the meaning and intent of the Constitution.
171. From an analysis of the High Court’s judgment, that court was faithful to an interpretative scheme that was holistic, cognizant of the transformative character of the Constitution, purposive and properly contextual. That approach accorded with the instant court’s own understanding of what the mental orientation of a court undertaking interpretation of the Constitution ought to be. The instant court did not accept the attempted denigration of the High Court’s acknowledgment of the spirit of the Constitution, as if recognition of the spirit of the Constitution were some spiritist-animist retreat to a dark and ignorant or superstitious past. To the contrary, every legal instrument had a spirit and soul that animated it.
172. Kenyans were quite clear that they were not going to cede the Constitution to the vicissitudes and vagaries of political expediency. Having birthed it, they were prepared to nurture it and protect it from mutilation or dismemberment. They desired to be involved in its fate and fortune and were essentially saying that only as they made it could it be substantively altered –with their full and informed participation.
173. The people as creators of the Constitution were exercising a power that was without and above the Constitution. They could not have created it pursuant to any of its provisions for the rather commonsensical reason that it was not existing at the time, not having been constituted. The power to constitute a constitution pre-dated the Constitution and it was, with great respect, quite absurd to seek constituent power within the Constitution. The power was original, a priori, primordial and was inherent in the sovereignty of the people. It was not subject to the Constitution, which was but an emanation of it. That was the constituent power with which the people themselves, acting directly, could both make, unmake and replace a constitution.
174. The relevance of the constituent power to a discussion of the basic structure doctrine was that it was presented as the only authority that could effect a legitimate alteration to an aspect of the Constitution that lay at its core or related to its essential character. The argument was that amendments or alterations of that kind were not amendments properly-so-called but had the effect of abrogating it by destroying the very foundations or pillars upon which it rested. Under that view, that would be the case even if the repealed Constitution was not formally replaced with a new one: any amendments that altered the core aspects of a constitution, changing its character and ethos in a radical manner essentially changed its basic structure and in all but word abrogated or dismembered the constitution. The basic structure doctrine and the notion of constitutional dismemberment had the same effect of positing that such constitutional amendments were in fact unconstitutional.
175. From a reading of the numerous cases, books and articles cited by the parties, there was no factual basis for the submission that the basic structure doctrine had been roundly rejected in many contexts and jurisdictions.
176. While castigating the High Court for relying on foreign jurisprudence, the aggrieved appellants lay before the instant court numerous decisions of foreign courts. The instant court could only take it that they intended that the court would consider the decisions and authorities and hopefully be persuaded by them. However, the court had serious difficulties with the commentaries and submissions by counsel that had accompanied the cases cited.
177. The basic structure doctrine was legitimate and sound. It was strange that anyone would doubt the existence of a basic, fundamental, essential core being the pillar upon which the Constitution stood, and from which its character, ethos and identity flowed. The amendments proposed by the Building Bridges Initiative (BBI) and Bill were so far-reaching in character, scope and content as to shake the foundation and alter the identity and character of the Constitution. They were effectively dismembering the Constitution, blasting so huge a hole in it as to pulverize its foundations and essentially create a new constitutional order. To do so would not be to amend the existing Constitution and therefore, there was need to resort to and summon the primary constituent power.
178. The mere invitation of the people to vote on the radical, transformative proposals at a referendum was not an effective summon of the correct authority because the people acting on the amendment plane constituted the secondary constituent power only and were limited to amendment. They were in no position while acting in that capacity and space, to endorse and effect a constitutional replacement. They could only do that in primary constituent mode.
179. The people’s constituent power properly so called was at the same time established and consumed once the Constitution came into legal force. It did not become relevant under the existing Constitution during which only amendments were possible, and amendments always presupposed the existence of the Constitution with which they had to be consistent, and which they could not abolish. Whatever role the people had at the amendment stage, it was not the sovereign constituent power but a constituted power. The amendment power was not identical with the constituent power and could therefore be limited whether procedurally or substantively and whether the limitations be explicit or implicit. The amendment power was a constituted power even if exercised by the people. Moreover, no constituted power should be entitled to abolish the democratic system.
180. As long as what was contemplated was an amendment, it would ipso facto be limited. The limitation, in that case, stemmed from the fact that certain aspects of the proposed amendments unquestionably went to the essential core and fundamental fabric of the Constitution thereby purporting to alter irredeemably its character and identity. Such radical alterations were not amendments in the real sense of the word, for there had to be a limitation to what amendments could achieve. Dismemberment was a dismemberment, whether effected through surgical amputation or through rough mutilation.
181. There wasn’t a sufficiently compelling or even persuasive case made to warrant the court’s interference with the conclusion that the High Court reached with regard to the basic structure doctrine and its applicability in Kenya. The High Court’s finding on the point was inevitably correct. Moreover, it was on all fours and perfectly consistent with prior decisions of the High Court which engaged with the doctrine at varying depths.
182. The basic structure doctrine was applicable, the amendment power set out in article 255 to 257 of the Constitution was limited. The basic structure could only be amended through the constituent power. That constituent power could only be properly summoned and exercised in accordance with the four-sequence process of; civic education, public participation and collation of views; constituent assembly debate precoding a referendum. A referendum could not be effective as contemplated by the constituent power unless the initial three steps had been involved and engaged in real and substantive, as opposed to a ritualist and minimalist manner akin to a mere token ticking of boxes.
183. The amendments to the Constitution contemplated and proposed by the BBI Amendment Bill had the potential to alter by one full swoop, the fundamental pillars that defined the Constitution. They were truly no less than a ballistic attack on the Constitution’s foundations including separation of powers, independence of the Judiciary, and Chapter fifteen of the Constitution commissions and independent offices, not to mention supremacy of the Constitution, sovereignty of the people and the national values and principles of governance. That was not exhaustive and should be dealt with on a case-by-case basis.
184. There was much to commend the higher, more demanding amendment procedure in articles 255 to 257 of the Constitution whereby entrenched provisions had to meet specified thresholds and more hurdles. However, given the referendum requirement was at best an exercise of the people’s secondary constituent power or an aspect of constitutive power contemplated by the Constitution itself as part of its amendment procedure, the court was better persuaded by the unconstitutional constitutional amendments/basic structure doctrine. Even the referendum procedure could be made of no effect by a deficit of prior civic education and substantial public participation.
185. The restriction to amendment needed not to be in express text. It was generally accepted that the limitation could be implicit. Moreover, it was the people themselves who preferred rigidity over flexibility. They were bothered by hyper-amendability, and the numerous amendments proposed were no less offensive because they were presented in one Bill at once and not through staggered installments over time. What the High Court held rendered amendment of the Constitution more difficult but it did not make it impossible and that was only in so far as amendments aimed at altering the basic structure were concerned.
186. The basic structure doctrine was a vital tool for the preservation of the integrity of the Constitution and a strong barricade against the ever-present threat to the rule of law and democratic governance. By using the basic structure doctrine, the Judiciary played an important role against democratic erosion.
187. It was instructive that the article on popular initiative came third in a sequence of provisions on amendments to the Constitution which comprised Chapter 16 of the Constitution. Article 255(1) of the Constitution, on amendments generally, decreed that they should be effected in accordance with article 256 or 257 of the Constitution but proceeded to add some ten matters, the amendment of which, in addition, required approval by a referendum as provided under article 255(2).
188. In the amendment scheme of the Constitution, as far as the characterization of the amendments to the Constitution went, there was a binary reality with two distinct, dichotomous and disjunctive initiatives; parliamentary or popular, each providing a distinctive methodology or procedure.
189. The role of Parliament in constitutional amendments had always subsisted in the Kenyan experience save that the Constitution provided for a differentiated procedure with tiered majorities depending on the subject of the amendments. What was novel was the amendment by popular initiative and, whereas the text was clear as to what it entailed, it was apposite for a full appreciation of the matter to make reference to the antecedents leading to its inclusion in the Constitution.
190. The popular initiative was introduced as a response to citizens’ frustrations that Parliament, to whom the law-making power was delegated, was not always acting in a citizen-centric manner and often acted in a manner quite inimical to the interests of the public. The popular initiative was therefore a mechanism for the people to exercise direct authority in the amendment of the Constitution. It was a power reserved to them as the sovereign to do that which Parliament could have defaulted in doing. That was consistent with article 1(2) of the Constitution which provided that the people could exercise their sovereign power either directly or through their democratically elected representatives. It was a vehicle by which the people moved from being mere passive observers of the constitutional amendment process into an active, agenda-driving force for change.
191. A popular initiative was a citizen-conceived, citizen-initiated and citizen-driven process. The citizens were the ordinary mwanachi whether as individuals or as organized in civil groups. They were by definition non-governmental. That being the case, they necessarily excluded Parliament and the presidency as the initiator of the process. If the initiative was born of presidential fiat, no matter how well-intentioned, it ceased to be a popular initiative and had to be recognized and named a State or presidential initiative.
192. The President, while facially motivated by the most laudable nationalistic intention of fostering peace and inclusion by way of building bridges to a united Kenya, chose the wrong process or mechanism for attaining the right ends. The President with his wide array of powers and influence could have used the parliamentary initiative through his party and others with which he worked or could work in a coalition of the willing to bring about the changes to the Constitution that he sought.
193. The President’s role in the conception and initiation of the BBI was writ large and with it the panoply of power and prestige of his office. During the entire process, there was no suggestion that the President was acting in any capacity other than the usual official capacity. He was the embodiment of State and Government power and authority. Not once was he acting as an ordinary citizen, which he was not and would not be, as long as he held office.
194. The President’s conduct was different from that of ordinary citizens. In acknowledging that plain and indisputable fact, one did not thereby curtail the President’s enjoyment, one could say deployment, of his political rights. All it meant was that the space upon which he elected to exercise his rights was reserved for ordinary citizens, the common populace of the Republic of Kenya, and it was not open to the President. It was out of bounds to him. That remained the position and did not change by way of consideration of the hypothetical case of the President being unable to persuade an unfriendly Parliament to initiate constitutional changes. The question was hypothetical but, more, the President did not shoulder any obligation to initiate constitutional changes. He took office under and in accordance with the Constitution and his duty was to obey and defend it in keeping with the oath of allegiance, not to change it.
195. The argument that ordinary Kenyans would never be able to amend the Constitution under article 257 of the Constitution due to the cost implication was neither here nor there. The history of constitution-making was a lesson enough that as and when ordinary Kenyans felt that the time was ripe to amend their Constitution, they were well able to organize and use the mechanism provided for precisely that purpose.
196. Sub judice was used commonly to bar debate, discussion or comment on matters pending before court. In the instant case, it was raised as a bar to the consideration of the same matter by a different court and required that the subsequent court defers to the jurisdictional engagement of the former by staying or deferring the latter case to allow the first filed to be determined. That was a commonsensical and practical rule meant to avoid embarrassment due to duplication or multiplication of cases or forum shopping on the same dispute or issue, which amounted to abuse of process. The rule found expression in the Civil Procedure Act, 2010. For the sub-judice bar to operate, the following had to be satisfied:
a. The issue on which objection was raised had to be directly and substantially in issue in a previously instituted suit or proceedings.
b. That previously instituted suit or proceeding had to be between the same parties or parties under whom they or any of them claimed.
c. The parties or those under whom they claimed had to be litigating under the same title.
d. That previously instituted suit or proceeding had to be pending in the same or other court having jurisdiction in Kenya to grant the relief claimed.
Those conditions were disjunctive and had to all be present in order for a challenge to a suit to be mounted successfully on account of sub-judice.
197. In so far as the matters raised in the consolidated petitions went far beyond High Court Petition No. 12 of 2020 between Okiya Omtatah Okoiti as petitioner and the National Executive of the Republic of Kenya, the National Treasury, the Presidential Task Force on Building Bridges to a United Kenya Advisory Committee, the Attorney General and the Steering Committee on the Implementation of the Building Bridges to a United Kenya Task Force Report (Omtatah petition), its existence could not be used to bar their filing, hearing and determination for that would be a perversion of the intention of the sub-judice rule, which was devised to avoid duplication or multiplication of suits and issues, not to be a bar to access to justice on a wide and indiscriminate sense, simply because some point of commonality with a previous suit could exist. There were many more parties, claiming in their different capacities, in the consolidated petitions than the relatively few parties in the Omtatah petition.
198. It would not have served any useful or logical purpose to stay the consolidated petitions to await conclusion of the Omtatah petition when it would not have addressed the bulk of the issues they raised. There was no error in proceeding to hear the consolidated petitions notwithstanding the prior existence of the apparently-stalled Omtatah petition, which could indeed have itself been resolved with the resolution of those consolidated petitions.
199. A reading of section 7 of the Civil Procedure Act revealed that the issue of the propriety of the BBI Steering Committee purporting to initiate constitutional amendments outside the provisions of articles 256 and 257 of the Constitution was not res judicata. For res judicata to be properly invoked and applied as a jurisdictional bar, it had to be shown that:
a. The matter directly and substantively in issue in the suit was directly and substantially in issue in a former suit.
b. The former suit was between the same parties or between parties under whom they claimed.
c. The parties were litigating under the same title in a court competent to try the subsequent suit.
d. The matter had been heard and finally decided by such other court.
200. Given the obvious differences between consolidated petitions and the Thirdway Alliance Kenya & another v Head of Public Service & 2 others; Martin Kimani & 15 others (Interested Parties) 2020 eKLR, including the parties and the issues that were directly and substantially in issue, the matters before the High Court were not res judicata and did not offend the philosophical and pragmatic justification for the principle.
201. Given there was never any indication that citizens of Kenya had in, by and of themselves conceived of the idea to change the Constitution in a particular manner as the genesis of that process, but appeared only to have been roped in to respond to what had already been given life and motion by the President when he appointed the BBI Taskforce, the process that was being undertaken was not a popular initiative. It did not matter that it could eventually have gained the liking or admiration of many people. That sense of popular was not what was meant by the Constitution which used popular in the sense of pertaining to the general public or ordinary citizens.
202. The BBI Steering Committee by inception, composition and operationalization, was a Government presidential project. The members were not ordinary citizens who came together coalescing around an idea that the Constitution needed to be altered in particular respects. Instead, they were prominent personalities joined together by presidential fiat. They had no mind or idea of their own to initiate, but were instead tasked to identify constitutional, among other changes.
203. It was not open to the BBI Steering Committee to purport to craft constitutional changes and even come up with the BBI Constitutional Amendment Bill purportedly as a people’s initiative. They were a Government project and it was impermissible and untenable for them to seek to camouflage their process as a popular initiative, which it was not. They were essentially seeking to hijack the people’s initiative route under article 257 of the Constitution and that was intolerable and indefensible. It was contrary to the letter and intent for the Constitution.
204. It was not relevant that the appointment of the BBI Steering Committee did not have the prior recommendation of the Public Service Commission. There could not be contemplated an office in the public service for the initiation and prosecution of a popular initiative for the amendment of the Constitution. To the extent the BBI Steering Committee was created to perpetuate that which was clearly an unconstitutional purpose, it was an unlawful, and at any rate, an unconstitutional outfit.
205. Whereas Parliament had the preserve of legislation, the preparation of Bills, being intended legislation, was not in its exclusive remit. Under article 257(2) of the Constitution a popular initiative to amend the Constitution could be in the form of a general suggestion or a formulated draft Bill. Under article 257(3), if a popular initiative was in the form of a general suggestion, its promoters were required, in peremptory terms, to formulate it into a draft Bill. The act of preparing Bills per se was not an illegality on the part of the Steering Committee. Its infirmity ran deeper and was located elsewhere.
206. The Constitution, in imposing responsibilities of leadership was explicit that the authority assigned to a State officer was a public trust to be exercised in a manner that demonstrated respect for the people and vested on the officer the responsibility to serve the people, rather than the power to rule them. It was all about the people and that acknowledgment had to best be exemplified in involving them and encouraging their real and active participation in public affairs in broad, as opposed to narrow and token ways. They were the real and proper focus of Government policies, programmes and proposed laws. They were not mere spectators, passive observers, in the process of governance.
207. It would be way too expensive and onerous to expect that citizens seeking to introduce amendments, be it by way of a general suggestion or a formulated Bill, had to engage and involve the voters generally. At the stage preceding signature collection, all that was required of promoters was the dissemination of information on the nature or gist of the proposed amendment to the Constitution and the rationale or justification for it. The duty they bore was one of sensitization with candour and disclosure as opposed to one of full broadcast by all means, in all languages, to all voters of the full particulars of the exact amendment by way of the amendment Bill.
208. Lack of or inadequacy of public participation was proved. Once the petitioners complained about that lack, it would be unrealistic to demand of them proof of that absence of public participation, as that would be to require them to prove a negative which was a logical, notional and cognitive absurdity. It was upon the respondents to the petition to lay before the court evidence that, contrary to the complaint, they did in fact conduct real and meaningful public participation as required by the Constitution. That, they did not do what was evident from some of the uncontroverted acts recounted by the High Court.
209. There was a measure of cynical disregard for the very opportunities and timelines intended to facilitate public participation. The County Assemblies were under a duty to approve or reject a Constitution Amendment Bill in a popular initiative whole, without amendment, so as to maintain and preserve its content and character as a popular initiative. It was also the more reason why they were under a clear duty, to be scrupulously and faithfully discharged, to involve the people so as to discern which way they should vote on the Amendment Bill.
210. The submission that the High Court ought not to have pronounced itself on the issue of whether civil 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; as that was not one of the framed issues and had in fact been addressed by the High Court as a preliminary issue only could not be right as the matter was alive, having been raised by the Attorney-General as an objection to Petition No. E426 of 2020 against the President in which he was named in his personal capacity. The High Court was duty bound to pronounce itself on the question which, by all accounts, was an important one.
211. It would have been neater had the President himself joined the proceedings and raised objection to his having been sued in his personal capacity. The High Court ought, at the very minimum, to have first satisfied itself that service had been effected on him by the petitioner before proceeding to hear and determine the matter and to even make pronouncements against him. That was a fundamental and basic tenet of natural justice and the rules as to service of process were quite explicit as to what was required to have been done.
212. The law on presidential immunity was that: the President was immune from criminal prosecution and from civil suit for any act or omission in exercise of his powers under the Constitution in Kenyan courts during his tenure of office, but could be sued for acts or omissions outside his constitutional duties and prosecuted for international crimes where the treaty establishing them did not recognize the defense of immunity. The statutory limitation period would be extended to take account of any action or suit that could not be brought on account of the defendant’s presidential tenure. Article 143 of the Constitution was couched in terms that left no room for a construction that the President enjoyed absolute immunity from suits.
213. What was at issue before the court was not the immunity that the President or the holder of that office enjoyed with regard to official acts within the confines of his constitutional powers. Such acts were immunized from civil suits against the President during his tenure. What was in issue were those acts which were said to have been committed by the President outside his constitutional powers and, in fact, in contravention of the Constitution. The President was not immune from suits in his personal capacity for such acts.
214. Kenya needed a Referendum Act and there was none. The High Court was informed that there was a proposed Referendum Bill somewhere in the legislative pipeline, but there seemed to be uncertainty as to its eventual fate. Candour in public affairs, including in litigation, was a virtue to be embraced. It could not be right for parties to propound in court positions they knew to be so plainly untenable and to do so without batting an eyelid. That Kenya needed a Referendum Act was an urgent matter that should have been addressed years ago.
215. Whereas the enjoyment of fundamental rights could not be conditioned upon the enactment and promulgation of any statutory rules or regulations, with the absurd result adverted to where rights were held at ransom by official neglect, the High Court’s decision was not to that effect. The Attorney General appeared to have misapprehended the reasoning of the High Court, which was quite the opposite of the meaning he ascribed to it.
216. Given the uncertainties, ambiguities and penumbras that were apparent in the manner in which one was to go about initiating, collecting signatures, forwarding, debating, involving the public, campaigning and voting on a popular initiative for the amendment of the Constitution together with the necessary timelines, that area was in a wholly unsatisfactory state and needed clarity by way of both a national referendum law and probably rules and regulations specific to the popular initiative. It was disingenuous for it to be argued otherwise, unless uncertainty in law should somehow have attained a utility the court could not discern and the status of a virtue.
217. The part of the Elections Act that dealt with referendum was woefully inadequate to address a constitutional amendment referendum which stood in a class of its own. A referendum in the context of proposed constitutional amendments by popular initiative had to be governed by a specific, properly thought-out legislation. It could not be left to the Elections Act which seemed to contain a part of a referendum in some kind of by-the-way or after-thought, regard being had to the fact that referendums were not elections and they were no less important than elections.
218. Whereas the provisions on referenda in the Elections Act could suffice to settle questions of various types and descriptions in an ordinary referendum, they were not sufficient in detail, and were not formulated to meet the full requirements of article 257 of the Constitution. Article 257 needed a statute deliberately designed to effectuate it, and it did not matter that it was not expressly listed in the Fifth Schedule which, at any rate stipulated that any other legislation required by the Constitution be enacted within 5 years.
219. In resolving the issue whether IEBC had the requisite legal regulatory framework for verification of signatures under article 257(4) of the Constitution and the administrative procedures for verification of signatures in support of the constitutional amendment referendum, it all depended on how the role of IEBC under article 257(4) was to be perceived. If it was merely to count the signatures, to confirm they had reached one million, there would be no need for further legislative or regulatory framework. If, however, its role was broader to include verification of those signatures, then there would certainly be need for more than the bare provisions of article 247(4).
220. IEBC had taken the disingenuous position that its role was limited to merely ascertaining the numbers of registered voters in support of the popular initiative. That position was belied by its own report, the text and spirit of the Constitution. The only reasonable meaning of the term, verify as used in article 257(4) of the Constitution included both the ascertainment of numbers and confirming the authenticity of the signatures submitted.
221. Verification was covered extensively by statute with section 6A of the Elections Act dealing with verification of biometric data, and the Elections (Voter Registration) Rules, 2012, which set out guidelines on IEBC’s obligations and process of verification as well as provisions for the inspection of the register. In sum, there existed, with regard to the counterpart electoral process, full-fledged legal and regulatory framework and it could not fall from the mouth of IEBC that a framework for signature verification for a popular initiative was a superfluity. It was not. That was precisely the reason IEBC, keenly aware of the lacuna, came up with the administrative procedures.
222. The problem was that the administrative procedures were neither gazetted nor subjected to parliamentary approval in accordance with sections 10 and 11 of the Statutory Instruments Act, No. 23 of 2013. They were not subjected to public participation, as stipulated. The administrative procedures viewed as a whole, even had they been otherwise valid, also had a deficit of content for failing to provide for the authentication of signatures, which was a critical element of the popular initiative process. All of those deficiencies were worsened by the fact that IEBC, even were it to be lauded for at least coming up with administrative procedures, and even were they to be merely internal in the nature of standard operating procedures (which they were not) ignored and breached them by arbitrarily reducing the period for information and verification from a fortnight to effectively a couple of days.
223. Given that state of things, the conclusions reached by the High Court that IEBC lacked the requisite legal and regulatory framework in the specific issue of signature verification and that the stop gap administrative procedures were invalid, were unassailable.
224. The Isaiah Biwot Kangwony v Independent Electoral & Boundaries Commisison & another decision was not binding on the High Court, being by a court of concurrent jurisdiction and thus the High Court could depart from it freely if they considered it to be wrongly decided, and it was. The IEBC Act put the quorum at five, period. There was no justifiable basis for the artificial distinction created to circumvent an express statutory provision. The task of signature verification and other roles related to presiding over a popular initiative to amend the Constitution were a policy role and required a quorate IEBC.
225. The role of the IEBC in the exercise was not merely administrative or mechanical; it involved under article 257(5) of the Constitution a determination whether the popular initiative proposed was constitutionally compliant. Such a vital role required the full complement of IEBC with all hands on deck. That appeared to the court to be another instance of official skulduggery for IEBC, which was fully aware of its limping status wherein its commissioners had dropped to below half of what its Act prescribed, to wear a brave face and state, in legal proceedings no less that it was doing just fine.
226. An attempt to reduce the quorum of IEBC from five to three via the Elections Laws Amendment Bill (2017), passed by the National Assembly was declared unconstitutional and invalid by the High Court in Katiba Institute & others v Attorney General  eKLR. That decision meant that the attempt at amendment having been nullified, the position prevailing ante had to remain, which was that the quorum of IEBC remained at five.
227. The Constitution at article 250(1) provided that constitutional commissions would have a minimum of three and a maximum of nine commissioners. It would seem unreal and plainly illogical to suppose that the same quorum of three would apply to all commissions be they constituted by three, five, seven or fifteen commissioners. The impracticality of such a position was plain to see and the court would have to go against the canons of statutory interpretation to arrive at such a construction. The various constitutive statutes had provisions on quorum that repudiated that inverted logic, with virtually all of them stating in the relevant schedules that the quorum should be half or more of the number of commissioners, the IEBC Act was no exception. All the decisions made by IEBC in relation to the proposed constitutional amendments via the BBI Amendment Bill were invalid, null and void for lack of quorum.
228. There had been no serious and sustained continuous voter registration. When the petitioner complained that there had not been national and continuous voter registration, the burden to rebut that claim rested with IEBC as the bearer of the obligation to register voters continuously, and also as the custodian of the records of such registration. It was not upon the petitioner to prove the contrary, he did not bear such burden.
229. It was odd that IEBC, which routinely carried out voter registration drives in anticipation of general elections, did not as much as indicate that it had plans to do the same in the face of a looming referendum. It would have been an unacceptable dereliction of duty and violation of rights were the referendum to be held with hundreds of thousands, or millions even, of young people sitting it out on account of not being registered. Where the referendum in question involved proposed changes to the Constitution, it was that very segment of the citizenry, the very youngest of adults, who had the greatest stake in the matter and everything should be done to aid in having their voice heard, their vote taken and their decision made known.
230. Given the importance and centrality of the people in the referendum and given that their right to choose was predicated on being able to vote; absent continuous nationwide voter registration, it would be a violation of the political rights of young adults who were entitled to but had not been registered as voters were IEBC to proceed with the proposed referendum.
231. In so far as a proper question was posed by a petitioner apprehensive that the rights of citizens were in real danger of being violated by the manner in which the referendum question could be posed, the matter was properly before the High Court and it was under a duty to make appropriate declarations. The courts retained the final word on the interpretation of the Constitution and the High Court in the instant instance did not transgress onto the exclusive province of an independent commission. The independence of commissions did not mean that they were in any way beyond being told by the courts what the law was.
232. Given the wording of article 255(1) of the Constitution, it was intended and contemplated that each amendment to the Constitution would be considered on its own merit and not within the rubric of other amendments. Under article 255(1), some amendments to the Constitution did not require the involvement of the people generally at a referendum.
233. Only an amendment relating to the entrenched provisions listed as (a) to (j) of article 255(1) of the Constitution, which coincided or nearly coincided with the basic structure of the Constitution, had to be subjected to a referendum. Thus understood, therein lay the further infirmity of the overkill that was the BBI Amendment Bill. It contained multiple and altogether way too many proposed amendments, some of which would required a referendum while others did not. The confusion became intolerable in that a Bill was prepared containing provisions that from their different proposed impacts, required, two different tracks for enactment.
234. The singular conception of amendment to the Constitution was repeated in article 257 of the Constitution which stipulated that; the exclusive contents of the Bill had to be the amendment contemplated in article 257(1) and it was that Bill, containing that one proposed amendment that was to be dealt with under article 257(10).
235. The only matter that could be in the Bill other than the proposed single amendment was the consequential amendments of legislation arising from the Bill which was borrowed from article 256(1)(b) of the Constitution which dealt with amendment by parliamentary initiative. Save for that, the framers of the Constitution did not intend for more than a single proposed amendment at a time, and per Bill. It was not the intention of the people that amendments to the Constitution should be the normal thing done whenever people felt the urge. It should come rarely even then when compelled by the greatest necessity and for that reason, an amendment should come singly, once, rarely.
236. Section 49 of the Elections Act contemplated a multi-question referendum. However, whereas the section applied to referendums generally, the specific proposed constitutional amendment under a people’s initiative in article 257 of the Constitution had to be presented as a single amendment at a referendum for the people to either approve or reject.
237. Unlike in the case of wards where IEBC was empowered under article 89(3) of the Constitution to review the number, names and boundaries thereof periodically, its powers in the case of constituencies entailed the mandatory review of the names and boundaries of constituencies at stated intervals. It could not review the number of constituencies. The High Court did not hold that the number of constituencies could not be altered, it stated the opposite. What the High Court held was that it was impermissible for the BBI Amendment Bill to directly allocate and apportion the 70 extra constituencies it created without the delimitation exercise that was commanded and provided for in detail to be undertaken by IEBC in article 89 as read with article 88(4) of the Constitution which listed the delimitation of constituencies and wards as one of the particular and exclusive responsibilities of IEBC.
238. The procedure for delimitation of electoral boundaries was further provided for in great detail under section 36 of IEBC Act and it was a critical constitutional and statutory duty. That was consistent with and to be jealously guarded as an object of an independent commission whose aim was to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles and promote constitutionalism as provided in article 249(1) of the Constitution.
239. The protective role of independent commissions over the sovereignty of the people was of critical and vital importance and could only be attained by a jealous and uncompromising assertion, exercise and defense of their independence. It was independent commissions alongside the Judiciary which had to police and patrol the lines of delegation of the sovereignty of the people to Parliament and the legislative assemblies in the county governments, the national exercise and the executive structures in the county governments, and the Judiciary and independent tribunals.
240. Independent commissions were charged with the duty of vigilantly and keenly ensuring that the State organs to which sovereign power was delegated maintained the stance of delegates accountable to their principals, and remained always the servants of the people and therein lay the absolute necessity of the independence of those commissions being kept firm and inviolate. Seeing how critical the independence of independent commissions was to the sovereignty of the people, it had to be part of the basic structure of the Constitution which was given express amplitude by entrenchment in article 255(1)(g) of the Constitution. The provisions of the BBI Amendment Bill were an unconstitutional attack on the independence of IEBC and materially sought to alter by the operation of various of its provisions, the delimitation scheme set out in article 89(1) of the Constitution. It effectively attempted to repeal that provision without saying so, by stealth and subterfuge.
241. The mere fact of having given views did not create an obligation on the person or body to whom the views were given to incorporate them in the final decision as there was no promise or expectation that the views had to prevail or carry the day. Moreover, no proof was furnished that representations were in fact made to the cross-appellant that its views would be incorporated in the amendment Bill. The expectations the cross-appellant held were more subjective than legitimate in character.
242. Other than the non-demonstration that request for information on the financial outlay or expenditure on the ill-fated BBI constitutional amendment process and the fact that enquiry into the use of public funds lay with a different office which had not been engaged, it would be improper and unjust for the court to make contrary orders in the dark, without information. Moreover, as the President was not shown to have been served, an order for personal liability could not be made against him unheard.
Per Gatembu Kairu, JA
243. Chapter 16 of the Constitution of Kenya, 2010 titled amendment of the Constitution prescribed the procedure for amendment of the Constitution. Article 255(1) of the Constitution stipulated that a proposed amendment to the Constitution would be enacted in accordance with article 256 or 257, and approved in accordance with clause (2) by a referendum, if the amendment related to any of the matters set out under article 255(1). Article 256 of the Constitution set out the amendment process through a parliamentary initiative while article 257 set out the amendment process by popular initiative. On the face of it, those provisions of Chapter 16 of the Constitution would appear clear and unambiguous and construed in their natural and ordinary sense would mean that every provision in the Constitution was amendable provided the stipulated process for amendment was followed.
244. Article 259 of the Constitution commanded that the Constitution would be interpreted in a manner that promoted its purposes, values, and principles; advanced the rule of law and human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. Article 10 of the Constitution commanded that in applying or interpreting the Constitution or any law, the national values and principles of governance set out in that article, including the rule of law, democracy and participation of the people bound all state organs (read judiciary), state officers (read judges) and all persons. Given those principles of constitutional interpretation, the High Court was right in the methodology it employed in interpreting the constitutional provisions from a historical and contextual perspective and the complaint that the court misapprehended the methodology applicable was not well founded.
245. The doctrine of basic structure held that the Constitution had certain basic features which underlined not just the letter but also the spirit of that Constitution. Those features constituted the inviolable core of the Constitution, and any amendment, which purported to alter the Constitution in a manner that took away that basic structure, was void and of no effect; that even without explicit limitations to the constitutional amendment power, there were implied constitutional limitations to the nature and scope of constitutional amendments by which the Constitution should not be amended in a way that changed features of the Constitution that formed its basic structure. The doctrine rested on the distinction between original or primary power to make or effect radical changes in the Constitution vis-à-vis secondary power to amend or effect minor changes on the Constitution.
246. Under the doctrine, the decision to make fundamental changes to the Constitution was a matter solely reserved for the people, the constituent assembly. Courts could invalidate any exercise of the derivative amendment power that proposed to violate the Constitution’s basic feature. Constitutional amendments could be found to be infirm because of the actual proposed content of the amendments that would replace the Constitution and not just amend it.
247. The doctrine of basic structure and the pillars on which it was founded had been recognised and applied by Kenyan courts and was very much part of Kenya’s jurisprudence. It was not as alien a concept as perhaps some of the appellants argued. There was abundant authority therefore based on which the High Court concluded that the doctrine of basic structure applied in Kenya. It was perhaps in the manner of application of that doctrine in the context of Chapter 16 of the Constitution where the court’s perspective somewhat differed from that of the High Court. The High Court in the instant case found that in the making of the Constitution of Kenya, 2010, Kenyans were insistent on the four sequential processes in the form of civic education, public participation and collation of views, constituent assembly debate, consultations, and public discourse and ultimately a referendum to ratify the Constitution.
248. The High Court stated that in making the Constitution of Kenya, 2010, Kenyans adopted a rigorous process involving the four stated steps to make the Constitution. To remake it or to fundamentally alter it, an equally rigorous process, as was used in making it had to be undertaken. In that finding, the High Court appreciated, correctly, that a distinction had to be made between amendment of the Constitution and abolition or annulment of the Constitution. For if what was proposed as an amendment, was not in fact an amendment, then the provisions in the Constitution on amendment could not be used to abrogate the Constitution.
249. Abolishing or abrogating provisions of the Constitution in such a way as to alter its foundation and structure was therefore not envisaged under Chapter 16 of the Constitution. That was a preserve of the people exercising sovereign power, which belonged to them in accordance with article 1 of the Constitution. To that extent, the court was in agreement with the High Court.
250. According to the High Court, the identification of whether a provision of the Constitution was part of the basic structure was a matter of analysis on a case-to-case basis. The framers of the Constitution identified for all to know what the basic structure of Kenya’s Constitution was. The framers set out in article 255(1) of the Constitution what they identified to be the fundamental pillars that defined the Constitution. Those provisions were amendable, in the sense of meaning minor revision, addition or modification in contradistinction to dismemberment, in accordance with article 257 of the Constitution. Provided the amendments proposed did not amount to an abrogation or dismemberment of the Constitution, they were permissible. But even then, such amendment, not amounting to dismemberment, of the matters set out in article 255(1) of the Constitution had to be done in accordance with article 257 of the Constitution.
251. In other words, the doctrine of basic structure as understood, was a complete bar to dismemberment or abolition of provisions of the Constitution in the name of amendment. Abolishing or abrogating those provisions could not be an amendment within the purview of Chapter 16 of the Constitution. On the other hand, under the Constitution, all provisions of the Constitution were amendable, in the sense of correcting, modifying, clarifying, improving, or expounding without fundamentally altering the identity of the Constitution.
252. The matrix was that if a proposed change to the Constitution was a dismemberment of the Constitution, then Chapter 16 provisions were not available. If on the other hand, the proposed change was an amendment, properly so called, then the next question was whether it related to a matter set out in article 255(1) of the Constitution. If so, then the provisions of article 257 had to be invoked. If it did not touch on a matter set out in article 255(1), then the amendment could be pursued via the parliamentary initiative route under article 256. Ultimately, however, whether a particular proposal for amendment was strictly that or a disguised attempt to abrogate the Constitution was a matter for judicial interpretation.
253. The basic structure doctrine was applicable in Kenya. In its application in the context of Kenya’s Constitution, it barred (as opposed to limiting) the dismemberment, replacement or abolition of the Constitution in the name of amendment. The Constitution did not envisage, contemplate or permit its replacement, abrogation, or its dismemberment. That was a preserve of the people and could only be done by the people, outside the framework of the Constitution, following the procedure used or akin to that used to make the Constitution and which had to include civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.
254. The doctrine did not prevent genuine amendments to the Constitution. The framers of the Constitution identified the matters set out in article 255(1) of the Constitution as the core or the basic structure of the Constitution and any amendments, properly so called, to the Constitution relating to or touching on those matters could be done in accordance with article 257 of the Constitution infused with the national values and principles. Whether a proposed amendment amounted to a dismemberment, abolition or derogation of the Constitution was ultimately a matter of judicial interpretation. Any other amendments to the Constitution that did not relate to or touch on the matters set out in article 255(1) could be made in accordance with article 256 of the Constitution. There were no eternity clauses in the Constitution.
255. On the face of article 257 of the Constitution, there was no qualification of who may or may not promote a popular initiative. There was no explicit bar against any person, including the President, from promoting a constitutional amendment by popular initiative. It was not, as it were, in the black letter of Chapter 16 of the Constitution who may or may not propose an amendment by popular initiative. It was a matter of interpretation in accordance with the principles of constitutional interpretation to which reference had already been made.
256. In the Final Report of the Constitution of Kenya Review Commission (CKRC), of 2005, it was reported that the people, as owners of the constitutional review process, expected to be provided with an opportunity to actively, freely and meaningfully participate in generating and debating the proposals to alter the Constitution. In chapter three of the report dealing with the views from the people, the Commission reported that during the public hearings the manner of changing provisions of the Constitution was an important concern.
257. The report recorded that considering how frequently the Independence Constitution was amended, the question of how to protect the new Constitution from a similar fate was a matter that was frequently raised during public hearings. In the end, the framers of the Constitution separated the route which the elected representatives could take for amending the Constitution through parliamentary initiative under article 256 and the route which the citizen could take through popular initiative under article 257 of the Constitution.
258. Although the phrase popular initiative was not defined in the Constitution, the background set out and the lexical meaning of the word popular lend credence to the conclusion reached by the High Court that amendment by popular initiative under article 257 of the Constitution was the preserve of the citizen. In the Concise Oxford English Dictionary for example, the word popular was defined as including, intended for or suited to the taste or means of the general public, while Miriam Webster Dictionary defined the word popular to mean of or relating to the general public. In both definitions the phrase general public featured. The President or the executive would not fall under the category of general public.
259. In reaching the conclusion, cognisance was given to the provisions of articles 19, 20, 22, 24 and 38 of the Constitution and the contention that, the holder of the office of President, like every citizen, was entitled to enjoy of rights under the Bill of Rights. However, it seemed that the curtailment, in certain respects of those rights in relation to the holder of the office of the President, was sanctioned by the Constitution given the Constitutional role assigned to the holder of the office in the amendment process.
260. As to who the promoters were with respect to the Constitution Amendment Bill. The process began with the handshake, followed by the establishment by the President of the Task Force. Thereafter the President established the BBI Steering Committee whose mandate included proposing Constitutional reforms. The BBI Steering Committee generated the Constitution Amendment Bill. The President and the Hon. Raila Odinga then flagged off the signature collection. The Constitution Amendment Bill and the list of voters supporting was then delivered to the IEBC by Hon. Junet Mohammed and Hon. Dennis Waweru as the co-chairs of BBI National Secretariat. It was a continuous process. A continuum. It was unnecessary to attempt to split that process to justify the claim that the process towards initiating the popular initiative began with the delivery of the draft Amendment Bill and supporting signatures to IEBC and to ignore what preceded that.
261. The delivery of the draft Amendment Bill and supporting signatures to IEBC was part of a process that had begun before the generation of the draft amendment Bill by the Steering Committee. All the players in that process, beginning with the President, the Hon. Raila Odinga, the BBI Steering Committee and the Hon. Junet Mohammed and Hon. Dennis Waweru qualified as promoters in a continuum that preceded the delivery of the Bill to IEBC by the Hon. Junet Mohammed and Hon. Dennis Waweru. There was no merit in the contention that the President’s involvement in the amendment process was in his capacity as a private citizen. The material present showed otherwise. The Kenya Gazette Notices based on which the Task Force and the Steering Committee, whose mandate included consideration of amendment of the Constitution, were testament that the President was acting in official capacity.
262. Regarding public participation, reference to article 10 of the Constitution was again pertinent to the extent that all state organs, state officers, public officers and all persons were bound by the national values and principles of governance, including participation of the people, when enacting, applying, or interpreting the Constitution or any law. There could be no question that public participation was a fundamental constitutional principle in Kenya. It was a constitutional command that it had to be infused or integrated into the amendment process under Chapter 16 of the Constitution.
263. There was some merit in the argument that Wanjiku, or the ordinary Kenyan citizen who wished to propose an amendment to the Constitution by popular initiative, and to whom the vehicle of amendment of the Constitution by popular initiative was reserved, would not have the wherewithal or to carry out the onerous task of public participation. For it could appear that by one hand, Wanjiku was given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle was then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. But that, was not the case in the instant case. It could be so, if indeed the Constitutional Amendment Bill was an initiative by Wanjiku.
264. The process under review was initiated, supported and on the face of it funded by the state given that the Task Force and the Steering Committee were appointed by the President through gazette notices as already indicated. Had the initiative been a Wanjiku initiative, given that the scope of public participation was a matter for consideration on a case-by-case basis, it would perhaps have been open to Wanjiku to say that she was handicapped and therefore regard should be had to her means. But it was clearly not Wanjiku who was driving the Constitution Amendment Bill.
265. It could have been open to Wanjiku to plead lack of resources to undertake public participation. Not so for IEBC. Under article 88 of the Constitution, IEBC was responsible for conducting or supervising referenda and elections as it was also responsible for voter education. Like all state organs, it was bound by the national values and principles of governance, including the values of participation by the people, good governance, and democracy, when applying or interpreting the Constitution.
266. Under article 257(4) of the Constitution, the IEBC became seized of the draft Bill when the same, and the supporting signatures of those supporting the popular initiative, was delivered to it. IEBC was then required to verify that the initiative was supported by at least one million registered voters before submitting the draft bill to the county assemblies. No time frame was prescribed in article 257 within which IEBC had to submit the draft Bill to the county assemblies after satisfying itself that the threshold of one million registered voters support the initiative had been met.
267. There was opportunity for IEBC, after satisfying itself that the threshold was met, to undertake voter education and sensitization on the amendments proposed in the draft Bill to empower the citizenry to engage meaningfully, and from a point of information, with their representatives at the county assemblies. It was of course not for the court to direct IEBC on how to discharge its constitutional and statutory function of voter education and public participation, but it was certainly for the court to consider whether it had reasonably discharged its duty. Therefore, there was a legal requirement under article 10 of the Constitution for voters to be supplied with adequate information to make informed decisions. There was no evidence that that was not done in the instant case. The instant court would not go as far as the High Court did, in prescribing in minute detail, how public participation should be undertaken.
268. Allegation of lack of public participation had to be considered within the peculiar circumstances of each case and the mode, degree, scope and extent of public participation was to be determined on a case-to-case basis. It was perhaps also a matter for the legislature to prescribe in appropriate legislation on the scope and breadth of public participation short of which the court was left to apply the standard of reasonableness on a case-to-case basis. To be clear, amendment, properly so called, of matters touching on or relating to article 255(1) was achievable through what the High Court referred to as secondary constituent power, namely public participation and referendum.
269. The role of IEBC, upon delivery of the draft bill proposing amendment to the Constitution by popular initiative, was set out under article 257(4) of the Constitution. In an affidavit sworn on February 25, 2021, a Director of Legal and Public Affairs of IEBC, deposed that IEBC received the draft amendment Bill on December 10, 2020 accompanied by 4.4 million supporters' signatures upon which it issued a press release on December 18, 2020 informing the public of the same; that IEBC carried out a process to confirm that the said initiative was supported by the signatures of at least one (1) million registered voters in order to ensure compliance with the requirements of article 257(4) of the Constitution; that after completion of that process, an interim report was prepared during which data cleaning exercise by removing incomplete records including missing signatures, ID numbers and names, duplicates and those not in the register of voters; that thereafter a list of verified supporters was uploaded on IEBC’s website to enable them to check and confirm their details; that the purpose of uploading the list of verified supporters on the website was to provide an opportunity for objection by anyone who had been captured as a supporter without their consent; that upon completion of that process, it was established that the popular initiative met the constitutional threshold and the Amendment Bill was transmitted to the County Assemblies.
270. Based on the depositions in that affidavit, the finding by the High Court that the role of IEBC under article 257(4) entailed ascertaining the number of registered voters in support of a popular initiative to amend the Constitution, and verifying that the initiative was indeed supported by the registered voters claimed to be in support of the popular initiative, was correct. The controversy appeared to be with regard to, precisely how IEBC was to execute or carry out the verification.
271. The record showed that IEBC uploaded the list of signatories in support of the initiative on its website on January 21, 2021. The closing date for scrutiny and for any objections to be taken was indicated to be Monday January 25, 2021. Under item q) and r) of part B on Verification Procedure of IEBC’s, Administrative Procedures, after actual signature verification exercise and documentation of the compiled list of supporters was published in the Commission’s website for information and verification for two (2) weeks. Publishing the list of supporters over a weekend was clearly in violation of IEBC’s own prescribed time frame of two weeks.
272. The time provided for the scrutiny and for raising objections was grossly insufficient. Why IEBC was in such rush was not clear. Secondly, there was the question whether merely uploading the list on IEBC’s website, without more, was sufficient. It would have been more effective for IEBC to, in addition to uploading the list on its website, to publicise the matter in other media as well. Those questions were germane and bolstered the argument that a comprehensive legal or regulatory framework for the conduct of referendum was important.
273. Had the IEBC given sufficient notice, opportunity and means to the public to interrogate the list of verified supporters of the initiative, it would perhaps have been considered to have discharged its duty of ascertaining and verifying that the registered voters who were indicated as supporting the initiative had indeed done so. That said, the conclusion by the High Court that, IEBC’s role under article 257(4) of the Constitution involved both the ascertainment of numbers of registered voters in support of a popular initiative to amend the Constitution as well as verification of the authenticity of those signatures was partially correct.
274. Yes, IEBC was required to ascertain that the threshold of one million registered voters was met. Secondly, it had to verify or establish or confirm that those voters whose names that had been submitted had in fact endorsed the initiative. That was achievable if IEBC afforded reasonable means and opportunity for the voters to interrogate and confirm their endorsement of the initiative. That said, that discussion was further testimony of the need for a legislative/regulatory framework for matters relating to article 257 of the Constitution.
275. Under article 88(4) of the Constitution, IEBC was responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by an Act of Parliament. The Elections Act in its preamble stated that it was an Act of Parliament to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor, and county assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes. Part V of Elections Act dealt with referenda. Sections 49 to 55 thereof addressed matters pertaining to initiation of a referendum, notice of holding referendum, referendum committees et al. Section 53 provided that the procedure for the conduct of an election would apply with necessary modifications to the conduct of a referendum.
276. There was, undoubtedly therefore, some legal framework, albeit not an elaborate one, for the conduct of referendum even though it may not specifically address or fully address all aspects of a referendum including matters of collection, presentation, and verification under article 257 of the Constitution. It was important to have specially tailored legislation that specifically and fully addressed matters relating to article 257. Indeed, there was realization in that regard as it was demonstrated that there were two pending Bills before the National Assembly, namely, the Referendum Bill, 2020 and the Referendum (No. 2) Bill, 2020 with more detailed provisions on the conduct of referenda.
277. That said, notwithstanding the absence of an enabling legislation as regarded the conduct of referenda, such constitutional process could still be undertaken as long as the constitutional expectations, values, principles and objects were met and that in doing so the process had to be in strict compliance with, inter alia, article 10 of the Constitution which prescribed the national values and principles of governance and that those principles had to be infused at every stage of the process.
278. The absence of a legal framework per se could not be a basis for asserting that IEBC should not discharge its Constitutional mandate under article 257 of the Constitution. Therefore, the declaration by the High Court that the absence of a legislation or legal framework to govern the collection, presentation and verification of signatures and the conduct of referenda rendered the attempt to amend the Constitution of Kenya through the Constitution of Kenya Amendment Bill 2020 flawed, even though qualified with the statement in the circumstances of the case, was one the court was able to endorse, to the extent construed to mean that IEBC could not, absent of specific legislation on conduct of referenda, conduct referendum under article 257 of the Constitution.
279. Even without an elaborate legal framework, IEBC asserted that it had in place administrative procedures to guide its functions. It was noteworthy that IEBC supplied the Administrative Procedures upon request for information by Muslims for Human Rights (Muhuri). In their letter of December 15, 2020 Muhuri inquired from IEBC whether it had regulations and/or rules/guidelines on how to undertake its mandate under article 257(4) of the Constitution on verification that a popular initiative was supported by at least one million registered voters. In its response of December 23, 2020, IEBC stated, "The Commission confirmed having administrative procedures on how to undertake its mandate under article 257(4) of the Constitution and attached the same." They were titled, Administrative Procedures for the verification of signatures in support of a Constitutional Amendment Referendum.
280. In the preamble to those Administrative Procedures, reference was made to the sovereignty of the people and that one of the ways in which that sovereignty could be used was to change the Constitution by dint of article 257 of the Constitution which provided the general requirements and procedures to amend the Constitution and that the role of IEBC was to receive the initiative draft bill and supporting signatures; verify that the initiative was supported by the prescribed number of registered voters and communicate the outcome of the verification process to the promoters of the initiative, and to forward the bill to county assemblies where the initiative had met the requirements of article 257 of the Constitution.
281. The Statutory Instruments Act was an Act for the making, scrutiny, publication, and operation of statutory instruments and for matters connected therewith. The objectives of the Act included provision of a comprehensive regime for the making, scrutiny, publication, and operation of statutory instruments by requiring regulation-making authorities to undertake appropriate consultation before making statutory instruments; requiring high standards in the drafting of statutory instruments to promote their legal effectiveness, clarity, and intelligibility to anticipated users; and improving public access to statutory instruments.
282. The Act applied to every statutory instrument made directly or indirectly under any Act of Parliament or other written legislation. Instructively, in discharging its scrutiny role, Parliament was required to be guided, by among other things, the principles of good governance and rule of law. Parliament was required to consider whether the statutory instrument was in accord with the provisions of the Constitution, the Act pursuant to which it was made or other written law; infringed on fundamental rights and freedoms of the public; and contained a matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament.
283. Although IEBC contended that the administrative procedures were internal operating procedures, they were evidently more than that. They were guidelines, not only for the internal use within IEBC, but also for guiding the public on matters pertaining to the discharge of IEBC’s constitutional mandate under article 257 of the Constitution. Section 31 of the IEBC Act empowered the Commission to make regulations for the better carrying out the provisions of the Act and under section 31(2) such regulations could provide for (g) any other matter required under the Constitution, the Act or any written law. Section 31(3) provided that the purpose and object of making the rules and regulations under section 31(1) was to enable the Commission to effectively discharge its mandate under the Constitution and the IEBC Act.
284. Whereas the Administrative Practices were not avowedly made in exercise of the Commissions’ power under section 31 of the Act, a replying affidavit sworn by the legal officer of IEBC deposed that the Administrative Procedures were developed pursuant to section 55 and regulation 98 of the Election (General) Regulations, 2012 after extensive public participation. Accordingly, based on the IEBC legal officer’s deposition, the Administrative Procedures fell within the statutory definition as they were made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation was expressly authorized to be issued.
285. The court could only interfere with the decision of the High Court if it was established that the High Court misdirected itself in law or that it misapprehended the facts; or considered factors it should not have or failed to consider matters it should have, or that its decision was plainly wrong. It had not been demonstrated that the decision of the High Court in that regard was erroneous.
286. Section 5(1) of the Independent Electoral and Boundaries Commission Act provided that the Commission would consist of a chairperson and six other members appointed in accordance with article 250(4) of the Constitution and the provisions of the IEBC Act. Section 5(3) provided that the process of replacement of a chairperson or a member of the Commission would commence at least six months before the lapse of the term of the chairperson or member of the Commission. Section 5(4) provided that the procedure set out in the First Schedule would apply, with necessary modifications, whenever there was a vacancy in the Commission.
287. Section 7A of the IEBC Act provided that the office of the chairperson or a member of the Commission would become vacant if the holder died, resigned from office or was removed under circumstances specified in article 251 and Chapter six of the Constitution. Under section 7A (2) of the IEBC Act the President was required to publish a notice of a vacancy in the Gazette within seven days of the occurrence of such vacancy and the process of recruitment would commence immediately after the declaration of the vacancy by the President. In addition, section 8 of the IEBC Act provided that the conduct and regulation of the business and affairs of the Commission would be as provided for in the Second Schedule but subject thereto the Commission could regulate its own procedure.
288. The argument that the effect of the declaration of unconstitutionality by the High Court of the provisions of the Election Laws (Amendment) Act, No. 34 of 2017 that had sought to amend paragraphs 5 and 7 of the Second Schedule, was that the Schedule was silent on quorum; that there was in effect no longer a provision at all in the Schedule on quorum and recourse had to therefore be had to article 250 of the Constitution was not persuasive.
289. Article 250 of the Constitution did not, with respect, address the question of quorum of the Commission. It was a provision on composition. It set the minimum number of persons who had to make up the Commission. Quorum spoke to the minimum number of commissioners that had to be present to make a binding decision. It spoke to the number of commissioners who, when duly assembled, were legally competent to transact business of the Commission. Article 250 of the Constitution could not therefore fill the gap, which the IEBC said was created by the declaration of unconstitutionality of the provisions that had sought to amend Paragraphs 5 and 7 of the Second Schedule.
290. The decision of the High Court in the case of Katiba Institute & 3 others vs. Attorney General and 2 others, H.C. C.P No. 548 of 2017  eKLR was silent on the effective date of the declaration of unconstitutionality. Based on the decision of the Supreme Court, the default position was that the declaration of unconstitutionality related back to when the unconstitutional provisions were enacted, with the result, that the status quo ante, was restored. Therefore, the requirement of a quorum of five applied. Therefore, the IEBC Act categorically placed the quorum of IEBC for purposes of transacting business at five Commissioners and that IEBC did not have that quorum at the time it made the consequential decisions related to the Constitution of Kenya Amendment Bill.
291. In the judgment, the subject of the instant appeal, the High Court expressed that whilst the question in Isaiah Biwott Kangwony vs. Independent Electoral and Boundaries Commission & another was whether the composition of the IEBC was illegal and unconstitutional following the resignation of majority of the commissioners, hence a challenge of the constitutionality or legality of the commission under article 250(1) of the Constitution. In the consolidated petitions leading to the impugned judgment, the concern was that IEBC was not properly constituted for purposes of verifying signatures and did not have quorum to conduct a referendum. The High Court in the instant case also took issue with the distinction made in Isaiah Biwott Kangwony vs. Independent Electoral and Boundaries Commission & another by Okwany, J. between decisions of the Commission touching on policy and other decisions and pointed out that such distinction was non-existent in the statute.
292. Although there was a relationship between composition and quorum of the Commission in the sense that the composition could fall below the required number of commissioners to form a quorum. Composition and quorum of the Commission were not the same thing. The court was not in the instant case sitting on appeal from the judgment in Isaiah Biwott Kangwony v Independent Electoral and Boundaries Commission & another. However, it seemed that quite apart from reading into the text of the Paragraph 5 of the Schedule the words policy decisions, and apart from mixing up composition with quorum, the court appeared to have either overlooked or infused statutory provisions with what it considered to be common sense. Furthermore, in making that pronouncement, the court did not appear to have considered the provisions of paragraph 8 of the Second Schedule.
293. Under paragraph 8 of the Second Schedule, the requirement under Paragraph 5 was overriding. The pronouncement by the court appeared, therefore, to be an abrogation of a statutory provision and to that extent it was per incuriam. Consequently, the High Court in the instant case was entitled, for that reason, among the other reasons the court gave, to depart from it. Moreover, the statutory commands in the IEBC Act, if heeded and complied with, would ensure that the number of commissioners would not fall below the number required to form a quorum. For those reasons, the complaint regarding the findings by the High Court on quorum had no merit.
294. It was common ground that under article 88 of the Constitution, section 4 of the IEBC Act and section 5 of the Elections Act, IEBC had the responsibility of undertaking continuous registration of citizens as voters, regular revision of the voters’ roll, and voter education among other duties pertinent to its responsibility for the conduct and supervision of referenda and elections.
295. IEBC did not appear to have presented the evidence, which it had since presented to the instant court as additional evidence vide the affidavit of its legal officer sworn on June 28, 2021. That evidence comprising of a Gazette Notice of September 16, 2020 certifying the completion of the revision of register of voters as at December 31, 2019 and showing the number of voters as at December 31, 2019 was evidently available when the High Court heard the petitions but was not made available to the court. Therefore, the High Court could not be faulted for having concluded as it did that there was no evidence that the IEBC had discharged its obligation of continuous voter registration. The court would therefore not interfere with the decision of the High Court in that regard.
296. Article 257 of the Constitution provided that a popular initiative for an amendment of the Constitution could be in the form of a general suggestion or a formulated draft Bill and that if it was in the form of a general suggestion the promoters of that popular initiative would formulate it into a draft Bill. That Bill was then delivered to the IEBC, who after verifying that the initiative was supported by at least one million registered voters submit it to the county assemblies for consideration. If approved by a majority of the county assemblies, the Bill was then submitted to the Speakers of both Houses of Parliament, where it was passed if supported by a majority of members of each House. If Parliament passed the Bill, it was then submitted to the President for assent. If either House of Parliament failed to pass the Bill, or the Bill related to a matter specified in article 255(1), the proposed amendment would be submitted to the people in a referendum.
297. It was the Bill in which an amendment proposal was contained, that was submitted to the people to vote on in the referendum by indicating whether they agreed or disagreed with the amendment proposal, much in the same way as the members of county assemblies and members of the Houses of Parliament would have signified their approval or disapproval of the amendment proposal in the draft Bill. Therefore, under article 257(10) of the Constitution, as read with the other provisions in that article, what was envisaged of the voter at the referendum was for the voter to make a choice, to ratify or not to ratify, to approve or not approve, the amendment proposal in the draft Bill. However, that choice was rendered nugatory, inoperative, and inconsequential if the voter was called upon to vote on an omnibus draft Bill, that contained a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in the instant case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution.
298. The argument on the principle of unity of content or single subject matter, that constitutional amendments made through a referendum should deal with only one main issue, was most attractive and persuasive. It was urged that under that principle that the proposed amendments should deal with one subject only to allow the voter to form and express their opinion freely and genuinely. In other words, if a proposed constitutional amendment included several substantive questions, the voter could not have a free choice; that each proposed constitutional amendment ought to secure adoption on its own merits, not on the merits of other different proposals to which it was attached; and that there had to be an intrinsic connection between the various parts of each question put to the vote in order to guarantee freedom of suffrage and the voter must not be expected to accept or reject as a whole provisions without an intrinsic link between them.
299. What was envisaged under article 257 was an amendment Bill on single thematic topic to which the provisions in draft Bill had to relate. For instance, a Bill proposing amendments to the provisions on land under Part 1 of Chapter five of the Constitution would be incongruous with proposals in the same Bill for amendment of the unrelated matter of offices of Parliament under Part 3 of Chapter Eight of the Constitution. To put a single binary question or multiple question was a matter to be informed by the nature of amendment proposed. It could well be that certain proposed amendments could require separate and distinct referendum questions to be framed.
300. What article 257(10) of the Constitution did not contemplate was the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in the instant case. The argument that it would be impractical on account of logistical difficulties to formulate over 70 separate and distinct questions was perhaps more the reason that an omnibus amendment Bill should never be entertained.
301. All provisions of the Constitution, including those that were considered to form the basic structure were amendable, within the meaning ascribed to the word amendment, provided the amendment process outlined in Chapter 16, infused with national values and principles was followed. Therefore, article 89 of the Constitution was amendable. It followed, that provided the procedure in article 257 of Chapter 16 of the Constitution, infused with national values and principles was followed, article 89 of the Constitution could be amended to increase the number of constituencies. In that event and provided the constitutional standard of amendment was met in effecting the amendments, the court was not persuaded that once the amendments were passed and made part of the Constitution it could then be argued that they were unconstitutional. In as far as the proposal in the Constitution Amendment Bill to directly allocate and apportion the constituencies was concerned.
302. Article 50(1) of the Constitution provided that every person had the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body. Therein was the long-standing principle of natural justice. The record of proceedings of January 21, 2021, showed that the High Court gave directions on the conduct of the consolidated petitions. Among the directions given were directions that, all the petitioners in the 7 petitions were to serve the petitions on all the parties by close of business on January 22, 2021. The Deputy Registrar was to facilitate the process where necessary and that the respondents, interested parties and amici were to file and serve their responses to the various petitions within 14 days.
303. In the same date, January 21, 2021, directions were given by the court regarding exchange of written submissions and the conduct of the hearing and hearing dates. The record showed that on subsequent appearances before the High Court, under the coram in relation to Petition 426 of 2020, the court indicated “N/A for the 1st respondent.” The record did not show whether after the directions were given on January 22, 2021, any inquiry or follow up was made by the court to confirm that its directions regarding service had been complied with. In subsequent attendances before the High Court, the record continued to reflect that there was no appearance for the 1st respondent (the President) in Petition 426 of 2020.
304. Notwithstanding the directions given by the High Court, it appeared that the question whether the President was in fact served with the petition and the hearing notice in respect of the hearing appeared to have been overlooked by the High Court. The continued recording by the court of “N/A” against the name of the President after the directions were given should have signaled the court to inquire whether the President had in fact been served. There was no indication that the High Court satisfied itself that service had been effected in the first place. The proceedings against the President were undefended. Having concluded that the Attorney General could not in that instance represent the President, it was imperative for the court to satisfy itself that the President had been served with the petition and the hearing notice.
305. Although the High Court expressed in paragraph 532 of its judgment, that the question whether the President could be sued in his personal capacity and not as the President of the Republic of Kenya was a question that should be determined as a preliminary issue, it was not in fact handled in that manner. For had it been handled as such, the determination should have been made before the substantive hearing of the petition commenced to afford the President an opportunity to defend himself, in his personal capacity. By making the determination in the final judgment, that opportunity was lost. All in all, it was not satisfactorily demonstrated that service on the President was effected. For that reason alone, the orders made by the High Court against the President in Petition No. 426 of 2020 would be set aside.
306. Article 143 (2) of the Constitution regarding civil proceedings specified that; civil proceedings would 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 power under the Constitution. A plain and ordinary interpretation of article 143 (2) of the Constitution would infer that, the President’s immunity was limited;
a. to proceedings instituted during his or her term in office; and
b. to anything done or not done in exercise of the President’s powers under the Constitution.
Put differently, the immunity did not extend to acts or omissions that had resulted in civil proceedings commenced prior to assumption of the office of the President or that were not in exercise of the President’s powers.
307. It was the intention of the framers of the Constitution to limit the extent of the President’s immunity in civil proceedings to only those instituted while he or she was in office. That intent was evident from the difference in construction between article 143 (1) and article 143 (2) of the Constitution. Whereas article 143 (1) expressly prohibited institution or continuance of criminal proceedings once the President assumed office, under article 143 (2) the immunity in civil proceedings was limited to only those suits instituted against the President during the term of office in respect of anything done or not done in the exercise of power as the President of Kenya. Acts or omissions that gave rise to civil proceedings instituted prior to assuming office were not covered by the prescribed immunity.
308. The interpretation of the phrase, the President or the person performing the functions of that office during their tenure of office, was instructive. It would infer that immunity was limited to the functions of that office as well as during their tenure of office. So that, to be covered by the immunity under article 143 (2) of the Constitution, firstly, the person should have been in office, and secondly, the impugned actions should have taken place during the tenure of office. Immunity would therefore not extend to acts or omissions not connected to the office or carried out before or after the term of office. Therefore, the President could be sued in his personal capacity during his tenure because the protection afforded under article 143(3) of the Constitution extended to anything done or not done in the exercise of their powers under the Constitution.
309. In the case of Trusted Society of Human Rights Alliance vs. Mumo Matemu, the Supreme Court of Kenya gave comprehensive guidelines regarding admission and participation of amicus curiae from which it emerged that the admission of amicus curiae in a case involved exercise of discretion by the court. The record of proceedings of the High Court showed objection to admission of law professors as amici curiae on grounds that no special expertise was demonstrated and that application for admissions should have been in writing and had to include a brief. The record did not show that the complaint of bias or partisanship was raised at that stage.
310. The Supreme Court stressed the importance of the principle of neutrality and fidelity to the law; that an amicus curiae brief should address point(s) of law not already addressed by the parties to the suit or by other amici curiae, to introduce only novel aspects of the legal issue in question that aid the development of the law. Furthermore, amici curiae were advisors to the court, and not to the parties, and were in no way bound by the resulting judgment, except by way of precedent. The objection taken by two of the counsel before the High Court was not on basis of bias or partisanship but on other grounds despite which the amici curiae were admitted through directions given by the court on the same date.
311. No challenge appeared to have been taken regarding those directions and it was late to raise the matter at the instant stage. Furthermore, it was not demonstrated that the admission of the amici curiae was a wrong exercise of discretion by the court. The briefs submitted by the amici curiae were considered alongside all other material submitted but, ultimately it was the court that determined the matter. Consequently, it had not been established that the High Court erred in admitting the amici curiae or in considering their briefs. Given the directions by the Supreme Court that amici curiae were advisors to the court, and not parties and were in no way bound by the resulting judgment, joining them as respondents in the instant appeals was irregular. They should not have been made parties to the instant appeals.
312. By dint of the doctrine of ripeness courts ought not engage in premature adjudication of matters or matters which were not ready for determination or were of purely academic interest. In the instant case, there was clear demonstration that there was a real threat of dismemberment of the Constitution. The petitioners should not have waited for the changes proposed in the Constitution Amendment Bill to become part of the Constitution and then, effectively challenge the Constitution. In light of article 2(3) of the Constitution, it was arguable whether that avenue would be available.
Per F. Tuiyott, JA
313. The basic structure doctrine prescribed that notwithstanding the absence of explicit limitations on the Constitution amendment power, there were implied constitutional limitations which guarded against amendments that changed the basic structure or identity of a Constitution.
314. Fundamental alterations to the core of the Constitution required the exercise of the primary constituent power of the people which existed notwithstanding non-codification and an insistence that it should be expressly provided for in the Constitution was an antithesis of the very concept that it was a power which existed in spite of the Constitution and to provide for it was a superfluity.
315. The interpretation of the Constitution was influenced by both text and context. They were the bases of interpretation. One could well say if the text was the texture, context was what gave the colour. Neither could be ignored. Both were important. That interpretation was best which made the textual interpretation match the contextual. A history of the making of the Constitution of Kenya, 2010 (Constitution) gave colour to the text of the provisions of Chapter Sixteen on amendments.
316. The making of a new constitution could only be through the exercise of the people’s constituent power perfected in a referendum. So as to conform with the decision, the Constitution of Kenya Review Act was amended to provide for a mandatory referendum to ratify a new constitution. All that while, however, there had been established a mechanism, provided by statute, for adoption of a new constitution after the exercise of the peoples’ constituent power in a referendum but which mechanism was not contemplated by section 47 of the repealed Constitution
317. On November 21, 2005, the proposed new constitution was put to vote but was rejected by the people in a referendum. That was an attempt to replace the Constitution by the people exercising their constituent power notwithstanding that the power was not expressly provided for by the Constitution sought to be replaced. A recognition that the power was not subject to limitations or restrictions prescribed by the written word of the Constitution.
318. A fresh impetus to replace the Constitution came after the postelection violence of 2007/2008. In this renewed initiative, Parliament enacted two cardinal legislations. The Constitution of Kenya Review Act (2008) and the Constitution of Kenya (Amendment) Act (2008). They amended the repealed Constitution by adding section 47A which entrenched a mechanism for replacement of the Constitution and expressly recognized that the sovereign right to replace the repealed Constitution with a new Constitution vested collectively in the people of Kenya and was exercisable by them through a referendum. For the first time, the constituent power of the people had found itself into the text of the Constitution.
319. Against that backdrop, another referendum was conducted on August 4, 2010, giving birth to the Constitution of Kenya, 2010. The new Constitution was created in the context where the constituent power of the people to replace their own Constitution was codified in the Constitution that was replaced.
320. The lessons to be drawn from the journey of arriving at the Constitution of Kenya, 2010 were that 2005 and 2010 referendums were a testimony that the people of Kenya embraced and adopted a constitution making concept in which the sovereign right to replace the Constitution vested in the people of Kenya exercisable through a referendum. The exercise of the constituent power in 2005 had received a judicial nod that in the 2010 referendum was codified through an amendment of the existing Constitution. The concept was therefore neither alien nor a foreign notion to Kenya.
321. Second, the 2005 experience demonstrated that the constituent power was unfettered and unlimited notwithstanding that it was not textualized in the Constitution to be replaced. While codifying the constituent power was good constitutional practice, failure to do so neither took away nor weakened the force of the power. Textualizing it, though a bonus, was superfluous and unnecessary. That was an invaluable part of context that the history of Kenya’s constitution-making offers.
322. The provisions of chapter sixteen made reference to the “amendment” of the Constitution. Neither in that chapter nor elsewhere in the Constitution was the word amendment defined. The Interpretation and General Provisions Act (Chapter 2) was not helpful because, by dint of its section 2, the provisions of that statute did not apply in the construction or interpretation of the Constitution.
323. Unless otherwise expressed by the Constitution itself, an amendment entailed a minor revision, alteration or addition to the Constitution but which nevertheless did not destroy the Constitution being amended. It did not extend to abrogation, complete repeal or replacement of the Constitution.
324. Constitutional dismemberments were transformative changes with consequences far greater than amendments. They did violence to the existing Constitution, whether by remaking the Constitution’s identity, repealing or reworking a fundamental right, or destroying and rebuilding a central structure or pillar of the Constitution. Constitutional dismemberment could both enhance and weaken democracy depending on what in the existing Constitution was dismembered.
325. Constitutional dismemberment entailed a fundamental transformation of one or more of the Constitution’s core commitments. It was incompatible with the existing framework of the Constitution because it sought to achieve a conflicting purpose. The purpose and effect of constitutional dismemberments were the same as to unmake a Constitution. For example, in context the Constitution of Kenya, 2010, an amendment to transfer judicial authority from the Judiciary and independent Tribunals to the Executive was to unmake the Constitution as it fundamentally altered a central feature of the Constitution. An amendment was not as drastic because, properly defined, it kept the altered Constitution in unison with its pre-change identity, rights and structure.
326. Since the provisions of article 255(1) of the Constitution simply provided for an amendment, anything that went further than that had to be sanctioned by the exercise of primary constituent power. The provisions of article 255(1) of the Constitution and the popular initiative were made against the background that the making and unmaking of a constitution was the preserve of the people exercising their primary constituent power. A change that derogated from the core character of the Constitution was not a change in unity with the Constitution but one that defaced it. That change, too, was one that could only be made by the people organized in and exercising their primary constituent power.
327. By falling short of making provisions and procedure for the unmaking or repeal or re-enactment or abrogation of the Constitution, a textual reading of article 255(1) of the Constitution matched or was in accord with the contextual interpretation of the clause, that the power to make such changes rested elsewhere, in the primary constituent power of the people and did not need to be codified.
328. A common thread running through the Bomas Draft Constitution, the Wako Draft Constitution, the Revised Harmonized Draft and the proposed Draft Constitution was the provision for amendment of the Constitution by popular initiative. The rationale for this amendment process, captured in the final report of the recommendations by the Constitution of Kenya Review Commission (CKRC), as regards the issue of constitutional supremacy, was that the new Constitution should have some entrenched provisions which Parliament would have no power to amend without first seeking the views of the people at a referendum. Under the scheme of the various constitutional proposals a distinction was drawn between entrenched and non-entrenched provisions of the Constitution.
329. The entrenched provisions were those that the people felt were the core values and provisions of the Constitution and therefore they needed to be barricaded by a special amendment mechanism in which the seal of approval by the people exercising their constituent power was mandatory. Notably the entrenched provisions in various drafts were substantially the same. In the Bomas draft they were in respect to the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the principles and values of the Republic; the Bill of Rights; the term of Office of the President; the independence of the Judiciary and Constitutional Commissions; the functions of Parliament; the values and principles of devolution; or the provisions of the amending chapter.
330. The Wako draft retained the same list save a small change in regard to devolution. The entrenched provisions in the latter Harmonised Draft and Revised Harmonised Draft were almost word for word those in the Bomas and Wako drafts. They again found their way into the protective provisions of article 255(1) of the 2010 Constitution. It was a list that survived changes made in the various draft Constitutions. It was testimony that the people meant what they said and were clear as to what they considered to be the essential features of the Constitution. It was a list to be revered and could not therefore be shortened or lengthened by judicial interpretation or craft. It mattered not that in the mind of a judge the list was too limiting or too extensive.
331. The people of Kenya felt so strongly that provisions relating to the matters listed in article 255(1) of the Constitution needed protection from indiscriminate amendment. Therefore, those were the very provisions which should not be abrogated or replaced without the exercise of the people’s primary constituent power. What comprised the basic structure of the Constitution was therefore specifically defined by the people of Kenya and was that in article 255(1) which even in amendment required the exercise of constituent power, the secondary constituent power.
332. The true scope of the basic structure in the Kenyan Constitution became clearer by looking more closely at the words of article 255(1) of the Constitution. They required compliance with article 257 for any amendment that related to the matters listed in article 255(1). Save for reference to “chapter sixteen” and “articles 10(2) (a) to (d)”, the articles of the Constitution to be protected were not specifically set out. Instead, they were identified by theme. That made a difference. What comprised the basic structure was what was within those thematic matters.
333. What comprised the basic structure of the Constitution was easily identifiable. But should a need for judicial inquiry arise as to whether a matter was part of the basic structure of the Constitution, then that inquiry would not be a rudderless or unguided exercise because it was firmly beaconed in article 255(1) of the Constitution.
334. The popular initiative clause was among the non-contentious issues which remained substantively unaltered in all the drafts that were a precursor to the Constitution of Kenya, 2010. The intention of the popular initiative clause was to curb dictatorship by Parliament. The monopoly of Parliament in initiating constitutional amendments had been enabled by section 47 of the repealed Constitution.
335. The position of the Attorney General that the intention of the popular initiative was to curb parliamentary monopoly not just with respect to the private citizens but also with respect to other state organs was contrary to the Final report of the Technical Working Group K of the Constitution of Kenya Review Commission on Constitutional Commission and Amendments to the Constitution (the report) which provided that it was an innovation where the citizens could on their own motion initiate amendment to the Constitution by a way of a popular initiative either in the form of a general suggestion or a formulated draft Bill. The report alluded to a citizen driven process. It did not make reference to State actors. From the historical perspective, the popular initiative route was a preserve of the citizens.
336. An amendment by way of popular initiative could be in relation to matters protected by article 255(1) of the Constitution and those amendable by Parliament. Article 255(3)(b) read in conjunction with article 257, both the people and Parliament were participants in a popular initiative process. By use of the word 'and' instead of 'or,' it was clear that a popular initiative was not achievable without participation of both.
337. The role of Parliament was clearly circumscribed by article 257(7) and (8). A constitution amendment bill was placed before Parliament for approval after it had garnered the support of one million registered voters and had been approved by a majority of the County Assemblies. Parliament could not initiate or promote an amendment pursuant to article 257. It was a people-centric process in which the people owned and drove the crucial roles of initiating the amendment, promoting the bill and voting at the referendum.
338. Article 1(3) of the Constitution revealed the place of state organs vis-à-vis the people. The people, under article 1(3) of the Constitution, delegated aspects of their sovereign power to Parliament, legislative assemblies, the national executive, executive structures in county governments, judiciary and independent tribunals. By making reference to the people, article 255(3) suggested that the amendment by popular initiative exercise was an exercise of undelegated power of the people. It was an occasion when the people exercised their sovereign power directly. The process could not be initiated or promoted by State actors. The answer found in the text of the Constitution coincided with the historical justification for the popular initiative clause, that it had to be truly citizen or people driven.
339. While every person was entitled to equal protection and benefit of the law, a person who took up a state office had to be ready to live with restrictions that came with that office. Judges, for instance, had to ascribe to conduct that was limited by the Judicial Code of Conduct and Ethics. Judges had to accept personal restrictions that could be viewed as burdensome by the ordinary citizen. While the Constitution did not expressly bar the President from initiating or promoting constitutional amendments by way of popular initiative, a contextual and textual interpretation of the law was that the process excluded the executive. Ineligibility to initiate a constitutional amendment by way of popular initiative came with the territory.
340. In the eyes of the ordinary man, a sitting President remained a President and in office twenty-four hours a day seven days a week. Under articles 130(2)(e) and article 132, the President had the responsibility of promoting and enhancing the unity of the nation. The President was a symbol of national unity. However, a wholesome reading of the Constitution did not lend itself to an outcome that one way in which the President could promote and enhance national unity was by leading a constitutional amendment by way of popular initiative. The President could use the avenues permitted by the Constitution, however, the President was not to expand his mandate beyond that contemplated by the Constitution.
341. While a comparative study of constitutions of other jurisdictions could help the court unpack the Constitution of Kenya, 2010, the dissimilarity in text and the historical journey of the Constitution of Kenya, 2010’s popular initiative clause was far too illuminating to be ignored.
342. Given that a constitutional amendment by popular initiative was people-centric and the obligatory language of article 256(5) of the Constitution, the President had no option but to request IEBC to conduct a national referendum once a constitutional amendment bill coming through the popular initiative route was passed by either House of Parliament. To hold that the President could determine whether or not a referendum could be held was to create a non-existing veto power over the process. There were other good reasons for holding that the President could not either in his official or personal capacity promote an amendment by way of popular initiative. The role granted to him by article 256(5) was not one such reason.
343. The words of article 257(1) of the Constitution brook no ambiguity as to how the process of an amendment by popular initiative began and proceeded. It started when a promoter, having generated a proposal for amendment to the Constitution, formulated the proposal or suggestion into a draft Bill. The promoter then collected the signatures of at least one million registered voters in support of the initiative. Once the threshold was achieved, then the promoter delivered the draft Bill and supporting signatures to IEBC for verification. Where a promoter derived the substance of a proposed constitutional amendment was immaterial for as long as a promoter formulated the suggestion or proposal amendment into a formal draft Bill, the source of the suggestion or proposal did not matter. For instance, the idea or suggestion could be that of a person who never took it further than a mere idea and so the person who formulated it into a Bill and followed through the process of signature collection was the promoter of the initiative.
344. The process of popular initiative had to be guarded from abuse. A State actor, who was otherwise barred from initiating a popular initiative, could not originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter would simply be a surrogate of the State actor. That would not be a truly citizen-driven initiative as it would an enterprise of the State actor. There would be occasion therefore when it would be necessary to look beyond the person who formulated the draft Bill and collect the signatures to discover the hand behind the initiative, only in that way would the true intent of the popular initiative process be protected against manipulation.
345. The formulators of the Bill, and therefore the promoter, was the Building Bridges Initiative Taskforce and Secretariat. There was a nexus between the Building Bridges Initiative BBI) and the BBI Taskforce and Secretariat. The formation of the Building Bridges to Unity Advisory Taskforce by the President was communicated to the public through Gazette Notice No. 5154 of May 24, 2018 and published in the Kenya Gazette dated May 31, 2018. The term of the Taskforce was 12 months from the date of its launch, with an option for extension by the President. The Steering Committee was to conduct validation of the Taskforce report and to propose administrative, policy, statutory or constitutional changes for the implementation of the recommendations in the Taskforce report. The Steering Committee was to continue the work started by the BBI Taskforce. An attempt to delink the Steering Committee from the impugned Bill merely on account of the supposed expiry date of June 30, 2020 was without candour.
346. There was further evidence that the draft amendment Bill which was eventually subjected to signature collection was an amended version of the one annexed to the report. To hold that the secretariat, named as promoters of the Bill, was not part of the process that began with the BBI Taskforce and progressed by the Steering Committee would be to do violence to the evidence on record. The fingerprints of the Executive were on the entire process from the setting up of the Taskforce, the formation of the Steering Committee and the formulation of the impugned Bill. Those impressions refused to go away even at the launch of the roll out for collection of signatures in support of the Bill on November 25, 2020 presided over by the President. Any attempt to artificially detach the Executive from the BBI Bill suffered further setback by the damning evidence that public officers were asked to supervise the collection of signatures from government employees. The impugned Bill was an Executive enterprise.
347. Other than being tasked to propose changes to the Constitution necessary for implementation of the recommendations of Taskforce report, the Steering Committee was mandated to propose administrative, policy, statutory changes and as well to conduct validation of the Taskforce report. The Steering Committee did not have any legal footing to promote a constitutional amendment by way of popular initiative. To that extent it was involved in an unconstitutional activity. However, the court was unable to find fault in its other functions. For the reason that it was not solely formed to promote the BBI Bill, it could be too harsh to declare the Steering Committee an unconstitutional outfit merely because it undertook an activity not sanctioned by the Constitution.
348. In its preamble, the Commission of Inquiry Act declared itself to be an Act of Parliament to provide for the appointment of Commissioners to inquire into and report on matters of a public nature referred to them by the President, to prescribe their powers, privileges and duties, and to provide for matters related thereto. The mandate of the Steering Committee was to validate the BBI Taskforce report and to propose an implementation matrix of the recommendations of the report. Even on a strained construction of the word 'inquiry,' the terms of reference of the Steering Committee was not the inquiry contemplated by statute.
349. There was no evidence tendered by the Attorney General that the Steering Committee was the typical commission of inquiry envisaged by the Act. The BBI Steering Committee was not a commission of inquiry under the provisions of the Commissions of Inquiry Act. The President, to whom the Constitution bestowed executive authority, could not form a taskforce to advise him on aspects of his constitutionally mandated duties. As long as a taskforce was established out of necessity, was for bona fide purposes and not a waste of public funds, its establishment could not be said to be incompatible with the legitimate exercise of executive authority. The Steering Committee could not be an illegal entity simply because one of its functions was an impermissible overreach.
350. It was not controversial that when a sitting President acted in purely personal capacity then civil action could be brought against him notwithstanding that he held office. The rationale being that the President, like any other citizen, had to be held responsible for personal conduct. The President did not enjoy the heightened protection of section 14 of the previous Constitution which provided absolute immunity to a sitting President even in regard to personal conduct.
351. To discover the breadth of the immunity of the President for official acts or omissions, article 143(2) had to be read with 143(3) of the constitution. By virtue of article 143(3), time, for purposes of the statute of limitations, only started to run against a person who was entitled to take out civil action against a sitting President for official conduct, but for the bar of article 143(2), on the day the President ceased to hold office. Implicit, therefore, was that there would be acts or omissions which a sitting President could do or not do in the name of or under the insignia of office, but which were outside or in direct contravention of the powers donated to the President by the Constitution. For those acts or omissions, the President enjoyed protection from civil litigation only while in office. At the end of his term, such conduct could be brought under scrutiny in civil litigation. A former President could be personally held to account for acts or omissions done or not done in the guise of official function, but which were an affront to or not authorised by the Constitution.
352. There was difficulty in reconciling the purpose of the provisions of article 143(3) of the Constitution while interpreting the scope of article 143(2) as anything less than providing functional protection to the President. That was, protection that was predicated on the functions of the President’s office. That was because, if article 143(2) of the Constitution was read as providing immunity only for action or inaction in the course of the proper exercise of powers permitted by the Constitution, then article 143(3) would be moot and redundant as no action could ever lie against the President for those acts or omissions even after he left office. The President wielded executive power on behalf of the people. The extent of that power was prescribed and demarcated by the Constitution and national legislation. Those too identified the responsibilities assigned to that high office. The expectation was that the President would act within the dictates of the law and in good faith. Mistakes, wrongs or indiscretion committed in the bona fide, well intended and legitimate exercise of presidential power and authority should not give rise to personal liability on the part of the President during and even after he/she ceased to hold office. On the other hand, official acts or omissions driven by bad faith, motives ulterior to the Constitution or in deliberate disregard or contravention of the Constitution or the law received transient protection; immunity that lasted only while the President held office.
353. To hold otherwise would make an inquiry into the constitutionality of an act or omission a basis for affording protection under article 143(2). If that was so, then any person unhappy with official conduct of the President could sue him in his personal capacity alleging violation of the Constitution.
354. Immunity was granted on conduct predicated on official function as opposed to limiting the protection only to acts or omissions properly done within the authority of the Constitution could embolden a sitting President to engage in gross violation of the Constitution without checks. It was not so because the potentially distractive action could still be restrained by the President being sued, not in his personal name, but in official capacity through the Attorney General. The President could still be open to civil liability in his personal capacity on account of such action at the end of term.
355. Read, together, articles 143(2) and 143(3) of the Constitution struck balance by giving functional immunity to a sitting President during the tenure of office but leaving it open for him/her to still be held personally accountable, once out of office, for any act or omission done or not done in official name or under official badge yet in gross or egregious violation of the Constitution. The breadth of the protection offered by article 143(2) in respect to civil litigation was as follows: -
a. Immunity did not extend to acts or omission of a sitting President done in purely personal capacity not connected with his office.
b. The immunity was only in respect to acts or omissions connected with the office and functions of that office.
c. Where an action or inaction/omission was in official capacity but bereft of any constitutional authority or power whatsoever or was in fact done in gross or serious violation of the Constitution then it was actionable against the President in person but only after he left office.
d. For acts and omissions falling under (c) above and which had to be questioned or challenged immediately, the President could be sued, not in his personal name, but through the Attorney General.
356. Under rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules) service meant delivery of an order, summons or other legal paper to the person required to respond to them. The Mutunga Rules provided certain forms and form B was said to be made pursuant to rule 1(2). That form suggested that the service of petition should be by way of personal delivery to the person required to respond. There was then a form C on substituted service by advertisement which made reference to rule 22(3). However, rule 22(3) had nothing to do with substituted service. The Mutunga Rules contemplated that the first line of service would be personal service and by providing a form for substituted service it could be inferred that substituted service by way of advertisement, where personal service was onerous or impossible, was within the contemplation of those rules but was never specifically provided.
357. Given the development in technology and the current Covid - 19 pandemic, to insist on personal service could well be unreasonable and in disregard to article 159(2)(b) of the Constitution which directed that in exercising judicial authority, courts should be guided by the principle that justice should be administered without undue regard to technicalities. Indeed, keeping abreast with the changes in time, the Civil Procedure Rules had been amended so that Order 5 Rule 22B provided by service through electronic mail.
358. There was ample jurisprudence allowing importation of the Civil Procedure Rules to fill any lacuna in the Mutunga Rules. The provisions of Civil Procedure Rules were applicable to constitutional petitions where such provisions gave the court inherent power to make such orders as could be necessary for ends of justice.
359. The alleged service of the petition by the 78th respondent was on December 21, 2020, a month prior to the directions of the court and so could not have been in pursuance of the directions. Yet that service, allegedly made by electronic means, could still be excused if it met the requirements of Order 5 rule 22B in regard to service through electronic mail. As the President denied receipt of service, the onus was on the 78th respondent as the person alleging to have effected service to demonstrate that he satisfied the expectations of the law on service by email. The 78th respondent was not able to demonstrate that the email address to which the email was sent was the last confirmed and used email address of the President. Second, he failed to show a delivery receipt of the email which was the evidence service in Order 5 rule 22B. Further, there was no evidence that the petition or a hearing notice was served on the President via the court portal. It could be argued that as the President was not an ordinary mortal, insisting on personal service or to expect a person intending to sue him to know the President’s last confirmed and used email was to place an unreasonable burden on an ordinary litigant and therefore to compromise the litigant’s right to the equal protection of the law. The route of substituted service was available to a litigant who had difficulty in effecting personal service upon the President or obtaining the President’s last used and confirmed email address.
360. As there was no evidence of service upon the President, and as the President did not in person participate in the proceedings, then any orders made against him in person would be to condemn him without an opportunity to be heard. Those were for setting aside.
361. The effect of a court’s declaration of invalidity of a statute or a provision within it could only be gleaned from the declaration itself. The court could make the declaration retrospective from the date of the enactment of the offending provision or statute. The court could choose to limit the retrospective effect of such a declaration or even to suspend it to a future date. Where, however, a declaration by the court was silent as to when it was to take effect, the date of the declaration was deemed to be the date of effect.
362. Although the effect of the decision in Katiba Institute & 3 others v Attorney General & 2 others  eKLR was to render paragraph 5 of the Second Schedule to the IEBC Act to be ineffective and a nullity, the decision did not revive the former provisions. The argument that the High Court relied on non-existing provisions of statute was therefore with some merit.
363. IEBC was a constitutional commission established under article 88 of the Constitution. The pronouncement by the court in Isaiah Biwott Kangwony v Independent Electoral & Boundaries Commission & another  eKLR was that paragraph 5 of the Second Schedule to the IEBC Act was not unconstitutional as it was enacted on the belief that the maximum number of commissioners would be appointed. The decision was about the constitutionality of the IEBC's composition and requirements relating to quorum and it was a pronouncement made in public law and was a judgment in rem.
364. The importance of having consistency in the application of the law, particularly in matters touching on the public, could not be minimized. Both the public and the persons or bodies charged with carrying out public functions should be able to tell, without difficulty or hesitation, whether their actions or conduct passed legal or constitutional muster. To hold that a public body was properly and legally constituted today and to say otherwise the next day could not be good for public administration. There was much to be gained in legal stability that was brought by stare decisis.
365. Yet that had to put on a scale against the effect of foreclosing another court of coordinate rank from relooking at the same question, in a different matter, where forceful arguments were made as to the correctness of the earlier decision. Not to allow a revisit would be to stifle judicial debate in an area that could well be unsettled and in the process to stunt growth in jurisprudence. It could be to allow a matter which had been wrongly decided to take root and to perpetuate itself.
366. So as to strike a balance, the doctrine of stare decisis, even in public law, should not apply any differently but a latter court should be reluctant to reopen a matter already pronounced in rem by a court of coordinate jurisdiction unless there were compelling reasons to believe that the outcome would be different. In addition, the Attorney General and the public body affected, if not parties, should be invited to express themselves on the matter before the court rendered itself so that the court could have the full benefit of arguments on the subject. If the earlier decision was on appeal, then the latter court should await the outcome of the appeal.
367. IEBC was established by article 88(1) of the Constitution. It was then one of the Commissions to which chapter fifteen of the Constitution applied. In respect to those commissions, article 250(1) provided that the Constitution did not require enactment of legislation to fix the exact composition of the chapter fifteen commissions. However, article 88 gave national legislation sufficient latitude to fix the number of members of the Commission (as long as it fell within the range in article 250(1) of the Constitution) and its quorum for purposes of effectively discharging its mandate.
368. While the Constitution did not fix the exact composition of the IEBC, and only provided for a range of not less than three and not more than nine, statute fixed the composition to be seven. None of the parties suggested that the national statute on the composition of the IEBC was unconstitutional and in so far as it did not breach the constitutional range, there could be little merit in an argument that section 5(1) of the IEBC Act abridged the Constitution. The statutory composition of IEBC was therefore seven (7) members.
369. Whilst statute had fixed seven as the membership of IEBC, it contemplated that death, resignation or such other reasons could cause the actual membership to fall below the statutory number. Given the important constitutional mandate of IEBC, the IEBC Act had a robust mechanism for the prompt filling of any vacancies. The scheme of the statute and the regulations was that, by providing for prompt mechanism for filling vacancies, then at all times and as much as was possible, IEBC should be in its full complement of membership.
370. Given its important constitutional mandate, IEBC should carry out its functions with all hands on deck. To allow the quorum of the Commission to oscillate with the actual number of members at any time would be to countenance a possibility that for as long as the numbers did not fall below three, then the appointing authority needed not promptly or at all trigger the process of filling the vacancies.
371. The membership of IEBC could then suffer want of gender parity or regional and ethnic diversity required by article 250(4) of the Constitution. Drastically reduced membership could lead to a crunch in confidence by members of the public in the Commission’s ability to be independent and truly neutral. The quorum of the IEBC had to be seen against the full composition of seven required by the IEBC Act.
372. The effect of Katiba Institute & 3 others v Attorney General & 2 others  eKLR was to sustain the quorum at five or at least four. To hold that the quorum could be anything less than half of the membership of seven was to weaken the Commission. IEBC formulated some administrative procedures to guide on the verification of signatures in support of a constitutional amendment. Formulation of such guidelines would be the business of the Commission given the critical importance of that threshold in a popular initiative process and the Commission needed to be quorate. The IEBC was not quorate when it embarked on the business of verifying the BBI signatures on a membership of only three. Verification was two stepped; the first was what IEBC christened as the quality assurance test. This initial step was really a sieving exercise. It involved, inter alia, removing records without signatures or duplicated entries.
373. The manner in which IEBC sought to verify the BBI signatures was testimony that it clearly understood that its mandate under article 257(4) was to verify the authenticity of the signatures of the registered voters claimed to be in support of the popular initiative. That conformed to what it proclaimed to be its role in the report.
374. One of IBEC’s responsibility under article 257(4) of the Constitution was verification of the authenticity of the signatures. Not once did the High Court suggest that the only way to authenticate the signatures was to undertake forensics. As set out in the IEBC guidelines one way of authenticating signatures was to invite those who appeared in the support list to confirm that they indeed appended their support by signature. But that had to be done in a framework in which the list was published through a medium that easily reached all said to be in the list. Then those in the list had to be given adequate and real opportunity to confirm whether or not that they signed the support list.
375. The initial trigger to a referendum was the one million supporter threshold. If the supposed support was unreal and could not be verified in a robust and fool proof process, then the entire popular initiative could be a false start. Worse still, the numbers could be rigged and used as momentum to carry over a successful referendum. In addition, there were public resource implications once the threshold was supposedly reached. IEBC had to submit the Draft Bill to each county assembly for consideration.
376. The County Assemblies had to debate and either approve or reject the Draft Bill. Public participation was required at that stage. It was therefore singularly crucial that where the one million threshold was said to have been achieved then it should not be an illusion. The process of verifying the threshold was as important as the casting the vote at the referendum. As the integrity of the entire process of the popular initiative was as good as each of its facets or phases, the verification of signatures under article 257(4) of the Constitution was critical cog in the process.
377. There was need for a legal or regulatory framework for the verification of signatures under article 257(4) of the Constitution. The need for that framework found support in the provisions of article 82(1)(d) of the Constitution which read that Parliament was to enact legislation to provide for the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections.
378. The regulation, conduct and supervision of a referendum did not start and end with the voting day. It was a continuum, triggered by the one million threshold. There was need for a legal or regulatory framework regarding each phase, not in the least the verification of signatures. The legislation had to be simple, transparent, and special needs sensitive as directed by article 82(2) of the Constitution. The legislation was so critical and could not be left to in-house or boardroom administrative guidelines developed and formulated by the Commission without public participation and interface.
379. The contents of the Commission’s administrative guidelines demonstrated a dire need for a legislative or regulatory framework. The guidelines proposed accreditation of signatures verification agents, observers and media by the Commission. An acknowledgment that the process of the verification of the signatures itself had to be verifiable.
380. The guidelines provided the compiled list of supporters was published in the Commission’s website for information and verification for two (2) weeks. A recognition that members of the public had to be informed of and granted sufficient opportunity to authenticate the list of signatures.
381. The guidelines also provided that after the publication of the list, the commission received and addressed any complaints or issues relating to the published list of supporters.
382. A tacit acceptance that some form of complaint resolution mechanism in respect to the published list of supporters was necessary. At trial it turned out that IEBC had itself abridged its own administrative procedures. It shortened the period in which members of the public could verify the list of supporters from two weeks to five days.
383. The conduct of IEBC, evinced a rationale for entrenchment of the framework in legislation or regulations. It had to be in a structure in which the Commission could be held to account by members of the public. In-house administrative guidelines were hardly such framework. It was contended for the Commission that being an independent body with an important mandate, IEBC should not be handicapped from carrying out its functions because of failure by Parliament to enact legislation. That argument however ignored the power of IEBC to make regulations to enable it carry out its functions effectively. That power was provided for under section 31 of the IEBC Act.
384. From the standpoint that there should be pubic involvement in the formulation of such important regulations, that was a more attractive route than simply developing administrative guidelines because under the Statutory Instruments Act, 2013 any proposed guidelines would not escape the requirement for public participation under section 5 of the Statutory Instrument Act on consultation before making statutory instruments.
385. Sufficient public participation was a cornerstone to making of statutory instruments that statute through, elaborate provisions, required a regulation making authority to furnish proof that there had been sufficient public consultation in line with articles 10 and 118 of the Constitution.
386. IEBC had previously used the power of section 31 of the IEBC Act to make at least three sets of regulations; Independent Electoral and Boundaries Commission (Fund) Regulations; Independent Electoral and Boundaries Commission (Staff Car Loan Scheme) Regulations, 2016 and; Independent Electoral and Boundaries Commission (Staff Mortgage Scheme) Regulations, 2016.
387. Neither the trial court nor the instant court was told why IEBC did not use the same power to enable it to efficiently and transparently carry out an important mandate directly given to it by the Constitution, that of verification of signatures under article 257(4).
388. The administrative procedures developed by IEBC were statutory instruments within the meaning of section 2 of the Statutory Instrument Act but were a nullity as they breached the Statutory Instruments Act for want of parliamentary approval and publication, and without public participation under heading B which was on verification of signatures. The guidelines set out 23 procedures and some of them were not on the actual process or exercise of signature verification. Those were typically in-house and would be to prepare and equip IEBC for the exercise. Some provided guidance on the manner of signature collection like that on the form to be used for signature collection. Others were on the actual process of signature verification.
389. The power granted to IEBC under section 31 of the IEBC Act to make rules and regulations was one to be employed by the Commission to enhance its efficacy. That power was not to be neutered. It was donated for good reason. The administrative guidelines comingled matters that would ordinarily not require rules and regulations and those that fell within the contemplation of section 31, yet because of the latter, the guidelines should not be permitted to be enacted without public participation and the rigours of approval and publication under the Statutory Instrument Act.
390. The entire administrative guidelines had to be construed as an instrument to which the Statutory Instrument Act was applicable. It seemed that IEBC itself recognised the need for public participation in formulating the administrative guidelines and gave the impression, nevertheless without proof, that it had been conducted.
391. As such the holdings of the High Court that a legal/regulatory framework for the verification of signatures under article 257(4) of the Constitution was required; a legal/regulatory framework required did not exist and the convergence of existing statutes did not adequately form the requisite regulatory framework required under article 257(4) of the Constitution; the administrative procedures developed by the IEBC were invalid for the following reasons: they were developed without public participation as required by article 10 of the Constitution; they were in violation of the Statutory Instruments Act for want of parliamentary approval and want of publication and they were developed without quorum.
392. There was a disparate need for a legal framework. Part V of the Elections Act made provision on referendum. But when one looked at those provisions it was clear that it covered the period after a proposed Bill had been approved by one or both houses of Parliament. Prior to that would be other critical stages of the popular initiative. Those were collection of signatures of at least one million registered voters, verification of that support by IEBC, placing of a draft Bill before county assemblies and then before both Houses of Parliament. Part V did not provide a framework for those phases.
393. The Elections Act evidently lacked that framework. Central to the process was that it had to be an authentically citizen-driven process and so public participation at every phase of the process was critical. There was need to have public involvement entrenched in those stages by legislation. Legislation that, for instance, prescribed the nature and scope of public involvement at the signature collection phase avoided leaving it to the discretion of the promoter. That was but a demonstration of the need for legislation. So, while the Constitution provided the overall framework, national legislation would flesh out and enrich the process.
394. The High Court had to be commended for holding that notwithstanding the absence of an enabling legislation as regarded the conduct of referenda, such a constitutional process could still be undertaken as long as the constitutional expectations, values, principles and objects were infused at every stage of the process. The absence of enabling regulation or regulations should not suspend or compromise the enjoyment of a constitutional right. The Constitution led the way on that principle
395. Article 88(4) of the Constitution directed IEBC to undertake continuous voter registration and a regular revision of the voter’s roll. In addition, it was mandated to carry out voter education. Those responsibilities were reiterated in section 4 of the IEBC Act.
396. The High Court made at least three findings in respect to the requirement for voter registration. First, IEBC had not demonstrated that it was carrying out continuous voter registration. Neither had it proved that it was reviewing and updating the register of voters and lastly IEBC had failed to provide evidence that it had sensitized citizens that there was continuous voter registration. It was explicit that the court made findings in respect to the obligatory nature of continuous voter registration, the duty of IEBC to review and update the register of voters and the requirement for continuous sensitization of the public of continuous voter registration.
397. There was a connection between updating of the register of voters and continuous voter registration. Section 5(1) of the IEBC Act which required IEBC to register voters and revise the register of voters at all times save in the periods expressly excluded by the provision was in tandem with article 88(4) of the Constitution and the functions of the IEBC specified in section 4 of the IEBC Act. The connection between the continuous registration of voters and the continuous revision of the register was apparent in section 5(5) which required that information relating to the registration of the voter be transmitted to the Commission for inclusion in the register of voters, to inter alia, facilitate revision of the register. So that the revision of the register of voters was carried out at all times as dictated by statute, the information relating to the registration of the voters needed to be relayed regularly by the registration officer (or any authorized officer) to the Commission.
398. The High Court was entitled to consider and make findings in respect to the two elements of registration. By dint of section 5(1)(ba) of the Elections Act, No. 24 of 2011, registration of voters and revision of the register of voters, in case of a referendum, was barred between the date of the publication and the date of the referendum. As a requirement of article 256(5), IEBC had to conduct a national referendum for approval of a Constitution Amendment Bill within 90 days of receipt of the Bill from the President. In that period, it had to publish the question to be determined by the referendum and also hold the referendum. Between those two dates, registration of voters and revision of the register was not permitted by law. Any citizen who intended to vote at the referendum would have to be registered before the publication of the referendum. The infrastructure for continuous voter registration and revision of register of voters was robust and operational at all times.
399. IEBC had not proved that it was discharging its constitutional and statutory mandate of continuously registering voters and reviewing the register of voters. At the plenary hearing of the Appeal, IEBC complained that the High Court improperly shifted the burden of proof to it when it rested with the petitioner. It was true that the petitioner simply made an allegation that IEBC was not registering voters and updating the register of voters as mandated in law.
400. If IEBC thought the allegation did not need to be confronted with any evidence as it was unproved, then it did not need to lead any evidence in rebuttal. Instead, however, IEBC asserted that it continuously registered voters at its constituency offices to register those who were not registered up to the 2017 General Elections. Having offered to make that explanation, without complaining that the allegation by the petitioner was unproven, then IEBC was under an obligation to support its assertion with evidence. Whether or not it was conducting continuous voter registration or regularly revising the register of voters were matters within the special knowledge of IEBC and it should have had little difficulty in discharging that burden.
401. The court could not find evidence that IEBC was conducting continuous voter registration or revising the register at all times (the language of section 5(1) of the Elections Act). Or in the very least had created the necessary infrastructure and environment, including sensitization, to enable continuous registration of voters.
402. It would not be a sufficient response to provide proof of revision of the register of voters for a period ending December 31, 2019, about a year prior to the date of the allegation. Regulation 11 of the Elections (Registration of Voters) Regulations required the Commission to prepare a list of changes to the register of voters at constituency level every six months. The revision and updating of the register of voters was different from the Certification of the register of voters which was undertaken upon closure of the registration process as a consequence of operation of section 5(1) of the Elections Act.
403. Even if the court was to find that the High Court had misconstrued the certification of the register at the Kibra by-election to be evidence that the register was last revised then, it could not give IEBC’s case much traction. That was because other than the matters arising from the Kibra by-election, the Trial Court relied on other aspects of the case to draw the conclusion that IEBC had failed in its duty to conduct continuous voter registration.
404. Continuous voter registration ought to be carried out in every constituency and was envisaged as a national wide exercise. However, the High Court decree for a national voter registration exercise could be construed to require massive voter registration in the correct sense explained by IEBC. The grievance of IEBC would then be well founded. That said, if IEBC had not been carrying out continuous voter registration as expected of it by the Constitution and statute, then qualified but unregistered voters could be disenfranchised unless a massive registration exercise was undertaken before the referendum was held. That was not to say that a massive voter registration drive was obligatory before a referendum was held but that in the circumstances of the instant case, where IEBC failed to demonstrate that it had been conducting continuous voter registration, such a drive would be imperative so as not to shut out eligible citizens from having their say at the referendum.
405. An obligation placed on a promoter of a popular initiative was that the initiative had to be supported by at least one million registered voters who signified their support by way of signatures. The Constitution did not prescribe the exact manner in which the promoter ought to go about the business of obtaining the support nor did it dictate that support had to be spread across the country. The promoter could well appeal for support from like-minded people. The promoter must not breach the Constitution and statute.
406. Article 257(4) of the Constitution required the draft Bill to be accompanied by supporting signatures of at least one million registered voters and a reasonable expectation was that at the point of appending his/her signature, the registered voter, in the very least, had information of what he/she was supporting. To insist on a countrywide or full-blown civic education and public participation exercise at the time of collection of signatures was to place a burdensome financial and logistical obligation on the promoter. That in itself would be inimical to a core character of a popular initiative that it should be a truly a citizen driven process. Fortunately, the law on public participation was that the mode, degree, scope and extent of public participation was determined on a case-by-case basis.
407. While it was not the place of the court to prescribe the mode, scope and depth of public participation, that participation had to, in the context of the activity, be demonstrably effective. The signature collection process was not the occasion for those who did not support the initiative to register their disapproval. It was simply a process in which the promoter sought the threshold support from registered voters. Public participation at that stage needed not to be an involved or intricate activity.
408. At the signature collection stage, a voter should be furnished with such information about the draft Bill as would enable him/her decide whether or not to sign in support. Even providing a copy of the proposed Bill in a language understood by the voter could well be sufficient. At that nascent phase of the popular initiative, information about the Draft Bill could be limited to the people from whom the promoter collected the signatures and not the country at large. If a promoter had the ability to collect one million signatures, then it could not be an onerous or unreasonable requirement that the promoter had to provide sufficient information of the draft Bill to the potential supporters.
409. While it was true that in the context of a constitutional amendment process by popular initiative, the participation of the people was envisaged to be at various other stages, namely public participation at the County Assembly, National Assembly and the Senate, and finally in a referendum, it had been demonstrated why some form of public participation was a prerequisite to the collection of signatures in the first stage. A flaw in that stage could not be cured by scrupulous observance of the law in the latter stages. A flaw in one phase of the process rendered the entire process defective.
410. The information that was to be provided to the voters was not all reports of the taskforce and BBI Steering Committee but the draft Bill. The assertion by the petitioner that the promoter posted copies of the draft Bill on the internet instead of providing hard copies was not a generalised assertion or allegation.
411. It was necessary for the petitioner to have provided evidence of at least one person or people who appended their signatures without the expected information. Only then could the burden of proof shift to the BBI Steering Committee, under the provisions of section 112 of the Evidence Act, being the party with special knowledge of how it may have conducted public participation for the persons who appended signatures in support.
412. The BBI Steering Committee was not obliged to do anything until a case was made out against it. The court was unable to agree with the finding of the High Court that there was lack of meaningful public participation and sensitization of people prior to the collection of signatures in support of the Constitution of Kenya Amendment Bill.
413. An amendment to the Constitution could not be said to be unconstitutional merely because it was in conflict with some other article of the Constitution. That was because the effect of the amendment would be, by implication, to repeal the earlier provision.
414. There was however a reason why the substance of a proposed amendment could be called into scrutiny. Alterations or modifications that abrogated the essential features of the Constitution forming the basic structure was the preserve of the primary constituent power while mere amendments in respect to the basic structure could properly be made by people in the exercise of secondary constituent power. A third tier was an amendment in respect of matters not protected by article 255 (1) of the Constitution. That could be effected by Parliament or by the people in exercise of their secondary constituent power.
415. Proposed amendments had to be processed in the track delineated by the Constitution. An examination of the substance of an amendment was inevitable where an issue arose as to whether the correct procedure had been adopted. Neither the County Assemblies nor Parliament could make changes to a constitution amendment bill. It was either a wholesome approval or a wholesome rejection. Once a Bill had been formulated in terms of article 257(2) and (3) of the Constitution, then it was ripe for scrutiny by court because it could signal an impeding contravention of Constitution.
416. The provisions of the Constitution touching on the number of constituencies and their delimitation (article 89) could not be amended in any way other than by popular initiative. How constituencies were delimited had an implication on fair representation and equitable distribution of the country’s resources, matters related to the Bill of Rights. There was a concession that the provisions on delimitation of constituencies were entrenched provisions under the cover of article 255(1) of the Constitution. Amendments that destroyed or abrogated provisions on delimitation had to be put to the people in their primary constituent power.
417. A finding by the High Court was that by directing IEBC on how to perform its functions, the proposed amendments subverted the constitutional edict that IEBC shall not be directed on how to perform its functions. If that holding was correct then the proposed amendment also touched on the independence of IEBC, an independent commission to which chapter fifteen applied and therefore a matter which could only be relooked at by the people in exercise of their primary constituent authority. Articles 88(5) and 252(1) of the Constitution were to the effect that the IEBC was independent and was to exercise its powers and perform its duties in accordance with the Constitution and national legislation.
418. The Constitution directed IEBC to review the names and boundaries of constituencies at intervals of not less than 8 years and not more than 12, but any review was to be completed at least 12 months before a general election of members of Parliament. The criteria for review was specifically set out in the Constitution at articles 89(5) and (6). Article 89(7)(a) underpinned public participation and required IEBC to consult all interested parties in their function of reviewing constituency boundaries.
419. Section 1(2) of the Bill identified the counties where the additional seventy constituencies would be located. In doing so, delimitation in respect to the 70 constituencies was in a sense pre-set without the involvement of IEBC as they were already allocated to counties set out in the schedule. That abridgment of the functions of IEBC was done in the transitional and consequential clauses by suspending or modifying the provisions of articles 89(2), 89(5), 89(6) and 89(7) in respect to the additional 70 constituencies.
420. Provisions in an Act or other instrument were provisions which spelled out precisely when and how the operative parts of the instrument were to take effect. The function of a transitional provision was to make special provision for the application of legislation to the circumstances which existed at the time when that legislation came into force. That would hold true as well to transitional provisions in a Constitution.
421. In employing the use of transitional and consequential clauses, the promoters of the Amendment Bill wanted to achieve a certain end without amending the substantive provisions which set out the criteria and manner in which IEBC should delimit constituencies. The transitional and consequential clauses of the impugned amendment bill was, really, a special purpose vehicle for ensuring that the seventy additional constituencies were delimited within the specified counties without following the procedure and yardstick set out in article 89. Once that was achieved, the clauses would have served their purpose and the provisions of article 89 reverted.
422. The amendments did not seek to redefine the functions of IEBC in regard to constituency delimitation which were well set in article 89 but to suspend their operation so as to achieve a preconceived outcome which IEBC left to function independently could not guarantee. That seemed to be a disingenuous use of the transitional and consequential provisions to stifle the independence of IEBC and to abridge the existing law, albeit, only in the delimitation of the seventy constituencies.
423. The question on whether to add or subtract constituencies was a political question and for the proposal to amend article 89(1) to increase the constituencies from 290 to 360 was not faulted by the High Court and could not be faulted. But if, as well, the question of delimitation of boundaries of constituencies was purely a political question, why not simply propose for the amendment of the provisions of article 89 to remove the manner and criteria for delimitation of boundaries altogether so that the provisions of the Constitution would provide not only for the number of constituencies but also their names and boundaries? Why not propose to make that a permanent feature of the Constitution instead of employing the use of transitional and consequential clauses to temporarily claw back on the functions of IEBC and to suspend some of the criteria for delimitation expressly set out in article 89 of the Constitution?
424. Since the transitional and consequential clauses abrogated, not merely amended, certain provisions of article 89 of the Constitution (even on transient basis), they ought to be subjected to the test of the people in exercise of their primary constituent power.
425. The procedure and process that the promoters of the Constitution of Kenya Amendment Bill had used to create, apportion, and delimit the proposed seventy new constituencies amounted to an impermissible extra-textual amendment to the Constitution by stealth. It had the effect of suspending the operation of article 89 of the Constitution without textually amending it. The implications of such a scheme if allowed were at least two-fold. First, it created a constitutional loophole through which the promoters could amend the basic structure of the Constitution without triggering the primary constituent power. Second, such a scheme created a constitutional hatch through which future promoters of constitutional amendments could sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.
426. That was not the first time the provisions of article 89 of the Constitution had been suspended by way of a transitional and consequential clauses. The purpose of section 27 of the Sixth Schedule to the Constitution was threefold: -
a. It provided for the delimitation of boundaries by the existing interim Independent Boundaries Commission pending the formation of IEBC.
b. It protected the loss of constituencies existing on the effective date of the Constitution in the cause of the first review of constituencies.
c. It exempted the first review exercise from the requirement that it had to be completed at least 12 months preceding the first elections under the new Constitution because of the tight timeline between the effective date of the then new Constitution and the expected date of the first elections in the new order.
427. The noble object of those provisions was to enable and smoothen the transition from the old constitution order to the new one. Important, as well, was that the criteria for determination of constituency boundaries was neither suspended nor were the newly created constituencies pre-allocated like what the impugned Bill proposed. The functions of the body charged with delimiting constituencies were not curtailed.
428. The manner in which the proposed amendment was to be submitted to the people in referendum was not specified by the provisions of the Constitution. However, part V of the Elections Act had provisions on referendum and if there was any doubt that those provisions where intended to cover referenda other than that under articles 255 and 257 of the Constitution, then the doubt was removed by section 49 and 54 of the Elections Act which placed the responsibility of framing the referendum question or questions to be determined during the referendum on IEBC. In that instance, IEBC had not received the request to hold the referendum and occasion had not arisen for it to discharge its responsibility of framing the question or questions. Further, it had not been suggested that IEBC had already determined the manner or formula in which it would frame the question or questions in respect to the referendum touching on the impugned Bill, if it got there.
429. The petitioners did not have an actual grievance against IEBC either arising from the conduct of IEBC or one which was threatened. There was no live controversy that required the High Court to pronounce itself on.
430. Expectations arising from the reasonable belief that a private person or public body would adhere to a well-established practice or would keep a promise were legitimate expectations.
431. The principles applicable to a legitimate expectation were as follows:
a. there had to be an express, clear and unambiguous promise given by a public authority; the expectation itself had to be reasonable;
b. the representation had to be one which it was competent and lawful for the decision-maker to make; and
c. there could not be a legitimate expectation against clear provisions of the law or the Constitution.
432. The Kenya National Union of Nurses (KNUN) (the 15th respondent) bore the onus of proving that there was a clear and an unambiguous promise by the BBI Taskforce that the proposed health commission would be included in the Constitution Amendment Bill. The mandate of the Steering Committee was to conduct validation of the Taskforce report and then to propose administrative, policy, statutory or constitutional changes after taking into account any relevant contributions made during validation.
433. There was no evidence of a promise by the Taskforce or Steering Committee to the 15th respondent that what was recommended would be included in the proposed administrative, policy, statutory or constitutional changes. On that single failure to prove a promise, the entire proposition of legitimate expectation could go no further. In similar vein, the cross appeal failed.
434. The appellant criticized the High Court for failing to order that the President makes good public funds used in the BBI constitutional amendment process. Such an order was not tenable as the President was not duly served with the petitions and no orders could possibly be made against him, not in the least, because doing so would be to condemn him unheard.
435. At the Appeal, it would be expected that the appellant would point out the evidence that the High Court disregarded. In an attempt to do so, the appellant faulted the High Court for failing to take judicial notice of the surge in the incidence of Covid-19 associated with political rallies led by President Kenyatta and Hon. Raila Odinga to popularize the impugned Bill. The law was that no fact of which the court could take judicial notice of needed to be proved (section 59 of the Evidence Act).
436. The matter raised did not fall in that category. There was need for empirical evidence that correlated a surge of Covid-19 infections with the rallies called to popularize the impugned Bill. In the absence of that evidence the assertion remained unproved.
437. The issue was not that the proposed referendum was expensive but that by holding it, it took away resources from health services. The relevant evidence would not be on the expense of the proposed referendum but that the referendum would be funded from resources earmarked for health services. No such evidence was forthcoming.
438. With respect to whether or not Parliament was still properly constituted in the face of that advise of the former Chief Justice, that was a matter that was ultimately related to the issue of whether or not the President should dissolve both Houses. It was a live issue in Petition No. 302 of 2020.
439. The Access to Information Act did not oust the provisions of article 10 of the Constitution. The High Court decision was that the petitioner had not exhausted the statutory avenue available before seeking the intervention of the court. The judicial system was already clogged with thousands of undecided cases. It would be imprudent to burden it further with matters that could be ably resolved elsewhere.
Per F. Sichale, JJA
440. Kenya’s constitutional past was dark and the pre-2010 Constitution was misused and abused for selfish political gains. The power to amend the Constitution was provided for in section 47 of the pre-2010 Constitution and that power was reposed in Parliament to the exclusion of the proverbial Wanjiku. Section 47 of the pre-2010 Constitution, unlike the 2010 Constitution provided for a Parliamentary process and there was no provision of amendments by a popular initiative. The provisions of section 47 of the pre-2010 Constitution were akin to the provisions of article 368 of the Indian Constitution which explicitly reposed in Parliament the power to amend the Constitution by a simple majority.
441. Like the Indian Constitution, the pre-2010 Constitution did not bar amendability. It was against the backdrop of the Indian Constitution where there was no provision for amendment of the Constitution by the constituent power but the power to amend being reposed solely in Parliamen; that the Kesavananda Bharati vs. State of Kerala, 1973 4 SCC 225: A/R 1973 SC 1461 (the Kesavananda Case) decision was made. The position obtaining in India in so far as it related to its Constitution was not any different from the position obtaining in Kenya before the promulgation of the 2010 Constitution on August 27, 2010. The Indian Parliament had the exclusive power to amend the Constitution. Kenya’s Parliament had similar power to amend the Constitution, prior to the 2010 Constitution.
442. The situation obtaining in Kenya after the promulgation of the Constitution of Kenya, 2010 was totally different. There were explicit provisions on the amendments of the Constitution as well as in-built mechanism which limited Parliament in amending the Constitution. There were clearly spelt out entrenched provisions and the methodology to amend the entrenched provisions was also clearly spelt out. The Constitution itself anticipated that it could be amended and provided for its own amendment procedures. In the same Constitution, there were strictures as regarded entrenched provisions which required a referendum and ones that did not. The ones listed in article 255 (1) (a) –(j) required an approval in a referendum. There was further provision in article 255 (3)(a) and (b) as related to amendments without a referendum.
443. Whereas the High Court correctly found that there were no explicit provisions in the Constitution of Kenya 2010 barring amendments, the judges erred in finding that the bar to amendment was implicit. The repealed Constitution did not have provision for the amendment of the Constitution by way of a popular initiative, and neither had Parliament recognized the notion of implicit unamendability. It was Njoya & Others vs. Attorney General & Others  that paved the way for the amendment of the pre- 2010 Constitution by constituent power via a referendum. That was in recognition of the supremacy of the sovereignty of the people who then exercised that sovereignty in the referendum that birthed the 2010 Constitution. The Njoya decision was Kenya’s Kesavananda moment and that could have been as a result of the late Presidents Kenyatta and Moi’s far-reaching attempts to amend the Constitution and the need to curb those excesses.
444. The clamour for a new Constitution was long and arduous; that notwithstanding, when Kenyans finally bequeathed themselves a new Constitution, they ensured that it would be free from hyper-amendments. Following the recommendations of the CKRC, Chapter 16 of the Constitution was dedicated to amendment of the Constitution. The clear text and language of Chapter 16 was that there were explicit provisions in the Constitution providing for amendment and there was no reason to look outside the Constitution and import the Basic Structure doctrine on the basis that the Constitution had the unspoken language and/or implicit provisions. It was slightly more than ten (10) years since the Constitution was promulgated and to the credit of the drafters of the Constitution, the 21 attempts to amend it fell by the wayside.
445. The framers of Kenya’s Constitution balanced between flexibility and rigidity. Accordingly, a balance had to be struck to avert violent revolutions against abusive amendments. The framers of the Constitution struck that balance between stability and instability by providing for amendments in Chapter 16 of the Constitution. That being the supreme law of the land, it was desirable to give it a more stable character and free it from hyper amendments. That was important as no society was static and what was good for one generation would not necessarily be good for the next.
446. Future generations could not possibly be shackled by what was considered noble at the time. The High Court concluded that whatever was amendable could be decided on a case-by-case basis. That posed difficult questions regarding who would carry the fact intensive determinations and the stage of doing so in the process of constitutional change. Since Wanjiku did not have the luxury of approaching the Supreme Court under article 163(6), how would Wanjiku get to have an issue subjected to fact intensive determination?
447. Judges being human, were not infallible and they should not arrogate unto themselves the unfettered power to validate or invalidate amendments on the basis that there were eternal clauses from their preferred reading of the Constitution. It was not correct to elevate judges to the status of demigods. Just as it was possible to have a distrustful and rogue Parliament, it was also possible to have a rogue and distrustful judiciary, more so bearing in mind that the latter were not elected as the people’s representatives. The contest of what was amendable and what was not should not be left to be a matter of judicial innovation. Judges, just like Parliamentarians could not assume supremacy over all others as indeed, it was the people who were sovereign.
448. The people of Kenya in the exercise of their constituent power in a referendum voted for the amendment /overhaul of the repealed Constitution of Kenya, 1969. Kenyans recognized their constitutional right to amend the Constitution, as long as that was done in the manner provided in the Constitution of Kenya, 2010. If perchance the framers of the Constitution had intended that there be a limitation on the power of amendment, they would have provided as much. There were no such limitations in Chapter 16 of the Constitution.
449. There was no clause in the Constitution of Kenya, 2010 that prohibited amendments but there was an inbuilt mechanism that provided safeguards. The High Court erred in imposing another hurdle on the basis of an implied provision anchored on the spirit or overarching theme of the Constitution. The High Court erred in invoking the spirit of the Constitution without the need to do so as the language of the Constitution was clear on amendments. The findings of the High Court were not supported by the context, structure and history of the Constitution. The appellants’ appeal on the non-applicability of the basic structure was for allowing subject, however, to the views of the majority members of the Court of Appeal bench.
450. The process leading up to the formulation of the Constitution of Kenya (Amendment) Bill, 2020 was largely driven by the executive and it was difficult to truncate the BBI Taskforce and the BBI Steering Committee from the submissions of the letter by the promoters of the Constitution of Kenya (Amendment) Bill, 2020. One thing led to the other until the culmination of the letter dated November 18, 2020 to the IEBC that sought approval of the format to be used in the collection of signatures. Article 256 and 257 of the 2010 Constitution provided for amendments by way of a parliamentary initiative and a popular initiative. The proposals by Hon. Junet Mohamed and Hon. Dennis Waweru would best have been channeled through a Parliamentary process as they were heavily laden with the executive arm. The route of popular initiative was not open to them as that was not a Wanjiku driven process.
451. The balancing of the rights of a sitting President posed a challenge as it was difficult to make a demarcation when a President was acting in his personal capacity vis-à-vis his official capacity. Indeed, the High Court having acknowledged that the President was not the promoter, coined the term ‘initiator’, a term not anywhere in the constitutional amendment process. By conduct, there were limitations placed on public officers as to what they could do or not do. Therefore, the President could not be a Wanjiku for the purposes of article 257 of the Constitution. The President could not initiate changes to the Constitution through a popular initiative.
452. The Taskforce and Steering Committee were borne out of noble intentions of the President. Both were ad hoc Committees appointed by the President for purposes of advising him on the discharge of his constitutional mandate in fostering unity in the nation. The President acted within his powers under article 131 and 132 of the Constitution in appointing a taskforce such as the BBI Taskforce. The BBI Taskforce and the BBI Steering Committee were not illegal outfits.
453. Whatever the President was alleged to have done was in the exercise of his powers, conferred to him by the Constitution. Therefore, he could not be sued in his personal capacity. Article 143 afforded immunity to a sitting President for anything done or omitted to be done in the discharge of their constitutional mandate. However, If the action complained of was not as a result of the discharge of official duties, then the President was open to civil proceedings even during the term of his office.
454. The IEBC was an Independent Constitutional Commission established pursuant to Chapter 15 of the 2010 Constitution. A Commission could operate with a composition of three (3) members being the minimum number provided by the Constitution. A Commission with 3 members was constitutionally compliant. To that end, no one faulted the Commission as currently constituted with only three (3) members as being unconstitutional. To require a Commission that was Constitutionally compliant (by having a composition of three members) to have a quorum of 5 members would be absurd.
455. Paragraphs 5 and 7 of the Second Schedule to the Independent Electoral and Boundaries Commission Act having been repealed, there was nothing for the IEBC to fall back to. The issue of verification of signatures was not a matter requiring a policy decision. The verification of signatures was not a matter that arose out of the resolution or decisions made by the commissioners at a meeting of the Commission but one dictated by the operation of the law because the process of verification of signatures was not a policy decision to require the IEBC to be quorate. Performing such mundane tasks as the continuous education of voters would not require the Commission to be quorate, bearing in mind that the Commission had a Secretariat that undertook its day-to-day operations. The verification of signatures was not null and void for lack of quorum and neither was it a function that required a policy decision.
456. Article 257(4) did not envisage a forensic examination on the authenticity of the signatures, more so bearing in mind that IEBC did not have a repository of signatures. Even if it had one, it would be a herculean task to undertake. For instance, the verification would require that IEBC obtained known signatures of those who appended their signatures to the initiative. The known signatures would then be subjected to forensic investigation by hand-writing experts. Given that the IEBC published the list of those said to have supported the initiative, what was so difficult for one to say that they did not append their signatures? To place near impossible demands on IEBC would greatly cripple the operations of IEBC.
457. Article 88(4) (a) required IEBC to undertake continuous registration of citizens as voters. That was an on-going process and it was upon every Kenyan who attained the age of eighteen (18) to register as a voter. It was the same registered voters who voted in an election that also voted in a referendum. Indeed, the 1 million persons who supported an initiative were registered voters. Further, there was distinction between the time and place of an election vis-à-vis the time and place of a referendum in that the 2010 Constitution provided for an election cycle. Elections were carried out after every five (5) years. Not so when it came to a referendum, as there was no defined time when a referendum was to be held. The fact that IEBC carried out continuous voter registration, it could not be said that they failed to carry out nationwide voter registration when the time and place of a referendum, unlike an election, was not known and could not be defined with specificity.
458. Article 89(1) of the Constitution was amenable to amendment. Once it was appreciated that Wanjiku could seek to amend any provisions of the Constitution as long as the procedure set out in articles 255 – 259 of the Constitution was adhered to, then Kenyans had the right to reduce or increase the number of constituencies to ensure there was no underrepresentation. They could even vary the mandate of the IEBC. Further, the functions of the IEBC were spelt out in section 4 of the Act.
459. The Constitution of Kenya (Amendment) Bill, 2020 had not sought to make boundaries or fix the limits of a boundary but to increase the number of constituencies. The allocation of increased constituencies was not delimitation. Clearly, the IEBC had no role in the creation of boundaries. The Second Schedule to the Constitution of Kenya (Amendment) Bill 2020 in seeking to determine the creation of 70 more constituencies was not unconstitutional.
460. There was legislation pursuant to the Constitution, the Independent Electoral and Boundaries Commission Act and the Elections Act to govern the collection, presentation and verification of signatures and a legal framework to govern the conduct of referenda. The IEBC’s existing statutory framework as well as the administrative procedures established therein were sufficient for the purposes of carrying out a referendum. Notwithstanding the fact that the Referendum Bill No. 11 of 2020 and the Referendum Bill No. (No.2 of 2020) Bills had not been passed and fully debated by Parliament, it could not be said that there was no regulatory framework to govern the conduct of a referenda. There was a legal framework to govern the collection, presentation and verification of signatures as well as the conduct of referenda.
461. The High Court found that Uhuru Kenyatta (the President) was sued in his personal capacity and could not be represented by the Attorney General. If that was the case, the starting point would have been to ascertain if Uhuru Kenyatta (the President) was served. To find that Uhuru Kenyatta (the President) knew or ought to have known of the suit was to delve into the arena of conjecture. It was a cardinal principle of natural justice that a party could not be condemned unheard. Article 50 of the Constitution provided for the right to a fair hearing.
462. The President was also entitled to equality and freedom from discrimination as per the dictates of article 27(1) of the Constitution. The right to be heard was enshrined in the 2010 Constitution and no one could be deprived of that right. It did not matter that Uhuru Muigai Kenyatta was the President of the Republic of Kenya. He was entitled to the protection of the law as the law protected the weak as well as the strong. It was wrong for the High Court to have proceeded with the hearing and thereafter make adverse findings against Uhuru Kenyatta without ascertaining whether he was served, either with the petition and/or the subsequent hearing notice.
463. There was no evidence that provided that holding of public rallies attended by thousands of people amounted to violation of article 43 (1) (a) of the Constitution. The manner in which that article was violated was not pleaded with specificity/reasonable precision. Similarly, as regards the amount of expenditure involved, there was no evidence that the expenditure amounted to a constitutional violation. Consequently, the cross-appeal on that issue was dismissed. Finally, as to whether the petitioners had made out a case for disclosure and publication of the steering committee’s financial information and in absence of any evidence that the respondent had requested from the appellants for such information and the same was declined, the High Court could not be faulted for declining to issue such orders. The 76th respondent’s Cross-Appeal was dismissed in its entirety.
464. If the 15th respondent would like an amendment to the 2010 Constitution to have itself included as an Independent Commission, then they could take advantage of the provisions of article 257 of the Constitution. They could not ride on the initiative of another and complain that their views were left out. In any event, the fact that their views were contained in the BBI Taskforce did not create any legitimate expectation on their part. Their appeal was devoid of merit and was accordingly dismissed.