Petition 12, 11 & 13 of 2021 (Consolidated)

Case Metadata
Case Number:	Petition 12, 11 & 13 of 2021 (Consolidated)
Parties:	Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae)
Date Delivered:	31 Mar 2022
Case Class:	Civil
Court:	Supreme Court of Kenya
Case Action:	Judgment
Judge(s):	Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Citation:	Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)
Advocates:	Learned Counsel, Dr. John Khaminwa, appeared, [140] Learned Counsel, Dr. John Khaminwa, appeared, [140] Learned Counsel, Dr. John Khaminwa, appeared
County:	Nairobi
Advocates:	Learned Counsel, Dr. John Khaminwa, appeared, [140] Learned Counsel, Dr. John Khaminwa, appeared, [140] Learned Counsel, Dr. John Khaminwa, appeared
Case Summary:	Supreme Court declares the Constitution (Amendment) Bill, 2020 unconstitutional. Brief facts Intent on the implementation of the proposals in the Building Bridges Initiative Taskforce Report, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee). On completing its mandate, the BBI Steering Committee presented its report and annexed to the report were a number of documents including a Constitution of Kenya (Amendment) Bill, 2020 (Amendment Bill) and proposed legislative amendment Bills. Subsequently, the Building Bridges to a United Kenya, National Secretariat (the BBI National Secretariat) put in motion the process of collecting signatures in support of the Amendment Bill. Upon collection of the requisite number of signatures, the BBI National Secretariat submitted the same together with the Amendment Bill to the Independent Electoral and Boundaries Commission (IEBC) for verification and thereafter, submission to the county assemblies and Parliament for approval. While the amendment process was ongoing, eight (8) petitions, which were later on consolidated, were filed before the High Court challenging the constitutionality of the process which resulted in the Amendment Bill and the contents. The issues raised in the consolidated petition included; whether the basic structure doctrine and its corollary doctrines were applicable in Kenya; whether by virtue of the doctrine(s) there was an implied limitation to the powers of amending the Constitution; and whether an amendment to the Constitution through a popular initiative could be originated by State actors, in particular, the President. The following issues were also placed before the High Court; whether the creation of 70 additional constituencies in the Second Schedule to the Amendment Bill was unconstitutional; whether IEBC, which at that time was composed of three commissioners, had the requisite quorum to consider and approve policy matters relating to verification of signatures in support of the Amendment Bill and conduct of a referendum; and whether civil court proceedings could be instituted against the President or a person performing the functions of the office of the President during their tenure of office. The High Court allowed the consolidated petitions in part and held that; the basic structure doctrine was applicable in Kenya; the basic structure limited the amendment power set out in articles 255 – 257 of the Constitution; 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. Civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution. The High Court further held that; the President did not have authority under the Constitution to initiate changes to the Constitution; the entire BBI process culminating with the launch of the Amendment Bill was done unconstitutionally; the IEBC did not have quorum stipulated by section 8 of the Independent Electoral and Boundaries Commission Act (IEBC Act) as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum including the verification of signatures in support of the Amendment Bill; and that the Second schedule to the Amendment Bill in so far as it purported to direct the IEBC on its function of constituency delimitation was unconstitutional. Dissatisfied with the determination of the High Court, four appeals were filed before the Court of Appeal. The majority of the Court of Appeal partly allowed the appeal and held that; the basic structure doctrine was applicable in Kenya; the basic structure doctrine limited the amendment power set out in articles 255 – 257 of the Constitution; the basic structure of the Constitution could only be altered through the primary constituent power which had to include four sequential processes; civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution; and the President did not have authority under the Constitution to initiate changes to the Constitution; and that the Amendment Bill was unconstitutional and a usurpation of the people’s exercise of sovereign power. The Court of Appeal further held that; the IEBC did not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum; the Second Schedule to the Amendment) Bill in so far as it purported to: predetermine the allocation of the proposed additional seventy constituencies, and to direct the IEBC on its function of constituency delimitation, was unconstitutional. Aggrieved by the decision of the Court of Appeal, the instant appeal was filed at the Supreme Court. Issues Whether the basic structure doctrine and the four-sequential steps for amendments to the Constitution were applicable to Kenya. What constituted primary constituent power and whether the basic structure of the Constitution could only be altered through the exercise of the people's primary constituent power. What was required to be done in the four stages of the amendment process under the popular initiative route? Whether the basic structure doctrine applied to amendments to the Constitution made by Parliament and/or made by popular initiative. Whether a constitutional amendment could only be initiated by Parliament through a parliamentary initiative under article 256 of the Constitution or through a popular initiative under article 257 of the Constitution; What was the role of the President in a constitution amendment process and whether the President or State organs or institutions could initiate or promote a constitutional amendment process through the popular initiative route provided in article 257 of the Constitution? Whether exclusion of the Presidency and other State institutions from the initiation of a constitution amendment process through popular initiative violated the political rights protected under article 38(1) of the Constitution. Whether civil proceedings could be instituted against the President or 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. When did the obligation of IEBC to conduct voter education arise in a constitution amendment process? Whether IEBC had an obligation to ensure that the promoters of a constitution amendment Bill through popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to county assemblies for approval. Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020, which provided for proposals relating to the creation of 70 new constituencies and the timelines and the criterion for the delimitation of their boundaries, was unconstitutional. What were the guiding principles for public participation and who bore the burden of proof where there was an allegation of lack of public participation? Whether the IEBC was legally constituted when composed of the minimum number of three commissioners. Whether IEBC with three commissioners had the requisite quorum to undertake the verification of signatures in the process of a constitution amendment via popular initiative. What was the criteria for recognition that legal principles had met the threshold for being a doctrine and whether the basic structure of the Constitution had met the criteria for recognition as a doctrine? What was constitutional dismemberment and what did it entail? Whether article 255(1) of the Constitution provided for the dismemberment of the Constitution. Whether the Constitution of Kenya (Amendment) Bill, 2020, provided for the amendment of the Constitution or for the dismemberment of the Constitution. Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional in purporting to delimit constituency boundaries without the input of IEBC and without amending article 89(1) and (2) of the Constitution and without public participation. Whether an amicus curiae in proceedings at the court of first instance could be converted to a party at an appellate stage. What was the rationale for the doctrine of ripeness and whether the issue about whether, at a referendum, single or multiple questions, were to be put to the people by the IEBC was ripe for determination? What was the role of the court in the constitutional amendment process? Whether single judge benches were bound by decisions of multiple judge benches of similar status. What was the approach to be taken where a High Court in a later case disagreed with an earlier finding by another bench of the High court? Relevant provisions of the law Constitution of Kenya, 2010 Article 143 - Protection from legal proceedings Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office. Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anythingdone or not done in the exerciseof their powers under this Constitution. Where provision is made in law limiting the time within which proceedings under clause (1) or (2) may be brought against a person, a period of time during which the person holds or performs the functions of the office of the President shall not be taken into account in calculating the period of time prescribed by that law. The immunity of the President under this Articleshall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity. Article 250 – Composition, appointment and terms of office Each commission shall consist of at least three, but not more than nine, members. 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 popularinitiative shall deliverthe 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 registeredvoters. 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 countyassembly 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). Held Per MK Koome, CJ: 1. A person admitted as amicus curiae was not a party to the proceedings but acted as a friend of the court and the extent of their participation in the proceedings was limited by the court. Therefore, amicus curiae could not be converted to a party even at the appellate stage. Having joined the proceedings as amicus curiae one remained so at every stage of litigation. Consequently, amici curiae who had been joined at the High Court should not have been made parties in the appeals at the Court of Appeal. It was precisely for that reason that the court restricted the participation of the 74^th, 75^th, 76^th, 77^th and 78^th respondents in the instant appeal to their written submissions like the 1^st to 8^th amici curiae therein. 2. The instant consolidated appeal was predicated on article 163(4)(a) of the Constitution which clothed the court with jurisdiction to determine appeals from the Court of Appeal on questions of interpretation and application of the Constitution. Although the length and breadth of the pleadings and arguments touched on several Chapters of the Constitution, the common denominator was that they were focused on the interpretation and application of Chapter Sixteen of the Constitution. The two superior courts below had given their elaborate views on how those provisions were to be interpreted and applied and therefore, the instant court’s jurisdiction was properly seized under article 163(4)(a) of the Constitution. 3. The basic structure doctrine and the idea of limits on power to amend a constitution had been considered by courts in several jurisdictions across the world and received mixed reception. What that state of play demonstrated was that the basic structure doctrine had not yet matured into a universal norm of constitutionalism. 4. Given that the basic structure doctrine had not matured into a universal norm of constitutionalism or a doctrine of general application, courts had adopted the approach of evaluating its ‘fit’ within their constitutional systems before accepting its applicability in the various jurisdictions where it had been considered. 5. A reading of the three pathways for amending the Constitution in Chapter Sixteen showed that Kenyans were alive to the historical legacy of the culture of hyper-amendment in the pre-2010 era and sought to tame any abuse of the amendment power. 6. Under the ‘tiered’ design model, amendment rules varied with provisions that were core or fundamental to the constitutional system being placed on a higher tier and made more difficult to amend. The amendment rules under the Constitution adopted that modern ‘tiered’ constitutional design combining the virtues of rigidity and flexibility by having different amendment procedures apply to different parts of the Constitution. The core foundational values, principles and structures of the Constitution had been granted a high level of entrenchment to ensure the stability of the constitutional system. 7. Kenyans were conscious of the core constitutional values, principles and structures that they wanted protected from abusive amendments and they protected them through the entrenched provisions in article 255 of the Constitution. The framers of the Constitution well aware of the basic structure doctrine, chose to ring-fence some key features from flexible amendments; and if it was their intention to provide for eternity clauses or the basic structure doctrine, nothing would have stopped them from so doing. 8. The High Court and the majority of the Court of Appeal failed to appreciate that the ‘tiered’ amendment procedure was one of the options available in the menu of constitutional design options for dealing with the practice of abusive amendments just like other design options that limited amendability (for example, eternity clauses and the basic structure doctrine). Therefore, where Kenyans had selected the tiered amendment procedure as their response to the culture of hyper-amendability, it was difficult to justify that judicially-created fourth pathway of amending the Constitution founded on the basic structure doctrine. 9. There was no justification provided to demonstrate the lacuna in the Constitution and hence, the need to call in aid the basic structure doctrine to enhance the existing tools of interpretation. The pre-2010 history of Kenya was replete with precedents of application of foreign laws and doctrines from the commonwealth and other jurisdictions which was done due to absence of local statutes. Courtesy of the Constitution, the court had sufficient arsenals that included the Constitution’s own canons of interpretation which the court had to exhaust before borrowing from other jurisdictions. 10. Looking at the two pathways for amending the entrenched provisions, amending the core or fundamental provisions of the Constitution was a multi-staged, multi-institutional, time-consuming process that ensured that a constitutional amendment process that touched on the core or fundamental aspects of the Constitution was transparent, inclusive and engendered the participation of the people in democratically deciding on their governance. The tiered amendment process under the Constitution met the set criteria as to when judicially-created basic structure doctrine was inappropriate and undesirable. Therefore, the two superior courts below erred by providing a fourth judicially-created pathway for amending the Constitution which was tantamount to amendment of the Constitution through a judgment. 11. A reading of Chapter Sixteen of the Constitution left the impression that Kenyans desired democratic self-government by opting for a balance of rigidity and flexibility. Chapter Sixteen provided citizens with a highly participatory process through which they could democratically reformulate the core aspects of the social contract. It enabled them to exercise their sovereign power from time to time to reformulate their core commitments and update constitutional norms to conform to their will at any given time and respond to changing social, political, economic and technological needs and circumstances. That ensured that the Constitution reflected the desires of each generation, not past generations, however wise or well- intentioned. 12. Where the amendment processes incorporated a ‘tiered’ process and the core or fundamental commitments of the Constitution could only be amended through an onerous process; that was, multi-staged, involving different institutional actors, deliberative, inclusive and participatory process, and involved ratification by the people in a democratically conducted referendum; then a court ought not to import the idea of a judicially-created basic structure doctrine. That was informed by the view that, in a context like Kenya, the Constitution had an explicitly in-built structure to discourage hyper-amendments and tame likely abuses of the amendment process by stealth or subterfuge. 13. The amendment practice in post-2010 Kenya illustrated that the ‘tiered’ amendment design was an adequate bulwark against abusive amendments. The attempts to amend the Constitution during the first decade of its operation and implementation demonstrated that the ‘tiered’ amendment design had ensured constitutional stability. Judicial protection of implied limitations to the amendment power, such as through the basic structure doctrine, became increasingly required in contexts where the country had a too flexible constitution that could be amended fairly easily. Therefore, while it was appropriate in the pre- 2010 dispensation for the High Court in the Timothy Njoya & 6 others v Attorney General & 3 others, HC Misc Civil Appl No 82 of 2004 (OS) [2004] eKLR (Njoya case) to recognize the basic structure doctrine under the repealed Constitution, there was no such need under the Constitution of Kenya, 2010. The risk of abusive amendments had been tamed by the ‘tiered’ amendment process that entrenched the core or essential provisions through a heightened and elaborate amendment process. 14.Given the subjective nature of historical narratives, courts should endeavour to extract and have in view the complete account of the historical background to the constitutional provision being interpreted. Where a court embraced on account of history that marginalized, excluded, suppressed or omitted some portions of the historical account then such an incomplete or partial account of history was certain to distort rather than illuminate the meaning of the constitutional provision being interpreted hence misleading the court to reaching an erroneous conclusion. 15. The Kenyan people’s desire for a balance between the two extremes of hyper-amendability and ultra-rigidity that informed the drafting of Chapter Sixteen of the Constitution was lost in the superior courts. That happened because the High Court and the majority at the Court of Appeal focused solely on the past problem of hyper-amendability thus losing sight of the Kenyan people’s desire for a balance between rigidity and flexibility that was achieved through the ‘tiered’ design of the amendment provisions in Chapter Sixteen. 16. Since the basic structure doctrine was a constitutional law principle acceptable in just a number of States and not an international law principle, it did not amount to a customary international law principle. Therefore, article 2(5) of the Constitution could not be the basis for founding the applicability of the basic structure doctrine in Kenya. 17. The basic structure doctrine and the four sequential steps for amendments as prescribed by the High Court and the majority of the Court of Appeal were not applicable in Kenya under the Constitution. Any amendment to the Constitution had to be carried out in strict conformity with the normative standards and the provisions of Chapter Sixteen of the Constitution. 18. As far as the President’s actions with respect to the setting up of the BBI Taskforce and the BBI Steering Committee to further the agenda of promoting national unity were concerned, those actions could not be faulted. Indeed, they were laudable acts of statesmanship executed within the ambit of the provisions of article 131(2)(c) of the Constitution. Article 131(2)(c) demanded nothing less from the President as it directed the holder of that venerable office to promote and enhance the unity of the nation. 19. A popular initiative was an exercise of direct sovereign power; and excluded representative institutions (for example, the Legislature, and the Presidency) which only exercised power that was derived or delegated sovereign power as distinguished in article 1(2) and (3) of the Constitution. In other words, it was a means of direct democracy; and indeed, direct democracy could only be exercised by the people not their representatives since that would convolute the form of democracy at play. 20. A popular initiative in a constitutional amendment process ought to be seen as an avenue through which citizens engaged in the exercise of their sovereignty. As such, State organs, not being bearers of direct sovereignty, had no right to activate the popular initiative. The popular initiative was a preserve of the citizens, the Wanjiku, in Kenyan popular lexicon. 21. Chapter Nine of the Constitution laid out in great detail the powers and authority of the President and how such power was to be exercised. In light of the concerns over the concentration of powers in an imperial President that animated the Constitution, implying and extending the reach of the powers of the President where they were not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes. Another reason that supports the finding that the President was not envisaged as an initiator of a popular initiative was the role of the President with respect to entrenched matters listed in article 255(1) of the Constitution. 22. Article 256(5) as read with article 257(10) of the Constitution granted the President a role that could be typified as serving a guardianship role over the amendment process. In that, where a constitutional amendment Bill was presented for assent, the President had the obligation of reviewing the Bill and referring the Bill to undergo the referendum process where it involved matters listed in article 255(1) of the Constitution. Such a guardianship role over theamendment process ought not to be undertaken by a player in the amendment process. The President ought not to be both a player and umpire in the amendment process. 23. Article 255(3)(b) of the Constitution stated that an amendment by popular initiative under article 257 of the Constitution was by the people and Parliament. The Constitution recognized a distiinction between the people and State bodies like Parliament. Therefore, a State body like the institution of the presidency could not fall within the rubric of the people as the very text of the Constitution made that distinction. 24. State institutions and State organs, such as the Presidency, could not initiate a constitutional amendment process using the popular initiative route provided in article 257 of the Constitution. Such State organs or State institutions were precluded from the initiation and promotion of a constitutional amendment process through the popular initiative route. 25. Under article 20(2) of the Constitution, a court was under an obligation to interrogate whether a person alleging a violation of a right was a beneficiary of the right in question. In that context, article 38(1) of the Constitution granted the freedom to make political choices to every citizen. The citizen qualifier spoke to the range of application of the freedom to make political choices, by limiting the right's enjoyment by citizens. Therefore, for one to be a beneficiary of the freedom to make political choices they had to fall within the category of a citizen. 26. While the President when acting in his private capacity as a citizen could enjoy the freedom to make political choices, that right did not accrue to the institution of the Presidency which was a State organ. The Presidency and other State organs did not fall under the rubric of citizens. Therefore, exclusion of the institution of the Presidency and other State institutions from initiation of a process to amend the Constitution through the popular initiative route did not violate political rights protected under article 38(1) of the Constitution. 27. An examination of the evidence before the courts revealed a number of things; for starters President and the National Executive took certain actions which portrayed his role in the initiation and promotion of the constitutional amendments. The President did not do those things as a private citizen. The President was the real force or driving principal behind the Amendment Bill. The promoters erred by pursuing the Amendment Bill as a popular initiative and that rendered the amendment process unconstitutional. 28. Article 89 of the Constitution provided for delimitation of electoral units, a role that was vested in IEBC. Amendments touching on matters falling within the remit of article 255(1) of the Constitution, which were the core or fundamental commitments of the Constitution, ought to be undertaken through a highly participatory and inclusive process. Directly allocating and apportioning constituencies usurped the mandate of IEBC, an independent constitutional commission; removing the possibility of judicial review of the delimitation had an effect on the independence of the Judiciary; the centrality of constituencies as units of political representation in the National Assembly meant that they ought to be apportioned and allocated by a neutral and professional actor; much more so, because malapportioned constituencies had the potential of diluting the power of the vote hence threatening the animating goal of fair and effective representation, which was at the heart of the foundational value of democratic governance enshrined in articles 4(2) and 10(2)(a) of the Constitution. Further, since constituencies were units of social and economic development through allocation of National Government Constituencies Development Fund (NG-CDF) and the recruitment into disciplined forces, such as the Kenya Defence Forces and the National Police Service, delimitation of constituencies had implications on the constitutional values and principles of equity, and social justice enshrined in article 10(2)(b) of the Constitution. 29. The delimitation of constituencies had to be accompanied by a process that was fair and just, which was the golden thread that ran through Kenya’s constitutional order. Therefore, the process of allocating and apportioning constituencies demanded deepened public participation to ensure such a process was not carried out through stealth or subterfuge. Indeed, it was that perspective that informed the specific and in-built requirement of public participation in delimitation of electoral units in article 89(7)(a) of the Constitution. 30. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis. There was no evidence of any form of public participation or deliberation between October 21, 2020 and November 25, 2020 when changes to the BBI Steering Committee Draft Bill, including the Second Schedule, were added. 31. The constitutional threshold of reasonable public participation was not met in coming up with the Second Schedule to the Amendment Bill. The Second Schedule was unconstitutional for want of public participation, a constitutional obligation that flowed from articles 10(2)(a) and 89(7)(a) of the Constitution. 32. The Constitution contemplated immunity of certain officials in the performance of their functions. In addition, the Privileges and Immunities Act, and the Parliamentary Powers and Privileges Act, 2017 provided different scopes of immunities for respective individuals. The immunity of the President was unlike that of the other State actors. The President not only enjoyed functional immunity like all public officials who performed State duties, which protected them from civil liability for official functions, he also enjoyed sovereign immunity as the Head of State and the single representation of the sovereignty of the Republic. 33. It was only sovereign immunity that could immunize anyone against both civil proceedings and criminal liability because any other immunity would be related to official functions and therefore would inherently be a qualified immunity. That was the only explanation why all other public officials would be liable to criminal prosecutions even while in office, but the President would not only not have criminal proceedings instituted against him, but also any criminal proceedings that could have been ongoing would be discontinued in the duration of the President’s tenure of office. 34. It was the sovereign immunity that the Head of State, like all heads of states, enjoyed that made article 143(4) of the Constitution relevant in that, the immunity should be waived by consent of the Republic through ratification of a treaty that forbade such immunity. Likewise, that was also why that immunity (from any proceedings, and especially from criminal liability) was limited to the duration during which the person represented the sovereignty of the Republic, and expired upon expiry of such term. 35. The two superior courts below, especially the majority opinion of the Court of Appeal, relied on the phrase, “in the exercise of their powers under this Constitution” in article 143(2) of the Constitution to emphasize that when the President exercised powers not granted by the Constitution, then the immunity was extinguished. That was one of the interpretations one could obtain from a plain reading of article 143(2), but a purposive interpretation of the phrase yielded a different result. Taking into account the logic and animating idea behind article 143(2) led to an interpretation of the phrase to mean that the immunity was in relation the President's official functions and not personal suits. 36. Part of the President’s role in the performance of his functions was the interpretation of the Constitution as to whether or not it gave him power to perform particular roles. Upon such interpretation, the President either acted or failed to act in the belief that either that power existed or did not exist. It would follow then that if proceedings were to be instituted against the President after an interpretation which was considered to have been a wrong interpretation, then such proceedings would fall within the immunity contemplated by article 143(2) of the Constitution; in that, it would be within the performance of the President’s functions. 37. There was no provision allowing or requiring the President to seek an advisory opinion from the Judiciary before exercising his duties or before determining whether he had power to perform any official act; and in any event, that would generally blur the separation of powers. The Constitution had provided for how the President and the Executive in general could be kept in check through political accountability, with the provision that the President was liable for impeachment under article 145 of the Constitution. The grounds for impeachment listed under article 145(1) included gross violation of the Constitution or any law, commission of a crime under national or international law, or gross misconduct. That meant that there was a clear avenue to check the President’s conduct. 38. An interpretation of the Constitution that resulted to an amendment vide a judgment was tantamount to judicial overreach. The import of article 143(2) of the Constitution with respect to protection of the President from civil proceedings was as follows: Immunity did not extend to acts or omission of a sitting President done in purely personal capacity not connected with his office. The immunity was only in respect to acts or omissions connected with the office and functions of that office. 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. 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. 39. The superior courts below fell in error in their interpretation and application of article 143(2) of the Constitution by holding that 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. Civil proceedings could not 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. Such proceedings could be instituted against the President vide the Attorney General. 40. IEBC being a creature of the Constitution and statute could only discharge a mandate vested in it explicitly by the law. That was a direction given in article 10(2) of the Constitution which identified the rule of law as a national value and principle of governance. IEBC, like all other public bodies, could not by craft of innovation or interpretation extend its powers to include ascertaining whether a promoter of a popular initiative had complied with the public participation requirements under the Constitution where the law did not explicitly grant it that mandate. The power granted to IEBC under article 257(4) of the Constitution was limited to verifying that the initiative was supported by at least one million registered voters. 41. Courts should not encourage extension of powers by constitutional or statutory bodies. Such bodies had to operate strictly within the four corners of their constitutional and statutory mandate. Therefore, where no power conferring legal provision could be pointed to as the basis for founding a mandate, courts should not use interpretive craft to extend the mandate of a public body. Given that view, unless there was a statutory framework enacted that conferred power on IEBC to ascertain whether a promoter had undertaken public participation, the exercise of such a mandate would be a mere overreach. 42. The obligation for voter education under article 88(4)(g) of the Constitution kicked in only after the mandate to conduct a referendum had arisen. That was founded on the fact that under article 88(4), voter education was linked to IEBC’s role in conducting or supervising referenda and elections. Thus, the obligation to conduct voter education only arose within the context of a referendum. 43. The obligation of voter education arose upon the conclusion of the process in article 257(10) of the Constitution where the President issued a notice to IEBC to hold a referendum for approval of the Bill. With respect to the Amendment Bill, such an obligation had not arisen at the time the instant cases were filed and adjudicated by the superior courts below. 44. There was no obligation on IEBC to ensure that the promoters of the impugned popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies. 45. While participation of the people had been identified as a foundational value and principle of governance under article 10(2) of the Constitution, it was even more crucial with regard to processes that would lead to constitutional amendment. That was so, since it was the people’s acceptance and ownership that granted democratic legitimacy and authority to a constitution. Therefore, the process of constitutional amendment should be inclusive, enable deep public participation, and promote active involvement of the people during all the stages. Considerations around public participation in constitutional amendment process ought to be geared towards maximizing public participation and ensuring that people understood the options and choices available to them in the process. 46. Public participation and consultation was a living constitutional principle that went to the constitutional tenet of sovereignty of the people. The following were guiding principles for public participation: As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance. The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means. Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation. Public participation was not an abstract notion; it had to be purposive and meaningful. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis. Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process. Allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case-to-case basis. Components of meaningful public participation included the following: i. clarity of the subject matter for the public to understand; ii. structures and processes (medium of engagement) of participation that were clear and simple; iii. opportunity for balanced influence from the public in general; iv. commitment to the process; v. inclusive and effective representation; vi. integrity and transparency of the process; vii. capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter. It was against those standards that allegations of lack of public participation ought to be assessed. Importantly, the constitutional threshold was that of reasonableness of notice and opportunity for public participation. 47. The Constitution amendment process contemplated under article 257 of the Constitution was continuous with several phases hence, elements of public participation should be understood from that perspective. When the constitutional amendment process was looked at as a series of stages, a number of avenues opened up to encourage public participation in various ways at different points of the process. 48. From the provisions of article 257 of the Constitution, there were four stages in the amendment process under the popular initiative route: The first (initiation) stage: Collection of signatures under article 257(1), typically involved the promoters of the initiative setting the referendum agenda. However, that had to be within a context of the constitutionally guaranteed opportunities for citizens to influence the process. It was also not lost to the court that an onerous requirement that a promoter conducted public participation before presenting the signatures for verification at that stage would be unreasonable because the whole process could be rejected by IEBC, like it did in the two popular initiatives dubbed as Okoa Kenya and Punguza Mizigo initiatives. Moreover, unlike subsequent stages where the cost of public participation was borne by public bodies, that was: County Assemblies, Houses of Parliament, and IEBC; at that first stage the cost of public participation would be borne by citizens or a group of citizens. In such a context, the requirement of public participation during the period preceding and during the collection of signatures should not impose onerous requirements on promoters of an initiative. The second (passage through the County Assemblies) stage seemed to lend itself more to public participation. That was because the Constitution imposed a normative obligation for public participation in legislative affairs at the county assemblies under article 196 of the Constitution. Moreover, the timeline of three (3) months within which county assemblies ought to consider a Bill under article 257(6) of the Constitution supported a reading that the assemblies ought to solicit for public input. The third (passage through the Houses of Parliament) stage was another key stage for public participation. A structural reading would imply that the obligation under article 256(2) of the Constitution for the Houses of Parliament to publicize any Bill and facilitate public discussion about the Bill, would also apply to a Bill that had come to the Houses of Parliament pursuant to a popular initiative. That was in addition to the general obligation on the Houses of Parliament to promote public participation in the legislative process under article 118 of the Constitution. That was in recognition that deliberations by legislative representatives should promote the goal of allowing public input in deliberations that affected them. The fourth (referendum campaign) stage under article 257(10) of the Constitution, was intended to serve as a national deliberative moment, hence duty bearers including IEBC had an obligation to facilitate a broad participatory process that included voter education under article 88(4)(g) of the Constitution. The nature of public participation at that stage ought to include civic education to provide objective education on the merits and demerits of the issues presented to the referendum. 49. By dint of section 112 of the Evidence Act, once there was an allegation of lack of public participation, the burden shifted to the person charged with the responsibility of performing the same to establish adequate public participation. The evidence before the court showed that there was a reasonable attempt at public participation with respect to the impugned initiative. There was reasonable public participation with respect to the Amendment Bill save for the Second Schedule of the impugned Bill. 50. The legal regime on the composition of IEBC was regulated by the Constitution. Whilst article 88 of the Constitution established IEBC, provided for eligibility of appointment of its members and its mandate, that provision did not touch on its composition. It was article 250(1) of the Constitution which provided for the composition of commissions and independent offices. Article 248(2)(c) of the Constitution listed IEBC as one of the commissions and independent offices making article 250(1) the constitutional provision regulating its composition. 51. Section 5(1) of the IEBC Act, which statute according to its long title was an Act of Parliament to make provision for the appointment and effective operation of the IEBC provided that IEBC 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(1) should be read in a manner that conformed to article 250(1) of the Constitution. The reason being that article 2 of the Constitution, which expressed the supremacy of the Constitution, demanded that no legal norm, including legislation, should have an effect contrary to that expressed in the Constitution. 52. Provisions of an Act of Parliament could not override the Constitution. The expressed intention of Parliament in legislation could not trump the normative command of the Constitution in a legal system where the Constitution was supreme. Therefore, the implication was that IEBC was legally constituted when composed of the minimum number of three commissioners stipulated in article 250(1) of the Constitution. IEBC was constitutionally and legally composed when it undertook the verification process under article 257(4) of the Constitution relating to the Amendment Bill. 53. Given that there was no constitutional rule prescribing the quorum for IEBC commissioners, the question of quorum was regulated by legislation and subsidiary legislation. Section 8 of the IEBC Act provided for the conduct of business and affairs of the IEBC. Paragraph 5 of the Second Schedule of the Act went ahead and fixed the quorum for conducting business at five. 54. Sometimes in 2017, Parliament enacted the Election Laws Amendment, 2017 which amongst other provisions amended the law on quorum of IEBC (that was, paragraph 5 of the Second Schedule of the Act) to at least half of the commissioners in office and not less than three members. That amendment was challenged in court in Katiba Institute & another v Attorney General & Another, Constitutional Petition No. 548 of 2017 [2018] eKLR (Katiba Institute case) and the High Court held that Parliament’s reduction of the quorum of the IEBC to at least half of the existing members and not less than three members was constitutionally invalid. 55. The decision in the Katiba Institute case was never overturned by a higher court and Parliament did not make any amendments to the statute to replace the provision declared constitutionally invalid. The effect of a declaration of invalidity was that the law so declared became ineffective as though it was not in the statute book. The decision in the Katiba Institute case restored the status ante before the 2017 amendment with respect to the quorum of IEBC. 56. Since article 250(1) of the Constitution envisaged that an IEBC composed of three (3) commissioners was competent to discharge its constitutional mandate, an interpretation of paragraph 5 of the Second Schedule to the IEBC Act that led to a contrary result would be an affront to the supremacy of the Constitution. In such a context, a court was required to read down the statute to ensure conformity with the normative demands of the Constitution. 57. IEBC’s quorum ought to be construed to reflect the normative expectation flowing from the Constitution that IEBC could discharge its constitutional mandate with at least three commissioners in office. Flowing from the requirement that a court ought to give effect to a constitutionally conforming interpretation of statutes, IEBC with three Commissioners had the requisite quorum to undertake the impugned verification process. 58. Common law doctrines like the stare decisis doctrine had to be interpreted in a manner that promoted and gave effect to the values and principles of the Constitution. In the instant case, the two superior courts below did not take into account the value and principle of the rule of law enshrined in article 10(2)(a) of the Constitution that commanded compliance with court orders before making a decision that had the effect of penalizing IEBC for relying on a declaratory finding by a High Court. IEBC could not be faulted as its actions then were supported by the Isaiah Biwott Kangowny v Independent Electoral Boundaries Commission & Attorney General, Constitutional Petition No. 212 of 2018 (Isaiah Biwott case). Although that decision was not binding on the High Court or the Court of Appeal, it created a legitimate expectation in the IEBC that carrying out business with three commissioners complied with the law. 59. The value and principle of the rule of law under article 10(2)(a) of the Constitution demanded that public bodies and private individuals comply with court decisions. Where a State organ or private individual acted in compliance with a court decision, like the IEBC did in the instant case, it ought not be punished by a subsequent court’s decision declaring such actions illegal based on a differing interpretation of the law. 60. In circumstances where a High Court in a later case, like in the instant case, disagreed with an earlier finding by another bench of the High court, the best approach was for the court to craft and mount appropriate remedies taking into account contextual considerations like the reliance placed by public bodies and private individuals on earlier court decisions. In such instances, the High Court ought to opt for the remedy of prospective overruling or suspending the declaration of invalidity and stipulate that the effect of its decision would apply prospectively. 61. The doctrine of ripeness focused on when a dispute had matured into an existing substantial controversy deserving of judicial intervention. The doctrine of ripeness prevented a party from approaching a court before that party had been subject to prejudice, or the real threat of prejudice, as a result of the legislation or conduct challenged. 62. At the time of filing the subject petitions, particularly Petition E416 of 2020, the Amendment Bill was yet to be submitted to the county assemblies for debate. That meant that IEBC was yet to be invited to make a determination on the manner and form of the referendum question(s). Taking into consideration that IEBC’s obligation under article 257(10) of the Constitution had not yet arisen, there was no live controversy before the High Court which ought to have declined to make a determination on that question. 63. Ripeness discouraged a court from deciding an issue too early. It therefore required a litigant to wait until an action was taken against which a judicial decision could be grounded and a court was able to issue a concrete relief. That approach shielded a court from dealing with hypothetical issues that had not crystalized. The issue of whether article 257(10) of the Constitution entailed or required that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. 64. Costs should follow the event but nonetheless, ultimately, whether or not costs were to be awarded lay within the discretion of the court. The judicial discretion was not to be exercised capriciously but was meant to accommodate the special circumstances of each case, while being guided by ends of justice. 65. *[Obiter]On the four sequential steps recommended in the impugned opinions, just like the two superior courts below, I would wish to observe in obiter* that Parliament needs to consider the onerous complexity in the implementation and compliance with the obligations in Chapter Sixteen and enact a legislation to guide the constitutional amendment process. This could be formulated in the mould of the Constitution of Kenya Review Act, No. 6 of 2009, which was enacted to guide the review of the repealed Constitution, only that the proposed legislation will provide a more detailed framework to guide the process of amendment according to the three tiered process, or if it is the desire of the people to add a fourth tier as proposed by the two superior courts. Moreover, it is necessary to note that many of the petitions challenged the impugned amendment process because there was no legislation that was put in place to govern the collection of signatures, the verification, public participation and the conduct of a referendum. In my humble view, it is not at all reasonable to expect citizens to navigate all the numerous steps in the amendment process without a simplified guide drawn from legislation and even perhaps augmented by some rules or guidelines on the amendment process. The time and effort taken in determining this consolidated appeal is a testament that the provisions of Chapter Sixteen are complex and cannot be properly navigated without a legally ordained guide. 66. *[Obiter]* For a start, there has been no legislation to guide even public participation which is a key guiding pillar of governance in the post-2010 constitutional order. There is also the need for a comprehensive referendum law to guide the conduct of a referendum as far as Chapter Sixteen is concerned. If the people so desired, I see no problem with the Legislature taking up this recommendation to provide for the four sequential steps in the proposed legislation, given that in their true essence, they are but modalities and sites for deepening public involvement and participation in the amendment process which is already a constitutional requirement under article 10(2). 67. *[Obiter]* Having made the above finding, I need to point out in obiter that there is need for Parliament to enact a legislative framework to guide and regulate the process of public participation. While the Constitution sets a broad normative obligation for public participation in various governance processes, there is no legislative framework regulating how this obligation ought to be implemented. It is instructive to note that there have been three Bills tabled in the Houses of Parliament with respect to providing a legal framework for public participation… Likewise, there have been attempts to enact legislation on referendum that stipulates or regulates the process of conducting a referendum on a constitutional amendment. 68. *[Obiter]* It ought to be appreciated that the Legislature has a duty to fulfil its obligations under the Constitution by enacting legislation to actualize constitutional imperatives. Furthermore, pursuant to article 10 of the Constitution, the Legislature and other State organs were under a command to implement or help realize the values and principles that the Constitution secures. Taking into account that the Constitution also places an affirmative duty on the Legislature to enact a legislation on the conduct of referenda under article 82(1)(d), I implore the Legislature to enact comprehensive legislations that will implement these twin constitutional obligations. Per PM Mwilu, DCJ: 69. Taking into account the constitution-making process leading to the promulgation of the Constitution, there was no doubt that the Constitution had to take a certain configuration. For instance, certain aspects of sovereignty of the people and supremacy of the Constitution, the Bill of rights which then extended to socio-economic rights, leadership and integrity, devolution and the two levels of Government, the Executive which was detached from Legislature, Judiciary among other provisions were introduced into the Constitution. Following the clamour for constitutional review over the years, the Constitution was promulgated following an elaborate process that was preceded by a largely participatory and people-centric mechanism. 70. The Constitution had a certain structure incorporating the certain provisions which were termed as basic. That structure took into account the history of the country and the aspirations of the citizens that were elevated into the Constitution. From the proceedings and the record, the parties commonly agreed that the Constitution did have a basic structure that was inherent therein. That structure could differ from country to country but subsisted in all Constitutions 71. The Constitution neither defined the word ‘doctrine’, ‘basic structure’ nor even ‘basic structure doctrine.’ The only doctrine referred to in the Constitution was on the construing of the Constitution. Article 259(3) of the Constitution provided that every provision of the Constitution should be construed according to the ‘doctrine of interpretation’ that the law was always speaking. 72. According to Emerson H. Tiller & Anor “What is legal doctrine?” (2006) 100 Nw.U.L. Rev. 517, a legal doctrine set the terms for future resolution of cases in an area and it could take many forms – fact-dependent and therefore limited or sweeping in its breadth. It was not debatable then that a doctrine was a legal principle of long usage, which was widely accepted as such. That definition was a working tool in resolving the instant controversy inherent in the existence, and applicability, if at all, of the basic structure doctrine in the circumstances and commands of the Constitution of Kenya, 2010. 73. A common thread as to what constituted the basic structure doctrine in Kenya, was that the doctrine sought to protect the Constitution from radical amendments especially those perpetuated by the leaders, be they in Parliament or in the Executive. That was based on the past trend where constitutions were amended over time with the aim of diminishing citizens’ rights at the expense of entrenching political rights. Considering the history of Kenya and the process through which the Constitution making process was subjected to, it was imperative that certain provisions which contained the basic structure be upheld and protected from haphazard interference. 74. The basic structure doctrine was not an express provision of the Constitution. There was no uniform and agreed definition of that doctrine. Article 2 of the Constitution dealt with the supremacy of the Constitution. Article 1 of the Constitution vested all sovereign power in the people, and it was exercised only in accordance with the Constitution. That was either directly or through democratically elected representatives. 75. The inescapable thread that emerged was that the framers of the Constitution took deliberate steps, at least for Kenya, to ensure the process of amending the Constitution was strictly regulated. The Kenyan Constitution was not referred to as transformative for the sake of it. It was a product of quite an effort made at different levels and by different players to guard the aspirations of the citizens whose participation remained at the core. That was the import of articles 10 and 259 of the Constitution. 76. Whether a constitution was amendable or not, whether any amendment initiative amounted to an alteration or dismemberment and the procedure to be followed was a matter that would be determined on a case-to-case basis depending on the circumstances. Articles 255 to 257 of the Constitution just like any other provisions of the Constitution could be interpreted or applied to the circumstances of a relevant case within the Constitution. That could involve invoking the jurisdiction of the High Court under article 165(3)(b) and (d) of the Constitution with the possibility of appellate processes all the way to the Supreme Court as the final arbiter under article 163(4)(a) of the Constitution in a case involving the interpretation or application of the Constitution. 77. To state that the basic structure doctrine was applicable in Kenya was, to say that it had the force of law. Which it did not. The basic structure doctrine was not within the Kenyan Constitution and the Constitution was self-sustaining. The basic structure doctrine, by whatever machination was not applicable in Kenya. 78. The manner and process through which sovereign power was directly exercised was fundamentally important, especially where what was at stake was the constitutional architecture, the very framework through which the people agreed to be governed. The intention of the framers of the Constitution and the people of Kenya in bestowing that charter on Kenyans and their future generations was not to implicitly prohibit amendment of its content and structure, whether identified as basic or not; it was to ensure that, through that very Constitution, any process of amendment was undertaken in the finest spirit of Kenya’s democracy, fully cognizant of Kenya’s historical context, present experiences and aspirations for the future. Such protection was found both expressly and implicitly in the provisions attendant to the process of amendment within the Constitution. 79. Recognizing the progressive jurisprudence that had been developed by the courts and especially the Supreme Court on constitutional interpretation, such jurisdiction ought to be exercised very reservedly in the face of express provisions of the Constitution; very reservedly in the face of the constitutional exercise in sovereignty by the people; and very reservedly where the substantive import of any action was not what was in contention. It was always important to remember that not once did the Constitution employ the term ‘alter’ in relation to the changes in the Constitution. 80. The Constitution did indeed have a basic structure. That the matter of the Constitution, embodying in itself or deriving from it such a thing as a basic structure doctrine was a misnomer for no such doctrine was derivable from the Constitution and consequently, the basic structure doctrine wherever else it could be found, did not apply in the Kenyan constitutional context. The manner and process through which sovereign power was exercised by the citizens, in its different forms was fundamentally important under the Kenyan constitutional architecture and the Constitution could be altered through other mechanisms not limited to the primary constituent power. 81. The role of the President with regard to determining whether or not the amendment Bill was to be subjected to a referendum was ceremonial. Though an important role, it was a formality. Kenya was a constitutional democracy, and the roles and functions of all persons were subject to the Constitution. The President was not the sovereign, the sovereign in Kenya was the people of Kenya. All the authority exercised by the President was delegated by the sovereign people of Kenya through the Constitution and thus exercised always under and pursuant to the Constitution. 82. The provisions in article 256 and 257 of the Constitution on the roles of the President regarding assent and transmission to the IEBC where required, were not discretionary functions. They were mandatory and time-bound and did not give the President any power. The principle was clearly laid out under article 115(6) of the Constitution where, regarding ordinary Bills, the same was deemed assented upon expiry of the period within which the President was supposed to take such action and/or failed to do so as were the Election Laws Amendment 2017 challenged in the Katiba Institute Case. That principle was further well established in Kenya’s constitutional jurisprudence. 83. An election and a referendum were examples of the direct exercise of sovereignty by the people. The amendment processes under articles 256 and 257 of the Constitution consisted of both direct and indirect exercise of sovereign power. Indeed, on plain reading, there was no pure direct exercise of sovereign power as described by the superior court in any of the processes. The role of legislatures, at both the national and county levels was explicit in the amendment by popular initiative under article 257. Both the parliamentary route under article 256 and the popular initiative route under article 257, considered holistically, were still framed by practices of indirect exercise of sovereign power. Further, access was not the distinguishing factor between the two methods of constitutional amendments. 84. It was entirely plausible, that an independent Member of Parliament or for that matter an independent head of state, with a proposed amendment but lacking the relevant numbers in Parliament, could seek to initiate a constitutional amendment through popular initiative. Similarly, it was entirely plausible that a civic minded citizen could successfully petition Parliament under article 119 of the Constitution to initiate an amendment of the Constitution through the House. 85. Parliament exercising delegated authority and representing the people, ought to be the most accessible avenue for citizens, either directly or through their representatives, to propose laws, amendments to laws and indeed amendments to the Constitution rather than the more laborious task of collecting one million signatures and pursuing the promotion of a popular initiative. It had to always be recalled that the determinant of any amendment seeing the light of day, or being forever doomed and sunk, was the sovereign people – the people, who, had to vote at the ensuring referendum. Even if difficult and perhaps rare, sitting Presidents had lost referenda, or even worse, re-election at the ballot. It was the people, being the sovereign who wielded power. 86. The amendment of the Constitution could only be engineered within the Constitution itself. Any attempt to introduce a mechanism outside of Chapter Sixteen of the Constitution should immediately be thwarted by article 2(2) of the Constitution which forbade any claim or exercise of State authority except as authorized under the Constitution. Chapter Sixteen recognized the amendability of the Constitution in accordance with article 256 or 257 of the Constitution, specifically on matters which required a referendum regardless of the method deployed. 87. The President’s authority and functions were stated in the Constitution itself and none of them expressly set out the legislative authority of the President. While the President remained part of the National Executive, the President was not clothed with additional functions and authority, more so when such exercise was discretionary and subjective. 88. Under article 1(3) of the Constitution, the sovereign power under the Constitution was delegated to three State organs – Parliament, the National Executive and Executive structures in the county governments and the Judiciary and independent tribunals. That meant that the President did not have any express delegated powers from the sovereign and permitting the President to exercise nonexistent powers would have been an overreach. To allow the President the power to initiate amendments was to go against the very grain of constitutionalism as overwhelmingly approved by the people in promulgating the Constitution. 89. National unity could be fostered in many ways; constitutional amendment initiated by the President was the least desirable. Therefore, the President could not initiate a constitutional amendment initiative in his capacity as a democratically elected representative. 90. Unlike the repealed Constitution when the President, his cabinet and its principal legal advisor, the Attorney General were part of Parliament, the Constitution in its transformative nature excluded the Executive from both Houses of Parliament. In excluding the Executive from it, Parliament was bestowed with the oversight mandate over the Executive including the President as its head. The Constitution affirmed the separation of power doctrine whereupon Parliament, as the representative of the people, elected as such, had a clear role in oversighting other State actors including those in the Executive as well as addressing concerns of the citizens, in an independent manner. Besides, the constituencies were expanded to 290 in order to enhance the representation of the citizens who took part in universal suffrage every so often. 91. The parliamentary initiative of amending the Constitution took into account the matters reserved under article 255(1) of the Constitution which had to still be subjected to a referendum. The the President and the Executive for that matter had no role whatsoever in being involved in the parliamentary initiative of amending the Constitution. That was not to suggest that the President who could have a significant control of any of the Houses of Parliament by virtue of being the leader of the party which comprised of the majority of the members of each or both houses of Parliament, could not have an influencing effect. 92. The President, as party leader could invoke that capacity to try and influence policy and legislative agenda informally or even through his state of the nation address to Parliament. That, however, could only be undertaken outside of the official parliamentary business. The High Court in suggesting that the President could invoke parliamentary initiative fell into error for prescribing a route that was not expressly hinged on the Constitution. Based on the previous experience of the Executive abusing their powers by orchestrating meaningless and sometimes outright undemocratic amendments to the Constitution, the Constitution did not contemplate allowing any constitutional window, however narrow, that the President should invoke and directly control the parliamentary processes in whichever House of Parliament. 93. The term popular initiative could not be one of those boilerplate clauses used to fill up text. With the paramount nature that the sovereignty of the people was afforded under the Constitution, the role of the people in exercising their direct sovereign power in amending the Constitution was so critical that it had to be specifically secured. That meant that while Parliament, as the donee of representative power had the mandate, the people could also be allowed to directly exercise their power. That was in obvious realization that sometimes Parliament could be partial and could be hindered by other interests such as being bound by selfish interest, bound by the Executive or partisan political party politics. It was such eventualities that the people were not to be left feeling helpless but reserved unto themselves the residual power to undertake legislative process in initiating amendments to the Constitution. That was well captured in the preamble to the Constitution. 94. The Supreme Court should be reluctant to venture into matters reserved for other State organs. That was not only good for the sake of preservation of the doctrine of separation of powers but also allowed for strengthening of institutions whereupon each constitutional body should be allowed the liberty to carry out its mandate. Just as Parliament was expected to operate within its constitutional powers as an arm of Government so should the Judiciary. The systems of checks and balances that prevented autocracy, restrained institutional excesses and prevented abuse of power applied equally to the Executive, the Legislature and the Judiciary. No one arm of Government was infallible and all were equally vulnerable to the dangers of acting ultra vires the Constitution. 95. The obvious role of the promoter that came from the Constitution was under article 257(3), to deliver the draft Bill and the supporting signatures to IEBC. That meant that the promoter had to be responsible for either coming up with a general suggestion and/or drafting a Bill which he/she had to popularize to the one million signatories who had to be voters to gain their support for the promoter’s initiative under article 257. That support was expressed through signing by the supporters in a manner that was verifiable by IEBC. 96. It was fair and prudent to state that the decisive time was that of conceptualization of the intent. It was so because the one million signatories would not by themselves come up with a proposal or the general suggestion or even the Bill. A promoter sat down to conceptualize the proposed amendments either as a Bill or as a general suggestion before setting out to get the support of the one million signatories. 97. The signatures so obtained in support only went to demonstrate that the promoter was not on a personal frolic but had at least found other people who were in agreement with the promoter’s initiative, a deference to the sovereign as it were, and the building of a solid threshold on which to found a constitutional amendment, itself a key solemn endeavour. In addition, should the initiative last its course, it had an impact both in the legislative agenda, political processes and ultimately public resources and on the work of the relevant constitutional body, to wit IEBC in approving and conducting a national referendum. 98. Juxtaposed with the parliamentary initiative, the parliamentary process did involve the introduction of the Bill to amend the Constitution. The Standing Orders provided for the manner in which a Bill was introduced including having it tabled before the House Business Committee. These preliminary processes towards generation of the Bill could not be ignored as there had to be some level of involvement by the equivalent of the promoters. Focusing only on the front end of the process where the Bill was introduced to Parliament missed a fundamental requisite process in an otherwise solemn constitutional process. 99. The role of the promoters was limited to getting the one million signatures in order to meet the constitutional threshold. That involved explaining and/or popularizing the general suggestion or draft amendment Bill to the citizenry with a view to obtaining the at least one million voters in support. The process leading to the enactment of the Amendment Bill could not be segregated. 100. The IEBC had no timeline within which to undertake the verification exercise. The constitutional timelines only checked in once IEBC submitted the Bill to the counties for approval. The making of copies of the Bill for circulation to the county assemblies should be an administrative process by IEBC as it had to ensure each County Assembly got the same copy of the Bill. That was because; the IEBC was the constitutional body charged with matters election and it was publicly funded and the promoter’s role, barring any legislation, ended with the submission of the initiative to IEBC. 101. The IEBC should not step into the realm of the role of the promoter and the promoter should not yield his or her obligations to the IEBC for that matter. For clarity the IEBC’s roles did not extend to any period prior to the presentation of the Bill to IEBC. In relation to the Amendment Bill, the President played a dominant role in so far as he published by way of Kenya Gazette the establishment of the BBI Taskforce and later the BBI Steering Committee with the task of inter alia suggesting constitutional reforms. The BBI National Secretariat headed by Hon. Junet Mohamed and Hon. Dennis Waweru, though being the face of the initiative were not the originators, their actions having been consequential to the President’s initial action of establishing the taskforce. 102. The President could not directly initiate changes or amendments to the Constitution. That was based on Kenya’s history and the role of the Executive in the hyper-amendability of the repealed Constitution and the need to insulate the Constitution from possible abuse based on Kenya’s history. An amendment of the Constitution could only be initiated through a parliamentary or popular initiative under articles 256 and 257 of the Constitution. Consequently, the Amendment Bill was unconstitutional. 103. Kenya’s jurisdiction was replete with incidences of judicial intervention on constitutionality or enforcement of fundamental human rights. The courts had not hesitated to intervene in proposed amendments in instances where a person was aggrieved by an intended amendment for violating or threatening to violate fundamental rights and freedoms. It was worth pointing out that under article 22 of the Constitution, a threat to a right or fundamental freedom was sufficient for one to institute court proceedings. 104. Article 165 of the Constitution clothed the High Court with unlimited original jurisdiction. That included jurisdiction to have any question respecting the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution was inconsistent with, or in contravention of the Constitution in article 165(ii). An initiative to amend the Constitution flowed from articles 255 to 257 of the Constitution and remained susceptible to challenge. Anyone who felt aggrieved was free to approach the court. The court faced with that challenge would be in a position to determine the extent of its own involvement in the matter without infringing on the separation of powers and policy matters. That was one of the master pieces of the constitutional design. The matter at hand was not abstract or moot considering it raised a very fundamental challenge to article 89 of the Constitution purely based on the text at hand. 105. The Supreme Court in particular occupied a special place in the constitutional scheme on the interpretation and application of the Constitution. The Supreme Court had a restorative role, in that respect, assisting the transition process through interpretive vigilance. The courts had to patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercised their constitutional mandates, being conscious that their very infancy exposed them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order. 106. The Constitution was amendable. Without a doubt that applied to each and every article thereof without exception, and only in the manner allowable by the Constitution itself. That was to say article 89 of the Constitution was amendable. The proposed amendment, however, had to fit in the context of the rest of the Constitution in harmony and had to not be brought in a haphazard and clandestine manner. 107. The entire article 89 of the Constitution was not being proposed for amendment but only 89(1) on the number of constituencies. On the face of it, there seemed to be no problem with that as the promoter was free to suggest such an amendment proposal. There was a challenge on the origin of the proposal to have that specific number of constituencies. But for the purposes of determining the issues at hand, nothing turned on that concern. The proposed amendment of article 89(1) completely overlooked the manner, mandate and procedure set out in article 89(3) which reviewed the number, names and boundaries of wards periodically. The greater challenge was on the timelines and the exact number suggested as against the existing constitutional provisions on that issue. 108. Article 89(2) of the Constitution contemplated the review of constituency boundaries to be undertaken between eight and twelve years, but at least twelve months before a general election. From the last cycle of boundary review exercise which was undertaken under the Constitution in a process that concluded in 2012, the process took over five years, the IEBC having inherited it from the previous body established under the repealed Constitution. That was because it had to involve factors such as economic ties, geographical features and population quotas. This took into account the prescribed margins set out in Article 89(6) of the Constitution. 109. There were important precondition aspects of consultation with all interested parties, publication in the Kenya Gazette as well as dispute resolution by way of an application to the High Court for review of the decision of IEBC. It was therefore unconstitutional for the Amendment Bill to purport to alter those provisions on the timelines under the Schedule yet the substantive obtaining article of the Constitution remained undisturbed. To attempt to direct IEBC on the manner to discharge its constitutional mandate at once unconstitutionally, the obvious intention was to ensure the new constituencies were applicable to the 2022 elections, itself a clear violation of the Constitution under article 89(4) of the Constitution. 110. The Second Schedule to the Amendment Bill was unconstitutional in so far as it directed the IEBC on, not only delimitation of the number of constituencies but also the distribution of the proposed new constituencies and the timelines within which to operationalize the same within the existing constitutional parameters of article 89 of the Constitution. 111. The Constitution recognized three types of immunities – to the Head of State under article 143, to legislators under article 117; and extending to freedom of speech and debate and to county assemblies, their committees and members under article 196. The immunity granted to the President was expressly set out in the Constitution. The other immunities to legislators and members of county assemblies were left to legislation. 112. The Civil Procedure Act by virtue of its section 1(2) applied to proceedings in the High Court and, subject to the Magistrates’ Court Act, to proceedings in subordinate courts. The Act defined “suit” to mean all civil proceedings commenced in any manner prescribed. The Act also defined a ‘pleading’ to include a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence or counterclaim of a defendant. 113. The presidential immunity played a meaningful role in the execution of constitutional and statutory mandate as a President. At that level of constitutional mandate and authority, the President needed to have the operational confidence to take certain executive measures in order to effectively govern the country without the colloquial sword of Damocles hanging over his head, worrying about the consequences of his actions or omissions when executing his functions as President. 114. Immunity from civil proceedings also shielded the President from being pursued for other civil interests by citizens privately in particular through litigation and court process that was largely adversarial in Kenya. Allowing the President to be subject to civil suits inevitably exposed him to court attendances, court testimonies, cross examination and ultimately execution process in the event that the President was found liable to settle civil debts. That could escalate to committal to civil jail as a mode of execution. All these scenarios were as undesirable as they were distracting. As the President of the country, he should be as available as possible to execute his official functions. 115. The immunity granted to judges and judicial officers did not take the categorical terms as those for the President’s immunity under the Constitution. The former involved the use of terms, such as ‘good faith’ and ‘lawful performance of functions.' The Constitution retained inbuilt mechanisms to deal with rogue state officers. This included removal from office, challenge to the exercise of functions and impeachment in case of the President. 116. The President was not properly served with the pleadings and was therefore not accorded an opportunity to participate in the proceedings in his personal capacity in which he had been sued. Under article 143(2) of the Constitution, the President enjoyed absolute immunity from civil proceedings during his tenure in office. 117. Under Kenya’s constitutional dispensation, the sovereignty of the people took a vital center stage. Since all sovereign power belonged to the people, they had to play a significant constitutional role as contemplated under the Constitution. Participation of the people was one of the recognized national values and principles of governance listed in article 10 of the Constitution. Public participation permeated the sphere of governance and legislative processes, public access and participation including conduct of Parliament and County Assembly business had to all have a measure of public participation. 118. Engagement with the public was essential. Public participation informed the public of what was to be expected. It allowed for the community to express concerns, fears, and even to make demands. In any democratic state, participation was integral to legitimacy. When a decision was made without consulting the public the result could never be an informed decision. Facilitating public participation was necessary to ensure legitimacy of the ensuing law or policy reached. 119. The guiding principles for public participation were as follows: As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance. The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means. Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There was need for both quantitative and qualitative components in public participation. Public participation was not an abstract notion; it had to be purposive and meaningful. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis. Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process. Allegations of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis. Components of meaningful public participation included the following: i. clarity of the subject matter for the public to understand; ii. structures and processes (medium of engagement) of participation that are clear and simple; iii. opportunity for balanced influence from the public in general; iv commitment to the process; v inclusive and effective representation; vi. integrity and transparency of the process; vii capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 120. It was essential to address public participation under the different phases of the popular initiative under article 257 of the Constitution. Firstly, the issue of the role of promoter in relation to collection of signatures. Secondly, the role of IEBC once it received the Amendment Bill. Thirdly, the role of the County Assemblies in approving the Amendment Bill. Fourthly, the role of Parliament, incorporating both Houses, in debating and approving the Amendment Bill. There was also the aspect of the inadequacy of Part V of the Elections Act. It was only upon the determination on those aspects that it would be clear whether the Amendment Bill satisfied the requirement of public participation or not. 121. There was no doubting that the initiative of amending the Constitution under article 257, by way of popular initiative, remained a continuous one. That continuous process also incorporated different players at the different stages. 122. Unlike a Parliamentary initiative of amendment of the Constitution where Parliament would, under article 256(2) of the Constitution publicize any Bill to amend the Constitution, and facilitate public discussion of the Bill, there was no similar provision for a popular initiative under article 257 of the Constitution. The logical explanation could be that Parliament by its very nature exercised delegated sovereign power on behalf of the people under articles 1(2) and 3(a) of the Constitution. That made it obligatory for Parliament to report to the people as well as to facilitate the discussion of the Bill, which allowed for amendment and factoring in any useful proposals emanating from the public participation exercise around the Bill prior to its enactment. In addition, Parliament being the constitutional body mandated to legislate was publicly funded and had the mechanism and capacity to undertake that noble exercise of public participation which in any event, was part of their legislative mandate. 123. At the very least the IEBC was obligated under the Constitution to verify the signatures. That was not meant to be a mere formality but an elaborate exercise. IEBC made reference to their Administrative Procedures to guide the signature verification process. Using the guiding principles set out in the BAT Case public participation was a constitutional principle under article 10(2) of the Constitution and it obligated a public officer or a constitutional commission, also a public body, to ensure its occurrence. The public participation had to be accompanied by reasonable notice and fulfil components of meaningful public participation. 124. Part V of the Elections Act contemplated formation of the referendum committees to spearhead support or opposition of the referendum question, prior to the voting exercise. Those spearheading the support or opposition together with the promoters would therefore be expected to popularize their position by way of civic education, publicizing the Amendment Bill or otherwise popularizing their respective positions as a result of which the public was expected to be better and sufficiently informed by the time they vote. The process was governed by an electoral code of conduct as stipulated by IEBC. Public participation in that context would therefore only be limited to accepting or rejecting what would have been presented before them at the poll through the Amendment Bill. The referendum did in a way, for a split second give the people executive, legislative and judicial powers to determine whether they were efficiently involved and consulted and whether the final product had the content and the substance, whether the final product was properly framed and whether it was a document they would want to enact. Upon enactment in the referendum they would have put their final seal of approval. 125. Public participation had to be meaningful. Nothing done by IEBC in that regard rendered what would be adequately described as sufficient public participation, hence nothing was shown to occasion a departure from what the two superior courts below found. Public participation was neither moot nor premature. While public participation was central to the constitutional dispensation, in the context of constitutional amendment initiative through popular initiative, it was a continuous process to be considered at each step. There was no obligation on the promoters to undertake any public participation prior to the presentation of the Amendment Bill as all that was required was to get one million signatures to support it. 126. There was lack of meaningful participation at the verification of signatures by IEBC. It was best left to legislature to enact a law that would address the different roles of the different players in the process ranging from the promoter, IEBC, County Assemblies, Houses of Parliament and the referendum process, the Constitution and the Supreme Court having laid out the framework. However, until that was done, the courts had rendered sufficient guidelines on the sufficiency or otherwise of public participation. At all material stages of the Amendment Bill wherein the constitutional value of public participation was called for, none of the stated value was had. 127. It was manifest that IEBC had a very specific and non-delegable constitutional mandate under articles 88 to 90 of the Constitution. Elections and referenda management were grave issues as could be traced back to Kenya’s history that necessitated the elevation of the election management body to the Constitution itself. 128. IEBC, in so far as it had three commissioners including the chairperson, and further that it took unanimous decisions with all the three commissioners present and voting in the deliberations, had quorum. The provisions of the IEBC Act could not supersede the Constitution as that was the springboard on which laws were launched. Consequently, the administrative procedures made by IEBC to govern the verification of the signatures exercise, could not be invalidated on the grounds that they were made without quorum. There was no evidence or demonstration by the parties to suggest that the procedures were made and approved by less than the three commissioners that were in office at the time. IEBC had quorum under articles 88 and 250 of the Constitution in so far as it had at least three commissioners acting in unanimity. 129. Any proposed amendment to the Constitution, whether by parliamentary initiative or popular initiative, which related to a matter under article 255(1) of the Constitution had to be referred to a referendum. The manner in which a proposed amendment was to be submitted to the people in referendum was contained in Part V of the Elections Act under which section 49(2) stated that the issue of the referendum should be framed by the IEBC, which shall determine the question or questions to be determined during the referendum. 130. The IEBC had not received the request to hold the referendum, it had not discharged its responsibility of framing the referendum question or questions, and it had not determined the manner or formula with which it would frame such referendum question or questions. It was trite law that for an issue to be justiciable, it had to be ‘ripe’ for adjudication. 131. Where a constitution had reposed specific functions in an institution or organs of state, the court had to give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies had demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution. 132. Guided by the doctrine of ripeness, the courts retained the discretion, considering the circumstances of the matter, to decide whether such matter was temporally amenable for adjudication. Kenya’s democratic architecture and the principle of separation of powers as contained in the Constitution required that all state organs be allowed to freely, independently, and legally, exercise their respective constitutional authority. As such, the courts ought not overstep their constitutional mandate and infringe on the authority of another state organ or entity by prescribing the manner in which it should make decisions; decisions which it had been granted the constitutional authority to make. 133. To adjudicate based on the prospect that the IEBC could or could not exercise its authority to frame the relevant referendum questions would be to adjudicate based on ‘speculative future contingencies’ thus offending the doctrine of ripeness as well as the constitutional doctrine of separation of powers between state organs. The High Court and the Court of Appeal assumed a jurisdiction they did not have as the issue was not ripe for interrogation by any court. What was placed before court was a hypothetical assertion concerning the nature of the questions from the Amendment Bill to be put to Kenyans in a referendum. The issue was not ripe and was therefore not justiciable. Per MK Ibrahim, SCJ: 134. The basic structure doctrine was a legal principle that existed to protect the essential characteristics of the Constitution by implicitly limiting the power to amend a constitution. Under the doctrine, especially in the absence of entrenched provisions, amendments that would destroy the essential character of the Constitution were limited and could only be carried out by the people utilizing their primary constituent power. 135. Couched in the basic structure doctrine were a few crucial aspects. Constitutions were considered to be the act of the people as the almighty sovereign. That power of the people was recognized and documented in the Preamble of Kenya’s Constitution. Further, the first Chapter of Kenya’s Constitution acknowledged the sovereignty of the people. It was through the Constitution that the people determined the nature of state, government, state organs and offices that would govern them and bestow varying degrees of power to those organs. The holders of those offices in carrying their functions did so through the use of delegated power. Delegated because it was the people who donated some of their power in order to have a government that served their needs. The people in exercise of their sovereign will in creating a constitution, demarcated certain basic elements, or fundamental features which served as the essential foundation and pillars that prop up the society. Amendments that altered, destroyed or changed the identity or basic structure of the Constitution could not be carried out by delegated authority. An amendment that destroyed either part or the whole Constitution, removed the foundation upon which the authority and power of state and its organs were predicated upon. 136. The State and its organs could not utilize their delegated power to oust the will of the people in whose interests they were expected to act. Acting in a delegated capacity, theirs was a fiduciary role and they could not by their own act either enlarge or diminish the powers vested on them. It was only the people utilizing their primary constituent power who could alter or change the foundation or pillars of the Constitution. 137. When embarking on amending the Constitution, the principle of implied limitations had to be consulted. That had to be done to ensure that the fundamental features of Kenya’s hard-fought Constitution was not altered or destroyed. Adherence to that would ensure that constitutional amendments had the effect of carrying Kenya’s constitutional provisions into a more perfect operation. 138. The application of the doctrine of basic structure could be subject to abuse. Hence the following two conditions should be considered during the application of the doctrine of basic structure: The doctrine had to serve to develop the law and move a nation further in the trajectory it had already taken in fully realizing the democratic society that was envisioned while formulating and passing Kenya’s transformative Constitution. The application of the doctrine had to serve to protect the democratic core norms. Those norms had been set out throughout the Constitution and were included in article 10 of the Constitution. Those core standards could also be found from the regional and international bodies to which Kenya was a member such as the African Union and United Nations that prescribed certain commitments to democracy, rule of law, human rights and protection of minorities. 139. The provisions of article 255 formed part of the Constitution’s basic structure. However, articles 255 and 257 of the Constitution provided that amendment to the same required approval by referendum. A referendum was the exercise of the people’s secondary constituent power. Consequently, if the amendments were not in pursuit of carrying the provisions of the Constitution into more perfect operation, but rather were geared towards an overhaul of the same, then there was need for the people to exercise their primary constituent power. It was only the people who could make such drastic changes to the system of governance. The basic structure of the Constitution should only be altered through the primary constituent power. The doctrine of basic structure was applicable to Kenya. 140. Before the making of a constitution, the people were fully engaged even before inception of the issues, and were fully participatory until promulgation. Whereas, after promulgation of a constitution, the people played a limited dual role of public participation and a referendum. That was why, in order to unmake, to destroy or to alter the constitutional order, it required the level of engagement by the people in full exercise of the sovereign power. That was what was termed as primary constituent power. Hence the exercise of primary constituent power existed outside or could be termed as being parallel to the Constitution, unbound by constitutional limits. 141. The four sequential steps in constitution making (civic education; public participation; constituent assembly plus referendum) were indicators of genuine primary constituent power in action. The four sequential steps acted as ‘mile-markers’ of the journey to making or unmaking a constitution; or altering the basic structure of a constitution by the people in exercise of their primary constituent power. Any constitution making or unmaking process, that lacked any of those crucial four steps could not be considered a genuine exercise of primary constituent power of the people. 142. Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract that they bequeathed themselves in the form of Constitution of Kenya, 2010. Kenyans intended that the essence of the constitutional order they were bequeathing themselves in 2010 would only be changed in the exercise of primary constituent power (civic education; public participation; constituent assembly plus referendum) and not through secondary constituent power (public participation plus referendum only) or constituted power (Parliament only). 143. Parliament and all State organs as well as public and State officers could only exercise the roles and functions assigned to them. Acting in a delegated capacity, theirs was a fiduciary role and they were precluded from, by their own act, either enlarging or diminishing the powers vested on them. They had to act in accordance with the powers and in the roles assigned to them. 144. The basic structure of the Constitution could only be altered or denatured through the primary constituent power. Primary constituent power was the unbound power of the people to make or unmake constitutions and genuine exercise of the same could be identified by the four sequential steps of civic education; public participation; constituent assembly plus referendum. 145. The historical perspective demonstrated that the popular initiative was a preserve of the citizens. Born from the Kenyan experience, Parliament as the organ entrusted with law making power, had not always acted in the best interests of the people. The people were responding to their frustrations that Parliament had not always acted in a citizen-centric manner but rather acted in a manner quite inimical to their interests. Therefore, in order to safeguard their rights, the people gave themselves an avenue to directly amend the Constitution in circumstances where Parliament was either unable or unwilling to act. 146. It was reasonable to conclude that article 257 of the Constitution was created as a pathway for those without access to the standard parliamentary route under article 256 of the Constitution. The popular initiative route had to be citizen-conceived, citizen-initiated and citizen-driven process and citizens were the ordinary mwananchi whether as individuals or as organized civil groups. 147. The BBI National Secretariat was not a different or separate entity from the BBI Steering Committee. After the launch of November 25, 2020, some Government departments and ministries were involved in the collection of signatures. That was a continuance of the process that the Executive arm of Government begun in the constitutional amendment process. 148. The process of constitutional amendment was largely driven by the Executive led by the President. It was thus illogical to truncate the actions of the BBI National Secretariat through Junet Mohamed and Dennis Waweru from the actions and processes by the BBI Taskforce as well as the Steering Committee. It further was evident that the “Handshake” triggered a chain of events, which thereafter had a domino effect, one action leading to the next, until the culmination of the launch of November 25, 2020 by the President launching the Amendment Bill and the collection of signatures. 149. Though the President could not have been one of the named promoters of the Amendment Bill, his role at every stage could not be disregarded. The path of popular initiative pursuant to article 257 of the Constitution was strictly reserved for the ordinary Kenyan. The President could not initiate a popular initiative to amend the Constitution under article 257. 150. Insofar as the promoters of the Amendment Bill, through the Second Schedule, purported to direct the IEBC on how to proceed to carry out the exercise of delimitation, they ran afoul the express provisions of article 249 of the Constitution. The IEBC as an independent commission was subject only to the Constitution and law. It was not subject to the direction or control of any person or authority. 151. The promoters in creating 70 new constituencies, purported to predetermine how many more constituencies Kenya needed. They had not elaborated the criteria used in arriving at the number 70 or how they chose to distribute those 70 across only 28 of the 47 Counties. They again found themselves infringing article 10(2) of the Constitution which bound all persons to ensure that national values and principles of governance were infused into every application or interpretation of the Constitution or when making or implementing public policy decisions. Contrary to that, the figure of 70 seemed to have been surmised with no sound justification. 152. By arriving at a figure of 70, the promoters were seeking to bypass the elaborate process delineated under article 89 of the Constitution and section 36 of the IEBC Act setting out key criteria set out under article 89(5) such as geographical features and urban centres, community of interest, historical, economic and cultural ties as well as means of communication. 153. The promoters of the Amendment Bill also sought to direct the IEBC through section 1(1) to use ‘criteria provided for in articles 81(d) and 87(7)’. Those two provisions did not provide for criteria that the IEBC could utilize in a boundary delimitation exercise. Article 81(d) provided that electoral systems were to comply with the principle of universal suffrage based on the aspiration of fair representation and equality of vote. That had not touched on IEBC’s role in delimitation of constituencies. Article 87 made provision for dispute resolution mechanisms for electoral disputes and did not contain a sub-article 7. The Second Schedule was void by citing unknown criteria in the process of delimitation and making reference to non-existent provisions. 154. Article 89(7) of the Constitution required that IEBC while reviewing constituency and ward boundaries, to consult all interested parties. Section 36(4) to (11) of the IEBC Act required IEBC to make a preliminary report available to the public and invite representations on the same. The National Assembly, as a stakeholder also had a chance to debate the preliminary report by IEBC and then forward its views to IEBC. IEBC was then required to consider those views by the public and the National Assembly and prepare a final report. In that way, robust public participation and stakeholder engagement was ensured under the Constitution. The Second Schedule by predetermining the 70 new constituencies and their allocation to several counties circumvented that critical component to delimitation of boundaries, offending not just article 89 but article 10 as well. The sections of the Second Schedule of the Amendment Bill were unconstitutional. 155. The President being an office created under the Constitution in order to serve people, could not be considered to be above the law. The provision on immunity had to be read against the backdrop of a historical imperial presidency who, through constitutional amendments, concentrated power in himself. It could not be that the framers of the Constitution intended that the President would be above the law and could carry out roles unchecked. 156. The values and principles, alongside constitutionalism, which denoted limited government, had to mean that the office of President, being a creature of the Constitution, was and had to be subordinate to the Constitution and its holder had to be held to account for their acts and omissions. The President was not above the Constitution or the law and was not a law into himself or herself. 157. In recognition of the pre-eminence and importance of the office of the President, the Constitution granted protection to the holder thereof to the end that he should not be unduly impaired in the performance of his unique duties. That protection could not, by any stretch of the imagination, be extended to cover any and every act or omission including those outside of or in violation of the Constitution. 158. There could come a time when the President would act ultra vires or take actions that would be detrimental to the interests of Kenya. In such a situation, there existed two remedies to an aggrieved party through which they could challenge the president’s actions or omissions. First, by suing the Attorney General who pursuant to article 256(4) of the Constitution represented the National Government in court or other legal proceedings other than criminal proceedings. The alternative would be to pursue the President’s impeachment for violation of the Constitution or other law pursuant to article 145 of the Constitution and once successful, the President would cease to be immune and could be pursued for his actions or omissions. That would be in regard to official actions and omission done in exercise of power under the Constitution. 159. It would appear that no protection was offered as regarded actions or omissions in the President’s personal capacity. Using a hypothetical example of a simple lease between a tenant and the landlord being the President, the immunity afforded under article 143(2) of the Constitution would not apply as that would be an entirely unofficial dispute. 160. The President, in the submissions made before the Court of Appeal, confirmed that he established both the BBI Taskforce and the BBI Steering Committee pursuant to the functions and obligations conferred upon him by articles 131 and 132 of the Constitution. In the entire process leading up to the challenge, the President was acting in his official capacity as the head of Government and in exercise of his Executive role. The correctness or otherwise of the same notwithstanding, the same fell within the parameters of protection of article 143(2) of the Constitution. It was therefore erroneous for him to have been sued in his personal capacity. 161. The instant appeal was a clear demonstration that the remedy of constitutional challenge vide petition directed at the Attorney General was sufficient to call to question any actions or omissions by the President in exercise of his powers under the Constitution. 162. It would be too onerous and expensive to expect citizens to engage and involve the voters generally, to the broad and extensive elements of public participation as enumerated by the High Court. To expect a full-blown civic education and public participation exercise at the time of signature collection from a truly citizen driven process, was to place a burdensome financial and logistical hurdle which would be antagonistic to the very essence of the process. 163. The promoters published an English version of the Amendment Bill on the internet. The 2019 Kenya Population and Housing Census placed only 22.6% of Kenyans aged 3 years and older with access to internet use while only 10.4% use a computer. The act of publication of the Amendment Bill on the internet could not be termed as having been sufficient or meaningful with such low levels of internet penetration across Kenya. While the standard set by the High Court could have been too high, the actions of the promoters were not sufficient. All the more, when considering the fact that the Amendment Bill had 74 proposed amendments. 164. It was necessary for the supporters of the Amendment Bill to understand, in detail, the intent and purport of each of the 74 proposed amendments before appending their signatures in support. At that crucial stage, the least the promoters could have done was provide each potential supporter with a copy of the Amendment Bill in a language they understood. As article 257 of the Constitution set out an incremental continuum of public participation, at that initial stage, public participation could be limited to the potential supporters from whom the promoters hoped to collect signatures. 165. Once the promoters of an Amendment Bill collected their one million signatures and delivered the draft Bill together with the signatures in support to IEBC pursuant to article 257(4) of the Constitution, IEBC was expected to verify that the initiative was supported by at least one million registered voters. Given how IEBC handled the Okoa Kenya Initiative, and its clarity on the procedures it was to undertake, IEBC understood that its mandate and role under article 257(4) included a two-step process. 166. One of the roles that IEBC played was voter verification for purposes of elections in line with section 6A of the Elections Act and rules 27A and B of the Election (Voter Registration) Rules, 2012 which established substantive standards and procedures to ensure the integrity of voter registration and verification regarding elections. IEBC took the role of voter verification as more than a ceremonial exercise. If the IEBC was so scrupulous in carrying out its role in voter verification for elections’ purposes; it followed that the same standard at the very least should apply in the case of verification of signatures for purposes of constitutional amendments through popular initiative under article 257(4) of the Constitution. Constitutional amendments, more so 74 proposed amendments, would have far reaching effects if passed. 167. Ideally there was need for a regulatory framework for signature verification under article 257(4) of the Constitution. However, in the case that it did not, it had existing mechanisms and tools at its disposal that would allow it to undertake the task of verification of signatures in a manner that was transparent, verifiable and acceptable. Namely, the Elections (Registration of Voters) Regulations, 2012, for voter verification for purposes of elections. Article 257 (4) and (5) had not prescribed a timeline within which IEBC had to carry out its verification exercise or within which it had to submit the draft bill to the county assemblies. That would allow it to carry out its crucial mandate in the amendment process meaningfully. 168. There was a degree of public participation at the first two levels expected pursuant to article 257 of the Constitution. However, the same was not in accordance in the national values and principles under article 10 of the Constitution due to failure to provide reasonable notice and reasonable opportunity for public participation. The promoters as well as the county assemblies failed to provide real and meaningful opportunities for public participation. 169. Statutory provisions enacted to give effect to constitutional provisions could not be ignored and the court was obligated to interpret the same. Section 5 of the IEBC Act, provided for seven commissioners, comprising a chairperson and six members. That was not a provision placed for cosmetic purposes. It had the force of law and it was for the courts to apply the same, unless it could be shown that the same was inconsistent or in contravention of the Constitution. When Parliament fixed the number of IEBC commissioners through statute, as it did for the other nine independent commissions, it was not in contravention of article 250 of the Constitution. Parliament, through statute, was merely activating constitutional provisions for better operation of the law. 170. To allow the number of commissioners of IEBC, and indeed any of the nine independent commissions under article 248 of the Constitution, to oscillate between three and nine despite clear statutory provisions, was an extremely dangerous precedent. One of the crucial factors that aided in the public having confidence in public institutions was consistency. The composition was fixed in law to avoid the number being determined by the politics of the day. 171. Once the four commissioners of IEBC were confirmed to have resigned following the 2017 general elections, it was for IEBC to commence recruitment immediately, following a declaration of vacancy by the President, which was to be done within seven days of the resignation. It was certain that the President was required by law to declare the vacancies. Unfortunately, he did not do so. At no time did IEBC, despite being affected by the shortfall of commissioners, request the President to make the declaration to allow it commence recruitment. Instead, it went silent and did not take any steps to ensure that the President declared the vacancy. 172. There was inaction from the Attorney General, as the principal legal adviser to the Government, and the person who would facilitate the declaration of vacancy. He failed to advise the President accordingly that he was in breach of the IEBC Act, and that there were vacancies that required to be urgently filled. Instead, the vacancies persisted for a period of over three years despite clear, imperative and robust provisions under section 7A of the IEBC Act. There was no evidence or suggestion that IEBC made any efforts to put pressure on the President or the Attorney General for declaration of the vacancies to allow it commence recruitment. It appeared IEBC were content with the prevailing circumstances. That was a case of institutional dereliction of duty and an act of self-sabotage on IEBC’s part. 173. It would be neater, more cohesive and a show of comity, for a single judge to justify departing from the decision of three judge bench or for a court, irrespective of composition, to do the same. However, not allowing revisit would stifle judicial debate and growth in jurisprudence. Article 165(4) of the Constitution had not given High Court benches empaneled to hear issues raising substantial questions of law, appellate jurisdiction over single judge benches. 174. There were two points of divergence between the determination by the High Court in the Isaiah Biwott case and the current dispute. The first being the question in issue in the Isaiah Biwott case was quorum to carry out by-elections, whereas in the instant dispute the question was on quorum to carry out a referendum. Second point of divergence, was that the decision by the High Court in the Isaiah Biwott case was per incuriam. The High Court in the Isaiah Biwott case failed to take into consideration clear provision of sections 5 and 7A of the IEBC Act on the composition of IEBC. That court’s finding was that the appointment of commissioners was situational with a fluctuating number between three and nine, in clear disregard of sections 5 and 7 of the IEBC Act. 175. The High Court’s decision in the Isaiah Biwott case lacked due regard for the law for mixing composition with quorum and for reading ‘policy decision’ into paragraph 5 of the Second Schedule. In doing so, the High court in the Isaiah Biwott case attempted to create a distinction between matters IEBC could carry out with quorum and those it could without quorum. Following that erroneous path, the High Court in the Isaiah Biwott case made a finding that IEBC could carry out a by-election without quorum. That was in clear disregard for article 88(4) of the Constitution and section 4 of the IEBC Act that set out the mandate and functions of the IEBC. Key among those constitutionally mandated roles was conducting elections, irrespective of how the vacancy arose. 176. In the absence of a statutory provision on quorum, quorum was the majority of the members with the authority to decide. In the case of IEBC, Parliament set the composition at seven vide section 5 of the IEBC Act. Majority of seven, was four members. To find that the quorum could be anything less than half of the membership of seven, was to weaken IEBC and the crucial mandate it carried out in ensuring a stable society. 177. One of IEBC’s key mandates under article 88(4) of the Constitution was to conduct referenda. That role was reverberated and emphasized by section 4 of the IEBC Act. In conducting referenda, article 257(4) of the Constitution mandated the IEBC to carry out verification of signatures to determine whether promoters of a popular initiative had reached the constitutional threshold of one million supporters. That could not be determined as an administrative function of IEBC. Such a fundamental determination required IEBC to be properly composed and quorate. The number required to make quorum for IEBC, in the absence of statute, was four out of the seven commissioners. 178. The decision by the High Court in the current appeal did not have the effect of setting aside the decision in the Isaiah Biwott case. There was merit in IEBC’s assertion that while the decision remained unchallenged, it was binding on all parties as well as the public at large. IEBC could not be faulted for relying on the decision in the Isaiah Biwott case as it was complying with a court decision. Though the decision was not binding on the High Courts, it created a legitimate expectation for IEBC, that in carrying on its business with three commissioners, it was in compliance with the law. IEBC’s actions in carrying out the verification of signatures were lawful. 179. The manner in which the proposed amendment was to be submitted to the people in referendum was not specified in article 257 of the Constitution. It was IEBC’s role to formulate the referendum questions to be voted on during a referendum. There was no dispute that at the time of filing the petitions, the constitutional amendment process was yet to reach the stage where IEBC would be seized of the matter and be required to frame the referendum question. IEBC was yet to receive the request to hold the referendum prompting it to carry out its duties. There was no assertion that IEBC had already determined the formula it would utilize in framing the referendum question or questions once the process reached that stage. 180. The petitioners before the High Court did not have an actual grievance against IEBC. The purpose of the principle of justiciability was to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision had been formalized and its effects felt in a concrete way by the challenging parties. The court was being asked to interfere with IEBC mandate before it was seized of the matter and before it could make a decision on how to formulate the question. There was no ripe controversy for the High Court to render itself on. Per SC Wanjala, SCJ: 181. In legal parlance, a doctrine was said to be applicable either in a specific jurisdiction, or to a particular dispute. To be so applicable, the doctrine had to have attained the force of law in the said jurisdiction. It carried such force of law, when it was so recognized by a country’s supreme law or legal system. For example, Kenya’s Constitution recognized what was undoubtedly the doctrine of the presumption of innocence in article 50(2)(a). That doctrine acquired its status as such, due to its long usage and acceptability through the centuries in the common law world. 182. The promulgation of the Constitution of Kenya, 2010, marked a radical paradigm shift in the governance of Kenya. By giving the Constitution to themselves and future generations, the people had spoken. They had spoken against an imperial presidency and executive autocracy. They had spoken against a compliant Legislature and Judiciary. They had spoken against the violation of their fundamental rights and freedoms by those who wielded State power. All those, would have to be entombed in the urns and sepulchers of eternity. 183. Article 259(1) of the Constitution was meant to ensure that the equilibrium of democratic governance created by the Constitution, endured through judicial creativity and vigilance. Likewise, by declaring that the Constitution could not subvert itself, the court had long signaled that it was to embrace a purposive interpretation of the Constitution so as to not only promote its values, purposes and principles, but also to guard against any enactments, including amendments that had the potential to undermine its constitutive authority. The court of law could do, without seeking to locate a basic structure in the text of the Constitution. 184. What had been articulated as the basic structure doctrine was not a doctrine, but a notion, a reasoning, a school of thought or at best a heuristic device to which a court of law could turn within the framework of article 259(1) of the Constitution, in determining whether, a proposed constitutional amendment, had the potential to destabilize, distort, or even destroy the constitutional equilibrium. 185. The Constitution provided for the power and procedure for its own amendment, as stipulated in articles 255, 256, and 257 respectively. The Constitution provided in mandatory terms that any proposed amendment relating to the matters identified in article 255(1) had to be subjected to a referendum in accordance with the provisions of articles 255(2) and 256(5). The Constitution conferred upon Parliament the power, to amend any other provision therein (without going through a referendum) as long as such amendment did not relate to any matter stipulated in article 255(1). The Constitution conferred upon the people of Kenya, the power to amend any provision of the Constitution, including an amendment relating to any matters stipulated in article 255 (1) in accordance with the provisions of article 257. 186. The Constitution provided for a three-tier amendment process namely, a pure parliamentary initiative without a referendum, a parliamentary initiative perfected by a referendum, in accordance with the provisions of article 255(1) of the Constitution and a popular initiative with or without a referendum, in accordance with the provisions of article 257 of the Constitution. 187. Every provision in the Constitution was amendable. Nothing in the Constitution led me to an interpretation that would negate the amendment of the Constitution, either on the basis of its history or context. To hold that there were certain provisions in the Constitution that enjoyed attributes of eternity, was to stifle the growth and flowering of the Constitution for the benefit of future generations. Why for example, would it be objectionable if a proposed constitutional amendment had the intention, potential, and effect of strengthening the Bill of Rights, or the independence of the Judiciary? Should the people be recalled in exercise of their primary constituent power, to enact such an amendment even in the face of the permissive provisions of articles 255, 256 and 257 of the Constitution? 188. The Constitution was a living and enduring document. It should therefore be interpreted in a manner that sustained its values and purposes, permitted the development of the law, protected the rights and fundamental freedoms of the individual and contributed to good governance. That was the constitutional equilibrium against which any proposed constitutional amendment would be measured. 189. A proposed amendment had to pass both the procedural and substantive test. The court did not agree that any and every proposed constitutional amendment would be valid as long as it went through the procedural requirements stipulated in articles 255, 256 and 257 of the Constitution. Courts of law could not shut their eyes to a proposed constitutional amendment, if its content had the potential of subverting the Constitution. 190. Much had been pronounced regarding, the invincibility of the primary constituent power of the people to amend the Constitution. But how that primary constituent power was to acquire its juridical form remained a mirage, despite prodding. Inherent in the argument by the proponents of the primary constituent power, was the dangerous presumption that, a constitutional amendment in exercise of the primary constituent power could not imperil the Constitution. Likewise, was the connotation that, what the people and Parliament could not do to the basic structure of the Constitution, the people could do with abandon, as long as they did so in exercise of their primary constituent power. Lost on them, were the many tragic examples in history, where the people had been whipped into frenzies of self-destruction, in exercise of their primary constituent power. 191. A popular initiative was a people-centered process. Such process excluded any other constitutional entity or institution. The role of Parliament was limited to the enactment of the consequential Bill in the first instance, or submission of the Bill to a referendum in the second instance (where Parliament failed to pass the Bill or where the Bill touched on any matter mentioned in article 255(1)) of the Constitution). The people retained a residual power to pass the Bill through a referendum even if Parliament failed to enact it. 192. The involvement of the Legislature under article 257 of the Constitution was merely procedural. Therefore, when the people made a proposal to amend the Constitution under article 257(1), they were to be regarded as exercising their sovereign power directly under article 1(2) of the Constitution. Such direct exercise of sovereign power, also came into play when the people decided to fundamentally break with their unconstitutional past to adopt and give unto themselves and future generations a new constitution. The people did that on August 27, 2010. 193. The BBI Taskforce was conceived and appointed by the President, its terms of reference were issued by the President, the BBI Steering Committee was appointed by the President, its terms of reference were designed and issued by the President. The promoters of the Bill, even assuming they were not appointed by the President, had his ear and finally, it was to the President that the reports of the BBI Taskforce and Steering Committee were handed. From the chain of events, the peoples’ input was totally missing at the point of the inception of the amendment process 194. The wording of the respective terms of reference of the BBI Taskforce and Steering Committee indicated that the people’s input into the contents of the Bill was sought at the validation and signature appendage stages. Yet, the popular initiative had to precede the collection of signatures, otherwise it was not clear what the people would be appending their signatures to. In the premises, the BBI process which culminated in the publication of the Amendment Bill, was an initiative by and of the President. 195. As the President could not originate any proposal to amend the Constitution under article 257(1) of the Constitution, the Amendment Bill being a product of an initiative by the President and not by the people was unconstitutional. 196. The Second Schedule to the Amendment Bill was unconstitutional. While there was nothing inherently unconstitutional in a proposal to increase (or even to decrease) the number of constituencies under article 89 of the Constitution, such increment ought to be based on a felt need as expressed by the people, especially if the proposal was promoted as a product of a popular Initiative. The provisions of the impugned sections of the Second Schedule to the Amendment Bill were a blatant violation of the Constitution in three ways: Section 1 thereof, introduced a different time-line and criteria, from that provided for under article 89(2) of the Constitution, for the review of constituency boundaries. Section 2 thereof purported to direct the IEBC on how to carry out its constitutional mandate of the review and delimitation of constituencies, contrary to article 88(5) of the Constitution. Sections 1 and 2 thereof in effect divest the IEBC of the mandate of reviewing and delimiting constituency boundaries contrary to article 89 of the Constitution. That mandate was unconstitutionally vested in Parliament 197. The proposed amendment of article 89(1) of the Constitution and the attendant Schedule thereto, if allowed to stand, would definitely lead to the Constitution subverting itself. Such a proposed amendment could not be said to be promoting the purposes, values and principles of the Constitution in accordance with article 259(1) of the Constitution nor could it be considered as contributing to good governance. 198. There was considerable difficulty in appreciating the rationale or basis upon which the High Court found that notwithstanding the clear and unambiguous language in article 143(2) of the Constitution, the President could be sued in his personal capacity for acts or omissions, alleged to be in violation of the Constitution. In view of the provisions of article 143(2) of the Constitution, no civil proceedings could be instituted against the President during his tenure of office. 199. If the President embarked on a destructive mission that violated of the Constitution, as apprehended by the High Court, any aggrieved party could always take out judicial review proceedings, under the realm of public law against such violation of the Constitution. The institution to be sued following such an eventuality was the Attorney General. That route had been followed not once, but on numerous occasions when presidential actions and omissions had been successfully challenged at the High Court. In addition, there remained yet another remedy, as provided for under article 145 of the Constitution which was removal of President by impeachment. 200. There was no distinction between civil and constitutional proceedings in Kenya’s order of rights enforcement litigation. The President remained as such until he vacated office. One could not be a President at one given time and a private citizen at a different time. For the same reason the President could not originate a constitutional amendment through a popular initiative notwithstanding his claims of private political rights, he remained the President until he vacated office. He could not be defrocked of his presidential garb for the purpose of personally exposing him to litigation during his tenure of office. 201. The guiding principles issued by the court left no doubt as to the purpose of public participation in the process of governance. The Constitution placed the people at the centre of any policy, administrative, legal or constitutional decision, that could be made from time to time by those whose responsibility it was to govern or serve. The principle of public participation ensured, that the people had a say in the manner in which they were governed. 202. Under article 257(4) of the Constitution, the IEBC was required to verify that a Bill delivered to it by the promoters of a popular initiative, was supported by at least one million registered voters. The verification process was a two-step exercise, which entailed the determination of the authenticity of the signatures, and the fact as to whether the signatures, belonged to at least one million registered voters. There was no way the IEBC could realistically undertake that task, without interacting with, and interrogating the contents of the Voters’ Register. 203. Nothing in article 257(4) of the Constitution or any other related provision of the Constitution placed upon the IEBC an extra obligation to look beyond the names and signatures appended to the Amendment Bill. 204. The principle of public participation applied to all aspects of governance. Under article 257(3) of the Constitution, the promoters of a popular initiative were required to formulate that initiative (read, proposal), into a draft Bill before embarking upon the collection of signatures in support of the Bill. It was not only logical, but also a requirement, that before the people were asked to append their signatures to the Bill, they should not only understand its contents, but also approve of its tenor as being reflective of what they proposed in the first place. Yet all the court had on record was the assertion by the Co-Chair of the BBI National Secretariat that the promoters undertook comprehensive nation-wide consultations. 205. The form, nature, and content of the consultations was not addressed at all. The promoters of the Amendment Bill did not undertake any meaningful public participation before embarking on the collection of signatures in support thereof. Such failure to conduct relevant civic education on the part of the promoters was in breach of article 10 of the Constitution. 206. Two decisions of the High Court, touching upon the question of IEBC’s quorum, assumed centre stage in the proceedings. The first was the High Court’s judgment in the Katiba Institute case where the petitioners challenged the constitutionality of the Election Laws Amendment Act of 2017. Paragraph 5 of the Second Schedule to the IEBC Act had been amended to provide that the quorum for the conduct of business at a meeting of the commission would be at least half of the existing members of the commission, provided that the quorum would not be less than three members. Prior to that amendment paragraph 5 provided that the quorum for the conduct of business at a meeting of the IEBC would be at least five members of the IEBC. 207. Paragraph 7 of the Second Schedule to the IEBC Act had been amended to provide that unless a unanimous decision was reached, a decision on any matter before the IEBC would be by a majority of the members present and voting. The deleted paragraph provided that unless a unanimous decision was reached, a decision on any matter before the IEBC was to be by concurrence of a majority of all the members. 208. The issue for determination before the High Court was the constitutional validity of the Election Laws Amendment 2017. In a judgment delivered on April 6, 2018, the High Court determined that the amendments to paragraphs 5 and 7 of the Second Schedule to the IEBC Act failed the constitutional test of validity and the amendments were declared unconstitutional. 209. In a judgment dated August 10, 2018, the High Court in Isaiah Biwott Kangwony v. Independent Electoral & Boundaries Commission & another; Constitutional Petition No. 212 of 2018,( Isaiah Biwott case) determined that there was no inconsistency between paragraph 5 of the Second Schedule to the IEBC Act, and article 250(1) of the Constitution. The court opined that by providing a minimum of three and a maximum of nine members of the IEBC, the Constitution gave the appointing authority considerable latitude, to appoint the number of commissioners as long as they did not exceed nine or fall below the minimum of three. The court also held that IEBC’s membership of three at the time, could not handicap its operations, especially if they were of an administrative nature as opposed to policy making. 210. The High Court in the Isaiah Biwott case held that in view of the latitude afforded by the Constitution, the number of members of the IEBC required to raise a quorum could not be a constant. In the end, the court held that paragraph 5 of the Second Schedule to the IEBC Act was not unconstitutional. The requirement of five members would only be mandatory, whenever the IEBC was fully constituted at seven. 211. In the instant petition, the High Court distinguished and departed from its holding in the Isaiah Biwott case, noting that the issue before it, was whether the IEBC was properly constituted for purposes of verifying signatures and whether it had quorum to conduct the referendum. The High Court in the instant case held that, for the IEBC to conduct any business, it had to have a quorum of five given the provisions of paragraph 5 of the Second Schedule to the IEBC Act. The court saw no distinction between administrative and policy functions of the IEBC, contrary to the earlier finding in the Isaiah Biwott Case. 212. Whether the IEBC had the requisite quorum at the time of the verification of signatures or not, depended on the applicable constitutional and legal provisions. Towards that end, article 250(1) of the Constitution provided that each Commission would consist of at least three, but not more than nine, members. On the basis of that provision, any independent commission under Chapter Fifteen of the Constitution was to be regarded as having the requisite legal personality as long as it was constituted of not less than three and not more than nine members. 213. While the superior courts could not necessarily be faulted for their stance, one would have expected that before declaring the actions of the IEBC null and void for lack of quorum, they ought to have been alive to the fact that the IEBC remained validly constituted as per article 250(1) of the Constitution. IEBC had the requisite quorum at the time it undertook and completed the verification of signatures. 214. The conservatory order issued by the High Court effectively prevented the IEBC from taking any further action in the amendment process, including the framing of any referendum question/s. There was no reason to accede to the invitation by the respondents to consider a non-issue. To do so would amount to engaging in an abstract exercise whose only utility would be to direct an independent constitutional organ on how to perform its functions. Per NS Ndungu, SCJ: 215. The basic structure doctrine as presented by the parties to the Supreme Court was a judge-made law emanating from the Municipal Court (Supreme Court) in India in Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 (Kesavananda case). The doctrine nuanced the fact that a national constitution had certain fundamental features which underlay not just the letter, but also the spirit of that Constitution. Those features constituted the sacrosanct core of the Constitution that Parliament could not amend at will. The rationale in the Kesavananda case was that any amendment by Parliament which altered the Constitution in a manner that took away the sacrosanct features of the Constitution was not an amendment but was, in effect, tantamount to rewriting the Constitution that Parliament had no power to do. 216. The basic structure doctrine as presented by the parties did not constitute a widely adhered legal doctrine. There were many legal doctrines that were internationally applied and widely followed, such as the doctrines of estoppel, stare decisis, and res judicata, just to name but a few. The basic structure doctrine did not meet the global standard of recognition or prominence. 217. History revealed that the amendment process of the Independence Constitution was for the most part controversial. For the purposes of amendment, the provisions of the Constitution were divided in two categories: ordinary provisions and specially entrenched provisions. The ordinary provisions were amended by an affirmative vote of three quarters of all the members in each house of Parliament. The specially entrenched provisions could only be amended by a vote of three quarters of all the members in the House of Representatives and nine tenths of all Senators. Those provisions included the chapters on citizenship, fundamental rights and freedoms, and the Judiciary. In practice though, it proved quite easy to amend the Constitution. In 1965, the Government had enough parliamentary support to amend the Constitution and it removed the distinction between ordinary and specially entrenched provisions. 218. Entrenched provisions acted as a vital safeguard of sacrosanct constitutional tenets. Kenyans shared in that view as evidenced by the process leading up to the formulation of the Constitution of Kenya, 2010. Kenyans stressed the fact that they needed a constitution that had entrenched provisions on certain aspects, one that was not too simple to amend and one that required their participation in terms of amendment. It was the intention of the drafters of the Constitution to protect or entrench the specified ten matters in article 255(1) of the Constitution by stipulating their specific amendment procedures in article 255(2). If the drafters of the Constitution intended to entrench or protect any other provisions, or deem them eternal or unamendable, they would have expressly done so. 219. No article in the Constitution had to be considered unamendable or constituting eternity clauses. No clause or provision expressly alluded to that and with good reason. An always speaking transformative charter, had never been the enemy of democratic constitutional change. The court had not, eternally, tied and imposed the current ideals, values, morals, structures, commissions and organs on future generations who might not aspire to them or need them. Progressive constitutions had to always acknowledge that change was inevitable. The drafters of the Constitution bore that in mind and struck the perfect balance between changing or amending the Constitution and protecting it. 220. Although the Constitution did not expressly make provision for primary constituent power under article 1 of the Constitution, sovereign power was exercised directly or indirectly through democratically elected representatives. That was why any article of the Constitution including 255(1), could be amended either by parliamentary or popular initiative. The only emphasis was that article 255(2) quoted therein made it mandatory for the amendment of the sacrosanct features enumerated under article 255(1) to be amended through a referendum with at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum: and the amendment was supported by a simple majority of the citizens voting in the referendum. That provision, suggested that the people did exercise their sovereign power by voting through the referendum. 221. In construing the popular initiative amendment route, the appropriate question ought to have been what a popular initiative was. Instead, that question turned into who could initiate a popular initiative. The High Court introduced a non-constitutional actor called an initiator, who performed a non-constitutional action ‘initiate’ when the Constitution only provided for a promoter whose definition was vastly different from an initiator. As such, emphasis was laid on the actor/initiator. That fundamentally changed the import and meaning of article 257 of the Constitution. 222. The superior courts ignored the fact that the drafters of the Constitution used certain words and went ahead to read in words whose effect was to change the entire meaning of the constitutional text. The tool of reading-in was only applied where the framers had left out a word or phrase from a provision. Further, that reading-in had to be supported by other connected provisions of the Constitution. 223. For the popular initiative, promoters after collecting the signatures of at least one million registered voters, submitted signatures and the Amendment Bill to IEBC, who sent the Bill to counties. The Bill had to be approved by a majority of the county assemblies and both Houses of Parliament which enabled public discussion. If Parliament passed the Bill, it was 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) of the Constitution, the proposed amendment was to be submitted to the people in a referendum, which in order to be successful, had to garner the support of fifty percent of votes cast. 224. Article 257 of the Constitution did not define popular initiative. Nevertheless, the heart of construing the meaning of popular initiative lay with the numbers. It was proper to lay emphasis on the numerical value of at least one million registered voters, (whose signatures had to be collected), the numerical value of half of the counties, two -thirds of votes in both houses of Parliament, and half of the votes cast by registered voters at the referendum. It was the numbers that counted; it was the numbers threshold that the promoter had to meet. It was the numbers that made an initiative popular. In the context of article 257(1), a promoter needed at least one million registered voters to support their proposal. That was what triggered the IEBC’s verification process. 225. The popular initiative was primarily about numbers that a promoter had to attain in order for an amendment to be successful, and not about who the promoter or person who brought the amendment was. As such, the superior courts below made a fundamental error that the word popular related to who moved the amendment and not to the numerical threshold that the promoter had to attain. 226. Article 257 of the Constitution did not in any way specify who could move a constitutional amendment process by popular initiative. It did not contain any explicit bar against any person from promoting a constitutional amendment by popular initiative. It specifically provided what actions the promoters were tasked with in order to begin and complete an amendment process (such as delivering a draft Bill and the supporting signatures to the IEBC), but it did not state who the promoters had to be. 227. The President was a democratically elected representative of the people, who, under article 1 of the Constitution, could exercise delegated sovereign power of the people. Indeed, that was one of the ways in which constituent power was exercised. The superior courts addressed the constituent power of the people at length, but for whatever reason failed to take into account that the President was a directly elected representative of the people and who could exercise delegated power on their behalf. 228. The President was not limited as to the measures he could undertake in the exercise of his functions under article 132 of the Constitution. The said measures could constitute a policy, statutory or constitutional frame. In promoting and enhancing national unity, the President could promote constitutional amendments through popular initiative. That would qualify as a measure taken under article 132 on which progress achieved could be reported, in the realization of the national values, referred to in article 10 of the Constitution. 229. The IEBC’s press release dated November 18, 2020, IEBC acknowledged receipt of the Amendment Bill and the 4.4 million supporters’ signatures. Volume 34 of the 3^rd appellant’s record of appeal disclosed the letter from IEBC dated January 26, 2021, forwarding the Amendment Bill to amend the Constitution by popular initiative to the speakers of the 47 county assemblies. In the said letter, IEBC stated that the initiative was promoted by Hon. Dennis Waweru and Hon. Junet Mohamed. The promoters’ referred to in the Amendment Bill, dated November 25, 2020 were therefore Hon. Dennis Waweru and Hon. Junet Mohamed. The President did not thus initiate the amendment process in dispute, he was not a promoter of the popular initiative under the terms of article 257 of the Constitution. 230. Articles 2(4) and 165(2) (d) (i) of the Constitution contemplated scenarios where laws were unconstitutional and they could be declared as such. The Constitution did not provide for pre-enactment mechanisms to determine whether a Bill was constitutional or not. There were other jurisdictions that allowed for that, for example, the Constitution of South Africa allowed for the referral of Bills to the Constitutional Court for interrogation on their constitutionality before enactment. However, in Kenya there was no such provision. 231. The issue before the court was one that could not be ignored. The court would determine the issue by applying a two-pronged test on the ripeness issue. First, the court had to evaluate the fitness of the issue for judicial determination; and second, assess the hardship to the parties or the general public if judicial relief was denied at that stage. In other words, whether there was a kind of question that could only be determined when ripe without occasioning any hardships to the parties or the general public. 232. The Constitution was subject to future amendments by parliamentarians and promoters in view of articles 256 and 257 of the Constitution. The issue of the constitutionality of the Second Schedule to the Amendment Bill met both the fitness and hardship tests, considering that there was a risk of amendments of substantive provisions of the Constitution being made through a schedule. Therefore, it was pertinent for the court, being the apex court, to address the issue. The Second Schedule’s implementation would result in amendments to article 89(2), (3), (4), (5), (6), (7), and (8). However, the actual body of the Amendment Bill itself, although it made proposed amendments to article 89(1), did not propose the above-stated substantive sub-articles 2 to 8. 233. The Second Schedule to the Amendment Bill even if it were to be enacted into law, could not amend article 89 of the Constitution. It would be contrary to the drafting conventions if a schedule to the Constitution were to propose an amendment to a substantive article of the Constitution. In order for the Second Schedule to be constitutionally sound there ought to be substantive amendments to article 89(2) (3) (4) (5) (6) (7) and (8) of the Constitution. Therefore, the Second Schedule was in violation of the Constitution as it conflicted with the substantive provisions of article 89 and could not purport to amend the same. 234. The rationale for presidential immunity came from the enormous responsibility bestowed upon a President as the sole source of Executive power. Therefore, immunity from legal proceedings was designed to permit a President to discharge his obligations with as much autonomy as possible without anxiety that court proceedings were probable to disturb, humiliate, or encumber him from focusing on his duties. That protection was also envisioned to shield the dignity of the office of a President and not him personally. Particularly, because he made far-reaching and sensitive decisions. 235. Pursuant to article 143(2) of the Constitution, civil proceedings ought not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under the Constitution. There was no basis for concluding that the President’s actions contravened the Constitution to deprive him of the immunity provided for under article 143. 236. There was no evidence tabled before the trial court to dispute that the President's actions were not within the four corners of his constitutional mandate of promoting and uniting Kenya. Article 131 of the Constitution did not specifically prescribe the mode the President could adopt to achieve his constitutional mandate. Therefore, the President’s actions or omissions in that instance, entitled him to functional immunity as provided for under article 143 of the Constitution. 237. Article 10 of the Constitution provided that State organs, State officers, public officers, and all persons applying or interpreting the Constitution; enacting, applying or interpreting any law; and making or implementing public policy decisions had to ensure participation of the people. To determine whether the Amendment Bill was subjected to public participation within the parameters of article 257 of the Constitution, the court had to examine the steps and inbuilt mechanisms that were provided for therein. The steps were; the submission of the Bill and the minimum one million signatures of registered voters, and verification of signatures by IEBC; consideration by the county assemblies; consideration by the two Houses of Parliament; and referendum. 238. Article 257 of the Constitution did not first, provide for collection of signatures but submission of a Bill with at least one million signatures. That was the first step towards amendment of the Constitution through a popular initiative. Second, it did not make provision for public participation during collection of signatures. As article 257 of the Constitution did not expressly provide for public participation during collection of signatures, the standard to apply when assessing the same if any, would be lower than when the law expressly provided for public participation. 239. Before a supporter signed in support of a draft Bill to amend the Constitution, such a supporter had to have read, understood, and agreed to the proposed amendments; asked questions about any unclear proposal; and taken a decision to be bound by his or her signature. A promoter, before urging for support of his proposal to have the Constitution amendment supported by at least one million signatures, had to talk to the people, make his or her draft Bill understood by the people, before they could agree to support it. 240. The Standing Orders of Parliament made provisions for the various stages of legislation to ensure adequate public participation took place. When a Bill had been introduced in the House, and upon referral to the relevant Departmental Committee, first, the Committee advertised in the media a request for public views on the Bill. Second, it facilitated public participation on the Bill through appropriate mechanisms which included inviting submission of memoranda; holding public hearings; consulting relevant stake holders; and consulting experts on technical subjects. The Committee also considered the views and recommendations of the public while considering the Bill and preparing its report to the House. 241. Parliament allowed the public to engage it and give their views orally or in writing through: petitions as provided for under article 119 of the Constitution, where the public could petition Parliament on any matter under its authority including enacting, amending or repealing legislation. The public could also engage Parliament through submissions or memoranda. When the National Assembly for instance, was considering Bills, statutory instruments, budget estimates or conducting an inquiry, the general public could make submissions on the subject matters. 242. The public could reach Parliament through public forums that was, face to face engagement between members of Parliament and the citizens. In such forums, Parliament could get feedback and observations of State affairs. Committees could also undertake public hearings through meetings in and outside Parliament. Members of the public were allowed to attend Committee meetings. 243. No person complained that their right to participate in the public affairs to wit, Amendment Bill was violated. If any person was aggrieved that Parliament did not conduct public participation, then their pleadings ought to have been specific on it. No evidence was tendered to prove that Parliament did not conduct public participation. Therefore, there was public participation at the two Houses of Parliament. 244. According to article 88(4) of the Constitution, IEBC was responsible for conducting referenda and elections to an elective body or office established under the Constitution, and any other elections as prescribed by an act of Parliament. It was also responsible for among other duties, conducting voter education pursuant to article 88(4)(g). At section 40 of the Elections Act, IEBC had the responsibility for continuous voter education and preparation of a voter education curriculum. It was at the referendum stage that IEBC was required to conduct public participation through voter education. Considering that the President was yet to refer the Amendment Bill to IEBC to conduct a referendum, the question of public participation on the part of IEBC was not ripe for determination. 245. The Legislature had to urgently provide for the parameters of public participation. It had to do so through an enabling statutory framework. Such legislation would provide precision and clarity about the various processes involved and address issues like the mode, extent, stages, proof of public participation; lay out the responsibilities of who should conduct public participation and when; and how it would to be funded at its various stages. 246. The composition of IEBC and other commissions under article 250 of the Constitution such as the Parliamentary Service Commission and the National Land Commission, was governed by article 250(1) of the Constitution. In the absence of a constitutional provision specifying their quorum, the statutes that established such commissions stipulated the same. In the instant case, the relevant Act of Parliament was the IEBC Act. 247. Article 250 (1) of the Constitution only limited itself to the composition of the commissions. Therefore, as long as Parliament in formulating legislations adhered to the range given in the Constitution in coming up with the composition of commissions, their actions or the resultant provision or legislation could not be unconstitutional as it was not inconsistent with the Constitution. In the instant case, the amendment of paragraph 5 of the Second Schedule was not unconstitutional as it was not inconsistent with any provision of the Constitution. 248. The two superior courts failed to effectively distinguish between composition and quorum thereby arriving at a wrong decision. Those were two different concepts that ought not be confused. Paragraph 5 of the Second Schedule of the IEBC Act, as per the Election Laws (Amendment) Act No. 34 of 2017 was constitutional because it neither contravened any provision of the Constitution nor was it inconsistent with the Constitution. 249. Under article 257 of the Constitution, IEBC’s role came into play at the tail end of a constitutional amendment process. The steps for amending the Constitution through a popular initiative were clearly set out under article 257 that the submission of the minimum one million signatures and the draft Bill to IEBC by the promoters; verification of signatures by IEBC; approval of the draft Bill by county assemblies; approval of the draft Bill by the two Houses of Parliament; assent of the Bill by the President (if the proposed amendment did not touch on any of the matters listed under article 255(1); or submission of the Bill to IEBC to conduct a referendum, if the Bill concerned matters listed under article 255(1) or if Parliament failed to pass a Bill proposing constitutional amendments through a popular initiative pursuant to 257(10); and assent of the Bill by the President. 250. A referendum was at the conclusion of a constitutional amendment process of a popular initiative. It was not contested that although the Amendment Bill had been approved by the County Assemblies and Parliament, the same had not yet been subjected to a referendum. The referendum question was premature and not ripe for determination by the superior courts, as IEBC had not received a request to hold the referendum. Besides, IEBC had not taken any action which would entitle any party to come before court and allege a denial, a violation, an infringement of or threat to a right or fundamental freedom as provided for under article 23 of the Constitution. 251. The question of whether the proposed amendments to the Constitution were required to be submitted as separate and distinct referendum questions in line with article 257(10) of the Constitution met the fitness and hardship test against ripeness as expounded earlier. In applying that test, it was not to be in the best interest of the general public to withhold a consideration of the constitutionality or otherwise of section 49 of the Elections Act. It was necessary to interrogate section 49 of the Elections Act to avert any confusion it could occasion in future referendums. The Supreme Court had to intervene and pronounce itself in a bid to discharge its enormous responsibility of ensuring that the law was not only constitutional but also predictable, certain, uniform, and stable. 252. Article 257 of the Constitution referred to a Bill, therefore, what ought to have been referred to under section 49(1), (2) and (3) of the Elections Act was a Bill and not an issue or a question. It was not clear why the legislators in enacting the Elections Act, departed from the drafting language in the Constitution, that was, a Bill to a question. Since the constitutional text only referred to a Bill, the Constitution restricted a proposed Bill, to only contain a single-issue amendment. There was no such provision in the Constitution. Section 49 departed from the provisions or wording of the Constitution in articles 256 and 257 hence was unconstitutional. Accordingly, the court recommended that the Legislature take the requisite legislative measures to regularize that inconsistency. Per I Lenaola, SCJ: 253. When the Kenyan people gave themselves the Constitution of Kenya, 2010, it was a matter of public knowledge that certain parts of it would require amendment at some point in the future. There was however no agreement as to what those parts were and it was left to the political class to raise a number of issues over the years that debatably required amendments. 254. Though the Indian Supreme Court in the Kesavananda case held that the power of Parliament to amend the Constitution was impliedly limited by the basic structure doctrine, the court did not agree on what exactly and precisely constituted the basic structure of the Constitution. Amendments contrary to what the court implied as basic structure would be considered as unconstitutional and would be struck down. The Kesavananda case was not dealing with amendments through popular initiative. The Amendment Bill was not a creature by Parliament but of initiators and promoters under article 257 of the Constitution. 255. Any interpretation of article 255 of the Constitution and the amendment procedure of the Constitution had to begin with tracing the history of the making of the Constitution and how the question of amending the Constitution was addressed by the Constitution of Kenya Review Commission (CKRC). The primary reason why the people of Kenya wanted to review the repealed Constitution was because they felt that it no longer protected them. The feeling generally was also that, due to the numerous prior amendments, the Constitution was operating like ordinary legislation as opposed to the supreme law of the land. 256. The National Constitutional Conference (NCC) was aware of the dangers of the culture of hyper-amendments that had defined the Independence Constitution while also equally aware of overly rigid amendment procedures. The NCC in the end made it neither too easy nor too difficult to amend the Constitution and the CKRC Final Report gave due consideration to the matters they wanted entrenched in the Constitution and how the Constitution should be amended. The CKRC Final Report noted that the people sought to limit the power of Parliament to amend the Constitution and wanted to be directly involved in the changing of certain provisions through referenda. 257. The recommendations of the CKRC report morphed into Chapter Sixteen of the Constitution and by those provisions, the people attained the right balance between constitutional flexibility and rigidity and provided sufficient and strong safeguards against the culture of hyper-amendability that characterized the repealed Constitution. Chapter Nineteen of the Bomas Draft and Chapter Nineteen of the Wako Draft were also identical as to what was contained in Chapter Sixteen of the Constitution. 258. The people did not intend to immunize the provisions of the Constitution; to the contrary, they envisaged that they could amend the provisions of the Constitution by exercising their secondary constituent power provided that the amendment procedure under Chapter Sixteen was strictly observed. If the people wanted to entrench provisions other than those set out under article 255(1) of the Constitution or to immunize any of the provisions of the Constitution from amendment, they would have done so expressly. Courts should not by judicial craft or innovation impose hurdles to prevent the people from amending the Constitution provided that the procedural requirements under Chapter Sixteen were complied with. 259. In noting the juridical status of the concept of constituent power of the people, the court in Timothy M Njoya & 6 others v Attorney General & 3 others, Misc. Civil Application No. 82 of 2002; [2004] eKLR held that the most important attribute of the sovereignty of the people was their possession of the constituent power. It had to remember that in its findings the court was addressing a review of the repealed Constitution with the ultimate aim of promulgating a whole new constitution which ultimately happened in 2010. The court was also addressing the exercise of primary constituent power and the role of Parliament to amend the Constitution under section 47 of the repealed Constitution. The popular initiative amendment procedure which was in contention in the Constitution of Kenya, 2010 was not an issue at the time as the repealed Constitution did not have a referendum process nor were the people directly involved in the said amendment and subsequent review process. 260. Any interpretation of articles 255 to 257 had to begin with a rendition of the constitutional making process in Kenya. Article 259 of the Constitution provided that the Constitution had to be interpreted in a manner that promoted its purpose, values and principles. 261. Parliament could amend the Constitution, but the Constitution’s basic structure limited the amendment mandate by making it difficult to amend it without recourse to the processes in articles 255, 256 and 257 of the Constitution. 262. The basic structure doctrine was introduced by the Indian Supreme Court as a limitation on the constituent power of Parliament to amend the Constitution and not on the alteration of the Constitution as a whole. The doctrine was cited in the Kesavananda case as a precautionary measure against arbitrary exercise of the constituent power by Parliament, which, in the absence of the doctrine, India’s Parliament would have moved to amend the Constitution in any manner it deemed fit. 263. In India the Constitution did not have provisions referring amendment of important provisions of the Constitution to a referendum. In Kenya, the whole Constitution could be changed with the concurrence of the people. It didn’t matter whether the amendment touched on what could be deemed as essential features of the Constitution as the existence of such features would not stand in the way of the same being changed. A constitution was also sanctioned by the people by way of a referendum and no other process. That was the reasoning in enacting articles 255 to 257 of the Constitution, the framers were alive to that fact. 264. The basic structure doctrine did not concern procedurally defective constitutional amendments, but only with validly passed amendments. If the Constitution itself provided an express substantive limitation on the exercise of the power, the doctrine was irrelevant in respect of that power. The doctrine was invoked because the power to amend was not substantively limited. If the power to amend was unlimited, an all-powerful Legislature could destroy the Constitution and/or make a new constitution. While the Kenyan Constitution had a basic structure, any interpretation made had to be construed according to the doctrine of interpretation that the law was always speaking. 265. Where the basic structure of the Constitution was under threat, the court could genuinely intervene to protect the Constitution. Such a position was anchored on the mandate of Parliament to effect amendments under article 256 of the Constitution and that of the people through a popular initiative under article 257 of the Constitution. The processes were different and article 255 of the Constitution contained the lens by which both had to be reviewed. 266. From the express language of article 255 of the Constitution, the issues that were ring-fenced from Parliament’s amendment powers were: the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance mentioned in article 10 (2) (a) to (d) of the Constitution; 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 applied; the functions of Parliament; and the objects, principles and structure of devolved government. the amendment chapter (article 255 of the Constitution) as a guard against amendment itself. 267. There was need to protect the Constitution against indiscriminate amendments. If the amendment procedure was too simple, it reduced public confidence in the Constitution. The converse, however, was also true. If the amendment procedure was too rigid, it could encourage revolutionary measures to bring about change instead of using the acceptable constitutional means. A balance needed to be struck between the two extremes. 268. The framers created a distinction between entrenched provisions and non-entrenched provisions leading to the enactment of article 255 of the Constitution to contain the entrenched and the rest of the Constitution to contain the non-entrenched. The Constitution was amendable using the two processes established by the same Constitution; by Parliament – in non-entrenched provisions and by popular initiative as regards entrenched provisions. No immunization was intended by the framers of the Constitution. 269. The position that non-progressive judiciaries had rejected the notion that the basic structure of a Constitution was and could be found outside the language of the Constitution and was reposited in an implied framework to which courts could occasionally resort to on a case to case basis was rejected. Such a proposition was incapable of rationalization in the context of Kenya’s constitutional design and architecture. In Kenya, Parliament could not in exercise of its ordinary legislative power amend the entrenched provisions in article 255 of the Constitution without the sequential steps in article 257. 270. The court in Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 Others, HC Petition No. 496 of 2013; [2013] (Commission for the Implementation of the Constitution case) declined to use the terms, ‘basic structure doctrine’ and referred to ‘basic structure’ and not doctrine. The clarification was important. 271. A doctrine was a single important rule or set of rules that was widely followed in a field of law. Doctrines were simply rules or principles with such a long history in the law that lawyers and scholars had given them the more prestigious label of doctrine. A doctrine was a legal principle that was widely adhered to. 272. There were doctrines that had developed and their principles widely accepted and incorporated into civil law by various jurisdictions. Those included the doctrine of separation of powers which signified the division of powers between various organs of the state; executive, legislature and judiciary; the doctrine of judicial discretion where judges exercise their discretion in applying the law; the doctrine of judicial review which granted courts the authority to declare laws or actions of government officials unconstitutional if the acts were done beyond the powers granted by the Constitution or statute; the doctrine of natural justice which signified that no person was to be condemned unheard; the doctrine of res judicata which provided that once a matter was finally decided by a competent court, no party could be permitted to reopen it in a subsequent litigation. Other doctrines of law whose principles had also been widely applied included the doctrine of laches which stated that a court would only assist people who were vigilant and not the indolent and the doctrine of harmonious construction which stated that a provision of the Constitution or statute should be interpreted or construed not in isolation but as a whole, so as to remove any inconsistency or repugnancy. The basic structure had not met the criteria for recognition as a doctrine. 273. The court was attracted to the doctrine as a useful tool in interpretation generally but it had to be read along side constitutional text and history for a conclusive decision as whether the Constitution had clauses that could not be amended because of the basic structure doctrine or that the Constitution had a basic structure that Parliament could not amend without the input of the people. 274. The sovereignty of the people in constitution-making was exercised at three levels: The primary constituent power was the extraordinary power to form (or radically change) a constitution; the “immediate expression of a nation and thus its representative”. It was independent of any constitutional forms and restrictions and was not bound by previous constitutional rules and procedures. In Kenya, the primary constituent power was exercisable in four sequential processes. The secondary constituent power was an abbreviated primordial constituent power exercisable by the whole polity in an abbreviated process to alter the constituting charter (Constitution) in non-fundamental ways, that was, without altering the basic structure. In Kenya, the secondary constituent power to amend the Constitution was exercisable through a referendum subsequent to public participation and parliamentary process. It could only be perfected by following the amending procedures in articles 255, 256 and 257 of the Constitution. The constituted power was created by the Constitution and was an ordinary, limited power; a delegated power derived from the Constitution, and hence limited by it. In Kenya, the constituted power was exercised by Parliament, which has limited powers to amend the Constitution by following procedures set in articles 255, 256 and 257 of the Constitution. 275. The processes had to be understood in their context; the Kenyan people, through the organs created by statute and with their participation, were engaged in constitution-making; the doing away of the old constitutional order and creating/making of a new one – the Constitution of Kenya, 2010. The four sequential steps that were required in amending the Constitution via the primary constituent power were: civic education; public participation and collation of views; constituent assembly debate – the instant stage was not necessarily only by way of a constituent assembly as a national convention or national conference were the other titles used elsewhere; referendum. 276. The process in dispute in the instant case was anchored on article 257 as read with articles 255 and 256 of the Constitution. Should the Kenyan people, in their sovereign will choose to do away with the Constitution and create another, then the sequential steps were mandatory and Kenya’s constitutional history would be the reference point. 277. Article 1 of the Constitution was headed “Sovereignty of the people”. The people in the preamble to the Constitution conceded that they exercised their sovereignty and inalienable right to determine the form of governance of Kenya and had fully participated in the making of the Constitution, adopted and gave the Constitution to Kenya and to future generations. Articles 2(1) commanded that the Constitution was the supreme law of Kenya and bound all persons and all State organs at both levels of Government. All courts, in addressing all disputes before them, had to always begin with the Constitution and ensure that they acted within its boundaries and edicts before recourse to other jurisdictions and laws. 278. Every Constitution had pillars and building blocks without which it could not stand. However, a look into article 255 of the Constitution against the whole Constitution directly spoke to the pillars and building tools by identifying them not in abstract but by their importance. 279. A constitutional dismemberment entailed a fundamental transformation of one or more of the Constitution’s core commitments. A dismemberment was incompatible with the existing framework of the Constitution because it sought to achieve a conflicting purpose. It intended deliberately to disassemble one or more of a constitution’s elemental parts. An amendment did not go nearly as far because, properly defined, it kept the altered constitution coherent with its pre-change identity, rights, and structure. The purpose and effect of a constitutional dismemberment were the same: to unmake a constitution. 280. In making constitutions, the old had to be dismembered to create the new. The Amendment Bill had 74 clauses and two schedules. The memorandum of objects and reasons explained each proposed amendment. The court expected each and every amendment to be subjected to scrutiny by the parties that proclaimed it to be unconstitutional. None of the pleadings did so and even applying their test to the Bill, no party claimed the unconstitutionality of an amendment that proposed: Clause 2 – regional cohesion and integration; clause 3 – economy and shared prosperity; clause 5 – protection of personal data; clause 6 – enactment of legislation to require Parliament to provide mechanisms to strengthen the fight against corruption through expeditious investigation, prosecution and trial of cases relating to corruption and integrity; clause 7 – relating to party lists and to ensure that they complied with the principle that not more than one-third of candidates were of the same gender; clause 68 – to include the director of public prosecutions as an independent office; and clause 69 – to reduce the number of commissioners in Independent Commissions because of huge expenditure incurred by the public. 281. The history of Kenya was replete with constitutional amendments by Parliament which led to the erosion of democracy and the rule of law. The Constitution provided two mechanisms, amendment by Parliament and by popular initiative, to ensure that no such amendments occurred ever again without the input of the sovereign – the people. 282. The role of the people arose from article 1 of the Constitution that provided that the exercise of sovereignty was either directly or through their democratically elected representatives. That exercise of direct power needed not be implied. It was direct because it was exercised in that manner by constitutional edict and not by reference to any other legal regime - real or implied. 283. The language used in that article 257 of the Constitution as it regarded the direct sovereignty required no more than a literal interpretation. It was exercised by: collection of one million signatures – articles 257(1); participation in civic education prior to a referendum – articles 256(5), 257(10) as read with article 88(4)(g); voting in a referendum – articles 256(5)(a) and 257(10). 284. Indirect participation was through the elected representatives at the county assemblies and Parliament. To say that the people had no role or say in an amendment process or that they had no capacity to make decisions to their benefit was an affront to their sovereignty. 285. The court could not deny article 255 of the Constitution and refer to the Kesavananda case. The court could not imply doctrines and principles that were outside the constitutional text and which ignored Kenya’s context and history. 286. The answer as to whether an Amendment Bill to the Constitution could do away with article 25 and all the rights there under lay within the in-built process was in article 257 that ended with a referendum where such a fundamental amendment would be determined. Civic education was the mechanism by which the dangers of such an amendment would be pointed out among other processes in article 257. The people would have the final word at the referendum. 287. The basic structure doctrine did not apply in Kenya in the manner suggested by the 1^st to 5^th respondents and that the four sequential steps set out by the High Court and the majority of the Court of Appeal only applied when a new constitution was being made and not in any amendment process under article 257 of the Constitution. Based on Kenya’s history, the text of the Constitution and the context was the legislation such as the Constitution of Kenya Review Act 2008 and its 1997 predecessor that the four sequential steps should be anchored when and if the people ever wanted to change their constitutional order as they previously did in 2010. 288. The BBI Taskforce had no mandate towards a specific amendment to the Constitution. An initiative was an electoral process by which a percentage of voters could propose legislation and compel a vote on it by the legislature or by the full electorate. The initiative was one of the few methods on direct democracy in an otherwise representative system. An initiative was the ability to initiate or begin something. The power of opportunity to act before others did. Fresh strategy intended to resolve or improve something. A promoter on the other hand was someone who encouraged or incited. Popular initiatives meant that a certain number of citizens could demand a referendum by signing a petition for a referendum on a legislative change promoted by the sponsors of the initiative. Because the agenda-setter and the initiator of the referendum were the same political actor, popular initiatives were decision-promoting referendums. 289. Popular initiatives seemed to provide an alternative to the representative system as a decision-making method and they could be seen as a part of popular self-government. In particular, they provided citizens with an opportunity to raise issues on the political agenda. Popular initiatives were rather rare institutions in national-level politics. 290. The term popular initiative could be traced to the Bomas Draft, 2005. Popular initiative was introduced as 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 intention was a starting point towards curbing dictatorship by Parliament. The initiative was deliberately crafted as a tool of amendment by citizens, the common man and civil society as opposed to Parliament. 291. The President could not and was not to initiate amendments to the Constitution under article 257 of the Constitution. A popular initiative was people centric and while the President had certain rights as a citizen, there were certain other things that were constitutionally curtailed for the President. The President could not initiate the process by collecting one million signatures and crafting an Amendment Bill and then retire to await the same Bill under articles 257(9) and assent to it as President. That was an absurdity that could not have been the intention of the framers of the Constitution. Neither could the President initiate a Bill under article 256(5)(a) and (b) of the Constitution, request the IEBC to conduct within ninety days, a national referendum for approval of the Bill, and also assent to the same Bill. The President had specific roles in a popular initiative process and those roles did not include initiating the same. 292. As party leader, the President had other political mechanisms through Parliament to do what he considered best, without encroaching on the sacred people-centric process under article 257 of the Constitution. 293. Article 257 of the Constitution had specific processes and players, each with a distinct role to play. The BBI process had two distinct processes; the handshake and its related processes, the BBI Taskforce and Steering Committee; and the constitutional /popular initiative under article 257; the BBI National Secretariat. 294. When the President and Hon. Raila Odinga decided to shake hands, Kenya was not in a good place at all and violence was looming large. Article 131(1) (e) of the Constitution referred to the President as a symbol of national unity and article 131(2)(e) enjoined the President to promote and enhance the unity of the nation. The handshake could only but be viewed in that context; the President had to act to maintain the unity of Kenya after the contested 2017 presidential election. 295. By directing the BBI Steering Committee to engage in constitutional changes, the President had not turned himself into an initiator and promoter of the popular initiative. A popular initiative was commenced with the collection of a million signatures and prior to, or simultaneously with the general suggestion or a formulated draft Bill. In the instant case, the letter dated November 18, 2020 to the Chairperson, IEBC, showed who that the collectors of the signatures were the Secretariat of the Building Bridges to a United Kenya -Kenya Moja. 296. Nowhere did the President appear in the process and it was a matter of public notoriety that he publicly signed the signature template as did Hon. Raila Odinga. He did so as a citizen entitled to do so but not as the initiator or promoter of the popular initiative and there was no illegality in that action. The President also voted at a general election and was equally entitled to vote at a referendum as a citizen. 297. The President could not and was not to initiate or promote a popular initiative under article 257 of the Constitution but could use his parliamentary party muscle in Parliament to initiate amendments under article 256 of the Constitution if the President so wished. The President was not the initiator or promoter of the popular initiative, Hon. Dennis Waweru and Hon. Junet Mohamed were. 298. Article 89(1) and (2) of the Constitution provided for the procedure to be followed by IEBC in the review of names and boundaries of constituencies. Section 36 of the IEBC Act provided for the procedure to be followed in the delimitation of electoral boundaries and how IEBC was to discharge that mandate. Section 36 provided the procedure for delimitation of electoral boundaries. 299. Delimitation of boundaries was to be done by IEBC and through the procedure set in the IEBC Act. Section 36(8) of the IEBC Act provided that there should be public participation in the delimitation of constituency boundaries. Any attempt at delimiting boundaries by amending article 89(1) without consequential amendments to article 89(2) to (12) and following the procedure in section 36 defeated not just logic but was blatantly unconstitutional. 300. The BBI Steering Committee Report that was presented to the President also included the BBI Steering Committee Draft Bill. The Second Schedule of the Bill directed IEBC to use the criteria in article 89(7) of the Constitution to delimit the boundaries for the proposed seventy constituencies. 301. There was no public participation in the criteria used to create the new constituencies. It was unclear how the BBI Steering Committee reached the decision to create the new constituencies but somehow the Bill had them. An amendment Bill could have whatever issues its promoters would like to put into it but to take away the constitutional mandate of the IEBC in an amendment process then purport to direct it on how to undertake its mandate was blatantly unconstitutional. 302. The creation of the constituencies was made without input from anyone outside the BBI Steering Committee. Constituencies were such an emotive issue in Kenya that, creation of new ones without an elaborate process to involve the people – those who supported and those who did not – was a dead-on arrival matter. Without evidence of public participation, there was no way that the Supreme Court could validate the process. 303. In inserting the Second Schedule to the Amendment Bill and amending only article 89(1) of the Constitution without amending all other sub-articles, the limitations of the Bill created an absurdity. It was unclear what criteria was used to delimit new constituency boundaries without the input of affected persons. The delimitation was a boardroom affair and not even a vote at the referendum could legalize that action. In the future, it would be quite permissible to restart the process, follow the criteria in article 89, involve the IEBC and the people and should the constitutional and other processes be adhered to, then the beneficiaries of the additional constituencies would have their day as would those in protected constituencies. 304. Article 143(1) and (2) of the Constitution provided that the President enjoyed immunity from criminal and civil proceedings. Article 143 (1) stipulated that the President was not to be sued in any criminal proceedings during his/her tenure of office, with article 143(4) being the only exception to such immunity under criminal proceedings. 305. Although the President enjoyed immunity, there was nothing barring institution of constitutional proceedings challenging the exercise of presidential powers. Article 258(1) of the Constitution stated that every person had the right to institute court proceedings, claiming that the Constitution had been contravened, or was threatened with contravention. However, article 258(1) was qualified by the provisions of article 143(2) of the Constitution on institution of court proceedings against the President. The Attorney General was the one to be sued whenever the President had contravened the provisions of the Constitution. The Constitution furthermore provided for remedies for violations committed by the President by ensuring that there were safeguards to ensure that any misconduct by the President in relation to the Constitution would be checked. 306. Like any other official, the President remained accountable to the people. Remedies for constitutional violations included suing the Attorney General under article 156(4) of the Constitution or impeachment of the President for violations of the Constitution under article 145(1) of the Constitution. The Attorney General was mandated to appear as the principal legal adviser to the Government and to represent the National Government including the President in court when proceedings arose from acts done in his or her capacity while performing the actions of the office of the President. 307. Once a party had sued the President in his personal name, the Attorney General could not represent him and just like in the instant case, the President had to hire his lawyers to represent him. However, for actions touching on his mandate as President, then the President should not even be sued in his personal name and his remedy lay in costs should he be sued. 308. If the President violated the law, article 145(1) of the Constitution lay down an elaborate procedure for his removal through impeachment. The immunity envisaged under article 143(2) of the Constitution did not exist to shield the President from any wrongdoing but pointed to the direction that the President could not be sued in any proceedings for violation of the Constitution in his/her personal capacity. The President should not be sued in his personal capacity for acts done in contravention of the Constitution during his tenure of office. The High Court erred in finding that the President could be sued in such a capacity and not as the President of the Republic of Kenya. 309. Common law courts granted absolute immunity to judges and legislators from civil liability for activities done within their scope of official functions. Judges enjoyed absolute immunity and were immunized from any action or suit on account of the performance of a judicial function. Judges were fallible human beings, there existed mechanisms through which errors committed by judicial officers in the discharge of their judicial functions could be corrected. Judges could not be sued in court in their personal capacities while discharging their judicial functions. It would be incomprehensible to find that judges were protected from being personally sued under article 160(5) of the Constitution, then find to the contrary, that the President could be sued in his personal capacity for acts done during his tenure in office despite article 143(2) of the Constitution. 310. The guiding principles for public participation were: As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance. The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation. The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means. Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation. Public participation was not an abstract notion; it had to be purposive and meaningful. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis. Public participation was not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard was not enough to annul the process. Allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis. Components of meaningful public participation included: i. clarity of the subject matter for the public to understand; ii. structures and processes (medium of engagement) of participation that were clear and simple; iii. opportunity for balanced influence from the public in general; iv. commitment to the process; v. inclusive and effective representation; vi. integrity and transparency of the process; vii. capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter. 311. Public participation was the mechanism through which the public was allowed to participate in decision making processes and applied to all aspects of governance. The principles were a commitment to accountability, responsiveness and openness in government as they envisaged a democracy that was not only representative but also participatory. The Constitution specifically called for public participation in the making of laws by both the County Assemblies and Parliament. 312. Nothing in the applicable provisions gave the IEBC the mandate to perform any other function except to verify the one million signatures in support of the initiative. The Constitution had not placed any burden on IEBC to ensure that the promoters of a Bill had met the requirements of public participation. To hold otherwise would be an error on the part of any court. Constitutional amendments as envisaged under article 257 of the Constitution were also amenable to public participation. Whether or not there was public participation could only be determined by considering the continuum of the entire process and not just specifically at the stage of signature collection. 313. There were four identifiable stages of public participation on amendment of the Constitution by way of popular initiative under article 257 of the Constitution. By appending their signatures to the proposed initiative therefore, the public had participated in the process. Via article 257(5) and (6) of the Constitution, the public indirectly participated through their representatives. Under article 257(7) and (8) of the Constitution, the participation was also indirect through their elected Members of Parliament. In that regard, article 118 of the Constitution provided for public access and participation in the making of laws. The provisions governing public participation by Parliament were mirrored in the provisions governing county assemblies on public participation under article 196 of the Constitution. Public access to a Bill purporting to amend the Constitution was a fundamental part of public participation. It enabled members of the public to familiarize themselves with the law-making process and thus be able to effectively participate at the referendum stage which was the last and fourth stage when the Bill was submitted to the people for voting. The best way that was achieved was through the opportunity to submit representations and submissions, to ensure that the public had a say in the law-making process. 314. There was no justification for the superior court’s findings on the lack of public participation as the voters who signed the signatures for the proposed Amendment Bill did so without being accorded a chance to study the Bill, or that any of their submissions or representations were not taken into consideration. That was on the first stage of public participation. 315. One could not fault IEBC or the promoters of the initiative at all because at the point that the High Court stopped the process, IEBC had not yet been seized of the voter education mandate prior to the referendum. The promoters had also not started popularizing their Bill prior to the said referendum. 316. The process was from the collection of signatures to the referendum. What happened prior to those processes could not qualify as the process. A finding that there was no public participation in the process was erroneous. 317. There was need for a legal/regulatory framework to govern not just the process of verification of the signatures, but also governing all the stages of an amendment Bill under article 257, from the point of collection of signatures, to the verification of those signatures by IEBC, the discussion and passage of an amendment Bill by the County Assemblies, the process of passing of a Bill by Parliament, the receipt of the Bill by the President and on transmission of the assented Bill by the President to the IEBC for voting in a referendum. The requirement for the legal framework was also in line with the provisions of article 82(1)(d) of the Constitution. Without the legal framework, the confusion as to what amounted to proper and legitimate public participation would continue dragging Kenyan courts. The legislation should cover all aspects of the popular initiative. 318. IEBC was one of the commissions created under article 248 of the Constitution and whose functions was as provided for under article 88. The amendments on quorum were not good for the proper functioning of the Commission. The effect of the pronunciation was that the amendments to the Second Schedule were inconsistent with the provisions of article 250(1). The High Court in the Katiba Institute case interfered with the functional independence of the IEBC by purporting to make a finding on quorum based on what it thought would be the best number to form quorum, instead of interpreting the amendments and confirming whether they were in conformity with the provisions of the Constitution. 319. Section 5 of the IEBC Act dealt with composition and appointments of the commissioners of the IEBC and at section 5(1) stated that the IEBC was to consist of a chairperson and eight other members appointed in accordance with article 250(4) of the Constitution and the provisions of the Act. Quorum was defined the minimum number of member (usually a majority of all members) who had to be present for a deliberative assembly to legally transact business. Quorum denoted the minimum number of members of any body of persons whose presence was necessary in order to enable that body to transact its business validly so that its acts could be lawful. 320. Quorum was to be examined against the constitutional composition stated at article 250(1) where the IEBC had three members at the time of verification of the signatures. IEBC had the minimum number of members present to enable it transact its business validly. Since quorum was composed of a clear majority of members of the IEBC, quorum was not to be a constant number as it was dependent on the actual number of the commissioners appointed at any given time. If quorum would remain five in the event that only three commissioners were appointed because the Constitution allowed for a minimum of three members, the quorum not be five. 321. The issue of quorum, apart from being a matter provided for under statute, was also a matter of common sense and construction depending on the total number of the commissioners appointed at any given time because it was the total number of commissioners appointed that would determine the quorum of the commission and not the other way round. IEBC was quorate at the material time. To subjugate article 250(1) of the Constitution to the legislation created by dint of article 88(5) of the Constitution was to read the Constitution in a skewed manner. 322. The language of the article 255, 256 and 257 of the Constitution was that, a Bill in the singular was what was ultimately presented in a referendum. The language of the Constitution in articles 256 and 257 consistently referred to a ‘Bill’ and not ‘Bills’. Finding otherwise would be in contravention of the Constitution. Similarly, the CKRC Final Report while considering amendments to the Constitution, recommended that the Constitution should have entrenched provisions whose amendment shall be by way of a Bill. The drafters of the Constitution also intended to have a Bill for amendment to the Constitution presented to the people. The language of ‘question’ or ‘questions’ was however introduced in section 49 of the Elections Act to operationalize the relevant provisions. 323. A casual reading of section 49 of the Elections Act would show that it was inelegantly drafted. Any attempt to operationalize article 257 of the Constitution should have begun with a clear demonstration that there existed ‘a Bill’ to amend the Constitution. Thereafter, the issue as to what was to go to the referendum under article 257(10) of the Constitution was “the proposed amendment”. Section 49 would then pick up the matter from there and without creating the confusion it had instantly brought, either stick to “a proposed amendment” or as was the practice in the world, clearly demarcate when “a question” was to be put to the people on that proposed amendment or when “questions” ought to be put. 324. Section 49(4) of the Elections Act instead merely spoke to “one or more questions for a referendum” but in other sub-sections provided for “the question” – in singular – and “or questions” – in multiple form. 325. Justiciability was the quality or state of being appropriate or suitable for adjudication by a court. For a matter to be justiciable, it had to be ripe for it to be properly before the court. Ripeness was the state that a dispute had reached, but had not passed, when facts had developed sufficiently to permit an intelligent and useful decision to be made. 326. Courts should only handle disputes where the cause of action had crystallized and not with prospective or hypothetical actions. At the time of filing of the petitions before the High Court, the Amendment Bill had not been presented to the people in a referendum under article 257(10) of the Constitution. The issue whether the specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for adjudication before the High Court and the IEBC should have been given the opportunity to address that issue and only after it had done so, would any party have reason to create a justiciable issue. 327. Courts should exercise restraint where a mandate given by the Constitution had not been exercised by the body granted that mandate. To take over the IEBC’s mandate in the manner that the High Court did and later, the majority at the Court of Appeal, would only but defeat that express mandate to conduct a referendum and determine all issues around such a referendum. 328. The issue whether it was a Bill, a question or questions that were submitted to the people in a referendum, was premature and no court should have entertained it. That was the first time that the IEBC was on the verge of conducting a referendum by popular initiative. IEBC was to harmonize section 49 with article 257 of the Constitution and only then would any party have a legitimate dispute, if at all, to take to court. Per W Ouko, SCJ: 329. The Kesavananda case was synonymous with the basic structure doctrine and was said to represent the origins of the basic structure doctrine. The doctrine imported to India with the contribution of Professor Dietrich Conrad, who was a German scholar. However, there existed some insistence that the doctrine was first used by Chief Justice Alvin Robert Cornelius in the Pakistan Supreme Court case of Fazlul Quader Chowdhury v Mohd Abdul Haque (1963) PLC 486. 330. The Kesavananda case was about the interpretation of article 368 of the Indian Constitution. Article 368(5) of that Constitution declared that there was no limitation on the constituent power of Parliament to amend the Constitution by way of addition, variation or repeal under the said article 368. The Indian Supreme Court held that although the Indian Constitution gave the Indian Parliament powers to amend any constitutional provision while complying with the stipulated procedures, that power could not be used to damage, emasculate, destroy, abrogate, change or alter the basic structure or the framework of the Constitution. The doctrine of the basic structure received acceptance in India and it was affirmed in many Indian court decisions. 331. It was Prof. Conrad's theory which was applied in the Kesavananda case to postulate that there were implied limits on the power of the Indian Parliament to amend certain protected provisions of the Constitution which were known as the basic structure. 332. Eternity or unamendable clauses were constitutional provisions or principles that were immune from amendment and any amendment to such clauses would be deemed to be unconstitutional. The clauses could be explicitly included in the text of the Constitution or be implicit and they would be identified by the courts through a process of interpreting the Constitution. The sole aim in providing for eternity clauses and the basic structure doctrine was to create an assurance that constitutional amendments would not be used to repeat past atrocities. 333. The CKRC Final Report documented the fact that the motive behind some constitutional amendments was not to improve the quality of the Constitution or the welfare of the citizens but to entrench an authoritarian and undemocratic administration, to concentrate power in the Executive. For example, the report noted that over time, the system of checks and balances envisaged in the independence Constitution was clearly weakened. It pointed out that the security of tenure for Judges, the Attorney General, Controller and Auditor General was removed, and they could be removed from office by the President. The report noted that such amendments were possible because of the existence of a simple amendment procedure. 334. The Kesavananda case was a decision by the Indian Supreme Court relating article 368 of the Indian Constitution and the relevance of the said article 368 to the matter under determination was the following: - it clearly provided that there was no limitation on Parliament's power to amend any constitutional provision; it provided that Parliament could amend the Constitution by way of addition, variation or repeal of any provision; it provided that constitutional amendments had to be done in compliance with the procedures stipulated in article 368; it provided that an amendment to the Constitution made under article 368 of the Indian Constitution could not be questioned in any court on any ground; and, it provided that there was no limitation on Parliament's power to amend the Constitution. 335. The Kesavananda case applied the basic structure doctrine and recognized the fear that if unchecked, Parliament, with complete abandon and impunity, could exercise legislative power and amend any provision of the Constitution, repeal or even abrogate the entire Constitution. 336. After the promulgation of the Constitution of Kenya, 2010, Kenyan courts consistently and unanimously held that all provisions were amendable and even article 255 of the Constitution, which provided for the procedure for constitutional amendments, was amendable. 337. The basic structure, as stated by Prof. Roznai, provided that regardless of the existence or absence of an express limitation, there was an implied and substantive limitation to constitutional amendment, the objective of which was to protect the basic structure or core element of a constitution. In other words, some aspects of a constitution were amendable and they could only be changed through a mechanism that was outside the Constitution. The doctrine received acceptance in some jurisdictions while other jurisdictions rejected it. 338. In deciding that the basic structure doctrine that limited amendment power was set out in article 255 to 257 of the Constitution, the High Court and the Court of Appeal were persuaded by the Kesavananda Case. 339. One way to address the problem of abusive constitutional amendment was a constitutional design that would include a tiered amendment procedure. Such a design would combine the values of rigidity and flexibility by applying different procedures of amendment for different provisions of the Constitution. 340. The amendment process via a popular initiative under Chapter Sixteen of the Constitution had various stages. The first was for the promoter to obtain signatures from one million voters and then submit the signatures and the draft constitutional amendment Bill to the IEBC. The voters who supported the proposal had to be verified by the IEBC. At the next stage a majority of the 47 county assemblies would have to approve the draft Bill before it could move to the National Assembly and the Senate, where a majority of members form each House would have to vote in its favour before its submission to the people in a referendum. A valid referendum under article 255 of the Constitution required a 20% turnout in at least half of the counties and support by a simple majority of the citizens voting in the referendum. 341. Amendments to the Constitution through a parliamentary initiative under article 256 of the Constitution were intended to be non-controversial amendments. They required public participation, adherence to strict timelines and support of two thirds of members of each House of Parliament. 342. Considering the explicit, long, complex and unpredictable process of amending the Constitution, there were no implied constitutional limitations relating to constitutional amendments. There were sufficient safeguards against unwarranted amendments provided for under the Constitution. 343. Article 255(1) embodied the basic structure of the Kenyan Constitution. Kenyans painstakingly identified and embedded in the Constitution, a whole Chapter on amendment and identified ten thematic provisions in the Constitution which they considered fundamental for the protection and preservation of the Constitution against random amendments. A holistic construction of the Kenyan Constitution yielded the conclusion that the basic structure, not doctrine, domiciled in article 255(1) of the Constitution. 344. During the constitution-making process, from 1990 to 2010, the doctrine of the basic structure was known to exist and was cited in Timothy Njoya & 6 Others v. Attorney General & 3 Others, H.C Misc. Civil Appl. No 82 of 2004 (OS); [2004] eKLR (Njoya case). Therefore, had the framers of the Constitution intended to subject the Constitution to the basic structure doctrine they would have expressly provided for it. The application of the doctrine would go against the intention of the people that constitutional amendments should be flexible enough for posterity and unforeseen needs but sufficiently rigid to prevent abuses experienced in the past. 345. From the judgments of the Court of Appeal and the High Court, the scope and extent of the basic structure doctrine was unclear. They suggested that courts had to engage in constitutional interpretation to confirm whether a proposed amendment could be made or whether the basic structure doctrine disallowed a proposed amendment. The vagueness as to what was amendable could create problems. For example, after the decision in the Kesavananda case in India, the Indian court had utilized the basic structure doctrine in at least 345 cases but there was no clear delineation of the doctrine. When undertaking constitutional interpretation courts had to provide pragmatic solutions without adding confusion to the controversy. 346. Constitutional amendments were not a simple matter and therefore limits to amendment had to be sufficiently specific and unambiguous. Amendments were necessary in order to allow future generations to respond to various political, economic, social, and other changes, as well as changes in the society’s system of values. 347. The limitations provided for in Chapter Sixteen of the Constitution were not accidents. The framers of the Constitution acknowledged that the Constitution would not be perfect and that it would require change periodically in recognition of that fact that each generation would govern itself, if not be rewriting the Constitution afresh, by amending it. 348. The basic structure doctrine did not apply to the Constitution as it existed. However, article 255(1) of the Constitution made provision for the basic structure of the Constitution which were provisions that were considered so sacred that they could only be amended through a special procedure and with the involvement of the people in a national referendum. 349. Public participation and civic education were part of the process of constitutional amendment envisioned in Chapter Sixteen of the Constitution. The referendum was the climax of that process. The importance of the referendum as an effective forum in which the people and the political elite expressed their opinion through a vote could not be gainsaid. A referendum provided the best mechanism for the people, exercising their constituent power to make, remake and unmake the Constitution. 350. Although the Constitution did not use the term "constituent power," that did not deny that term juridical status. Constituent power as an attribute of sovereignty of the people meant that the Constitution was supreme because it was made by the people in whom constituent power was reposed. Primary constituent power was the power to build a new structure or system of government by the people themselves and secondary constituent power was the power to amend an existing Constitution. 351. A constituent assembly also known as a constitutional convention or a constitutional congress or a constitutional assembly was a body assembled for the purpose of drafting or revising a constitution. In the Njoya case, a constituent assembly was said to be a body that had the people's mandate to make a Constitution. 352. The Committee of Eminent Persons on the Constitution Review Process (CoE) was not a constituent assembly. It did not meet the threshold of a constituent assembly in the terms laid down in the Njoya case. The Draft Constitution that was subjected to a referendum in 2010 was not a product of the people's constituent assembly. It was a product of a committee of ten experts, none of whom could claim to have been elected by the people to represent their interest in the process. 353. A constituent assembly was an organ for constitution-making. However, an amendment to the Constitution under Chapter Sixteen of the Constitution did not recognize a constituent assembly as one of the organs for the process. The Constitution of Kenya, 2010, like the repealed Constitution did not contemplate its replacement. 354. In the context of an amendment to the Constitution under article 257 of the Constitution, the people did not exercise constituent power, even though the Constitution only referred to sovereign power. 355. Both the High Court and the Court of Appeal made the determination that the proposed amendments to the Constitution had far-reaching effects and they amounted to a dismemberment of the Constitution. There was a difference between amendment and dismemberment as terms relating to constitutional amendment. Richard Albert in Constitutional Amendment and Dismemberment and in Constitutional Amendments: Making, Breaking and Changing Constitutions, (Oxford University Press, 2019) stated that an amendment was resorted to in order to remove errors and help improve the Constitution and it had to be designed to help the Constitution to achieve its purpose, values and objects. Further, Prof. Albert referred to the Rawlsian view in "Constitutional Amendment and Dismemberment" and stated that either a Constitution was amended in a manner that was consistent with its provisions or it was altered in so transformative a way that it could not be an amendment but it was conceptually the creation of a new Constitution. 356. The theory of unconstitutional amendment or constitutional dismemberment had been criticised for ignoring the fact that such constitutional changes had served as a safety valve and provided a legal avenue to constitutional change that obviated a revolution and even benefitted society. 357. The question that arose from the use of the term dismemberment with respect to the proposed constitutional amendments was whether the proposals would in effect unmake, replace, disassemble, completely change identity, abolish, tear apart, amputate or roughly mutilate the Constitution. The proposed amendments were amendments and not dismemberments. They were intended to be of benefit to the people of Kenya. 358. The history of constitution-making in Kenya did not show that the people of Kenya intended to immunize any constitution provisions from amendment. The Constitution expressed the intention to allow amendment of the Constitution through a popular initiative or through a parliamentary initiative. 359. A popular initiative to amend the Constitution, under the terms of article 257 of the Constitution, had to be commenced by promoters drafting a Bill and getting at least one million signatures in support of the Bill. Additionally, a popular initiative could take the form of a general suggestion or a formulated draft Bill. 360. A popular initiative meant an initiative by the general public or simply the people. Further, it was apparent that the term “promoters” in the context of the amendment of the Constitution described persons who initiated or championed constitutional change. 361. The CKRC Final Report acknowledged that apart from Parliament, it was necessary for the people in exercise of their constituent power to be involved in making constitutional changes. The Report recommended that citizens and civil society be accorded space to initiate constitutional amendments through a process called a popular initiative. That was the origin of the term "popular initiative" which found its place in article 257 of the Constitution. 362. The President spearheaded the constitutional amendment process from its conception and only passed on the baton to the Building Bridges Initiative National Secretariat co-chairpersons late in the day. The President was ineligible to directly or indirectly initiate a constitutional amendment under the prescribed circumstances and he was not an ordinary citizen. He undertook actions toward constitutional amendments under his official capacity as the President of the Republic of Kenya. 363. The allegation that the President's rights to equality and freedom from discrimination under article 27 of the Constitution had been violated was not proved. It was not enough to merely allege a violation without specifying how the violation occurred. There was no breach occasioned in asking the President to stay on his lane of the constitutional amendment process. 364. It was apparent that the President's political rights under article 38 of the Constitution were not breached. It was not alleged that the President had been denied the right to be registered as a voter and to vote in the referendum for purposes of the constitutional amendment. In fact, the process had not reached the referendum stage. 365. The President had a role in the constitutional amendment process. Under article 255(1) of the Constitution, it was the President's prerogative before assenting to a constitutional amendment Bill to request the IEBC to conduct a referendum for approval of the Bill. Apart from that the President was entitled to support a popular initiative by signing it and nothing stopped him from campaigning for or against it. 366. The text of article 257 of the Constitution did not preclude the President from supporting a popular initiative. Kenya's history included hyper-amendments to the Constitution that were promoted by the Executive in conjunction with Parliament. The framer's intention, given that background, was to provide a check against a future imperial presidency, deliberately limiting presidential power to consenting to the constitutional amendment Bill and requesting the IEBC to conduct a national referendum. 367. Clause 10 of the Amendment Bill proposed to amend article 89(1) of the Constitution so as to increase the number of constituencies from 290 to 360, translating to 70 additional constituencies. Further the Second Schedule to the Bill sought to distribute the proposed constituencies in various counties. What the Second Schedule did was to set its own timeline, introduce a new criterion on delimitation and to distribute the new constituencies amongst some 28 counties. 368. The criterion provided for delimitation of boundaries for the new constituencies under the proposed constitutional amendments was the population quota and that was inconsistent with article 89 of the Constitution and therefore unconstitutional. The IEBC in delimiting boundaries could not be required to consider only one criterion; it needed to uphold national values and principles of governance including public participation and consult all interested persons in a boundary review exercise. The Second Schedule of the amendment Bill ignored the criteria set out in article 89(5), 89(6) and 89(7) of the Constitution. 369. The proposed timeline set out under the amendment Bill for delimitation of boundaries was incompatible with the timelines set out under article 89(2) of the Constitution. Under the Constitution of the Kenya, 2010, the IEBC was to review the boundaries of constituencies at intervals of not less than 8 years and not more than 12 years. The proposed timelines for boundary delimitation and the process proposed for their creation and distribution was properly found to be flawed by the High Court and the Court of Appeal. 370. The justifications for presidential immunity were to ensure the unimpeded performance of public functions, to bar any targeted prosecutions and to avoid the likelihood of distraction and embarrassment. However, such immunity had to be balanced with responsibility and accountability. 371. The interpretation of the Supreme Court was sought with respect to the presidential immunity in civil proceedings and not criminal proceedings. Under article 143 of the Constitution, which provided for presidential immunity, it was necessary to consider the liability of a sitting President, the liability of a former President, liability for official acts and liability for personal or private actions. 372. By issuing the two notices appointing both the BBI Taskforce and the BBI Steering Committee, the President was acting in his official capacity and not as a private citizen. Therefore, the President could not be sued in his personal capacity, in civil proceedings, for actions done in furtherance of the proposed constitutional amendments. 373. The actions or omissions of the President while serving in office had to be presumed to be done or not done in exercise of constitutional powers because ultimately, the intentions of the framers of the Constitution was to protect the President from civil suits for personal liabilities while serving the nation, performing official functions. The CKRC Final Report expressed the position that the President should receive protection from any legal proceedings that could be instituted during his tenure of office. 374. Any person who was aggrieved by the President's exercise of state power had a recourse. The first recourse was to name the Attorney General as a respondent in a judicial review application or a constitutional reference. The Attorney General in such an instance would be sued because he was the principal legal adviser to the Government and also because under article 156(6) of the Constitution he was enjoined to promote, protect and uphold the rule of law and defend public interest. The second recourse was to institute civil proceedings at the end of the President's tenure. Article 143(3) of the Constitution provided that the running of time for wrongful acts committed by a President in office would begin after he or she left the office. Further it was clear that article 143(3) of the Constitution was only applicable to civil wrongs of a personal nature that were not connected to the office. That had to be the intention of the framers of the Constitution. The third recourse was an impeachment motion under article 145 of the Constitution, where the President had engaged in gross violations of the Constitution or the law or where there were serious reasons for believing that the President had committed a crime under national or international law. 375. Public participation was a constitutional imperative recognized as one of the principles of good governance and accountability. It was a mandatory requirement in all legislative processes, constitutional amendment and constitution-making. 376. The role of the IEBC under article 257(4) of the Constitution was to verify that a popular initiative to amend the Constitution was supported by at least one million registered voters. Since the IEBC was a repository of voters' particulars, it was true that only the IEBC could verify that those whose particulars and signatures were submitted as evidence of support of the process were indeed registered voters according to their records. 377. With respect to the constitutional amendment Bill, the IEBC was able to certify that 3.1 million registered voters expressed support for the initiative. That represented 2.1 million voters in excess of the threshold provided in article 257(4) of the Constitution. In fact, no one doubted that or identified any flaw with the verification. The IEBC confirmed that in the course of verification, names without signatures, signatures without names, national ID or passport numbers and duplicated names were removed. That was why 4.4 million registered voters were said to support the initiative but only 3.1 million signatures were verified. 378. Under article 257(4) and 257(5) of the Constitution, the role of the IEBC after receiving the draft constitutional amendment Bill and the signatures in support of the Bill, was to verify that the initiative was supported by at least one million registered voters and to be satisfied that the initiative met the requirements of article 257 of the Constitution. It was only then that the IEBC would submit the draft Bill to each of the 47 county assemblies for consideration. 379. Public participation in a constitutional amendment process should be seen as a continuum, from collection of signatures all the way to the referendum. It was equally true that public participation had to be conducted at each stage where it was required and it was illogical to wait until the process was concluded to ascertain whether it was effective or done in accordance with the law. 380. With respect to the proposals on delimitation of constituency boundaries, there was no public participation and that rendered the proposed delimitation fatally flawed. 381. The under article 257 of the Constitution, the IEBC was not required to ascertain whether the promoters of a popular initiative conducted public participation before the collection of signatures. It was also not part of the mandate of the IEBC at the stage when the draft Bill and signatures were submitted to it, to conduct another round of public participation. 382. It was the promoters of a popular initiative that were expected to carry out public participation before collection of signatures. After persuading one million voters to support the initiative, the promoters had to also convince the County Assemblies and Parliament about the prospects of the initiative and ultimately at least 20% of registered voters in each of half of the counties and a simple majority of citizens voting in a national referendum. 383. There was evidence on record of hard copies of the amendment Bill and the BBI Steering Committee's Report in English and the highlights of the two in both English and Kiswahili. However, there was no evidence with respect to copies of the draft Bill in Kenyan languages, sign language, braille and other communication formats and technologies accessible to persons with disabilities being circulated before collection of signatures. 384. Although there were complaints that County Assemblies considered the draft constitutional amendment Bill in a speedy manner without adequate public participation, the certificates submitted to the two Speakers of Parliament were conclusive evidence of the propriety of the procedures undertaken by the assemblies with regard to the draft Bill prior to its introduction in Parliament. 385. Upon receipt of the Amendment Bill from the county assemblies, two joint committees of Parliament published newspaper advertisements in the Daily Nation and Standard Newspapers inviting interested organizations and members of the public to submit any views or make representations on the Amendment Bill. Records show that on various dates, the committee received submissions from diverse groups, organizations and members of the public. 386. Whether there was public participation or not was a matter of evidence. It was those that alleged that there was no public participation that had to prove the allegation. Not a single person was presented for purposes of rebutting evidence that there was public participation. From the uncontested evidence on record, there was sufficient public participation in respect of the Amendment Bill. 387. There was concern that there was need for a legal framework on public participation to guide the constitutional amendment process and that there was no legal framework for the conduct of referenda. There was a Referendum Bill and a Bill on public participation which were pending passage before Parliament. However, the absence of enabling legislation on the conduct of referenda did not render constitutional provisions requiring it inoperative and unenforceable. Parliament was bound to enact such legislation as a matter of constitutional duty. 388. The IEBC was not fully constituted when the amendment Bill and signatures were presented to it. There were four resignations in the commission that left it with only three members and allegations of lack of quorum to conduct the IEBC's affairs became an issue. 389. Section 5 of the IEBC Act fixed the membership of the IEBC at seven; the chairperson and six members. Paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act set the quorum for the conduct of business at the IEBC to at least five members. The said paragraph 5 was amended in 2017 by the Election Law Amendment 2017 and only a quorum of three members of the IEBC was required for the conduct of the Commission's affairs. The amendment to paragraph 5 of the Second Schedule was challenged and declared unconstitutional by the High Court in the Katiba Institute case. 390. Article 250 of the Constitution provided that each commission had to consist of at least three but not more than nine members. Whereas the Constitution provided that the IEBC was duly constituted with three members, the Second Schedule of the Independent Electoral and Boundaries Commission Act required a quorum of five. There was tension between the two provisions. However, the question before the court was not whether the said Second Schedule was inconsistent with the Constitution but whether the IEBC was properly constituted at the time the draft Bill and signatures were submitted to it. 391. Under article 253 of the Constitution, the IEBC was a body corporate with perpetual succession and a seal. There was a distinction between the Commission and the commissioners, and the life of the Commission did not depend upon the commissioners. The Commission could only function legitimately if it had the minimum number of commissions prescribed in law. 392. Constitutions were made to address specific mischiefs in society. When setting the minimum number of commissioners at three, the framers of the Constitution were aware of the functions and far-reaching powers of the IEBC. In their wisdom, the framers saw it fit to also establish a secretariat. The IEBC whether fully constituted at 7 members or with the minimum 3 members was responsible for the formulation of policy and strategy as well as providing oversight. 393. Under paragraph 7 of the Second Schedule to the IEBC Act, unless the decision of IEBC at a meeting was unanimous, a decision was to be by the concurrence of a majority of all the members “present and voting." A clear majority vote was possible even where there were three commissioners at the IEBC. It was contradictory for the Court of Appeal and the High Court to make the finding that the IEBC was properly constituted with three commissioners but it lacked quorum to transact business and conduct its affairs. 394. The controversy as to whether the effect of the High Court decision (Katiba Institute case) to declare the amendment, that reduced quorum at the IEBC from 5 members to 3 members, unconstitutional was irrelevant for the following reasons: - The decision in the Isaiah Biwott case that the IEBC was quorate with three commissioners for purposes of conducting by-election was not challenged in the Court of Appeal. It was a judgment in rem to the extent that three commissioner of the IEBC was sufficiently quorate for the IEBC to conduct its functions. The court could not handle abstract disputes; there had to be a real grievance. It was not demonstrated that the IEBC held any meeting at which it transacted business that was about the amendment of the Constitution and that a quorum of 5 commissioners was required. The constitutional threshold of a minimum of three commissioners had to triumph over that set by a schedule to a statute especially where the intention of the framers of the Constitution was clear. 395. With three commissioners, the IEBC was properly constituted, quorate and competent to carry out its constitutional and statutory duties. 396. There was a lacuna in law with respect to the manner of mode of submitting the proposed amendment to the people in a referendum. Article 257(10) of the Constitution stated that the proposed amendment had to be submitted to the people in a referendum. 397. For a multi-subject amendment Bill there were various options on how the Bill would be presented in a referendum. The first option was for the public to vote to accept or reject the entire Bill. The second option was for the voters to separately vote to approve or reject every single individual proposed amendment. Lastly, the third option for a multi-subject constitutional referendum was for "related" proposals to be grouped together in the Bill. It was in the discretion of the IEBC to decide on the most suitable, practical and efficacious option in the circumstances of each proposed amendment. 398. To the extent that the amendment Bill had not been received by the IEBC from Parliament, it was difficult to foretell how the question or questions would be framed by the IEBC, whose duty was, with absolute discretion, to frame the question or questions to be put to the people in a referendum. No rights or fundamental freedoms had been threatened. 399. The complaint with respect to how the Bill would be presented to the people in a referendum clearly offended the doctrine of ripeness. The High Court ought to have downed its tools with respect to that matter but it did not and the Court of Appeal ought to have set aside the High Court's decision but it did not.
Extract:	Cases Click to Download the Judgment. PETITION NO.12 OF 2021 CORRECTION ORDER Statutes None referred to Advocates None mentioned
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Attorney-General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)

Neutral citation: [2022] KESC 8 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 12, 11 & 13 of 2021 (Consolidated)

MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

March 31, 2022

Between

The Hon. Attorney-General

1^st Appellant

Morara Omoke

2^nd Appellant

Independent Electoral and Boundaries Commission

3^rd Appellant

and

David Ndii

1^st Respondent

Jerotich Seii

2^nd Respondent

James Gondi

3^rd Respondent

Wanjiru Gikonyo

4^th Respondent

Ikal Angelei

5^th Respondent

Kenya National Union of Nurses

6^th Respondent

Thirdway Alliance

7^th Respondent

Miruri Waweru

8^th Respondent

Angela Mwikali

9^th Respondent

254 Hope

10^th Respondent

Justus Juma

11^th Respondent

Isaac Ogola

12^th Respondent

Speaker of the National Assembly

13^th Respondent

Speaker of the Senate

14^th Respondent

The National Assembly

15^th Respondent

The Senate

16^th Respondent

The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce

17^th Respondent

Building Bridges to A United Kenya,National Secretariat

18^th Respondent

Isaac Aluochier

19^th Respondent

H.E. Uhuru Kenyatta

20^th Respondent

Hon. Raila Odinga

21^st Respondent

Public Service Commission

22^nd Respondent

The Auditor General

23^rd Respondent

Muslims For Human Rights (Muhuri)

24^th Respondent

County Assembly of Mombasa

25^th Respondent

County Assembly Kwale

26^th Respondent

County Assembly Kilifi

27^th Respondent

County Assembly of Tana River

28^th Respondent

County Assembly of Lamu

29^th Respondent

County Assembly of Taita Taveta

30^th Respondent

County Assembly of Garissa

31^st Respondent

County Assembly of Wajir

32^nd Respondent

County Assembly of Mandera

33^rd Respondent

County Assembly of Marsabit

34^th Respondent

County Assembly of Isiolo

35^th Respondent

County Assembly of Meru

36^th Respondent

County Assembly of Tharaka –Nithi

37^th Respondent

County Assembly of Embu

38^th Respondent

County Assembly of Kitui

39^th Respondent

County Assembly of Machakos

40^th Respondent

County Assembly of Makueni

41^st Respondent

County Assembly of Nyandarua

42^nd Respondent

County Assembly of Nyeri

43^rd Respondent

County Assembly of Kirinyanga

44^th Respondent

County Assembly of Murang’a

45^th Respondent

County Assembly of Kiambu

46^th Respondent

County Assembly of Turkana

47^th Respondent

County Assembly of West Pokot

48^th Respondent

County Assembly of Samburu

49^th Respondent

County Assembly of Trans Nzoia

50^th Respondent

County Assembly of Uasin Gishu

51^st Respondent

County Assembly of Elgeyo Marakwet.

52^nd Respondent

County Assembly of Nandi

53^rd Respondent

County Assembly of Baringo

54^th Respondent

County Assembly of Laikipia

55^th Respondent

County Assembly of Nakuru

56^th Respondent

County Assembly of Narok

57^th Respondent

County Assembly of Kajiado

58^th Respondent

County Assembly of Kericho

59^th Respondent

County Assembly of Bomet

60^th Respondent

County Assembly of Kakamega

61^st Respondent

County Assembly of Vihiga

62^nd Respondent

County Assembly of Bungoma

63^rd Respondent

County Assembly of Busia

64^th Respondent

County Assembly of Siaya

65^th Respondent

County Assembly of Kisumu

66^th Respondent

County Assembly of Homa Bay

67^th Respondent

County Assembly of Migori

68^th Respondent

County Assembly of Kisii

69^th Respondent

County Assembly of Nyamira

70^th Respondent

County Assembly of Nairobi City

71^st Respondent

Phylister Wakesho

72^nd Respondent

The National Executive

73^rd Respondent

Dr. Duncan Ojwang

74^th Respondent

Dr. John Osogo Ambani

75^th Respondent

Dr. Linda Musumba

76^th Respondent

Dr. Jack Mwimali

77^th Respondent

Kenya Human Rights Commission

78^th Respondent

Kituo Cha Sheria

79^th Respondent

United Kenya Taskforce

80^th Respondent

and

Prof. Rosalind Dixon

Amicus Curiae

Prof David E. Landau

Amicus Curiae

Gautam Bhatia

Amicus Curiae

Prof. Migai Akech

Amicus Curiae

Prof. Richard Albert

Amicus Curiae

Prof. Yaniv Roznai

Amicus Curiae

Prof. Charles Manga Fombad

Amicus Curiae

Dr. Adem K. Abebe

Amicus Curiae

(Being an appeal from the Judgment and Orders of the Court of Appeal at Nairobi (Musinga; P, Nambuye, Okwengu, Kiage, Gatembu, Sichale & Tuiyott, JJ.A) delivered on 20th August, 2021 in Civil Appeal No. E291 of 2021 as consolidated with Civil Appeal Nos. E292, E293 & E294 of 2021)

Supreme Court declares the Constitution (Amendment) Bill, 2020 unconstitutional.

Reported by Kakai Toili, Flora Weru, Robai Nasike, James Nginya, Faith Wanjiku, Bonface Nyamweya, John Ribia & Beryl Ikamari,

Constitutional Law – constitutional amendments - basic structure doctrine - applicability of the basic structure doctrine in Kenya - claim that proposed amendments to the Constitution affected the basic structure of the Constitution - process through which the basic structure of the Constitution could be amended - what was required to be done in the four stages of the amendment process under the popular initiative route - whether the basic structure doctrine and the four-sequential steps for amendments to the Constitution were applicable to Kenya - whether restriction to amendment of the basic structure of a constitution had to be express in the text of the Constitution - whether a constitution amendment Bill could directly allocate and apportion extra constituencies it created without the delimitation of boundaries by the Independent Electoral and Boundaries Commission - Constitution of Kenya, 2010, articles 88(4), 89, 255, 256 and 257.Constitutional Law – amendments to the Constitution – amendment of the Constitution through popular initiative - role of the President in a constitutional amendment process - whether the President or State organs or institutions could initiate or promote a constitutional amendment process through the popular initiative route provided in article 257 of the Constitution - Constitution of Kenya, 2010, articles 255(3)(b) and 257.Constitutional Law - primary constituent power - meaning of primary constituent power as distinguished from secondary constituent power - whether the basic structure of the Constitution could only be altered through the exercise of primary constituent power.Constitutional Law - constitutionality of proposed constitutional amendments - amendments relating to the creation of 70 new constituencies, their distribution amongst 28 counties, the delimitation of their boundaries and timelines for their creation - role of the Independent Electoral and Boundaries Commission in the delimitation of the boundaries of constituencies - whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional in purporting to delimit constituency boundaries without the input of IEBC and without amending article 89(1) and (2) of the Constitution and without public participation - Constitution of Kenya, 2010, article 89.Constitutional Law – fundamental rights and freedoms – political rights – claim that the exclusion of the Presidency and other State institutions from the initiation of a constitution amendment process through popular initiative violated their political rights - whether the exclusion of the Presidency and other State institutions from the initiation of a constitution amendment process through popular initiative violated the political rights protected under article 38(1) of the Constitution - Constitution of Kenya, 2010, articles 20(2) and 38(1).Constitutional Law – Executive – President – presidential immunity – extent of presidential immunity – immunity from civil proceedings - whether civil proceedings could be instituted against the President or 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 - Constitution of Kenya, 2010, article 143(2).Constitutional Law – constitutional commissions – Independent Electoral and Boundaries Commission (IEBC) – role of IEBC in a constitutional amendment process through popular initiative - voter education and ensuring that promoters of a constitution amendment Bill through popular initiative complied with the requirements for public participation - when did the obligation of IEBC to conduct voter education arise in a constitutional amendment process - whether IEBC had an obligation to ensure that the promoters of a constitution amendment Bill through popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the county assemblies - Constitution of Kenya, 2010, articles 10(2), 88(4) and 257(10).Constitutional Law – national values and principles of governance – public participation – what were the guiding principles for public participation - who bore the burden of proof where there was an allegation of lack of public participation – Constitution of Kenya, 2010, article 10(2); Evidence Act, Cap 80, section 112.Constitutional Law – constitutional commissions – Independent Electoral and Boundaries Commission (IEBC) – composition of IEBC – whether the IEBC was legally constituted when composed of the minimum number of three commissioners - whether IEBC with three commissioners had the requisite quorum to undertake the verification of signatures in the process of a constitution amendment via public initiative - Constitution of Kenya, 2010, article 250(1); Elections Act, 2011, section 8, Second Schedule paragraph 5.Constitutional Law – separation of powers – powers of the judiciary vis-à-vis powers of the legislature – doctrine of ripeness – rationale - whether the issue of whether, at a referendum, single or multiple questions, were to be put to the people by the IEBC was ripe for determination.Constitutional Law – constitutional amendment – initiation of a constitutional amendment – role of the President in the initiation of a constitutional amendment – whether the President could initiate changes/amendments to the Constitution - whether a constitutional amendment could only be initiated by Parliament through a parliamentary initiative under article 256 of the Constitution or through a popular initiative under article 257 of the Constitution -Constitution of Kenya, 2010, articles 256 and 257.Civil Practice and Procedure – judgments – judgments of courts of equal status - differing decisions of courts of equal status - where a High Court in a later case disagreed with an earlier finding by another bench of the High court - what was the approach to be taken in such a case?Civil Practice and Procedure – suits – parties to a suit – amicus curiae – conversion of an amicus curiae at the court of first instance to a party at an appellate court - whether an amicus curiae at the court of first instance could be converted to a party at an appellate stage.Precedence – stare decisis – binding nature of decisions to courts of similar status – weight of decisions by multiple judge bench decisions on single judge benches – whether single judge benches were bound by decisions of multiple judge benches of similar status.Words and Phrases – ripeness – definition of ripeness - the state of a dispute that had reached, but had not passed, the point when the facts had developed sufficiently to permit an intelligent and useful decision to be made - Black’s Law Dictionary, 10^th Edition at page 1524.Words and Phrases – doctrine - definition of doctrine - a belief or set of beliefs held and taught by a church, political party or other groups - principle, especially a legal principle, that was widely adhered to - Oxford Dictionary 12^th ed. (2011) Oxford University Press - Black’s Law Dictionary 11^th Edition.Words and Phrases – amendment - definition of amendment - a minor change or addition designed to improve a text, piece of legislation- Black’s Law Dictionary 11^th Edition and Oxford Dictionary 12^th ed. (2011) Oxford University Press.Words and Phrases – promoter - definition of promoter - someone who was a supporter of a cause or aim - Oxford Dictionary 12^th edition.Words and Phrases – quorum - definition of quorum - minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid - Oxford English Dictionary.Words and Phrases – initiative – definition of - an electoral process by which a percentage of voters could propose legislation and compel a vote on it by the legislature or by the full electorate. Recognized in some state constitutions, the initiative was one of the few methods on direct democracy in an otherwise representative system - Black’s Law Dictionary, 11^th edition.Words and Phrases – initiative – definition of - the ability to initiate or begin something - power of opportunity to act before others do - fresh strategy intended to resolve or improve something - Cambridge English Dictionary.Words and Phrases – promoter – definition of - Someone who encouraged or incited - Black’s Law Dictionary, 11^th Edition [1526].Words and Phrases – justiciability – definition of - the quality or state of being appropriate or suitable for adjudication by a court - Black’s Law Dictionary, 9^th Edition, page 943.

Brief facts Intent on the implementation of the proposals in the Building Bridges Initiative Taskforce Report, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee). On completing its mandate, the BBI Steering Committee presented its report and annexed to the report were a number of documents including a Constitution of Kenya (Amendment) Bill, 2020 (Amendment Bill) and proposed legislative amendment Bills.Subsequently, the Building Bridges to a United Kenya, National Secretariat (the BBI National Secretariat) put in motion the process of collecting signatures in support of the Amendment Bill. Upon collection of the requisite number of signatures, the BBI National Secretariat submitted the same together with the Amendment Bill to the Independent Electoral and Boundaries Commission (IEBC) for verification and thereafter, submission to the county assemblies and Parliament for approval.While the amendment process was ongoing, eight (8) petitions, which were later on consolidated, were filed before the High Court challenging the constitutionality of the process which resulted in the Amendment Bill and the contents. The issues raised in the consolidated petition included; whether the basic structure doctrine and its corollary doctrines were applicable in Kenya; whether by virtue of the doctrine(s) there was an implied limitation to the powers of amending the Constitution; and whether an amendment to the Constitution through a popular initiative could be originated by State actors, in particular, the President.The following issues were also placed before the High Court; whether the creation of 70 additional constituencies in the Second Schedule to the Amendment Bill was unconstitutional; whether IEBC, which at that time was composed of three commissioners, had the requisite quorum to consider and approve policy matters relating to verification of signatures in support of the Amendment Bill and conduct of a referendum; and whether civil court proceedings could be instituted against the President or a person performing the functions of the office of the President during their tenure of office.The High Court allowed the consolidated petitions in part and held that; the basic structure doctrine was applicable in Kenya; the basic structure limited the amendment power set out in articles 255 – 257 of the Constitution; 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. Civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.The High Court further held that; the President did not have authority under the Constitution to initiate changes to the Constitution; the entire BBI process culminating with the launch of the Amendment Bill was done unconstitutionally; the IEBC did not have quorum stipulated by section 8 of the Independent Electoral and Boundaries Commission Act (IEBC Act) as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum including the verification of signatures in support of the Amendment Bill; and that the Second schedule to the Amendment Bill in so far as it purported to direct the IEBC on its function of constituency delimitation was unconstitutional.Dissatisfied with the determination of the High Court, four appeals were filed before the Court of Appeal. The majority of the Court of Appeal partly allowed the appeal and held that; the basic structure doctrine was applicable in Kenya; the basic structure doctrine limited the amendment power set out in articles 255 – 257 of the Constitution; the basic structure of the Constitution could only be altered through the primary constituent power which had to include four sequential processes; civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution; and the President did not have authority under the Constitution to initiate changes to the Constitution; and that the Amendment Bill was unconstitutional and a usurpation of the people’s exercise of sovereign power.The Court of Appeal further held that; the IEBC did not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum; the Second Schedule to the Amendment) Bill in so far as it purported to: predetermine the allocation of the proposed additional seventy constituencies, and to direct the IEBC on its function of constituency delimitation, was unconstitutional. Aggrieved by the decision of the Court of Appeal, the instant appeal was filed at the Supreme Court.

Issues

Whether the basic structure doctrine and the four-sequential steps for amendments to the Constitution were applicable to Kenya.
What constituted primary constituent power and whether the basic structure of the Constitution could only be altered through the exercise of the people's primary constituent power.
What was required to be done in the four stages of the amendment process under the popular initiative route?
Whether the basic structure doctrine applied to amendments to the Constitution made by Parliament and/or made by popular initiative.
Whether a constitutional amendment could only be initiated by Parliament through a parliamentary initiative under article 256 of the Constitution or through a popular initiative under article 257 of the Constitution;
What was the role of the President in a constitution amendment process and whether the President or State organs or institutions could initiate or promote a constitutional amendment process through the popular initiative route provided in article 257 of the Constitution?
Whether exclusion of the Presidency and other State institutions from the initiation of a constitution amendment process through popular initiative violated the political rights protected under article 38(1) of the Constitution.
Whether civil proceedings could be instituted against the President or 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.
When did the obligation of IEBC to conduct voter education arise in a constitution amendment process?
Whether IEBC had an obligation to ensure that the promoters of a constitution amendment Bill through popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to county assemblies for approval.
Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020, which provided for proposals relating to the creation of 70 new constituencies and the timelines and the criterion for the delimitation of their boundaries, was unconstitutional.
What were the guiding principles for public participation and who bore the burden of proof where there was an allegation of lack of public participation?
Whether the IEBC was legally constituted when composed of the minimum number of three commissioners.
Whether IEBC with three commissioners had the requisite quorum to undertake the verification of signatures in the process of a constitution amendment via popular initiative.
What was the criteria for recognition that legal principles had met the threshold for being a doctrine and whether the basic structure of the Constitution had met the criteria for recognition as a doctrine?
What was constitutional dismemberment and what did it entail?
Whether article 255(1) of the Constitution provided for the dismemberment of the Constitution.
Whether the Constitution of Kenya (Amendment) Bill, 2020, provided for the amendment of the Constitution or for the dismemberment of the Constitution.
Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional in purporting to delimit constituency boundaries without the input of IEBC and without amending article 89(1) and (2) of the Constitution and without public participation.
Whether an amicus curiae in proceedings at the court of first instance could be converted to a party at an appellate stage.
What was the rationale for the doctrine of ripeness and whether the issue about whether, at a referendum, single or multiple questions, were to be put to the people by the IEBC was ripe for determination?
What was the role of the court in the constitutional amendment process?
Whether single judge benches were bound by decisions of multiple judge benches of similar status.
What was the approach to be taken where a High Court in a later case disagreed with an earlier finding by another bench of the High court?

Relevant provisions of the Law Constitution of Kenya, 2010Article 143 - Protection from legal proceedings

Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.
Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anythingdone or not done in the exerciseof their powers under this Constitution.
Where provision is made in law limiting the time within which proceedings under clause (1) or (2) may be brought against a person, a period of time during which the person holds or performs the functions of the office of the President shall not be taken into account in calculating the period of time prescribed by that law.
The immunity of the President under this Articleshall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.

Article 250 – Composition, appointment and terms of office

Each commission shall consist of at least three, but not more than nine, members.

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 popularinitiative shall deliverthe 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 registeredvoters.
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 countyassembly 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).

Held Per MK Koome, CJ:1. A person admitted as amicus curiae was not a party to the proceedings but acted as a friend of the court and the extent of their participation in the proceedings was limited by the court. Therefore, amicus curiae could not be converted to a party even at the appellate stage. Having joined the proceedings as amicus curiae one remained so at every stage of litigation. Consequently, amici curiae who had been joined at the High Court should not have been made parties in the appeals at the Court of Appeal. It was precisely for that reason that the court restricted the participation of the 74^th, 75^th, 76^th, 77^th and 78^th respondents in the instant appeal to their written submissions like the 1^st to 8^th amici curiae therein.2. The instant consolidated appeal was predicated on article 163(4)(a) of the Constitution which clothed the court with jurisdiction to determine appeals from the Court of Appeal on questions of interpretation and application of the Constitution. Although the length and breadth of the pleadings and arguments touched on several Chapters of the Constitution, the common denominator was that they were focused on the interpretation and application of Chapter Sixteen of the Constitution. The two superior courts below had given their elaborate views on how those provisions were to be interpreted and applied and therefore, the instant court’s jurisdiction was properly seized under article 163(4)(a) of the Constitution.3. The basic structure doctrine and the idea of limits on power to amend a constitution had been considered by courts in several jurisdictions across the world and received mixed reception. What that state of play demonstrated was that the basic structure doctrine had not yet matured into a universal norm of constitutionalism.4. Given that the basic structure doctrine had not matured into a universal norm of constitutionalism or a doctrine of general application, courts had adopted the approach of evaluating its ‘fit’ within their constitutional systems before accepting its applicability in the various jurisdictions where it had been considered.5. A reading of the three pathways for amending the Constitution in Chapter Sixteen showed that Kenyans were alive to the historical legacy of the culture of hyper-amendment in the pre-2010 era and sought to tame any abuse of the amendment power.6. Under the ‘tiered’ design model, amendment rules varied with provisions that were core or fundamental to the constitutional system being placed on a higher tier and made more difficult to amend. The amendment rules under the Constitution adopted that modern ‘tiered’ constitutional design combining the virtues of rigidity and flexibility by having different amendment procedures apply to different parts of the Constitution. The core foundational values, principles and structures of the Constitution had been granted a high level of entrenchment to ensure the stability of the constitutional system. 7. Kenyans were conscious of the core constitutional values, principles and structures that they wanted protected from abusive amendments and they protected them through the entrenched provisions in article 255 of the Constitution. The framers of the Constitution well aware of the basic structure doctrine, chose to ring-fence some key features from flexible amendments; and if it was their intention to provide for eternity clauses or the basic structure doctrine, nothing would have stopped them from so doing.8. The High Court and the majority of the Court of Appeal failed to appreciate that the ‘tiered’ amendment procedure was one of the options available in the menu of constitutional design options for dealing with the practice of abusive amendments just like other design options that limited amendability (for example, eternity clauses and the basic structure doctrine). Therefore, where Kenyans had selected the tiered amendment procedure as their response to the culture of hyper-amendability, it was difficult to justify that judicially-created fourth pathway of amending the Constitution founded on the basic structure doctrine.9. There was no justification provided to demonstrate the lacuna in the Constitution and hence, the need to call in aid the basic structure doctrine to enhance the existing tools of interpretation. The pre-2010 history of Kenya was replete with precedents of application of foreign laws and doctrines from the commonwealth and other jurisdictions which was done due to absence of local statutes. Courtesy of the Constitution, the court had sufficient arsenals that included the Constitution’s own canons of interpretation which the court had to exhaust before borrowing from other jurisdictions.10. Looking at the two pathways for amending the entrenched provisions, amending the core or fundamental provisions of the Constitution was a multi-staged, multi-institutional, time-consuming process that ensured that a constitutional amendment process that touched on the core or fundamental aspects of the Constitution was transparent, inclusive and engendered the participation of the people in democratically deciding on their governance. The tiered amendment process under the Constitution met the set criteria as to when judicially-created basic structure doctrine was inappropriate and undesirable. Therefore, the two superior courts below erred by providing a fourth judicially-created pathway for amending the Constitution which was tantamount to amendment of the Constitution through a judgment.11. A reading of Chapter Sixteen of the Constitution left the impression that Kenyans desired democratic self-government by opting for a balance of rigidity and flexibility. Chapter Sixteen provided citizens with a highly participatory process through which they could democratically reformulate the core aspects of the social contract. It enabled them to exercise their sovereign power from time to time to reformulate their core commitments and update constitutional norms to conform to their will at any given time and respond to changing social, political, economic and technological needs and circumstances. That ensured that the Constitution reflected the desires of each generation, not past generations, however wise or well- intentioned.12. Where the amendment processes incorporated a ‘tiered’ process and the core or fundamental commitments of the Constitution could only be amended through an onerous process; that was, multi-staged, involving different institutional actors, deliberative, inclusive and participatory process, and involved ratification by the people in a democratically conducted referendum; then a court ought not to import the idea of a judicially-created basic structure doctrine. That was informed by the view that, in a context like Kenya, the Constitution had an explicitly in-built structure to discourage hyper-amendments and tame likely abuses of the amendment process by stealth or subterfuge.13. The amendment practice in post-2010 Kenya illustrated that the ‘tiered’ amendment design was an adequate bulwark against abusive amendments. The attempts to amend the Constitution during the first decade of its operation and implementation demonstrated that the ‘tiered’ amendment design had ensured constitutional stability. Judicial protection of implied limitations to the amendment power, such as through the basic structure doctrine, became increasingly required in contexts where the country had a too flexible constitution that could be amended fairly easily. Therefore, while it was appropriate in the pre- 2010 dispensation for the High Court in the Timothy Njoya & 6 others v Attorney General & 3 others, HC Misc Civil Appl No 82 of 2004 (OS) [2004] eKLR (Njoya case) to recognize the basic structure doctrine under the repealed Constitution, there was no such need under the Constitution of Kenya, 2010. The risk of abusive amendments had been tamed by the ‘tiered’ amendment process that entrenched the core or essential provisions through a heightened and elaborate amendment process.14.Given the subjective nature of historical narratives, courts should endeavour to extract and have in view the complete account of the historical background to the constitutional provision being interpreted. Where a court embraced on account of history that marginalized, excluded, suppressed or omitted some portions of the historical account then such an incomplete or partial account of history was certain to distort rather than illuminate the meaning of the constitutional provision being interpreted hence misleading the court to reaching an erroneous conclusion.15. The Kenyan people’s desire for a balance between the two extremes of hyper-amendability and ultra-rigidity that informed the drafting of Chapter Sixteen of the Constitution was lost in the superior courts. That happened because the High Court and the majority at the Court of Appeal focused solely on the past problem of hyper-amendability thus losing sight of the Kenyan people’s desire for a balance between rigidity and flexibility that was achieved through the ‘tiered’ design of the amendment provisions in Chapter Sixteen.16. Since the basic structure doctrine was a constitutional law principle acceptable in just a number of States and not an international law principle, it did not amount to a customary international law principle. Therefore, article 2(5) of the Constitution could not be the basis for founding the applicability of the basic structure doctrine in Kenya.17. The basic structure doctrine and the four sequential steps for amendments as prescribed by the High Court and the majority of the Court of Appeal were not applicable in Kenya under the Constitution. Any amendment to the Constitution had to be carried out in strict conformity with the normative standards and the provisions of Chapter Sixteen of the Constitution.18. As far as the President’s actions with respect to the setting up of the BBI Taskforce and the BBI Steering Committee to further the agenda of promoting national unity were concerned, those actions could not be faulted. Indeed, they were laudable acts of statesmanship executed within the ambit of the provisions of article 131(2)(c) of the Constitution. Article 131(2)(c) demanded nothing less from the President as it directed the holder of that venerable office to promote and enhance the unity of the nation.19. A popular initiative was an exercise of direct sovereign power; and excluded representative institutions (for example, the Legislature, and the Presidency) which only exercised power that was derived or delegated sovereign power as distinguished in article 1(2) and (3) of the Constitution. In other words, it was a means of direct democracy; and indeed, direct democracy could only be exercised by the people not their representatives since that would convolute the form of democracy at play.20. A popular initiative in a constitutional amendment process ought to be seen as an avenue through which citizens engaged in the exercise of their sovereignty. As such, State organs, not being bearers of direct sovereignty, had no right to activate the popular initiative. The popular initiative was a preserve of the citizens, the Wanjiku, in Kenyan popular lexicon.21. Chapter Nine of the Constitution laid out in great detail the powers and authority of the President and how such power was to be exercised. In light of the concerns over the concentration of powers in an imperial President that animated the Constitution, implying and extending the reach of the powers of the President where they were not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes. Another reason that supports the finding that the President was not envisaged as an initiator of a popular initiative was the role of the President with respect to entrenched matters listed in article 255(1) of the Constitution.22. Article 256(5) as read with article 257(10) of the Constitution granted the President a role that could be typified as serving a guardianship role over the amendment process. In that, where a constitutional amendment Bill was presented for assent, the President had the obligation of reviewing the Bill and referring the Bill to undergo the referendum process where it involved matters listed in article 255(1) of the Constitution. Such a guardianship role over theamendment process ought not to be undertaken by a player in the amendment process. The President ought not to be both a player and umpire in the amendment process.23. Article 255(3)(b) of the Constitution stated that an amendment by popular initiative under article 257 of the Constitution was by the people and Parliament. The Constitution recognized a distiinction between the people and State bodies like Parliament. Therefore, a State body like the institution of the presidency could not fall within the rubric of the people as the very text of the Constitution made that distinction.24. State institutions and State organs, such as the Presidency, could not initiate a constitutional amendment process using the popular initiative route provided in article 257 of the Constitution. Such State organs or State institutions were precluded from the initiation and promotion of a constitutional amendment process through the popular initiative route.25. Under article 20(2) of the Constitution, a court was under an obligation to interrogate whether a person alleging a violation of a right was a beneficiary of the right in question. In that context, article 38(1) of the Constitution granted the freedom to make political choices to every citizen. The citizen qualifier spoke to the range of application of the freedom to make political choices, by limiting the right's enjoyment by citizens. Therefore, for one to be a beneficiary of the freedom to make political choices they had to fall within the category of a citizen.26. While the President when acting in his private capacity as a citizen could enjoy the freedom to make political choices, that right did not accrue to the institution of the Presidency which was a State organ. The Presidency and other State organs did not fall under the rubric of citizens. Therefore, exclusion of the institution of the Presidency and other State institutions from initiation of a process to amend the Constitution through the popular initiative route did not violate political rights protected under article 38(1) of the Constitution.27. An examination of the evidence before the courts revealed a number of things; for starters President and the National Executive took certain actions which portrayed his role in the initiation and promotion of the constitutional amendments. The President did not do those things as a private citizen. The President was the real force or driving principal behind the Amendment Bill. The promoters erred by pursuing the Amendment Bill as a popular initiative and that rendered the amendment process unconstitutional.28. Article 89 of the Constitution provided for delimitation of electoral units, a role that was vested in IEBC. Amendments touching on matters falling within the remit of article 255(1) of the Constitution, which were the core or fundamental commitments of the Constitution, ought to be undertaken through a highly participatory and inclusive process. Directly allocating and apportioning constituencies usurped the mandate of IEBC, an independent constitutional commission;

removing the possibility of judicial review of the delimitation had an effect on the independence of the Judiciary;
the centrality of constituencies as units of political representation in the National Assembly meant that they ought to be apportioned and allocated by a neutral and professional actor; much more so, because malapportioned constituencies had the potential of diluting the power of the vote hence threatening the animating goal of fair and effective representation, which was at the heart of the foundational value of democratic governance enshrined in articles 4(2) and 10(2)(a) of the Constitution. Further, since constituencies were units of social and economic development through allocation of National Government Constituencies Development Fund (NG-CDF) and the recruitment into disciplined forces, such as the Kenya Defence Forces and the National Police Service, delimitation of constituencies had implications on the constitutional values and principles of equity, and social justice enshrined in article 10(2)(b) of the Constitution.

29. The delimitation of constituencies had to be accompanied by a process that was fair and just, which was the golden thread that ran through Kenya’s constitutional order. Therefore, the process of allocating and apportioning constituencies demanded deepened public participation to ensure such a process was not carried out through stealth or subterfuge. Indeed, it was that perspective that informed the specific and in-built requirement of public participation in delimitation of electoral units in article 89(7)(a) of the Constitution.30. Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis. There was no evidence of any form of public participation or deliberation between October 21, 2020 and November 25, 2020 when changes to the BBI Steering Committee Draft Bill, including the Second Schedule, were added.31. The constitutional threshold of reasonable public participation was not met in coming up with the Second Schedule to the Amendment Bill. The Second Schedule was unconstitutional for want of public participation, a constitutional obligation that flowed from articles 10(2)(a) and 89(7)(a) of the Constitution.32. The Constitution contemplated immunity of certain officials in the performance of their functions. In addition, the Privileges and Immunities Act, and the Parliamentary Powers and Privileges Act, 2017 provided different scopes of immunities for respective individuals. The immunity of the President was unlike that of the other State actors. The President not only enjoyed functional immunity like all public officials who performed State duties, which protected them from civil liability for official functions, he also enjoyed sovereign immunity as the Head of State and the single representation of the sovereignty of the Republic.33. It was only sovereign immunity that could immunize anyone against both civil proceedings and criminal liability because any other immunity would be related to official functions and therefore would inherently be a qualified immunity. That was the only explanation why all other public officials would be liable to criminal prosecutions even while in office, but the President would not only not have criminal proceedings instituted against him, but also any criminal proceedings that could have been ongoing would be discontinued in the duration of the President’s tenure of office.34. It was the sovereign immunity that the Head of State, like all heads of states, enjoyed that made article 143(4) of the Constitution relevant in that, the immunity should be waived by consent of the Republic through ratification of a treaty that forbade such immunity. Likewise, that was also why that immunity (from any proceedings, and especially from criminal liability) was limited to the duration during which the person represented the sovereignty of the Republic, and expired upon expiry of such term.35. The two superior courts below, especially the majority opinion of the Court of Appeal, relied on the phrase, “in the exercise of their powers under this Constitution” in article 143(2) of the Constitution to emphasize that when the President exercised powers not granted by the Constitution, then the immunity was extinguished. That was one of the interpretations one could obtain from a plain reading of article 143(2), but a purposive interpretation of the phrase yielded a different result. Taking into account the logic and animating idea behind article 143(2) led to an interpretation of the phrase to mean that the immunity was in relation the President's official functions and not personal suits. 36. Part of the President’s role in the performance of his functions was the interpretation of the Constitution as to whether or not it gave him power to perform particular roles. Upon such interpretation, the President either acted or failed to act in the belief that either that power existed or did not exist. It would follow then that if proceedings were to be instituted against the President after an interpretation which was considered to have been a wrong interpretation, then such proceedings would fall within the immunity contemplated by article 143(2) of the Constitution; in that, it would be within the performance of the President’s functions.37. There was no provision allowing or requiring the President to seek an advisory opinion from the Judiciary before exercising his duties or before determining whether he had power to perform any official act; and in any event, that would generally blur the separation of powers. The Constitution had provided for how the President and the Executive in general could be kept in check through political accountability, with the provision that the President was liable for impeachment under article 145 of the Constitution. The grounds for impeachment listed under article 145(1) included gross violation of the Constitution or any law, commission of a crime under national or international law, or gross misconduct. That meant that there was a clear avenue to check the President’s conduct.38. An interpretation of the Constitution that resulted to an amendment vide a judgment was tantamount to judicial overreach. The import of article 143(2) of the Constitution with respect to protection of the President from civil proceedings was as follows:

Immunity did not extend to acts or omission of a sitting President done in purely personal capacity not connected with his office.
The immunity was only in respect to acts or omissions connected with the office and functions of that office.
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.
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.

39. The superior courts below fell in error in their interpretation and application of article 143(2) of the Constitution by holding that 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. Civil proceedings could not 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. Such proceedings could be instituted against the President vide the Attorney General.40. IEBC being a creature of the Constitution and statute could only discharge a mandate vested in it explicitly by the law. That was a direction given in article 10(2) of the Constitution which identified the rule of law as a national value and principle of governance. IEBC, like all other public bodies, could not by craft of innovation or interpretation extend its powers to include ascertaining whether a promoter of a popular initiative had complied with the public participation requirements under the Constitution where the law did not explicitly grant it that mandate. The power granted to IEBC under article 257(4) of the Constitution was limited to verifying that the initiative was supported by at least one million registered voters.41. Courts should not encourage extension of powers by constitutional or statutory bodies. Such bodies had to operate strictly within the four corners of their constitutional and statutory mandate. Therefore, where no power conferring legal provision could be pointed to as the basis for founding a mandate, courts should not use interpretive craft to extend the mandate of a public body. Given that view, unless there was a statutory framework enacted that conferred power on IEBC to ascertain whether a promoter had undertaken public participation, the exercise of such a mandate would be a mere overreach.42. The obligation for voter education under article 88(4)(g) of the Constitution kicked in only after the mandate to conduct a referendum had arisen. That was founded on the fact that under article 88(4), voter education was linked to IEBC’s role in conducting or supervising referenda and elections. Thus, the obligation to conduct voter education only arose within the context of a referendum.43. The obligation of voter education arose upon the conclusion of the process in article 257(10) of the Constitution where the President issued a notice to IEBC to hold a referendum for approval of the Bill. With respect to the Amendment Bill, such an obligation had not arisen at the time the instant cases were filed and adjudicated by the superior courts below.44. There was no obligation on IEBC to ensure that the promoters of the impugned popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies.45. While participation of the people had been identified as a foundational value and principle of governance under article 10(2) of the Constitution, it was even more crucial with regard to processes that would lead to constitutional amendment. That was so, since it was the people’s acceptance and ownership that granted democratic legitimacy and authority to a constitution. Therefore, the process of constitutional amendment should be inclusive, enable deep public participation, and promote active involvement of the people during all the stages. Considerations around public participation in constitutional amendment process ought to be geared towards maximizing public participation and ensuring that people understood the options and choices available to them in the process.46. Public participation and consultation was a living constitutional principle that went to the constitutional tenet of sovereignty of the people. The following were guiding principles for public participation:

As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means.
Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
Public participation was not an abstract notion; it had to be purposive and meaningful.
Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case-to-case basis.
Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
Allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case-to-case basis.
Components of meaningful public participation included the following:

The first (initiation) stage: Collection of signatures under article 257(1), typically involved the promoters of the initiative setting the referendum agenda. However, that had to be within a context of the constitutionally guaranteed opportunities for citizens to influence the process. It was also not lost to the court that an onerous requirement that a promoter conducted public participation before presenting the signatures for verification at that stage would be unreasonable because the whole process could be rejected by IEBC, like it did in the two popular initiatives dubbed as Okoa Kenya and Punguza Mizigo initiatives. Moreover, unlike subsequent stages where the cost of public participation was borne by public bodies, that was: County Assemblies, Houses of Parliament, and IEBC; at that first stage the cost of public participation would be borne by citizens or a group of citizens. In such a context, the requirement of public participation during the period preceding and during the collection of signatures should not impose onerous requirements on promoters of an initiative.
The second (passage through the County Assemblies) stage seemed to lend itself more to public participation. That was because the Constitution imposed a normative obligation for public participation in legislative affairs at the county assemblies under article 196 of the Constitution. Moreover, the timeline of three (3) months within which county assemblies ought to consider a Bill under article 257(6) of the Constitution supported a reading that the assemblies ought to solicit for public input.
The third (passage through the Houses of Parliament) stage was another key stage for public participation. A structural reading would imply that the obligation under article 256(2) of the Constitution for the Houses of Parliament to publicize any Bill and facilitate public discussion about the Bill, would also apply to a Bill that had come to the Houses of Parliament pursuant to a popular initiative. That was in addition to the general obligation on the Houses of Parliament to promote public participation in the legislative process under article 118 of the Constitution. That was in recognition that deliberations by legislative representatives should promote the goal of allowing public input in deliberations that affected them.
The fourth (referendum campaign) stage under article 257(10) of the Constitution, was intended to serve as a national deliberative moment, hence duty bearers including IEBC had an obligation to facilitate a broad participatory process that included voter education under article 88(4)(g) of the Constitution. The nature of public participation at that stage ought to include civic education to provide objective education on the merits and demerits of the issues presented to the referendum.

49. By dint of section 112 of the Evidence Act, once there was an allegation of lack of public participation, the burden shifted to the person charged with the responsibility of performing the same to establish adequate public participation. The evidence before the court showed that there was a reasonable attempt at public participation with respect to the impugned initiative. There was reasonable public participation with respect to the Amendment Bill save for the Second Schedule of the impugned Bill.50. The legal regime on the composition of IEBC was regulated by the Constitution. Whilst article 88 of the Constitution established IEBC, provided for eligibility of appointment of its members and its mandate, that provision did not touch on its composition. It was article 250(1) of the Constitution which provided for the composition of commissions and independent offices. Article 248(2)(c) of the Constitution listed IEBC as one of the commissions and independent offices making article 250(1) the constitutional provision regulating its composition.51. Section 5(1) of the IEBC Act, which statute according to its long title was an Act of Parliament to make provision for the appointment and effective operation of the IEBC provided that IEBC 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(1) should be read in a manner that conformed to article 250(1) of the Constitution. The reason being that article 2 of the Constitution, which expressed the supremacy of the Constitution, demanded that no legal norm, including legislation, should have an effect contrary to that expressed in the Constitution.52. Provisions of an Act of Parliament could not override the Constitution. The expressed intention of Parliament in legislation could not trump the normative command of the Constitution in a legal system where the Constitution was supreme. Therefore, the implication was that IEBC was legally constituted when composed of the minimum number of three commissioners stipulated in article 250(1) of the Constitution. IEBC was constitutionally and legally composed when it undertook the verification process under article 257(4) of the Constitution relating to the Amendment Bill.53. Given that there was no constitutional rule prescribing the quorum for IEBC commissioners, the question of quorum was regulated by legislation and subsidiary legislation. Section 8 of the IEBC Act provided for the conduct of business and affairs of the IEBC. Paragraph 5 of the Second Schedule of the Act went ahead and fixed the quorum for conducting business at five.54. Sometimes in 2017, Parliament enacted the Election Laws Amendment, 2017 which amongst other provisions amended the law on quorum of IEBC (that was, paragraph 5 of the Second Schedule of the Act) to at least half of the commissioners in office and not less than three members. That amendment was challenged in court in Katiba Institute & another v Attorney General & Another, Constitutional Petition No. 548 of 2017 [2018] eKLR (Katiba Institute case) and the High Court held that Parliament’s reduction of the quorum of the IEBC to at least half of the existing members and not less than three members was constitutionally invalid.55. The decision in the Katiba Institute case was never overturned by a higher court and Parliament did not make any amendments to the statute to replace the provision declared constitutionally invalid. The effect of a declaration of invalidity was that the law so declared became ineffective as though it was not in the statute book. The decision in the Katiba Institute case restored the status ante before the 2017 amendment with respect to the quorum of IEBC.56. Since article 250(1) of the Constitution envisaged that an IEBC composed of three (3) commissioners was competent to discharge its constitutional mandate, an interpretation of paragraph 5 of the Second Schedule to the IEBC Act that led to a contrary result would be an affront to the supremacy of the Constitution. In such a context, a court was required to read down the statute to ensure conformity with the normative demands of the Constitution.57. IEBC’s quorum ought to be construed to reflect the normative expectation flowing from the Constitution that IEBC could discharge its constitutional mandate with at least three commissioners in office. Flowing from the requirement that a court ought to give effect to a constitutionally conforming interpretation of statutes, IEBC with three Commissioners had the requisite quorum to undertake the impugned verification process.58. Common law doctrines like the stare decisis doctrine had to be interpreted in a manner that promoted and gave effect to the values and principles of the Constitution. In the instant case, the two superior courts below did not take into account the value and principle of the rule of law enshrined in article 10(2)(a) of the Constitution that commanded compliance with court orders before making a decision that had the effect of penalizing IEBC for relying on a declaratory finding by a High Court. IEBC could not be faulted as its actions then were supported by the Isaiah Biwott Kangowny v Independent Electoral Boundaries Commission & Attorney General, Constitutional Petition No. 212 of 2018 (Isaiah Biwott case). Although that decision was not binding on the High Court or the Court of Appeal, it created a legitimate expectation in the IEBC that carrying out business with three commissioners complied with the law.59. The value and principle of the rule of law under article 10(2)(a) of the Constitution demanded that public bodies and private individuals comply with court decisions. Where a State organ or private individual acted in compliance with a court decision, like the IEBC did in the instant case, it ought not be punished by a subsequent court’s decision declaring such actions illegal based on a differing interpretation of the law.60. In circumstances where a High Court in a later case, like in the instant case, disagreed with an earlier finding by another bench of the High court, the best approach was for the court to craft and mount appropriate remedies taking into account contextual considerations like the reliance placed by public bodies and private individuals on earlier court decisions. In such instances, the High Court ought to opt for the remedy of prospective overruling or suspending the declaration of invalidity and stipulate that the effect of its decision would apply prospectively.61. The doctrine of ripeness focused on when a dispute had matured into an existing substantial controversy deserving of judicial intervention. The doctrine of ripeness prevented a party from approaching a court before that party had been subject to prejudice, or the real threat of prejudice, as a result of the legislation or conduct challenged.62. At the time of filing the subject petitions, particularly Petition E416 of 2020, the Amendment Bill was yet to be submitted to the county assemblies for debate. That meant that IEBC was yet to be invited to make a determination on the manner and form of the referendum question(s). Taking into consideration that IEBC’s obligation under article 257(10) of the Constitution had not yet arisen, there was no live controversy before the High Court which ought to have declined to make a determination on that question.63. Ripeness discouraged a court from deciding an issue too early. It therefore required a litigant to wait until an action was taken against which a judicial decision could be grounded and a court was able to issue a concrete relief. That approach shielded a court from dealing with hypothetical issues that had not crystalized. The issue of whether article 257(10) of the Constitution entailed or required that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination.64. Costs should follow the event but nonetheless, ultimately, whether or not costs were to be awarded lay within the discretion of the court. The judicial discretion was not to be exercised capriciously but was meant to accommodate the special circumstances of each case, while being guided by ends of justice.65. [Obiter]On the four sequential steps recommended in the impugned opinions, just like the two superior courts below, I would wish to observe in obiter that Parliament needs to consider the onerous complexity in the implementation and compliance with the obligations in Chapter Sixteen and enact a legislation to guide the constitutional amendment process. This could be formulated in the mould of the Constitution of Kenya Review Act, No. 6 of 2009, which was enacted to guide the review of the repealed Constitution, only that the proposed legislation will provide a more detailed framework to guide the process of amendment according to the three tiered process, or if it is the desire of the people to add a fourth tier as proposed by the two superior courts. Moreover, it is necessary to note that many of the petitions challenged the impugned amendment process because there was no legislation that was put in place to govern the collection of signatures, the verification, public participation and the conduct of a referendum. In my humble view, it is not at all reasonable to expect citizens to navigate all the numerous steps in the amendment process without a simplified guide drawn from legislation and even perhaps augmented by some rules or guidelines on the amendment process. The time and effort taken in determining this consolidated appeal is a testament that the provisions of Chapter Sixteen are complex and cannot be properly navigated without a legally ordained guide.66. [Obiter] For a start, there has been no legislation to guide even public participation which is a key guiding pillar of governance in the post-2010 constitutional order. There is also the need for a comprehensive referendum law to guide the conduct of a referendum as far as Chapter Sixteen is concerned. If the people so desired, I see no problem with the Legislature taking up this recommendation to provide for the four sequential steps in the proposed legislation, given that in their true essence, they are but modalities and sites for deepening public involvement and participation in the amendment process which is already a constitutional requirement under article 10(2).67. [Obiter] Having made the above finding, I need to point out in obiter that there is need for Parliament to enact a legislative framework to guide and regulate the process of public participation. While the Constitution sets a broad normative obligation for public participation in various governance processes, there is no legislative framework regulating how this obligation ought to be implemented. It is instructive to note that there have been three Bills tabled in the Houses of Parliament with respect to providing a legal framework for public participation… Likewise, there have been attempts to enact legislation on referendum that stipulates or regulates the process of conducting a referendum on a constitutional amendment.68. [Obiter] It ought to be appreciated that the Legislature has a duty to fulfil its obligations under the Constitution by enacting legislation to actualize constitutional imperatives. Furthermore, pursuant to article 10 of the Constitution, the Legislature and other State organs were under a command to implement or help realize the values and principles that the Constitution secures. Taking into account that the Constitution also places an affirmative duty on the Legislature to enact a legislation on the conduct of referenda under article 82(1)(d), I implore the Legislature to enact comprehensive legislations that will implement these twin constitutional obligations.Per PM Mwilu, DCJ:69. Taking into account the constitution-making process leading to the promulgation of the Constitution, there was no doubt that the Constitution had to take a certain configuration. For instance, certain aspects of sovereignty of the people and supremacy of the Constitution, the Bill of rights which then extended to socio-economic rights, leadership and integrity, devolution and the two levels of Government, the Executive which was detached from Legislature, Judiciary among other provisions were introduced into the Constitution. Following the clamour for constitutional review over the years, the Constitution was promulgated following an elaborate process that was preceded by a largely participatory and people-centric mechanism.70. The Constitution had a certain structure incorporating the certain provisions which were termed as basic. That structure took into account the history of the country and the aspirations of the citizens that were elevated into the Constitution. From the proceedings and the record, the parties commonly agreed that the Constitution did have a basic structure that was inherent therein. That structure could differ from country to country but subsisted in all Constitutions71. The Constitution neither defined the word ‘doctrine’, ‘basic structure’ nor even ‘basic structure doctrine.’ The only doctrine referred to in the Constitution was on the construing of the Constitution. Article 259(3) of the Constitution provided that every provision of the Constitution should be construed according to the ‘doctrine of interpretation’ that the law was always speaking.72. According to Emerson H. Tiller & Anor “What is legal doctrine?” (2006) 100 Nw.U.L. Rev. 517, a legal doctrine set the terms for future resolution of cases in an area and it could take many forms – fact-dependent and therefore limited or sweeping in its breadth. It was not debatable then that a doctrine was a legal principle of long usage, which was widely accepted as such. That definition was a working tool in resolving the instant controversy inherent in the existence, and applicability, if at all, of the basic structure doctrine in the circumstances and commands of the Constitution of Kenya, 2010.73. A common thread as to what constituted the basic structure doctrine in Kenya, was that the doctrine sought to protect the Constitution from radical amendments especially those perpetuated by the leaders, be they in Parliament or in the Executive. That was based on the past trend where constitutions were amended over time with the aim of diminishing citizens’ rights at the expense of entrenching political rights. Considering the history of Kenya and the process through which the Constitution making process was subjected to, it was imperative that certain provisions which contained the basic structure be upheld and protected from haphazard interference.74. The basic structure doctrine was not an express provision of the Constitution. There was no uniform and agreed definition of that doctrine. Article 2 of the Constitution dealt with the supremacy of the Constitution. Article 1 of the Constitution vested all sovereign power in the people, and it was exercised only in accordance with the Constitution. That was either directly or through democratically elected representatives.75. The inescapable thread that emerged was that the framers of the Constitution took deliberate steps, at least for Kenya, to ensure the process of amending the Constitution was strictly regulated. The Kenyan Constitution was not referred to as transformative for the sake of it. It was a product of quite an effort made at different levels and by different players to guard the aspirations of the citizens whose participation remained at the core. That was the import of articles 10 and 259 of the Constitution.76. Whether a constitution was amendable or not, whether any amendment initiative amounted to an alteration or dismemberment and the procedure to be followed was a matter that would be determined on a case-to-case basis depending on the circumstances. Articles 255 to 257 of the Constitution just like any other provisions of the Constitution could be interpreted or applied to the circumstances of a relevant case within the Constitution. That could involve invoking the jurisdiction of the High Court under article 165(3)(b) and (d) of the Constitution with the possibility of appellate processes all the way to the Supreme Court as the final arbiter under article 163(4)(a) of the Constitution in a case involving the interpretation or application of the Constitution.77. To state that the basic structure doctrine was applicable in Kenya was, to say that it had the force of law. Which it did not. The basic structure doctrine was not within the Kenyan Constitution and the Constitution was self-sustaining. The basic structure doctrine, by whatever machination was not applicable in Kenya.78. The manner and process through which sovereign power was directly exercised was fundamentally important, especially where what was at stake was the constitutional architecture, the very framework through which the people agreed to be governed. The intention of the framers of the Constitution and the people of Kenya in bestowing that charter on Kenyans and their future generations was not to implicitly prohibit amendment of its content and structure, whether identified as basic or not; it was to ensure that, through that very Constitution, any process of amendment was undertaken in the finest spirit of Kenya’s democracy, fully cognizant of Kenya’s historical context, present experiences and aspirations for the future. Such protection was found both expressly and implicitly in the provisions attendant to the process of amendment within the Constitution.79. Recognizing the progressive jurisprudence that had been developed by the courts and especially the Supreme Court on constitutional interpretation, such jurisdiction ought to be exercised very reservedly in the face of express provisions of the Constitution; very reservedly in the face of the constitutional exercise in sovereignty by the people; and very reservedly where the substantive import of any action was not what was in contention. It was always important to remember that not once did the Constitution employ the term ‘alter’ in relation to the changes in the Constitution.80. The Constitution did indeed have a basic structure. That the matter of the Constitution, embodying in itself or deriving from it such a thing as a basic structure doctrine was a misnomer for no such doctrine was derivable from the Constitution and consequently, the basic structure doctrine wherever else it could be found, did not apply in the Kenyan constitutional context. The manner and process through which sovereign power was exercised by the citizens, in its different forms was fundamentally important under the Kenyan constitutional architecture and the Constitution could be altered through other mechanisms not limited to the primary constituent power.81. The role of the President with regard to determining whether or not the amendment Bill was to be subjected to a referendum was ceremonial. Though an important role, it was a formality. Kenya was a constitutional democracy, and the roles and functions of all persons were subject to the Constitution. The President was not the sovereign, the sovereign in Kenya was the people of Kenya. All the authority exercised by the President was delegated by the sovereign people of Kenya through the Constitution and thus exercised always under and pursuant to the Constitution.82. The provisions in article 256 and 257 of the Constitution on the roles of the President regarding assent and transmission to the IEBC where required, were not discretionary functions. They were mandatory and time-bound and did not give the President any power. The principle was clearly laid out under article 115(6) of the Constitution where, regarding ordinary Bills, the same was deemed assented upon expiry of the period within which the President was supposed to take such action and/or failed to do so as were the Election Laws Amendment 2017 challenged in the Katiba Institute Case. That principle was further well established in Kenya’s constitutional jurisprudence.83. An election and a referendum were examples of the direct exercise of sovereignty by the people. The amendment processes under articles 256 and 257 of the Constitution consisted of both direct and indirect exercise of sovereign power. Indeed, on plain reading, there was no pure direct exercise of sovereign power as described by the superior court in any of the processes. The role of legislatures, at both the national and county levels was explicit in the amendment by popular initiative under article 257. Both the parliamentary route under article 256 and the popular initiative route under article 257, considered holistically, were still framed by practices of indirect exercise of sovereign power. Further, access was not the distinguishing factor between the two methods of constitutional amendments.84. It was entirely plausible, that an independent Member of Parliament or for that matter an independent head of state, with a proposed amendment but lacking the relevant numbers in Parliament, could seek to initiate a constitutional amendment through popular initiative. Similarly, it was entirely plausible that a civic minded citizen could successfully petition Parliament under article 119 of the Constitution to initiate an amendment of the Constitution through the House.85. Parliament exercising delegated authority and representing the people, ought to be the most accessible avenue for citizens, either directly or through their representatives, to propose laws, amendments to laws and indeed amendments to the Constitution rather than the more laborious task of collecting one million signatures and pursuing the promotion of a popular initiative. It had to always be recalled that the determinant of any amendment seeing the light of day, or being forever doomed and sunk, was the sovereign people – the people, who, had to vote at the ensuring referendum. Even if difficult and perhaps rare, sitting Presidents had lost referenda, or even worse, re-election at the ballot. It was the people, being the sovereign who wielded power.86. The amendment of the Constitution could only be engineered within the Constitution itself. Any attempt to introduce a mechanism outside of Chapter Sixteen of the Constitution should immediately be thwarted by article 2(2) of the Constitution which forbade any claim or exercise of State authority except as authorized under the Constitution. Chapter Sixteen recognized the amendability of the Constitution in accordance with article 256 or 257 of the Constitution, specifically on matters which required a referendum regardless of the method deployed.87. The President’s authority and functions were stated in the Constitution itself and none of them expressly set out the legislative authority of the President. While the President remained part of the National Executive, the President was not clothed with additional functions and authority, more so when such exercise was discretionary and subjective.88. Under article 1(3) of the Constitution, the sovereign power under the Constitution was delegated to three State organs – Parliament, the National Executive and Executive structures in the county governments and the Judiciary and independent tribunals. That meant that the President did not have any express delegated powers from the sovereign and permitting the President to exercise nonexistent powers would have been an overreach. To allow the President the power to initiate amendments was to go against the very grain of constitutionalism as overwhelmingly approved by the people in promulgating the Constitution.89. National unity could be fostered in many ways; constitutional amendment initiated by the President was the least desirable. Therefore, the President could not initiate a constitutional amendment initiative in his capacity as a democratically elected representative.90. Unlike the repealed Constitution when the President, his cabinet and its principal legal advisor, the Attorney General were part of Parliament, the Constitution in its transformative nature excluded the Executive from both Houses of Parliament. In excluding the Executive from it, Parliament was bestowed with the oversight mandate over the Executive including the President as its head. The Constitution affirmed the separation of power doctrine whereupon Parliament, as the representative of the people, elected as such, had a clear role in oversighting other State actors including those in the Executive as well as addressing concerns of the citizens, in an independent manner. Besides, the constituencies were expanded to 290 in order to enhance the representation of the citizens who took part in universal suffrage every so often.91. The parliamentary initiative of amending the Constitution took into account the matters reserved under article 255(1) of the Constitution which had to still be subjected to a referendum. The the President and the Executive for that matter had no role whatsoever in being involved in the parliamentary initiative of amending the Constitution. That was not to suggest that the President who could have a significant control of any of the Houses of Parliament by virtue of being the leader of the party which comprised of the majority of the members of each or both houses of Parliament, could not have an influencing effect.92. The President, as party leader could invoke that capacity to try and influence policy and legislative agenda informally or even through his state of the nation address to Parliament. That, however, could only be undertaken outside of the official parliamentary business. The High Court in suggesting that the President could invoke parliamentary initiative fell into error for prescribing a route that was not expressly hinged on the Constitution. Based on the previous experience of the Executive abusing their powers by orchestrating meaningless and sometimes outright undemocratic amendments to the Constitution, the Constitution did not contemplate allowing any constitutional window, however narrow, that the President should invoke and directly control the parliamentary processes in whichever House of Parliament.93. The term popular initiative could not be one of those boilerplate clauses used to fill up text. With the paramount nature that the sovereignty of the people was afforded under the Constitution, the role of the people in exercising their direct sovereign power in amending the Constitution was so critical that it had to be specifically secured. That meant that while Parliament, as the donee of representative power had the mandate, the people could also be allowed to directly exercise their power. That was in obvious realization that sometimes Parliament could be partial and could be hindered by other interests such as being bound by selfish interest, bound by the Executive or partisan political party politics. It was such eventualities that the people were not to be left feeling helpless but reserved unto themselves the residual power to undertake legislative process in initiating amendments to the Constitution. That was well captured in the preamble to the Constitution.94. The Supreme Court should be reluctant to venture into matters reserved for other State organs. That was not only good for the sake of preservation of the doctrine of separation of powers but also allowed for strengthening of institutions whereupon each constitutional body should be allowed the liberty to carry out its mandate. Just as Parliament was expected to operate within its constitutional powers as an arm of Government so should the Judiciary. The systems of checks and balances that prevented autocracy, restrained institutional excesses and prevented abuse of power applied equally to the Executive, the Legislature and the Judiciary. No one arm of Government was infallible and all were equally vulnerable to the dangers of acting ultra vires the Constitution.95. The obvious role of the promoter that came from the Constitution was under article 257(3), to deliver the draft Bill and the supporting signatures to IEBC. That meant that the promoter had to be responsible for either coming up with a general suggestion and/or drafting a Bill which he/she had to popularize to the one million signatories who had to be voters to gain their support for the promoter’s initiative under article 257. That support was expressed through signing by the supporters in a manner that was verifiable by IEBC.96. It was fair and prudent to state that the decisive time was that of conceptualization of the intent. It was so because the one million signatories would not by themselves come up with a proposal or the general suggestion or even the Bill. A promoter sat down to conceptualize the proposed amendments either as a Bill or as a general suggestion before setting out to get the support of the one million signatories.97. The signatures so obtained in support only went to demonstrate that the promoter was not on a personal frolic but had at least found other people who were in agreement with the promoter’s initiative, a deference to the sovereign as it were, and the building of a solid threshold on which to found a constitutional amendment, itself a key solemn endeavour. In addition, should the initiative last its course, it had an impact both in the legislative agenda, political processes and ultimately public resources and on the work of the relevant constitutional body, to wit IEBC in approving and conducting a national referendum.98. Juxtaposed with the parliamentary initiative, the parliamentary process did involve the introduction of the Bill to amend the Constitution. The Standing Orders provided for the manner in which a Bill was introduced including having it tabled before the House Business Committee. These preliminary processes towards generation of the Bill could not be ignored as there had to be some level of involvement by the equivalent of the promoters. Focusing only on the front end of the process where the Bill was introduced to Parliament missed a fundamental requisite process in an otherwise solemn constitutional process.99. The role of the promoters was limited to getting the one million signatures in order to meet the constitutional threshold. That involved explaining and/or popularizing the general suggestion or draft amendment Bill to the citizenry with a view to obtaining the at least one million voters in support. The process leading to the enactment of the Amendment Bill could not be segregated.100. The IEBC had no timeline within which to undertake the verification exercise. The constitutional timelines only checked in once IEBC submitted the Bill to the counties for approval. The making of copies of the Bill for circulation to the county assemblies should be an administrative process by IEBC as it had to ensure each County Assembly got the same copy of the Bill. That was because; the IEBC was the constitutional body charged with matters election and it was publicly funded and the promoter’s role, barring any legislation, ended with the submission of the initiative to IEBC.101. The IEBC should not step into the realm of the role of the promoter and the promoter should not yield his or her obligations to the IEBC for that matter. For clarity the IEBC’s roles did not extend to any period prior to the presentation of the Bill to IEBC. In relation to the Amendment Bill, the President played a dominant role in so far as he published by way of Kenya Gazette the establishment of the BBI Taskforce and later the BBI Steering Committee with the task of inter alia suggesting constitutional reforms. The BBI National Secretariat headed by Hon. Junet Mohamed and Hon. Dennis Waweru, though being the face of the initiative were not the originators, their actions having been consequential to the President’s initial action of establishing the taskforce.102. The President could not directly initiate changes or amendments to the Constitution. That was based on Kenya’s history and the role of the Executive in the hyper-amendability of the repealed Constitution and the need to insulate the Constitution from possible abuse based on Kenya’s history. An amendment of the Constitution could only be initiated through a parliamentary or popular initiative under articles 256 and 257 of the Constitution. Consequently, the Amendment Bill was unconstitutional.103. Kenya’s jurisdiction was replete with incidences of judicial intervention on constitutionality or enforcement of fundamental human rights. The courts had not hesitated to intervene in proposed amendments in instances where a person was aggrieved by an intended amendment for violating or threatening to violate fundamental rights and freedoms. It was worth pointing out that under article 22 of the Constitution, a threat to a right or fundamental freedom was sufficient for one to institute court proceedings.104. Article 165 of the Constitution clothed the High Court with unlimited original jurisdiction. That included jurisdiction to have any question respecting the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution was inconsistent with, or in contravention of the Constitution in article 165(ii). An initiative to amend the Constitution flowed from articles 255 to 257 of the Constitution and remained susceptible to challenge. Anyone who felt aggrieved was free to approach the court. The court faced with that challenge would be in a position to determine the extent of its own involvement in the matter without infringing on the separation of powers and policy matters. That was one of the master pieces of the constitutional design. The matter at hand was not abstract or moot considering it raised a very fundamental challenge to article 89 of the Constitution purely based on the text at hand.105. The Supreme Court in particular occupied a special place in the constitutional scheme on the interpretation and application of the Constitution. The Supreme Court had a restorative role, in that respect, assisting the transition process through interpretive vigilance. The courts had to patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as they exercised their constitutional mandates, being conscious that their very infancy exposed them not only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order.106. The Constitution was amendable. Without a doubt that applied to each and every article thereof without exception, and only in the manner allowable by the Constitution itself. That was to say article 89 of the Constitution was amendable. The proposed amendment, however, had to fit in the context of the rest of the Constitution in harmony and had to not be brought in a haphazard and clandestine manner.107. The entire article 89 of the Constitution was not being proposed for amendment but only 89(1) on the number of constituencies. On the face of it, there seemed to be no problem with that as the promoter was free to suggest such an amendment proposal. There was a challenge on the origin of the proposal to have that specific number of constituencies. But for the purposes of determining the issues at hand, nothing turned on that concern. The proposed amendment of article 89(1) completely overlooked the manner, mandate and procedure set out in article 89(3) which reviewed the number, names and boundaries of wards periodically. The greater challenge was on the timelines and the exact number suggested as against the existing constitutional provisions on that issue.108. Article 89(2) of the Constitution contemplated the review of constituency boundaries to be undertaken between eight and twelve years, but at least twelve months before a general election. From the last cycle of boundary review exercise which was undertaken under the Constitution in a process that concluded in 2012, the process took over five years, the IEBC having inherited it from the previous body established under the repealed Constitution. That was because it had to involve factors such as economic ties, geographical features and population quotas. This took into account the prescribed margins set out in Article 89(6) of the Constitution.109. There were important precondition aspects of consultation with all interested parties, publication in the Kenya Gazette as well as dispute resolution by way of an application to the High Court for review of the decision of IEBC. It was therefore unconstitutional for the Amendment Bill to purport to alter those provisions on the timelines under the Schedule yet the substantive obtaining article of the Constitution remained undisturbed. To attempt to direct IEBC on the manner to discharge its constitutional mandate at once unconstitutionally, the obvious intention was to ensure the new constituencies were applicable to the 2022 elections, itself a clear violation of the Constitution under article 89(4) of the Constitution.110. The Second Schedule to the Amendment Bill was unconstitutional in so far as it directed the IEBC on, not only delimitation of the number of constituencies but also the distribution of the proposed new constituencies and the timelines within which to operationalize the same within the existing constitutional parameters of article 89 of the Constitution.111. The Constitution recognized three types of immunities – to the Head of State under article 143, to legislators under article 117; and extending to freedom of speech and debate and to county assemblies, their committees and members under article 196. The immunity granted to the President was expressly set out in the Constitution. The other immunities to legislators and members of county assemblies were left to legislation.112. The Civil Procedure Act by virtue of its section 1(2) applied to proceedings in the High Court and, subject to the Magistrates’ Court Act, to proceedings in subordinate courts. The Act defined “suit” to mean all civil proceedings commenced in any manner prescribed. The Act also defined a ‘pleading’ to include a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence or counterclaim of a defendant.113. The presidential immunity played a meaningful role in the execution of constitutional and statutory mandate as a President. At that level of constitutional mandate and authority, the President needed to have the operational confidence to take certain executive measures in order to effectively govern the country without the colloquial sword of Damocles hanging over his head, worrying about the consequences of his actions or omissions when executing his functions as President.114. Immunity from civil proceedings also shielded the President from being pursued for other civil interests by citizens privately in particular through litigation and court process that was largely adversarial in Kenya. Allowing the President to be subject to civil suits inevitably exposed him to court attendances, court testimonies, cross examination and ultimately execution process in the event that the President was found liable to settle civil debts. That could escalate to committal to civil jail as a mode of execution. All these scenarios were as undesirable as they were distracting. As the President of the country, he should be as available as possible to execute his official functions.115. The immunity granted to judges and judicial officers did not take the categorical terms as those for the President’s immunity under the Constitution. The former involved the use of terms, such as ‘good faith’ and ‘lawful performance of functions.' The Constitution retained inbuilt mechanisms to deal with rogue state officers. This included removal from office, challenge to the exercise of functions and impeachment in case of the President.116. The President was not properly served with the pleadings and was therefore not accorded an opportunity to participate in the proceedings in his personal capacity in which he had been sued. Under article 143(2) of the Constitution, the President enjoyed absolute immunity from civil proceedings during his tenure in office.117. Under Kenya’s constitutional dispensation, the sovereignty of the people took a vital center stage. Since all sovereign power belonged to the people, they had to play a significant constitutional role as contemplated under the Constitution. Participation of the people was one of the recognized national values and principles of governance listed in article 10 of the Constitution. Public participation permeated the sphere of governance and legislative processes, public access and participation including conduct of Parliament and County Assembly business had to all have a measure of public participation.118. Engagement with the public was essential. Public participation informed the public of what was to be expected. It allowed for the community to express concerns, fears, and even to make demands. In any democratic state, participation was integral to legitimacy. When a decision was made without consulting the public the result could never be an informed decision. Facilitating public participation was necessary to ensure legitimacy of the ensuing law or policy reached.119. The guiding principles for public participation were as follows:

As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means.
Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
Public participation was not an abstract notion; it had to be purposive and meaningful.
Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis.
Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
Allegations of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
Components of meaningful public participation included the following:

i. clarity of the subject matter for the public to understand;ii. structures and processes (medium of engagement) of participation that are clear and simple;iii. opportunity for balanced influence from the public in general;iv commitment to the process;v inclusive and effective representation;vi. integrity and transparency of the process;vii capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.120. It was essential to address public participation under the different phases of the popular initiative under article 257 of the Constitution. Firstly, the issue of the role of promoter in relation to collection of signatures. Secondly, the role of IEBC once it received the Amendment Bill. Thirdly, the role of the County Assemblies in approving the Amendment Bill. Fourthly, the role of Parliament, incorporating both Houses, in debating and approving the Amendment Bill. There was also the aspect of the inadequacy of Part V of the Elections Act. It was only upon the determination on those aspects that it would be clear whether the Amendment Bill satisfied the requirement of public participation or not.121. There was no doubting that the initiative of amending the Constitution under article 257, by way of popular initiative, remained a continuous one. That continuous process also incorporated different players at the different stages.122. Unlike a Parliamentary initiative of amendment of the Constitution where Parliament would, under article 256(2) of the Constitution publicize any Bill to amend the Constitution, and facilitate public discussion of the Bill, there was no similar provision for a popular initiative under article 257 of the Constitution. The logical explanation could be that Parliament by its very nature exercised delegated sovereign power on behalf of the people under articles 1(2) and 3(a) of the Constitution. That made it obligatory for Parliament to report to the people as well as to facilitate the discussion of the Bill, which allowed for amendment and factoring in any useful proposals emanating from the public participation exercise around the Bill prior to its enactment. In addition, Parliament being the constitutional body mandated to legislate was publicly funded and had the mechanism and capacity to undertake that noble exercise of public participation which in any event, was part of their legislative mandate.123. At the very least the IEBC was obligated under the Constitution to verify the signatures. That was not meant to be a mere formality but an elaborate exercise. IEBC made reference to their Administrative Procedures to guide the signature verification process. Using the guiding principles set out in the BAT Case public participation was a constitutional principle under article 10(2) of the Constitution and it obligated a public officer or a constitutional commission, also a public body, to ensure its occurrence. The public participation had to be accompanied by reasonable notice and fulfil components of meaningful public participation.124. Part V of the Elections Act contemplated formation of the referendum committees to spearhead support or opposition of the referendum question, prior to the voting exercise. Those spearheading the support or opposition together with the promoters would therefore be expected to popularize their position by way of civic education, publicizing the Amendment Bill or otherwise popularizing their respective positions as a result of which the public was expected to be better and sufficiently informed by the time they vote. The process was governed by an electoral code of conduct as stipulated by IEBC. Public participation in that context would therefore only be limited to accepting or rejecting what would have been presented before them at the poll through the Amendment Bill. The referendum did in a way, for a split second give the people executive, legislative and judicial powers to determine whether they were efficiently involved and consulted and whether the final product had the content and the substance, whether the final product was properly framed and whether it was a document they would want to enact. Upon enactment in the referendum they would have put their final seal of approval.125. Public participation had to be meaningful. Nothing done by IEBC in that regard rendered what would be adequately described as sufficient public participation, hence nothing was shown to occasion a departure from what the two superior courts below found. Public participation was neither moot nor premature. While public participation was central to the constitutional dispensation, in the context of constitutional amendment initiative through popular initiative, it was a continuous process to be considered at each step. There was no obligation on the promoters to undertake any public participation prior to the presentation of the Amendment Bill as all that was required was to get one million signatures to support it.126. There was lack of meaningful participation at the verification of signatures by IEBC. It was best left to legislature to enact a law that would address the different roles of the different players in the process ranging from the promoter, IEBC, County Assemblies, Houses of Parliament and the referendum process, the Constitution and the Supreme Court having laid out the framework. However, until that was done, the courts had rendered sufficient guidelines on the sufficiency or otherwise of public participation. At all material stages of the Amendment Bill wherein the constitutional value of public participation was called for, none of the stated value was had.127. It was manifest that IEBC had a very specific and non-delegable constitutional mandate under articles 88 to 90 of the Constitution. Elections and referenda management were grave issues as could be traced back to Kenya’s history that necessitated the elevation of the election management body to the Constitution itself.128. IEBC, in so far as it had three commissioners including the chairperson, and further that it took unanimous decisions with all the three commissioners present and voting in the deliberations, had quorum. The provisions of the IEBC Act could not supersede the Constitution as that was the springboard on which laws were launched. Consequently, the administrative procedures made by IEBC to govern the verification of the signatures exercise, could not be invalidated on the grounds that they were made without quorum. There was no evidence or demonstration by the parties to suggest that the procedures were made and approved by less than the three commissioners that were in office at the time. IEBC had quorum under articles 88 and 250 of the Constitution in so far as it had at least three commissioners acting in unanimity.129. Any proposed amendment to the Constitution, whether by parliamentary initiative or popular initiative, which related to a matter under article 255(1) of the Constitution had to be referred to a referendum. The manner in which a proposed amendment was to be submitted to the people in referendum was contained in Part V of the Elections Act under which section 49(2) stated that the issue of the referendum should be framed by the IEBC, which shall determine the question or questions to be determined during the referendum.130. The IEBC had not received the request to hold the referendum, it had not discharged its responsibility of framing the referendum question or questions, and it had not determined the manner or formula with which it would frame such referendum question or questions. It was trite law that for an issue to be justiciable, it had to be ‘ripe’ for adjudication.131. Where a constitution had reposed specific functions in an institution or organs of state, the court had to give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies had demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the constitution.132. Guided by the doctrine of ripeness, the courts retained the discretion, considering the circumstances of the matter, to decide whether such matter was temporally amenable for adjudication. Kenya’s democratic architecture and the principle of separation of powers as contained in the Constitution required that all state organs be allowed to freely, independently, and legally, exercise their respective constitutional authority. As such, the courts ought not overstep their constitutional mandate and infringe on the authority of another state organ or entity by prescribing the manner in which it should make decisions; decisions which it had been granted the constitutional authority to make.133. To adjudicate based on the prospect that the IEBC could or could not exercise its authority to frame the relevant referendum questions would be to adjudicate based on ‘speculative future contingencies’ thus offending the doctrine of ripeness as well as the constitutional doctrine of separation of powers between state organs. The High Court and the Court of Appeal assumed a jurisdiction they did not have as the issue was not ripe for interrogation by any court. What was placed before court was a hypothetical assertion concerning the nature of the questions from the Amendment Bill to be put to Kenyans in a referendum. The issue was not ripe and was therefore not justiciable.Per MK Ibrahim, SCJ:134. The basic structure doctrine was a legal principle that existed to protect the essential characteristics of the Constitution by implicitly limiting the power to amend a constitution. Under the doctrine, especially in the absence of entrenched provisions, amendments that would destroy the essential character of the Constitution were limited and could only be carried out by the people utilizing their primary constituent power.135. Couched in the basic structure doctrine were a few crucial aspects.

Constitutions were considered to be the act of the people as the almighty sovereign. That power of the people was recognized and documented in the Preamble of Kenya’s Constitution. Further, the first Chapter of Kenya’s Constitution acknowledged the sovereignty of the people.
It was through the Constitution that the people determined the nature of state, government, state organs and offices that would govern them and bestow varying degrees of power to those organs. The holders of those offices in carrying their functions did so through the use of delegated power. Delegated because it was the people who donated some of their power in order to have a government that served their needs.
The people in exercise of their sovereign will in creating a constitution, demarcated certain basic elements, or fundamental features which served as the essential foundation and pillars that prop up the society.
Amendments that altered, destroyed or changed the identity or basic structure of the Constitution could not be carried out by delegated authority. An amendment that destroyed either part or the whole Constitution, removed the foundation upon which the authority and power of state and its organs were predicated upon.

136. The State and its organs could not utilize their delegated power to oust the will of the people in whose interests they were expected to act. Acting in a delegated capacity, theirs was a fiduciary role and they could not by their own act either enlarge or diminish the powers vested on them. It was only the people utilizing their primary constituent power who could alter or change the foundation or pillars of the Constitution.137. When embarking on amending the Constitution, the principle of implied limitations had to be consulted. That had to be done to ensure that the fundamental features of Kenya’s hard-fought Constitution was not altered or destroyed. Adherence to that would ensure that constitutional amendments had the effect of carrying Kenya’s constitutional provisions into a more perfect operation.138. The application of the doctrine of basic structure could be subject to abuse. Hence the following two conditions should be considered during the application of the doctrine of basic structure:

The doctrine had to serve to develop the law and move a nation further in the trajectory it had already taken in fully realizing the democratic society that was envisioned while formulating and passing Kenya’s transformative Constitution.
The application of the doctrine had to serve to protect the democratic core norms. Those norms had been set out throughout the Constitution and were included in article 10 of the Constitution. Those core standards could also be found from the regional and international bodies to which Kenya was a member such as the African Union and United Nations that prescribed certain commitments to democracy, rule of law, human rights and protection of minorities.

139. The provisions of article 255 formed part of the Constitution’s basic structure. However, articles 255 and 257 of the Constitution provided that amendment to the same required approval by referendum. A referendum was the exercise of the people’s secondary constituent power. Consequently, if the amendments were not in pursuit of carrying the provisions of the Constitution into more perfect operation, but rather were geared towards an overhaul of the same, then there was need for the people to exercise their primary constituent power. It was only the people who could make such drastic changes to the system of governance. The basic structure of the Constitution should only be altered through the primary constituent power. The doctrine of basic structure was applicable to Kenya.140. Before the making of a constitution, the people were fully engaged even before inception of the issues, and were fully participatory until promulgation. Whereas, after promulgation of a constitution, the people played a limited dual role of public participation and a referendum. That was why, in order to unmake, to destroy or to alter the constitutional order, it required the level of engagement by the people in full exercise of the sovereign power. That was what was termed as primary constituent power. Hence the exercise of primary constituent power existed outside or could be termed as being parallel to the Constitution, unbound by constitutional limits.141. The four sequential steps in constitution making (civic education; public participation; constituent assembly plus referendum) were indicators of genuine primary constituent power in action. The four sequential steps acted as ‘mile-markers’ of the journey to making or unmaking a constitution; or altering the basic structure of a constitution by the people in exercise of their primary constituent power. Any constitution making or unmaking process, that lacked any of those crucial four steps could not be considered a genuine exercise of primary constituent power of the people.142. Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract that they bequeathed themselves in the form of Constitution of Kenya, 2010. Kenyans intended that the essence of the constitutional order they were bequeathing themselves in 2010 would only be changed in the exercise of primary constituent power (civic education; public participation; constituent assembly plus referendum) and not through secondary constituent power (public participation plus referendum only) or constituted power (Parliament only).143. Parliament and all State organs as well as public and State officers could only exercise the roles and functions assigned to them. Acting in a delegated capacity, theirs was a fiduciary role and they were precluded from, by their own act, either enlarging or diminishing the powers vested on them. They had to act in accordance with the powers and in the roles assigned to them.144. The basic structure of the Constitution could only be altered or denatured through the primary constituent power. Primary constituent power was the unbound power of the people to make or unmake constitutions and genuine exercise of the same could be identified by the four sequential steps of civic education; public participation; constituent assembly plus referendum.145. The historical perspective demonstrated that the popular initiative was a preserve of the citizens. Born from the Kenyan experience, Parliament as the organ entrusted with law making power, had not always acted in the best interests of the people. The people were responding to their frustrations that Parliament had not always acted in a citizen-centric manner but rather acted in a manner quite inimical to their interests. Therefore, in order to safeguard their rights, the people gave themselves an avenue to directly amend the Constitution in circumstances where Parliament was either unable or unwilling to act.146. It was reasonable to conclude that article 257 of the Constitution was created as a pathway for those without access to the standard parliamentary route under article 256 of the Constitution. The popular initiative route had to be citizen-conceived, citizen-initiated and citizen-driven process and citizens were the ordinary mwananchi whether as individuals or as organized civil groups.147. The BBI National Secretariat was not a different or separate entity from the BBI Steering Committee. After the launch of November 25, 2020, some Government departments and ministries were involved in the collection of signatures. That was a continuance of the process that the Executive arm of Government begun in the constitutional amendment process.148. The process of constitutional amendment was largely driven by the Executive led by the President. It was thus illogical to truncate the actions of the BBI National Secretariat through Junet Mohamed and Dennis Waweru from the actions and processes by the BBI Taskforce as well as the Steering Committee. It further was evident that the “Handshake” triggered a chain of events, which thereafter had a domino effect, one action leading to the next, until the culmination of the launch of November 25, 2020 by the President launching the Amendment Bill and the collection of signatures.149. Though the President could not have been one of the named promoters of the Amendment Bill, his role at every stage could not be disregarded. The path of popular initiative pursuant to article 257 of the Constitution was strictly reserved for the ordinary Kenyan. The President could not initiate a popular initiative to amend the Constitution under article 257.150. Insofar as the promoters of the Amendment Bill, through the Second Schedule, purported to direct the IEBC on how to proceed to carry out the exercise of delimitation, they ran afoul the express provisions of article 249 of the Constitution. The IEBC as an independent commission was subject only to the Constitution and law. It was not subject to the direction or control of any person or authority.151. The promoters in creating 70 new constituencies, purported to predetermine how many more constituencies Kenya needed. They had not elaborated the criteria used in arriving at the number 70 or how they chose to distribute those 70 across only 28 of the 47 Counties. They again found themselves infringing article 10(2) of the Constitution which bound all persons to ensure that national values and principles of governance were infused into every application or interpretation of the Constitution or when making or implementing public policy decisions. Contrary to that, the figure of 70 seemed to have been surmised with no sound justification.152. By arriving at a figure of 70, the promoters were seeking to bypass the elaborate process delineated under article 89 of the Constitution and section 36 of the IEBC Act setting out key criteria set out under article 89(5) such as geographical features and urban centres, community of interest, historical, economic and cultural ties as well as means of communication.153. The promoters of the Amendment Bill also sought to direct the IEBC through section 1(1) to use ‘criteria provided for in articles 81(d) and 87(7)’. Those two provisions did not provide for criteria that the IEBC could utilize in a boundary delimitation exercise. Article 81(d) provided that electoral systems were to comply with the principle of universal suffrage based on the aspiration of fair representation and equality of vote. That had not touched on IEBC’s role in delimitation of constituencies. Article 87 made provision for dispute resolution mechanisms for electoral disputes and did not contain a sub-article 7. The Second Schedule was void by citing unknown criteria in the process of delimitation and making reference to non-existent provisions.154. Article 89(7) of the Constitution required that IEBC while reviewing constituency and ward boundaries, to consult all interested parties. Section 36(4) to (11) of the IEBC Act required IEBC to make a preliminary report available to the public and invite representations on the same. The National Assembly, as a stakeholder also had a chance to debate the preliminary report by IEBC and then forward its views to IEBC. IEBC was then required to consider those views by the public and the National Assembly and prepare a final report. In that way, robust public participation and stakeholder engagement was ensured under the Constitution. The Second Schedule by predetermining the 70 new constituencies and their allocation to several counties circumvented that critical component to delimitation of boundaries, offending not just article 89 but article 10 as well. The sections of the Second Schedule of the Amendment Bill were unconstitutional.155. The President being an office created under the Constitution in order to serve people, could not be considered to be above the law. The provision on immunity had to be read against the backdrop of a historical imperial presidency who, through constitutional amendments, concentrated power in himself. It could not be that the framers of the Constitution intended that the President would be above the law and could carry out roles unchecked.156. The values and principles, alongside constitutionalism, which denoted limited government, had to mean that the office of President, being a creature of the Constitution, was and had to be subordinate to the Constitution and its holder had to be held to account for their acts and omissions. The President was not above the Constitution or the law and was not a law into himself or herself.157. In recognition of the pre-eminence and importance of the office of the President, the Constitution granted protection to the holder thereof to the end that he should not be unduly impaired in the performance of his unique duties. That protection could not, by any stretch of the imagination, be extended to cover any and every act or omission including those outside of or in violation of the Constitution.158. There could come a time when the President would act ultra vires or take actions that would be detrimental to the interests of Kenya. In such a situation, there existed two remedies to an aggrieved party through which they could challenge the president’s actions or omissions. First, by suing the Attorney General who pursuant to article 256(4) of the Constitution represented the National Government in court or other legal proceedings other than criminal proceedings. The alternative would be to pursue the President’s impeachment for violation of the Constitution or other law pursuant to article 145 of the Constitution and once successful, the President would cease to be immune and could be pursued for his actions or omissions. That would be in regard to official actions and omission done in exercise of power under the Constitution.159. It would appear that no protection was offered as regarded actions or omissions in the President’s personal capacity. Using a hypothetical example of a simple lease between a tenant and the landlord being the President, the immunity afforded under article 143(2) of the Constitution would not apply as that would be an entirely unofficial dispute.160. The President, in the submissions made before the Court of Appeal, confirmed that he established both the BBI Taskforce and the BBI Steering Committee pursuant to the functions and obligations conferred upon him by articles 131 and 132 of the Constitution. In the entire process leading up to the challenge, the President was acting in his official capacity as the head of Government and in exercise of his Executive role. The correctness or otherwise of the same notwithstanding, the same fell within the parameters of protection of article 143(2) of the Constitution. It was therefore erroneous for him to have been sued in his personal capacity.161. The instant appeal was a clear demonstration that the remedy of constitutional challenge vide petition directed at the Attorney General was sufficient to call to question any actions or omissions by the President in exercise of his powers under the Constitution.162. It would be too onerous and expensive to expect citizens to engage and involve the voters generally, to the broad and extensive elements of public participation as enumerated by the High Court. To expect a full-blown civic education and public participation exercise at the time of signature collection from a truly citizen driven process, was to place a burdensome financial and logistical hurdle which would be antagonistic to the very essence of the process.163. The promoters published an English version of the Amendment Bill on the internet. The 2019 Kenya Population and Housing Census placed only 22.6% of Kenyans aged 3 years and older with access to internet use while only 10.4% use a computer. The act of publication of the Amendment Bill on the internet could not be termed as having been sufficient or meaningful with such low levels of internet penetration across Kenya. While the standard set by the High Court could have been too high, the actions of the promoters were not sufficient. All the more, when considering the fact that the Amendment Bill had 74 proposed amendments.164. It was necessary for the supporters of the Amendment Bill to understand, in detail, the intent and purport of each of the 74 proposed amendments before appending their signatures in support. At that crucial stage, the least the promoters could have done was provide each potential supporter with a copy of the Amendment Bill in a language they understood. As article 257 of the Constitution set out an incremental continuum of public participation, at that initial stage, public participation could be limited to the potential supporters from whom the promoters hoped to collect signatures.165. Once the promoters of an Amendment Bill collected their one million signatures and delivered the draft Bill together with the signatures in support to IEBC pursuant to article 257(4) of the Constitution, IEBC was expected to verify that the initiative was supported by at least one million registered voters. Given how IEBC handled the Okoa Kenya Initiative, and its clarity on the procedures it was to undertake, IEBC understood that its mandate and role under article 257(4) included a two-step process.166. One of the roles that IEBC played was voter verification for purposes of elections in line with section 6A of the Elections Act and rules 27A and B of the Election (Voter Registration) Rules, 2012 which established substantive standards and procedures to ensure the integrity of voter registration and verification regarding elections. IEBC took the role of voter verification as more than a ceremonial exercise. If the IEBC was so scrupulous in carrying out its role in voter verification for elections’ purposes; it followed that the same standard at the very least should apply in the case of verification of signatures for purposes of constitutional amendments through popular initiative under article 257(4) of the Constitution. Constitutional amendments, more so 74 proposed amendments, would have far reaching effects if passed.167. Ideally there was need for a regulatory framework for signature verification under article 257(4) of the Constitution. However, in the case that it did not, it had existing mechanisms and tools at its disposal that would allow it to undertake the task of verification of signatures in a manner that was transparent, verifiable and acceptable. Namely, the Elections (Registration of Voters) Regulations, 2012, for voter verification for purposes of elections. Article 257 (4) and (5) had not prescribed a timeline within which IEBC had to carry out its verification exercise or within which it had to submit the draft bill to the county assemblies. That would allow it to carry out its crucial mandate in the amendment process meaningfully.168. There was a degree of public participation at the first two levels expected pursuant to article 257 of the Constitution. However, the same was not in accordance in the national values and principles under article 10 of the Constitution due to failure to provide reasonable notice and reasonable opportunity for public participation. The promoters as well as the county assemblies failed to provide real and meaningful opportunities for public participation.169. Statutory provisions enacted to give effect to constitutional provisions could not be ignored and the court was obligated to interpret the same. Section 5 of the IEBC Act, provided for seven commissioners, comprising a chairperson and six members. That was not a provision placed for cosmetic purposes. It had the force of law and it was for the courts to apply the same, unless it could be shown that the same was inconsistent or in contravention of the Constitution. When Parliament fixed the number of IEBC commissioners through statute, as it did for the other nine independent commissions, it was not in contravention of article 250 of the Constitution. Parliament, through statute, was merely activating constitutional provisions for better operation of the law.170. To allow the number of commissioners of IEBC, and indeed any of the nine independent commissions under article 248 of the Constitution, to oscillate between three and nine despite clear statutory provisions, was an extremely dangerous precedent. One of the crucial factors that aided in the public having confidence in public institutions was consistency. The composition was fixed in law to avoid the number being determined by the politics of the day.171. Once the four commissioners of IEBC were confirmed to have resigned following the 2017 general elections, it was for IEBC to commence recruitment immediately, following a declaration of vacancy by the President, which was to be done within seven days of the resignation. It was certain that the President was required by law to declare the vacancies. Unfortunately, he did not do so. At no time did IEBC, despite being affected by the shortfall of commissioners, request the President to make the declaration to allow it commence recruitment. Instead, it went silent and did not take any steps to ensure that the President declared the vacancy.172. There was inaction from the Attorney General, as the principal legal adviser to the Government, and the person who would facilitate the declaration of vacancy. He failed to advise the President accordingly that he was in breach of the IEBC Act, and that there were vacancies that required to be urgently filled. Instead, the vacancies persisted for a period of over three years despite clear, imperative and robust provisions under section 7A of the IEBC Act. There was no evidence or suggestion that IEBC made any efforts to put pressure on the President or the Attorney General for declaration of the vacancies to allow it commence recruitment. It appeared IEBC were content with the prevailing circumstances. That was a case of institutional dereliction of duty and an act of self-sabotage on IEBC’s part.173. It would be neater, more cohesive and a show of comity, for a single judge to justify departing from the decision of three judge bench or for a court, irrespective of composition, to do the same. However, not allowing revisit would stifle judicial debate and growth in jurisprudence. Article 165(4) of the Constitution had not given High Court benches empaneled to hear issues raising substantial questions of law, appellate jurisdiction over single judge benches.174. There were two points of divergence between the determination by the High Court in the Isaiah Biwott case and the current dispute. The first being the question in issue in the Isaiah Biwott case was quorum to carry out by-elections, whereas in the instant dispute the question was on quorum to carry out a referendum. Second point of divergence, was that the decision by the High Court in the Isaiah Biwott case was per incuriam. The High Court in the Isaiah Biwott case failed to take into consideration clear provision of sections 5 and 7A of the IEBC Act on the composition of IEBC. That court’s finding was that the appointment of commissioners was situational with a fluctuating number between three and nine, in clear disregard of sections 5 and 7 of the IEBC Act.175. The High Court’s decision in the Isaiah Biwott case lacked due regard for the law for mixing composition with quorum and for reading ‘policy decision’ into paragraph 5 of the Second Schedule. In doing so, the High court in the Isaiah Biwott case attempted to create a distinction between matters IEBC could carry out with quorum and those it could without quorum. Following that erroneous path, the High Court in the Isaiah Biwott case made a finding that IEBC could carry out a by-election without quorum. That was in clear disregard for article 88(4) of the Constitution and section 4 of the IEBC Act that set out the mandate and functions of the IEBC. Key among those constitutionally mandated roles was conducting elections, irrespective of how the vacancy arose.176. In the absence of a statutory provision on quorum, quorum was the majority of the members with the authority to decide. In the case of IEBC, Parliament set the composition at seven vide section 5 of the IEBC Act. Majority of seven, was four members. To find that the quorum could be anything less than half of the membership of seven, was to weaken IEBC and the crucial mandate it carried out in ensuring a stable society.177. One of IEBC’s key mandates under article 88(4) of the Constitution was to conduct referenda. That role was reverberated and emphasized by section 4 of the IEBC Act. In conducting referenda, article 257(4) of the Constitution mandated the IEBC to carry out verification of signatures to determine whether promoters of a popular initiative had reached the constitutional threshold of one million supporters. That could not be determined as an administrative function of IEBC. Such a fundamental determination required IEBC to be properly composed and quorate. The number required to make quorum for IEBC, in the absence of statute, was four out of the seven commissioners.178. The decision by the High Court in the current appeal did not have the effect of setting aside the decision in the Isaiah Biwott case. There was merit in IEBC’s assertion that while the decision remained unchallenged, it was binding on all parties as well as the public at large. IEBC could not be faulted for relying on the decision in the Isaiah Biwott case as it was complying with a court decision. Though the decision was not binding on the High Courts, it created a legitimate expectation for IEBC, that in carrying on its business with three commissioners, it was in compliance with the law. IEBC’s actions in carrying out the verification of signatures were lawful.179. The manner in which the proposed amendment was to be submitted to the people in referendum was not specified in article 257 of the Constitution. It was IEBC’s role to formulate the referendum questions to be voted on during a referendum. There was no dispute that at the time of filing the petitions, the constitutional amendment process was yet to reach the stage where IEBC would be seized of the matter and be required to frame the referendum question. IEBC was yet to receive the request to hold the referendum prompting it to carry out its duties. There was no assertion that IEBC had already determined the formula it would utilize in framing the referendum question or questions once the process reached that stage.180. The petitioners before the High Court did not have an actual grievance against IEBC. The purpose of the principle of justiciability was to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision had been formalized and its effects felt in a concrete way by the challenging parties. The court was being asked to interfere with IEBC mandate before it was seized of the matter and before it could make a decision on how to formulate the question. There was no ripe controversy for the High Court to render itself on.Per SC Wanjala, SCJ:181. In legal parlance, a doctrine was said to be applicable either in a specific jurisdiction, or to a particular dispute. To be so applicable, the doctrine had to have attained the force of law in the said jurisdiction. It carried such force of law, when it was so recognized by a country’s supreme law or legal system. For example, Kenya’s Constitution recognized what was undoubtedly the doctrine of the presumption of innocence in article 50(2)(a). That doctrine acquired its status as such, due to its long usage and acceptability through the centuries in the common law world.182. The promulgation of the Constitution of Kenya, 2010, marked a radical paradigm shift in the governance of Kenya. By giving the Constitution to themselves and future generations, the people had spoken. They had spoken against an imperial presidency and executive autocracy. They had spoken against a compliant Legislature and Judiciary. They had spoken against the violation of their fundamental rights and freedoms by those who wielded State power. All those, would have to be entombed in the urns and sepulchers of eternity.183. Article 259(1) of the Constitution was meant to ensure that the equilibrium of democratic governance created by the Constitution, endured through judicial creativity and vigilance. Likewise, by declaring that the Constitution could not subvert itself, the court had long signaled that it was to embrace a purposive interpretation of the Constitution so as to not only promote its values, purposes and principles, but also to guard against any enactments, including amendments that had the potential to undermine its constitutive authority. The court of law could do, without seeking to locate a basic structure in the text of the Constitution.184. What had been articulated as the basic structure doctrine was not a doctrine, but a notion, a reasoning, a school of thought or at best a heuristic device to which a court of law could turn within the framework of article 259(1) of the Constitution, in determining whether, a proposed constitutional amendment, had the potential to destabilize, distort, or even destroy the constitutional equilibrium.185. The Constitution provided for the power and procedure for its own amendment, as stipulated in articles 255, 256, and 257 respectively. The Constitution provided in mandatory terms that any proposed amendment relating to the matters identified in article 255(1) had to be subjected to a referendum in accordance with the provisions of articles 255(2) and 256(5). The Constitution conferred upon Parliament the power, to amend any other provision therein (without going through a referendum) as long as such amendment did not relate to any matter stipulated in article 255(1). The Constitution conferred upon the people of Kenya, the power to amend any provision of the Constitution, including an amendment relating to any matters stipulated in article 255 (1) in accordance with the provisions of article 257.186. The Constitution provided for a three-tier amendment process namely, a pure parliamentary initiative without a referendum, a parliamentary initiative perfected by a referendum, in accordance with the provisions of article 255(1) of the Constitution and a popular initiative with or without a referendum, in accordance with the provisions of article 257 of the Constitution.187. Every provision in the Constitution was amendable. Nothing in the Constitution led me to an interpretation that would negate the amendment of the Constitution, either on the basis of its history or context. To hold that there were certain provisions in the Constitution that enjoyed attributes of eternity, was to stifle the growth and flowering of the Constitution for the benefit of future generations. Why for example, would it be objectionable if a proposed constitutional amendment had the intention, potential, and effect of strengthening the Bill of Rights, or the independence of the Judiciary? Should the people be recalled in exercise of their primary constituent power, to enact such an amendment even in the face of the permissive provisions of articles 255, 256 and 257 of the Constitution?188. The Constitution was a living and enduring document. It should therefore be interpreted in a manner that sustained its values and purposes, permitted the development of the law, protected the rights and fundamental freedoms of the individual and contributed to good governance. That was the constitutional equilibrium against which any proposed constitutional amendment would be measured.189. A proposed amendment had to pass both the procedural and substantive test. The court did not agree that any and every proposed constitutional amendment would be valid as long as it went through the procedural requirements stipulated in articles 255, 256 and 257 of the Constitution. Courts of law could not shut their eyes to a proposed constitutional amendment, if its content had the potential of subverting the Constitution.190. Much had been pronounced regarding, the invincibility of the primary constituent power of the people to amend the Constitution. But how that primary constituent power was to acquire its juridical form remained a mirage, despite prodding. Inherent in the argument by the proponents of the primary constituent power, was the dangerous presumption that, a constitutional amendment in exercise of the primary constituent power could not imperil the Constitution. Likewise, was the connotation that, what the people and Parliament could not do to the basic structure of the Constitution, the people could do with abandon, as long as they did so in exercise of their primary constituent power. Lost on them, were the many tragic examples in history, where the people had been whipped into frenzies of self-destruction, in exercise of their primary constituent power.191. A popular initiative was a people-centered process. Such process excluded any other constitutional entity or institution. The role of Parliament was limited to the enactment of the consequential Bill in the first instance, or submission of the Bill to a referendum in the second instance (where Parliament failed to pass the Bill or where the Bill touched on any matter mentioned in article 255(1)) of the Constitution). The people retained a residual power to pass the Bill through a referendum even if Parliament failed to enact it.192. The involvement of the Legislature under article 257 of the Constitution was merely procedural. Therefore, when the people made a proposal to amend the Constitution under article 257(1), they were to be regarded as exercising their sovereign power directly under article 1(2) of the Constitution. Such direct exercise of sovereign power, also came into play when the people decided to fundamentally break with their unconstitutional past to adopt and give unto themselves and future generations a new constitution. The people did that on August 27, 2010.193. The BBI Taskforce was conceived and appointed by the President, its terms of reference were issued by the President, the BBI Steering Committee was appointed by the President, its terms of reference were designed and issued by the President. The promoters of the Bill, even assuming they were not appointed by the President, had his ear and finally, it was to the President that the reports of the BBI Taskforce and Steering Committee were handed. From the chain of events, the peoples’ input was totally missing at the point of the inception of the amendment process194. The wording of the respective terms of reference of the BBI Taskforce and Steering Committee indicated that the people’s input into the contents of the Bill was sought at the validation and signature appendage stages. Yet, the popular initiative had to precede the collection of signatures, otherwise it was not clear what the people would be appending their signatures to. In the premises, the BBI process which culminated in the publication of the Amendment Bill, was an initiative by and of the President.195. As the President could not originate any proposal to amend the Constitution under article 257(1) of the Constitution, the Amendment Bill being a product of an initiative by the President and not by the people was unconstitutional.196. The Second Schedule to the Amendment Bill was unconstitutional. While there was nothing inherently unconstitutional in a proposal to increase (or even to decrease) the number of constituencies under article 89 of the Constitution, such increment ought to be based on a felt need as expressed by the people, especially if the proposal was promoted as a product of a popular Initiative. The provisions of the impugned sections of the Second Schedule to the Amendment Bill were a blatant violation of the Constitution in three ways:

Section 1 thereof, introduced a different time-line and criteria, from that provided for under article 89(2) of the Constitution, for the review of constituency boundaries.
Section 2 thereof purported to direct the IEBC on how to carry out its constitutional mandate of the review and delimitation of constituencies, contrary to article 88(5) of the Constitution.
Sections 1 and 2 thereof in effect divest the IEBC of the mandate of reviewing and delimiting constituency boundaries contrary to article 89 of the Constitution. That mandate was unconstitutionally vested in Parliament

197. The proposed amendment of article 89(1) of the Constitution and the attendant Schedule thereto, if allowed to stand, would definitely lead to the Constitution subverting itself. Such a proposed amendment could not be said to be promoting the purposes, values and principles of the Constitution in accordance with article 259(1) of the Constitution nor could it be considered as contributing to good governance.198. There was considerable difficulty in appreciating the rationale or basis upon which the High Court found that notwithstanding the clear and unambiguous language in article 143(2) of the Constitution, the President could be sued in his personal capacity for acts or omissions, alleged to be in violation of the Constitution. In view of the provisions of article 143(2) of the Constitution, no civil proceedings could be instituted against the President during his tenure of office.199. If the President embarked on a destructive mission that violated of the Constitution, as apprehended by the High Court, any aggrieved party could always take out judicial review proceedings, under the realm of public law against such violation of the Constitution. The institution to be sued following such an eventuality was the Attorney General. That route had been followed not once, but on numerous occasions when presidential actions and omissions had been successfully challenged at the High Court. In addition, there remained yet another remedy, as provided for under article 145 of the Constitution which was removal of President by impeachment.200. There was no distinction between civil and constitutional proceedings in Kenya’s order of rights enforcement litigation. The President remained as such until he vacated office. One could not be a President at one given time and a private citizen at a different time. For the same reason the President could not originate a constitutional amendment through a popular initiative notwithstanding his claims of private political rights, he remained the President until he vacated office. He could not be defrocked of his presidential garb for the purpose of personally exposing him to litigation during his tenure of office.201. The guiding principles issued by the court left no doubt as to the purpose of public participation in the process of governance. The Constitution placed the people at the centre of any policy, administrative, legal or constitutional decision, that could be made from time to time by those whose responsibility it was to govern or serve. The principle of public participation ensured, that the people had a say in the manner in which they were governed.202. Under article 257(4) of the Constitution, the IEBC was required to verify that a Bill delivered to it by the promoters of a popular initiative, was supported by at least one million registered voters. The verification process was a two-step exercise, which entailed the determination of the authenticity of the signatures, and the fact as to whether the signatures, belonged to at least one million registered voters. There was no way the IEBC could realistically undertake that task, without interacting with, and interrogating the contents of the Voters’ Register.203. Nothing in article 257(4) of the Constitution or any other related provision of the Constitution placed upon the IEBC an extra obligation to look beyond the names and signatures appended to the Amendment Bill.204. The principle of public participation applied to all aspects of governance. Under article 257(3) of the Constitution, the promoters of a popular initiative were required to formulate that initiative (read, proposal), into a draft Bill before embarking upon the collection of signatures in support of the Bill. It was not only logical, but also a requirement, that before the people were asked to append their signatures to the Bill, they should not only understand its contents, but also approve of its tenor as being reflective of what they proposed in the first place. Yet all the court had on record was the assertion by the Co-Chair of the BBI National Secretariat that the promoters undertook comprehensive nation-wide consultations.205. The form, nature, and content of the consultations was not addressed at all. The promoters of the Amendment Bill did not undertake any meaningful public participation before embarking on the collection of signatures in support thereof. Such failure to conduct relevant civic education on the part of the promoters was in breach of article 10 of the Constitution.206. Two decisions of the High Court, touching upon the question of IEBC’s quorum, assumed centre stage in the proceedings. The first was the High Court’s judgment in the Katiba Institute case where the petitioners challenged the constitutionality of the Election Laws Amendment Act of 2017. Paragraph 5 of the Second Schedule to the IEBC Act had been amended to provide that the quorum for the conduct of business at a meeting of the commission would be at least half of the existing members of the commission, provided that the quorum would not be less than three members. Prior to that amendment paragraph 5 provided that the quorum for the conduct of business at a meeting of the IEBC would be at least five members of the IEBC.207. Paragraph 7 of the Second Schedule to the IEBC Act had been amended to provide that unless a unanimous decision was reached, a decision on any matter before the IEBC would be by a majority of the members present and voting. The deleted paragraph provided that unless a unanimous decision was reached, a decision on any matter before the IEBC was to be by concurrence of a majority of all the members.208. The issue for determination before the High Court was the constitutional validity of the Election Laws Amendment 2017. In a judgment delivered on April 6, 2018, the High Court determined that the amendments to paragraphs 5 and 7 of the Second Schedule to the IEBC Act failed the constitutional test of validity and the amendments were declared unconstitutional.209. In a judgment dated August 10, 2018, the High Court in Isaiah Biwott Kangwony v. Independent Electoral & Boundaries Commission & another; Constitutional Petition No. 212 of 2018,( Isaiah Biwott case) determined that there was no inconsistency between paragraph 5 of the Second Schedule to the IEBC Act, and article 250(1) of the Constitution. The court opined that by providing a minimum of three and a maximum of nine members of the IEBC, the Constitution gave the appointing authority considerable latitude, to appoint the number of commissioners as long as they did not exceed nine or fall below the minimum of three. The court also held that IEBC’s membership of three at the time, could not handicap its operations, especially if they were of an administrative nature as opposed to policy making.210. The High Court in the Isaiah Biwott case held that in view of the latitude afforded by the Constitution, the number of members of the IEBC required to raise a quorum could not be a constant. In the end, the court held that paragraph 5 of the Second Schedule to the IEBC Act was not unconstitutional. The requirement of five members would only be mandatory, whenever the IEBC was fully constituted at seven.211. In the instant petition, the High Court distinguished and departed from its holding in the Isaiah Biwott case, noting that the issue before it, was whether the IEBC was properly constituted for purposes of verifying signatures and whether it had quorum to conduct the referendum. The High Court in the instant case held that, for the IEBC to conduct any business, it had to have a quorum of five given the provisions of paragraph 5 of the Second Schedule to the IEBC Act. The court saw no distinction between administrative and policy functions of the IEBC, contrary to the earlier finding in the Isaiah Biwott Case.212. Whether the IEBC had the requisite quorum at the time of the verification of signatures or not, depended on the applicable constitutional and legal provisions. Towards that end, article 250(1) of the Constitution provided that each Commission would consist of at least three, but not more than nine, members. On the basis of that provision, any independent commission under Chapter Fifteen of the Constitution was to be regarded as having the requisite legal personality as long as it was constituted of not less than three and not more than nine members.213. While the superior courts could not necessarily be faulted for their stance, one would have expected that before declaring the actions of the IEBC null and void for lack of quorum, they ought to have been alive to the fact that the IEBC remained validly constituted as per article 250(1) of the Constitution. IEBC had the requisite quorum at the time it undertook and completed the verification of signatures.214. The conservatory order issued by the High Court effectively prevented the IEBC from taking any further action in the amendment process, including the framing of any referendum question/s. There was no reason to accede to the invitation by the respondents to consider a non-issue. To do so would amount to engaging in an abstract exercise whose only utility would be to direct an independent constitutional organ on how to perform its functions.Per NS Ndungu, SCJ:215. The basic structure doctrine as presented by the parties to the Supreme Court was a judge-made law emanating from the Municipal Court (Supreme Court) in India in Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 (Kesavananda case). The doctrine nuanced the fact that a national constitution had certain fundamental features which underlay not just the letter, but also the spirit of that Constitution. Those features constituted the sacrosanct core of the Constitution that Parliament could not amend at will. The rationale in the Kesavananda case was that any amendment by Parliament which altered the Constitution in a manner that took away the sacrosanct features of the Constitution was not an amendment but was, in effect, tantamount to rewriting the Constitution that Parliament had no power to do.216. The basic structure doctrine as presented by the parties did not constitute a widely adhered legal doctrine. There were many legal doctrines that were internationally applied and widely followed, such as the doctrines of estoppel, stare decisis, and res judicata, just to name but a few. The basic structure doctrine did not meet the global standard of recognition or prominence.217. History revealed that the amendment process of the Independence Constitution was for the most part controversial. For the purposes of amendment, the provisions of the Constitution were divided in two categories: ordinary provisions and specially entrenched provisions. The ordinary provisions were amended by an affirmative vote of three quarters of all the members in each house of Parliament. The specially entrenched provisions could only be amended by a vote of three quarters of all the members in the House of Representatives and nine tenths of all Senators. Those provisions included the chapters on citizenship, fundamental rights and freedoms, and the Judiciary. In practice though, it proved quite easy to amend the Constitution. In 1965, the Government had enough parliamentary support to amend the Constitution and it removed the distinction between ordinary and specially entrenched provisions.218. Entrenched provisions acted as a vital safeguard of sacrosanct constitutional tenets. Kenyans shared in that view as evidenced by the process leading up to the formulation of the Constitution of Kenya, 2010. Kenyans stressed the fact that they needed a constitution that had entrenched provisions on certain aspects, one that was not too simple to amend and one that required their participation in terms of amendment. It was the intention of the drafters of the Constitution to protect or entrench the specified ten matters in article 255(1) of the Constitution by stipulating their specific amendment procedures in article 255(2). If the drafters of the Constitution intended to entrench or protect any other provisions, or deem them eternal or unamendable, they would have expressly done so.219. No article in the Constitution had to be considered unamendable or constituting eternity clauses. No clause or provision expressly alluded to that and with good reason. An always speaking transformative charter, had never been the enemy of democratic constitutional change. The court had not, eternally, tied and imposed the current ideals, values, morals, structures, commissions and organs on future generations who might not aspire to them or need them. Progressive constitutions had to always acknowledge that change was inevitable. The drafters of the Constitution bore that in mind and struck the perfect balance between changing or amending the Constitution and protecting it.220. Although the Constitution did not expressly make provision for primary constituent power under article 1 of the Constitution, sovereign power was exercised directly or indirectly through democratically elected representatives. That was why any article of the Constitution including 255(1), could be amended either by parliamentary or popular initiative. The only emphasis was that article 255(2) quoted therein made it mandatory for the amendment of the sacrosanct features enumerated under article 255(1) to be amended through a referendum with at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum: and the amendment was supported by a simple majority of the citizens voting in the referendum. That provision, suggested that the people did exercise their sovereign power by voting through the referendum.221. In construing the popular initiative amendment route, the appropriate question ought to have been what a popular initiative was. Instead, that question turned into who could initiate a popular initiative. The High Court introduced a non-constitutional actor called an initiator, who performed a non-constitutional action ‘initiate’ when the Constitution only provided for a promoter whose definition was vastly different from an initiator. As such, emphasis was laid on the actor/initiator. That fundamentally changed the import and meaning of article 257 of the Constitution.222. The superior courts ignored the fact that the drafters of the Constitution used certain words and went ahead to read in words whose effect was to change the entire meaning of the constitutional text. The tool of reading-in was only applied where the framers had left out a word or phrase from a provision. Further, that reading-in had to be supported by other connected provisions of the Constitution.223. For the popular initiative, promoters after collecting the signatures of at least one million registered voters, submitted signatures and the Amendment Bill to IEBC, who sent the Bill to counties. The Bill had to be approved by a majority of the county assemblies and both Houses of Parliament which enabled public discussion. If Parliament passed the Bill, it was 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) of the Constitution, the proposed amendment was to be submitted to the people in a referendum, which in order to be successful, had to garner the support of fifty percent of votes cast.224. Article 257 of the Constitution did not define popular initiative. Nevertheless, the heart of construing the meaning of popular initiative lay with the numbers. It was proper to lay emphasis on the numerical value of at least one million registered voters, (whose signatures had to be collected), the numerical value of half of the counties, two -thirds of votes in both houses of Parliament, and half of the votes cast by registered voters at the referendum. It was the numbers that counted; it was the numbers threshold that the promoter had to meet. It was the numbers that made an initiative popular. In the context of article 257(1), a promoter needed at least one million registered voters to support their proposal. That was what triggered the IEBC’s verification process.225. The popular initiative was primarily about numbers that a promoter had to attain in order for an amendment to be successful, and not about who the promoter or person who brought the amendment was. As such, the superior courts below made a fundamental error that the word popular related to who moved the amendment and not to the numerical threshold that the promoter had to attain.226. Article 257 of the Constitution did not in any way specify who could move a constitutional amendment process by popular initiative. It did not contain any explicit bar against any person from promoting a constitutional amendment by popular initiative. It specifically provided what actions the promoters were tasked with in order to begin and complete an amendment process (such as delivering a draft Bill and the supporting signatures to the IEBC), but it did not state who the promoters had to be.227. The President was a democratically elected representative of the people, who, under article 1 of the Constitution, could exercise delegated sovereign power of the people. Indeed, that was one of the ways in which constituent power was exercised. The superior courts addressed the constituent power of the people at length, but for whatever reason failed to take into account that the President was a directly elected representative of the people and who could exercise delegated power on their behalf.228. The President was not limited as to the measures he could undertake in the exercise of his functions under article 132 of the Constitution. The said measures could constitute a policy, statutory or constitutional frame. In promoting and enhancing national unity, the President could promote constitutional amendments through popular initiative. That would qualify as a measure taken under article 132 on which progress achieved could be reported, in the realization of the national values, referred to in article 10 of the Constitution.229. The IEBC’s press release dated November 18, 2020, IEBC acknowledged receipt of the Amendment Bill and the 4.4 million supporters’ signatures. Volume 34 of the 3^rd appellant’s record of appeal disclosed the letter from IEBC dated January 26, 2021, forwarding the Amendment Bill to amend the Constitution by popular initiative to the speakers of the 47 county assemblies. In the said letter, IEBC stated that the initiative was promoted by Hon. Dennis Waweru and Hon. Junet Mohamed. The promoters’ referred to in the Amendment Bill, dated November 25, 2020 were therefore Hon. Dennis Waweru and Hon. Junet Mohamed. The President did not thus initiate the amendment process in dispute, he was not a promoter of the popular initiative under the terms of article 257 of the Constitution.230. Articles 2(4) and 165(2) (d) (i) of the Constitution contemplated scenarios where laws were unconstitutional and they could be declared as such. The Constitution did not provide for pre-enactment mechanisms to determine whether a Bill was constitutional or not. There were other jurisdictions that allowed for that, for example, the Constitution of South Africa allowed for the referral of Bills to the Constitutional Court for interrogation on their constitutionality before enactment. However, in Kenya there was no such provision.231. The issue before the court was one that could not be ignored. The court would determine the issue by applying a two-pronged test on the ripeness issue. First, the court had to evaluate the fitness of the issue for judicial determination; and second, assess the hardship to the parties or the general public if judicial relief was denied at that stage. In other words, whether there was a kind of question that could only be determined when ripe without occasioning any hardships to the parties or the general public.232. The Constitution was subject to future amendments by parliamentarians and promoters in view of articles 256 and 257 of the Constitution. The issue of the constitutionality of the Second Schedule to the Amendment Bill met both the fitness and hardship tests, considering that there was a risk of amendments of substantive provisions of the Constitution being made through a schedule. Therefore, it was pertinent for the court, being the apex court, to address the issue. The Second Schedule’s implementation would result in amendments to article 89(2), (3), (4), (5), (6), (7), and (8). However, the actual body of the Amendment Bill itself, although it made proposed amendments to article 89(1), did not propose the above-stated substantive sub-articles 2 to 8.233. The Second Schedule to the Amendment Bill even if it were to be enacted into law, could not amend article 89 of the Constitution. It would be contrary to the drafting conventions if a schedule to the Constitution were to propose an amendment to a substantive article of the Constitution. In order for the Second Schedule to be constitutionally sound there ought to be substantive amendments to article 89(2) (3) (4) (5) (6) (7) and (8) of the Constitution. Therefore, the Second Schedule was in violation of the Constitution as it conflicted with the substantive provisions of article 89 and could not purport to amend the same.234. The rationale for presidential immunity came from the enormous responsibility bestowed upon a President as the sole source of Executive power. Therefore, immunity from legal proceedings was designed to permit a President to discharge his obligations with as much autonomy as possible without anxiety that court proceedings were probable to disturb, humiliate, or encumber him from focusing on his duties. That protection was also envisioned to shield the dignity of the office of a President and not him personally. Particularly, because he made far-reaching and sensitive decisions.235. Pursuant to article 143(2) of the Constitution, civil proceedings ought not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under the Constitution. There was no basis for concluding that the President’s actions contravened the Constitution to deprive him of the immunity provided for under article 143.236. There was no evidence tabled before the trial court to dispute that the President's actions were not within the four corners of his constitutional mandate of promoting and uniting Kenya. Article 131 of the Constitution did not specifically prescribe the mode the President could adopt to achieve his constitutional mandate. Therefore, the President’s actions or omissions in that instance, entitled him to functional immunity as provided for under article 143 of the Constitution.237. Article 10 of the Constitution provided that State organs, State officers, public officers, and all persons applying or interpreting the Constitution; enacting, applying or interpreting any law; and making or implementing public policy decisions had to ensure participation of the people. To determine whether the Amendment Bill was subjected to public participation within the parameters of article 257 of the Constitution, the court had to examine the steps and inbuilt mechanisms that were provided for therein. The steps were; the submission of the Bill and the minimum one million signatures of registered voters, and verification of signatures by IEBC; consideration by the county assemblies; consideration by the two Houses of Parliament; and referendum.238. Article 257 of the Constitution did not first, provide for collection of signatures but submission of a Bill with at least one million signatures. That was the first step towards amendment of the Constitution through a popular initiative. Second, it did not make provision for public participation during collection of signatures. As article 257 of the Constitution did not expressly provide for public participation during collection of signatures, the standard to apply when assessing the same if any, would be lower than when the law expressly provided for public participation.239. Before a supporter signed in support of a draft Bill to amend the Constitution, such a supporter had to have read, understood, and agreed to the proposed amendments; asked questions about any unclear proposal; and taken a decision to be bound by his or her signature. A promoter, before urging for support of his proposal to have the Constitution amendment supported by at least one million signatures, had to talk to the people, make his or her draft Bill understood by the people, before they could agree to support it.240. The Standing Orders of Parliament made provisions for the various stages of legislation to ensure adequate public participation took place. When a Bill had been introduced in the House, and upon referral to the relevant Departmental Committee, first, the Committee advertised in the media a request for public views on the Bill. Second, it facilitated public participation on the Bill through appropriate mechanisms which included inviting submission of memoranda; holding public hearings; consulting relevant stake holders; and consulting experts on technical subjects. The Committee also considered the views and recommendations of the public while considering the Bill and preparing its report to the House.241. Parliament allowed the public to engage it and give their views orally or in writing through: petitions as provided for under article 119 of the Constitution, where the public could petition Parliament on any matter under its authority including enacting, amending or repealing legislation. The public could also engage Parliament through submissions or memoranda. When the National Assembly for instance, was considering Bills, statutory instruments, budget estimates or conducting an inquiry, the general public could make submissions on the subject matters.242. The public could reach Parliament through public forums that was, face to face engagement between members of Parliament and the citizens. In such forums, Parliament could get feedback and observations of State affairs. Committees could also undertake public hearings through meetings in and outside Parliament. Members of the public were allowed to attend Committee meetings.243. No person complained that their right to participate in the public affairs to wit, Amendment Bill was violated. If any person was aggrieved that Parliament did not conduct public participation, then their pleadings ought to have been specific on it. No evidence was tendered to prove that Parliament did not conduct public participation. Therefore, there was public participation at the two Houses of Parliament.244. According to article 88(4) of the Constitution, IEBC was responsible for conducting referenda and elections to an elective body or office established under the Constitution, and any other elections as prescribed by an act of Parliament. It was also responsible for among other duties, conducting voter education pursuant to article 88(4)(g). At section 40 of the Elections Act, IEBC had the responsibility for continuous voter education and preparation of a voter education curriculum. It was at the referendum stage that IEBC was required to conduct public participation through voter education. Considering that the President was yet to refer the Amendment Bill to IEBC to conduct a referendum, the question of public participation on the part of IEBC was not ripe for determination.245. The Legislature had to urgently provide for the parameters of public participation. It had to do so through an enabling statutory framework. Such legislation would provide precision and clarity about the various processes involved and address issues like the mode, extent, stages, proof of public participation; lay out the responsibilities of who should conduct public participation and when; and how it would to be funded at its various stages.246. The composition of IEBC and other commissions under article 250 of the Constitution such as the Parliamentary Service Commission and the National Land Commission, was governed by article 250(1) of the Constitution. In the absence of a constitutional provision specifying their quorum, the statutes that established such commissions stipulated the same. In the instant case, the relevant Act of Parliament was the IEBC Act.247. Article 250 (1) of the Constitution only limited itself to the composition of the commissions. Therefore, as long as Parliament in formulating legislations adhered to the range given in the Constitution in coming up with the composition of commissions, their actions or the resultant provision or legislation could not be unconstitutional as it was not inconsistent with the Constitution. In the instant case, the amendment of paragraph 5 of the Second Schedule was not unconstitutional as it was not inconsistent with any provision of the Constitution.248. The two superior courts failed to effectively distinguish between composition and quorum thereby arriving at a wrong decision. Those were two different concepts that ought not be confused. Paragraph 5 of the Second Schedule of the IEBC Act, as per the Election Laws (Amendment) Act No. 34 of 2017 was constitutional because it neither contravened any provision of the Constitution nor was it inconsistent with the Constitution.249. Under article 257 of the Constitution, IEBC’s role came into play at the tail end of a constitutional amendment process. The steps for amending the Constitution through a popular initiative were clearly set out under article 257 that the submission of the minimum one million signatures and the draft Bill to IEBC by the promoters; verification of signatures by IEBC; approval of the draft Bill by county assemblies; approval of the draft Bill by the two Houses of Parliament; assent of the Bill by the President (if the proposed amendment did not touch on any of the matters listed under article 255(1); or submission of the Bill to IEBC to conduct a referendum, if the Bill concerned matters listed under article 255(1) or if Parliament failed to pass a Bill proposing constitutional amendments through a popular initiative pursuant to 257(10); and assent of the Bill by the President.250. A referendum was at the conclusion of a constitutional amendment process of a popular initiative. It was not contested that although the Amendment Bill had been approved by the County Assemblies and Parliament, the same had not yet been subjected to a referendum. The referendum question was premature and not ripe for determination by the superior courts, as IEBC had not received a request to hold the referendum. Besides, IEBC had not taken any action which would entitle any party to come before court and allege a denial, a violation, an infringement of or threat to a right or fundamental freedom as provided for under article 23 of the Constitution.251. The question of whether the proposed amendments to the Constitution were required to be submitted as separate and distinct referendum questions in line with article 257(10) of the Constitution met the fitness and hardship test against ripeness as expounded earlier. In applying that test, it was not to be in the best interest of the general public to withhold a consideration of the constitutionality or otherwise of section 49 of the Elections Act. It was necessary to interrogate section 49 of the Elections Act to avert any confusion it could occasion in future referendums. The Supreme Court had to intervene and pronounce itself in a bid to discharge its enormous responsibility of ensuring that the law was not only constitutional but also predictable, certain, uniform, and stable.252. Article 257 of the Constitution referred to a Bill, therefore, what ought to have been referred to under section 49(1), (2) and (3) of the Elections Act was a Bill and not an issue or a question. It was not clear why the legislators in enacting the Elections Act, departed from the drafting language in the Constitution, that was, a Bill to a question. Since the constitutional text only referred to a Bill, the Constitution restricted a proposed Bill, to only contain a single-issue amendment. There was no such provision in the Constitution. Section 49 departed from the provisions or wording of the Constitution in articles 256 and 257 hence was unconstitutional. Accordingly, the court recommended that the Legislature take the requisite legislative measures to regularize that inconsistency.Per I Lenaola, SCJ:253. When the Kenyan people gave themselves the Constitution of Kenya, 2010, it was a matter of public knowledge that certain parts of it would require amendment at some point in the future. There was however no agreement as to what those parts were and it was left to the political class to raise a number of issues over the years that debatably required amendments.254. Though the Indian Supreme Court in the Kesavananda case held that the power of Parliament to amend the Constitution was impliedly limited by the basic structure doctrine, the court did not agree on what exactly and precisely constituted the basic structure of the Constitution. Amendments contrary to what the court implied as basic structure would be considered as unconstitutional and would be struck down. The Kesavananda case was not dealing with amendments through popular initiative. The Amendment Bill was not a creature by Parliament but of initiators and promoters under article 257 of the Constitution.255. Any interpretation of article 255 of the Constitution and the amendment procedure of the Constitution had to begin with tracing the history of the making of the Constitution and how the question of amending the Constitution was addressed by the Constitution of Kenya Review Commission (CKRC). The primary reason why the people of Kenya wanted to review the repealed Constitution was because they felt that it no longer protected them. The feeling generally was also that, due to the numerous prior amendments, the Constitution was operating like ordinary legislation as opposed to the supreme law of the land.256. The National Constitutional Conference (NCC) was aware of the dangers of the culture of hyper-amendments that had defined the Independence Constitution while also equally aware of overly rigid amendment procedures. The NCC in the end made it neither too easy nor too difficult to amend the Constitution and the CKRC Final Report gave due consideration to the matters they wanted entrenched in the Constitution and how the Constitution should be amended. The CKRC Final Report noted that the people sought to limit the power of Parliament to amend the Constitution and wanted to be directly involved in the changing of certain provisions through referenda.257. The recommendations of the CKRC report morphed into Chapter Sixteen of the Constitution and by those provisions, the people attained the right balance between constitutional flexibility and rigidity and provided sufficient and strong safeguards against the culture of hyper-amendability that characterized the repealed Constitution. Chapter Nineteen of the Bomas Draft and Chapter Nineteen of the Wako Draft were also identical as to what was contained in Chapter Sixteen of the Constitution.258. The people did not intend to immunize the provisions of the Constitution; to the contrary, they envisaged that they could amend the provisions of the Constitution by exercising their secondary constituent power provided that the amendment procedure under Chapter Sixteen was strictly observed. If the people wanted to entrench provisions other than those set out under article 255(1) of the Constitution or to immunize any of the provisions of the Constitution from amendment, they would have done so expressly. Courts should not by judicial craft or innovation impose hurdles to prevent the people from amending the Constitution provided that the procedural requirements under Chapter Sixteen were complied with.259. In noting the juridical status of the concept of constituent power of the people, the court in Timothy M Njoya & 6 others v Attorney General & 3 others, Misc. Civil Application No. 82 of 2002; [2004] eKLR held that the most important attribute of the sovereignty of the people was their possession of the constituent power. It had to remember that in its findings the court was addressing a review of the repealed Constitution with the ultimate aim of promulgating a whole new constitution which ultimately happened in 2010. The court was also addressing the exercise of primary constituent power and the role of Parliament to amend the Constitution under section 47 of the repealed Constitution. The popular initiative amendment procedure which was in contention in the Constitution of Kenya, 2010 was not an issue at the time as the repealed Constitution did not have a referendum process nor were the people directly involved in the said amendment and subsequent review process.260. Any interpretation of articles 255 to 257 had to begin with a rendition of the constitutional making process in Kenya. Article 259 of the Constitution provided that the Constitution had to be interpreted in a manner that promoted its purpose, values and principles.261. Parliament could amend the Constitution, but the Constitution’s basic structure limited the amendment mandate by making it difficult to amend it without recourse to the processes in articles 255, 256 and 257 of the Constitution.262. The basic structure doctrine was introduced by the Indian Supreme Court as a limitation on the constituent power of Parliament to amend the Constitution and not on the alteration of the Constitution as a whole. The doctrine was cited in the Kesavananda case as a precautionary measure against arbitrary exercise of the constituent power by Parliament, which, in the absence of the doctrine, India’s Parliament would have moved to amend the Constitution in any manner it deemed fit.263. In India the Constitution did not have provisions referring amendment of important provisions of the Constitution to a referendum. In Kenya, the whole Constitution could be changed with the concurrence of the people. It didn’t matter whether the amendment touched on what could be deemed as essential features of the Constitution as the existence of such features would not stand in the way of the same being changed. A constitution was also sanctioned by the people by way of a referendum and no other process. That was the reasoning in enacting articles 255 to 257 of the Constitution, the framers were alive to that fact.264. The basic structure doctrine did not concern procedurally defective constitutional amendments, but only with validly passed amendments. If the Constitution itself provided an express substantive limitation on the exercise of the power, the doctrine was irrelevant in respect of that power. The doctrine was invoked because the power to amend was not substantively limited. If the power to amend was unlimited, an all-powerful Legislature could destroy the Constitution and/or make a new constitution. While the Kenyan Constitution had a basic structure, any interpretation made had to be construed according to the doctrine of interpretation that the law was always speaking.265. Where the basic structure of the Constitution was under threat, the court could genuinely intervene to protect the Constitution. Such a position was anchored on the mandate of Parliament to effect amendments under article 256 of the Constitution and that of the people through a popular initiative under article 257 of the Constitution. The processes were different and article 255 of the Constitution contained the lens by which both had to be reviewed.266. From the express language of article 255 of the Constitution, the issues that were ring-fenced from Parliament’s amendment powers were:

the supremacy of the Constitution;
the territory of Kenya;
the sovereignty of the people;
the national values and principles of governance mentioned in article 10 (2) (a) to (d) of the Constitution;
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 applied;
the functions of Parliament; and
the objects, principles and structure of devolved government.
the amendment chapter (article 255 of the Constitution) as a guard against amendment itself.

267. There was need to protect the Constitution against indiscriminate amendments. If the amendment procedure was too simple, it reduced public confidence in the Constitution. The converse, however, was also true. If the amendment procedure was too rigid, it could encourage revolutionary measures to bring about change instead of using the acceptable constitutional means. A balance needed to be struck between the two extremes.268. The framers created a distinction between entrenched provisions and non-entrenched provisions leading to the enactment of article 255 of the Constitution to contain the entrenched and the rest of the Constitution to contain the non-entrenched. The Constitution was amendable using the two processes established by the same Constitution; by Parliament – in non-entrenched provisions and by popular initiative as regards entrenched provisions. No immunization was intended by the framers of the Constitution.269. The position that non-progressive judiciaries had rejected the notion that the basic structure of a Constitution was and could be found outside the language of the Constitution and was reposited in an implied framework to which courts could occasionally resort to on a case to case basis was rejected. Such a proposition was incapable of rationalization in the context of Kenya’s constitutional design and architecture. In Kenya, Parliament could not in exercise of its ordinary legislative power amend the entrenched provisions in article 255 of the Constitution without the sequential steps in article 257.270. The court in Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 Others, HC Petition No. 496 of 2013; [2013] (Commission for the Implementation of the Constitution case) declined to use the terms, ‘basic structure doctrine’ and referred to ‘basic structure’ and not doctrine. The clarification was important.271. A doctrine was a single important rule or set of rules that was widely followed in a field of law. Doctrines were simply rules or principles with such a long history in the law that lawyers and scholars had given them the more prestigious label of doctrine. A doctrine was a legal principle that was widely adhered to.272. There were doctrines that had developed and their principles widely accepted and incorporated into civil law by various jurisdictions. Those included the doctrine of separation of powers which signified the division of powers between various organs of the state; executive, legislature and judiciary; the doctrine of judicial discretion where judges exercise their discretion in applying the law; the doctrine of judicial review which granted courts the authority to declare laws or actions of government officials unconstitutional if the acts were done beyond the powers granted by the Constitution or statute; the doctrine of natural justice which signified that no person was to be condemned unheard; the doctrine of res judicata which provided that once a matter was finally decided by a competent court, no party could be permitted to reopen it in a subsequent litigation. Other doctrines of law whose principles had also been widely applied included the doctrine of laches which stated that a court would only assist people who were vigilant and not the indolent and the doctrine of harmonious construction which stated that a provision of the Constitution or statute should be interpreted or construed not in isolation but as a whole, so as to remove any inconsistency or repugnancy. The basic structure had not met the criteria for recognition as a doctrine.273. The court was attracted to the doctrine as a useful tool in interpretation generally but it had to be read along side constitutional text and history for a conclusive decision as whether the Constitution had clauses that could not be amended because of the basic structure doctrine or that the Constitution had a basic structure that Parliament could not amend without the input of the people.274. The sovereignty of the people in constitution-making was exercised at three levels:

The primary constituent power was the extraordinary power to form (or radically change) a constitution; the “immediate expression of a nation and thus its representative”. It was independent of any constitutional forms and restrictions and was not bound by previous constitutional rules and procedures. In Kenya, the primary constituent power was exercisable in four sequential processes.
The secondary constituent power was an abbreviated primordial constituent power exercisable by the whole polity in an abbreviated process to alter the constituting charter (Constitution) in non-fundamental ways, that was, without altering the basic structure. In Kenya, the secondary constituent power to amend the Constitution was exercisable through a referendum subsequent to public participation and parliamentary process. It could only be perfected by following the amending procedures in articles 255, 256 and 257 of the Constitution.
The constituted power was created by the Constitution and was an ordinary, limited power; a delegated power derived from the Constitution, and hence limited by it. In Kenya, the constituted power was exercised by Parliament, which has limited powers to amend the Constitution by following procedures set in articles 255, 256 and 257 of the Constitution.

275. The processes had to be understood in their context; the Kenyan people, through the organs created by statute and with their participation, were engaged in constitution-making; the doing away of the old constitutional order and creating/making of a new one – the Constitution of Kenya, 2010. The four sequential steps that were required in amending the Constitution via the primary constituent power were:

civic education;
public participation and collation of views;
constituent assembly debate – the instant stage was not necessarily only by way of a constituent assembly as a national convention or national conference were the other titles used elsewhere;
referendum.

276. The process in dispute in the instant case was anchored on article 257 as read with articles 255 and 256 of the Constitution. Should the Kenyan people, in their sovereign will choose to do away with the Constitution and create another, then the sequential steps were mandatory and Kenya’s constitutional history would be the reference point.277. Article 1 of the Constitution was headed “Sovereignty of the people”. The people in the preamble to the Constitution conceded that they exercised their sovereignty and inalienable right to determine the form of governance of Kenya and had fully participated in the making of the Constitution, adopted and gave the Constitution to Kenya and to future generations. Articles 2(1) commanded that the Constitution was the supreme law of Kenya and bound all persons and all State organs at both levels of Government. All courts, in addressing all disputes before them, had to always begin with the Constitution and ensure that they acted within its boundaries and edicts before recourse to other jurisdictions and laws.278. Every Constitution had pillars and building blocks without which it could not stand. However, a look into article 255 of the Constitution against the whole Constitution directly spoke to the pillars and building tools by identifying them not in abstract but by their importance.279. A constitutional dismemberment entailed a fundamental transformation of one or more of the Constitution’s core commitments. A dismemberment was incompatible with the existing framework of the Constitution because it sought to achieve a conflicting purpose. It intended deliberately to disassemble one or more of a constitution’s elemental parts. An amendment did not go nearly as far because, properly defined, it kept the altered constitution coherent with its pre-change identity, rights, and structure. The purpose and effect of a constitutional dismemberment were the same: to unmake a constitution.280. In making constitutions, the old had to be dismembered to create the new. The Amendment Bill had 74 clauses and two schedules. The memorandum of objects and reasons explained each proposed amendment. The court expected each and every amendment to be subjected to scrutiny by the parties that proclaimed it to be unconstitutional. None of the pleadings did so and even applying their test to the Bill, no party claimed the unconstitutionality of an amendment that proposed:

Clause 2 – regional cohesion and integration;
clause 3 – economy and shared prosperity;
clause 5 – protection of personal data;
clause 6 – enactment of legislation to require Parliament to provide mechanisms to strengthen the fight against corruption through expeditious investigation, prosecution and trial of cases relating to corruption and integrity;
clause 7 – relating to party lists and to ensure that they complied with the principle that not more than one-third of candidates were of the same gender;
clause 68 – to include the director of public prosecutions as an independent office; and
clause 69 – to reduce the number of commissioners in Independent Commissions because of huge expenditure incurred by the public.

281. The history of Kenya was replete with constitutional amendments by Parliament which led to the erosion of democracy and the rule of law. The Constitution provided two mechanisms, amendment by Parliament and by popular initiative, to ensure that no such amendments occurred ever again without the input of the sovereign – the people.282. The role of the people arose from article 1 of the Constitution that provided that the exercise of sovereignty was either directly or through their democratically elected representatives. That exercise of direct power needed not be implied. It was direct because it was exercised in that manner by constitutional edict and not by reference to any other legal regime - real or implied.283. The language used in that article 257 of the Constitution as it regarded the direct sovereignty required no more than a literal interpretation. It was exercised by:

collection of one million signatures – articles 257(1);
participation in civic education prior to a referendum – articles 256(5), 257(10) as read with article 88(4)(g);
voting in a referendum – articles 256(5)(a) and 257(10).

284. Indirect participation was through the elected representatives at the county assemblies and Parliament. To say that the people had no role or say in an amendment process or that they had no capacity to make decisions to their benefit was an affront to their sovereignty.285. The court could not deny article 255 of the Constitution and refer to the Kesavananda case. The court could not imply doctrines and principles that were outside the constitutional text and which ignored Kenya’s context and history.286. The answer as to whether an Amendment Bill to the Constitution could do away with article 25 and all the rights there under lay within the in-built process was in article 257 that ended with a referendum where such a fundamental amendment would be determined. Civic education was the mechanism by which the dangers of such an amendment would be pointed out among other processes in article 257. The people would have the final word at the referendum.287. The basic structure doctrine did not apply in Kenya in the manner suggested by the 1^st to 5^th respondents and that the four sequential steps set out by the High Court and the majority of the Court of Appeal only applied when a new constitution was being made and not in any amendment process under article 257 of the Constitution. Based on Kenya’s history, the text of the Constitution and the context was the legislation such as the Constitution of Kenya Review Act 2008 and its 1997 predecessor that the four sequential steps should be anchored when and if the people ever wanted to change their constitutional order as they previously did in 2010.288. The BBI Taskforce had no mandate towards a specific amendment to the Constitution. An initiative was an electoral process by which a percentage of voters could propose legislation and compel a vote on it by the legislature or by the full electorate. The initiative was one of the few methods on direct democracy in an otherwise representative system. An initiative was the ability to initiate or begin something. The power of opportunity to act before others did. Fresh strategy intended to resolve or improve something. A promoter on the other hand was someone who encouraged or incited. Popular initiatives meant that a certain number of citizens could demand a referendum by signing a petition for a referendum on a legislative change promoted by the sponsors of the initiative. Because the agenda-setter and the initiator of the referendum were the same political actor, popular initiatives were decision-promoting referendums.289. Popular initiatives seemed to provide an alternative to the representative system as a decision-making method and they could be seen as a part of popular self-government. In particular, they provided citizens with an opportunity to raise issues on the political agenda. Popular initiatives were rather rare institutions in national-level politics.290. The term popular initiative could be traced to the Bomas Draft, 2005. Popular initiative was introduced as 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 intention was a starting point towards curbing dictatorship by Parliament. The initiative was deliberately crafted as a tool of amendment by citizens, the common man and civil society as opposed to Parliament.291. The President could not and was not to initiate amendments to the Constitution under article 257 of the Constitution. A popular initiative was people centric and while the President had certain rights as a citizen, there were certain other things that were constitutionally curtailed for the President. The President could not initiate the process by collecting one million signatures and crafting an Amendment Bill and then retire to await the same Bill under articles 257(9) and assent to it as President. That was an absurdity that could not have been the intention of the framers of the Constitution. Neither could the President initiate a Bill under article 256(5)(a) and (b) of the Constitution, request the IEBC to conduct within ninety days, a national referendum for approval of the Bill, and also assent to the same Bill. The President had specific roles in a popular initiative process and those roles did not include initiating the same.292. As party leader, the President had other political mechanisms through Parliament to do what he considered best, without encroaching on the sacred people-centric process under article 257 of the Constitution.293. Article 257 of the Constitution had specific processes and players, each with a distinct role to play. The BBI process had two distinct processes;

the handshake and its related processes, the BBI Taskforce and Steering Committee; and
the constitutional /popular initiative under article 257; the BBI National Secretariat.

294. When the President and Hon. Raila Odinga decided to shake hands, Kenya was not in a good place at all and violence was looming large. Article 131(1) (e) of the Constitution referred to the President as a symbol of national unity and article 131(2)(e) enjoined the President to promote and enhance the unity of the nation. The handshake could only but be viewed in that context; the President had to act to maintain the unity of Kenya after the contested 2017 presidential election.295. By directing the BBI Steering Committee to engage in constitutional changes, the President had not turned himself into an initiator and promoter of the popular initiative. A popular initiative was commenced with the collection of a million signatures and prior to, or simultaneously with the general suggestion or a formulated draft Bill. In the instant case, the letter dated November 18, 2020 to the Chairperson, IEBC, showed who that the collectors of the signatures were the Secretariat of the Building Bridges to a United Kenya -Kenya Moja.296. Nowhere did the President appear in the process and it was a matter of public notoriety that he publicly signed the signature template as did Hon. Raila Odinga. He did so as a citizen entitled to do so but not as the initiator or promoter of the popular initiative and there was no illegality in that action. The President also voted at a general election and was equally entitled to vote at a referendum as a citizen.297. The President could not and was not to initiate or promote a popular initiative under article 257 of the Constitution but could use his parliamentary party muscle in Parliament to initiate amendments under article 256 of the Constitution if the President so wished. The President was not the initiator or promoter of the popular initiative, Hon. Dennis Waweru and Hon. Junet Mohamed were.298. Article 89(1) and (2) of the Constitution provided for the procedure to be followed by IEBC in the review of names and boundaries of constituencies. Section 36 of the IEBC Act provided for the procedure to be followed in the delimitation of electoral boundaries and how IEBC was to discharge that mandate. Section 36 provided the procedure for delimitation of electoral boundaries.299. Delimitation of boundaries was to be done by IEBC and through the procedure set in the IEBC Act. Section 36(8) of the IEBC Act provided that there should be public participation in the delimitation of constituency boundaries. Any attempt at delimiting boundaries by amending article 89(1) without consequential amendments to article 89(2) to (12) and following the procedure in section 36 defeated not just logic but was blatantly unconstitutional.300. The BBI Steering Committee Report that was presented to the President also included the BBI Steering Committee Draft Bill. The Second Schedule of the Bill directed IEBC to use the criteria in article 89(7) of the Constitution to delimit the boundaries for the proposed seventy constituencies.301. There was no public participation in the criteria used to create the new constituencies. It was unclear how the BBI Steering Committee reached the decision to create the new constituencies but somehow the Bill had them. An amendment Bill could have whatever issues its promoters would like to put into it but to take away the constitutional mandate of the IEBC in an amendment process then purport to direct it on how to undertake its mandate was blatantly unconstitutional.302. The creation of the constituencies was made without input from anyone outside the BBI Steering Committee. Constituencies were such an emotive issue in Kenya that, creation of new ones without an elaborate process to involve the people – those who supported and those who did not – was a dead-on arrival matter. Without evidence of public participation, there was no way that the Supreme Court could validate the process.303. In inserting the Second Schedule to the Amendment Bill and amending only article 89(1) of the Constitution without amending all other sub-articles, the limitations of the Bill created an absurdity. It was unclear what criteria was used to delimit new constituency boundaries without the input of affected persons. The delimitation was a boardroom affair and not even a vote at the referendum could legalize that action. In the future, it would be quite permissible to restart the process, follow the criteria in article 89, involve the IEBC and the people and should the constitutional and other processes be adhered to, then the beneficiaries of the additional constituencies would have their day as would those in protected constituencies.304. Article 143(1) and (2) of the Constitution provided that the President enjoyed immunity from criminal and civil proceedings. Article 143 (1) stipulated that the President was not to be sued in any criminal proceedings during his/her tenure of office, with article 143(4) being the only exception to such immunity under criminal proceedings.305. Although the President enjoyed immunity, there was nothing barring institution of constitutional proceedings challenging the exercise of presidential powers. Article 258(1) of the Constitution stated that every person had the right to institute court proceedings, claiming that the Constitution had been contravened, or was threatened with contravention. However, article 258(1) was qualified by the provisions of article 143(2) of the Constitution on institution of court proceedings against the President. The Attorney General was the one to be sued whenever the President had contravened the provisions of the Constitution. The Constitution furthermore provided for remedies for violations committed by the President by ensuring that there were safeguards to ensure that any misconduct by the President in relation to the Constitution would be checked.306. Like any other official, the President remained accountable to the people. Remedies for constitutional violations included suing the Attorney General under article 156(4) of the Constitution or impeachment of the President for violations of the Constitution under article 145(1) of the Constitution. The Attorney General was mandated to appear as the principal legal adviser to the Government and to represent the National Government including the President in court when proceedings arose from acts done in his or her capacity while performing the actions of the office of the President.307. Once a party had sued the President in his personal name, the Attorney General could not represent him and just like in the instant case, the President had to hire his lawyers to represent him. However, for actions touching on his mandate as President, then the President should not even be sued in his personal name and his remedy lay in costs should he be sued.308. If the President violated the law, article 145(1) of the Constitution lay down an elaborate procedure for his removal through impeachment. The immunity envisaged under article 143(2) of the Constitution did not exist to shield the President from any wrongdoing but pointed to the direction that the President could not be sued in any proceedings for violation of the Constitution in his/her personal capacity. The President should not be sued in his personal capacity for acts done in contravention of the Constitution during his tenure of office. The High Court erred in finding that the President could be sued in such a capacity and not as the President of the Republic of Kenya.309. Common law courts granted absolute immunity to judges and legislators from civil liability for activities done within their scope of official functions. Judges enjoyed absolute immunity and were immunized from any action or suit on account of the performance of a judicial function. Judges were fallible human beings, there existed mechanisms through which errors committed by judicial officers in the discharge of their judicial functions could be corrected. Judges could not be sued in court in their personal capacities while discharging their judicial functions. It would be incomprehensible to find that judges were protected from being personally sued under article 160(5) of the Constitution, then find to the contrary, that the President could be sued in his personal capacity for acts done during his tenure in office despite article 143(2) of the Constitution.310. The guiding principles for public participation were:

As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means.
Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to fulfill a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
Public participation was not an abstract notion; it had to be purposive and meaningful.
Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis.
Public participation was not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard was not enough to annul the process.
Allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
Components of meaningful public participation included:

i. clarity of the subject matter for the public to understand;ii. structures and processes (medium of engagement) of participation that were clear and simple;iii. opportunity for balanced influence from the public in general;iv. commitment to the process;v. inclusive and effective representation;vi. integrity and transparency of the process;vii. capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.311. Public participation was the mechanism through which the public was allowed to participate in decision making processes and applied to all aspects of governance. The principles were a commitment to accountability, responsiveness and openness in government as they envisaged a democracy that was not only representative but also participatory. The Constitution specifically called for public participation in the making of laws by both the County Assemblies and Parliament.312. Nothing in the applicable provisions gave the IEBC the mandate to perform any other function except to verify the one million signatures in support of the initiative. The Constitution had not placed any burden on IEBC to ensure that the promoters of a Bill had met the requirements of public participation. To hold otherwise would be an error on the part of any court. Constitutional amendments as envisaged under article 257 of the Constitution were also amenable to public participation. Whether or not there was public participation could only be determined by considering the continuum of the entire process and not just specifically at the stage of signature collection.313. There were four identifiable stages of public participation on amendment of the Constitution by way of popular initiative under article 257 of the Constitution. By appending their signatures to the proposed initiative therefore, the public had participated in the process. Via article 257(5) and (6) of the Constitution, the public indirectly participated through their representatives. Under article 257(7) and (8) of the Constitution, the participation was also indirect through their elected Members of Parliament. In that regard, article 118 of the Constitution provided for public access and participation in the making of laws. The provisions governing public participation by Parliament were mirrored in the provisions governing county assemblies on public participation under article 196 of the Constitution. Public access to a Bill purporting to amend the Constitution was a fundamental part of public participation. It enabled members of the public to familiarize themselves with the law-making process and thus be able to effectively participate at the referendum stage which was the last and fourth stage when the Bill was submitted to the people for voting. The best way that was achieved was through the opportunity to submit representations and submissions, to ensure that the public had a say in the law-making process.314. There was no justification for the superior court’s findings on the lack of public participation as the voters who signed the signatures for the proposed Amendment Bill did so without being accorded a chance to study the Bill, or that any of their submissions or representations were not taken into consideration. That was on the first stage of public participation.315. One could not fault IEBC or the promoters of the initiative at all because at the point that the High Court stopped the process, IEBC had not yet been seized of the voter education mandate prior to the referendum. The promoters had also not started popularizing their Bill prior to the said referendum.316. The process was from the collection of signatures to the referendum. What happened prior to those processes could not qualify as the process. A finding that there was no public participation in the process was erroneous.317. There was need for a legal/regulatory framework to govern not just the process of verification of the signatures, but also governing all the stages of an amendment Bill under article 257, from the point of collection of signatures, to the verification of those signatures by IEBC, the discussion and passage of an amendment Bill by the County Assemblies, the process of passing of a Bill by Parliament, the receipt of the Bill by the President and on transmission of the assented Bill by the President to the IEBC for voting in a referendum. The requirement for the legal framework was also in line with the provisions of article 82(1)(d) of the Constitution. Without the legal framework, the confusion as to what amounted to proper and legitimate public participation would continue dragging Kenyan courts. The legislation should cover all aspects of the popular initiative.318. IEBC was one of the commissions created under article 248 of the Constitution and whose functions was as provided for under article 88. The amendments on quorum were not good for the proper functioning of the Commission. The effect of the pronunciation was that the amendments to the Second Schedule were inconsistent with the provisions of article 250(1). The High Court in the Katiba Institute case interfered with the functional independence of the IEBC by purporting to make a finding on quorum based on what it thought would be the best number to form quorum, instead of interpreting the amendments and confirming whether they were in conformity with the provisions of the Constitution.319. Section 5 of the IEBC Act dealt with composition and appointments of the commissioners of the IEBC and at section 5(1) stated that the IEBC was to consist of a chairperson and eight other members appointed in accordance with article 250(4) of the Constitution and the provisions of the Act. Quorum was defined the minimum number of member (usually a majority of all members) who had to be present for a deliberative assembly to legally transact business. Quorum denoted the minimum number of members of any body of persons whose presence was necessary in order to enable that body to transact its business validly so that its acts could be lawful.320. Quorum was to be examined against the constitutional composition stated at article 250(1) where the IEBC had three members at the time of verification of the signatures. IEBC had the minimum number of members present to enable it transact its business validly. Since quorum was composed of a clear majority of members of the IEBC, quorum was not to be a constant number as it was dependent on the actual number of the commissioners appointed at any given time. If quorum would remain five in the event that only three commissioners were appointed because the Constitution allowed for a minimum of three members, the quorum not be five.321. The issue of quorum, apart from being a matter provided for under statute, was also a matter of common sense and construction depending on the total number of the commissioners appointed at any given time because it was the total number of commissioners appointed that would determine the quorum of the commission and not the other way round. IEBC was quorate at the material time. To subjugate article 250(1) of the Constitution to the legislation created by dint of article 88(5) of the Constitution was to read the Constitution in a skewed manner.322. The language of the article 255, 256 and 257 of the Constitution was that, a Bill in the singular was what was ultimately presented in a referendum. The language of the Constitution in articles 256 and 257 consistently referred to a ‘Bill’ and not ‘Bills’. Finding otherwise would be in contravention of the Constitution. Similarly, the CKRC Final Report while considering amendments to the Constitution, recommended that the Constitution should have entrenched provisions whose amendment shall be by way of a Bill. The drafters of the Constitution also intended to have a Bill for amendment to the Constitution presented to the people. The language of ‘question’ or ‘questions’ was however introduced in section 49 of the Elections Act to operationalize the relevant provisions.323. A casual reading of section 49 of the Elections Act would show that it was inelegantly drafted. Any attempt to operationalize article 257 of the Constitution should have begun with a clear demonstration that there existed ‘a Bill’ to amend the Constitution. Thereafter, the issue as to what was to go to the referendum under article 257(10) of the Constitution was “the proposed amendment”. Section 49 would then pick up the matter from there and without creating the confusion it had instantly brought, either stick to “a proposed amendment” or as was the practice in the world, clearly demarcate when “a question” was to be put to the people on that proposed amendment or when “questions” ought to be put.324. Section 49(4) of the Elections Act instead merely spoke to “one or more questions for a referendum” but in other sub-sections provided for “the question” – in singular – and “or questions” – in multiple form.325. Justiciability was the quality or state of being appropriate or suitable for adjudication by a court. For a matter to be justiciable, it had to be ripe for it to be properly before the court. Ripeness was the state that a dispute had reached, but had not passed, when facts had developed sufficiently to permit an intelligent and useful decision to be made.326. Courts should only handle disputes where the cause of action had crystallized and not with prospective or hypothetical actions. At the time of filing of the petitions before the High Court, the Amendment Bill had not been presented to the people in a referendum under article 257(10) of the Constitution. The issue whether the specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for adjudication before the High Court and the IEBC should have been given the opportunity to address that issue and only after it had done so, would any party have reason to create a justiciable issue.327. Courts should exercise restraint where a mandate given by the Constitution had not been exercised by the body granted that mandate. To take over the IEBC’s mandate in the manner that the High Court did and later, the majority at the Court of Appeal, would only but defeat that express mandate to conduct a referendum and determine all issues around such a referendum.328. The issue whether it was a Bill, a question or questions that were submitted to the people in a referendum, was premature and no court should have entertained it. That was the first time that the IEBC was on the verge of conducting a referendum by popular initiative. IEBC was to harmonize section 49 with article 257 of the Constitution and only then would any party have a legitimate dispute, if at all, to take to court.Per W Ouko, SCJ:329. The Kesavananda case was synonymous with the basic structure doctrine and was said to represent the origins of the basic structure doctrine. The doctrine imported to India with the contribution of Professor Dietrich Conrad, who was a German scholar. However, there existed some insistence that the doctrine was first used by Chief Justice Alvin Robert Cornelius in the Pakistan Supreme Court case of Fazlul Quader Chowdhury v Mohd Abdul Haque (1963) PLC 486.330. The Kesavananda case was about the interpretation of article 368 of the Indian Constitution. Article 368(5) of that Constitution declared that there was no limitation on the constituent power of Parliament to amend the Constitution by way of addition, variation or repeal under the said article 368. The Indian Supreme Court held that although the Indian Constitution gave the Indian Parliament powers to amend any constitutional provision while complying with the stipulated procedures, that power could not be used to damage, emasculate, destroy, abrogate, change or alter the basic structure or the framework of the Constitution. The doctrine of the basic structure received acceptance in India and it was affirmed in many Indian court decisions.331. It was Prof. Conrad's theory which was applied in the Kesavananda case to postulate that there were implied limits on the power of the Indian Parliament to amend certain protected provisions of the Constitution which were known as the basic structure.332. Eternity or unamendable clauses were constitutional provisions or principles that were immune from amendment and any amendment to such clauses would be deemed to be unconstitutional. The clauses could be explicitly included in the text of the Constitution or be implicit and they would be identified by the courts through a process of interpreting the Constitution. The sole aim in providing for eternity clauses and the basic structure doctrine was to create an assurance that constitutional amendments would not be used to repeat past atrocities.333. The CKRC Final Report documented the fact that the motive behind some constitutional amendments was not to improve the quality of the Constitution or the welfare of the citizens but to entrench an authoritarian and undemocratic administration, to concentrate power in the Executive. For example, the report noted that over time, the system of checks and balances envisaged in the independence Constitution was clearly weakened. It pointed out that the security of tenure for Judges, the Attorney General, Controller and Auditor General was removed, and they could be removed from office by the President. The report noted that such amendments were possible because of the existence of a simple amendment procedure.334. The Kesavananda case was a decision by the Indian Supreme Court relating article 368 of the Indian Constitution and the relevance of the said article 368 to the matter under determination was the following: -

it clearly provided that there was no limitation on Parliament's power to amend any constitutional provision;
it provided that Parliament could amend the Constitution by way of addition, variation or repeal of any provision;
it provided that constitutional amendments had to be done in compliance with the procedures stipulated in article 368;
it provided that an amendment to the Constitution made under article 368 of the Indian Constitution could not be questioned in any court on any ground; and,
it provided that there was no limitation on Parliament's power to amend the Constitution.

335. The Kesavananda case applied the basic structure doctrine and recognized the fear that if unchecked, Parliament, with complete abandon and impunity, could exercise legislative power and amend any provision of the Constitution, repeal or even abrogate the entire Constitution.336. After the promulgation of the Constitution of Kenya, 2010, Kenyan courts consistently and unanimously held that all provisions were amendable and even article 255 of the Constitution, which provided for the procedure for constitutional amendments, was amendable.337. The basic structure, as stated by Prof. Roznai, provided that regardless of the existence or absence of an express limitation, there was an implied and substantive limitation to constitutional amendment, the objective of which was to protect the basic structure or core element of a constitution. In other words, some aspects of a constitution were amendable and they could only be changed through a mechanism that was outside the Constitution. The doctrine received acceptance in some jurisdictions while other jurisdictions rejected it.338. In deciding that the basic structure doctrine that limited amendment power was set out in article 255 to 257 of the Constitution, the High Court and the Court of Appeal were persuaded by the Kesavananda Case.339. One way to address the problem of abusive constitutional amendment was a constitutional design that would include a tiered amendment procedure. Such a design would combine the values of rigidity and flexibility by applying different procedures of amendment for different provisions of the Constitution.340. The amendment process via a popular initiative under Chapter Sixteen of the Constitution had various stages. The first was for the promoter to obtain signatures from one million voters and then submit the signatures and the draft constitutional amendment Bill to the IEBC. The voters who supported the proposal had to be verified by the IEBC. At the next stage a majority of the 47 county assemblies would have to approve the draft Bill before it could move to the National Assembly and the Senate, where a majority of members form each House would have to vote in its favour before its submission to the people in a referendum. A valid referendum under article 255 of the Constitution required a 20% turnout in at least half of the counties and support by a simple majority of the citizens voting in the referendum.341. Amendments to the Constitution through a parliamentary initiative under article 256 of the Constitution were intended to be non-controversial amendments. They required public participation, adherence to strict timelines and support of two thirds of members of each House of Parliament.342. Considering the explicit, long, complex and unpredictable process of amending the Constitution, there were no implied constitutional limitations relating to constitutional amendments. There were sufficient safeguards against unwarranted amendments provided for under the Constitution.343. Article 255(1) embodied the basic structure of the Kenyan Constitution. Kenyans painstakingly identified and embedded in the Constitution, a whole Chapter on amendment and identified ten thematic provisions in the Constitution which they considered fundamental for the protection and preservation of the Constitution against random amendments. A holistic construction of the Kenyan Constitution yielded the conclusion that the basic structure, not doctrine, domiciled in article 255(1) of the Constitution.344. During the constitution-making process, from 1990 to 2010, the doctrine of the basic structure was known to exist and was cited in Timothy Njoya & 6 Others v. Attorney General & 3 Others, H.C Misc. Civil Appl. No 82 of 2004 (OS); [2004] eKLR (Njoya case). Therefore, had the framers of the Constitution intended to subject the Constitution to the basic structure doctrine they would have expressly provided for it. The application of the doctrine would go against the intention of the people that constitutional amendments should be flexible enough for posterity and unforeseen needs but sufficiently rigid to prevent abuses experienced in the past.345. From the judgments of the Court of Appeal and the High Court, the scope and extent of the basic structure doctrine was unclear. They suggested that courts had to engage in constitutional interpretation to confirm whether a proposed amendment could be made or whether the basic structure doctrine disallowed a proposed amendment. The vagueness as to what was amendable could create problems. For example, after the decision in the Kesavananda case in India, the Indian court had utilized the basic structure doctrine in at least 345 cases but there was no clear delineation of the doctrine. When undertaking constitutional interpretation courts had to provide pragmatic solutions without adding confusion to the controversy.346. Constitutional amendments were not a simple matter and therefore limits to amendment had to be sufficiently specific and unambiguous. Amendments were necessary in order to allow future generations to respond to various political, economic, social, and other changes, as well as changes in the society’s system of values.347. The limitations provided for in Chapter Sixteen of the Constitution were not accidents. The framers of the Constitution acknowledged that the Constitution would not be perfect and that it would require change periodically in recognition of that fact that each generation would govern itself, if not be rewriting the Constitution afresh, by amending it.348. The basic structure doctrine did not apply to the Constitution as it existed. However, article 255(1) of the Constitution made provision for the basic structure of the Constitution which were provisions that were considered so sacred that they could only be amended through a special procedure and with the involvement of the people in a national referendum.349. Public participation and civic education were part of the process of constitutional amendment envisioned in Chapter Sixteen of the Constitution. The referendum was the climax of that process. The importance of the referendum as an effective forum in which the people and the political elite expressed their opinion through a vote could not be gainsaid. A referendum provided the best mechanism for the people, exercising their constituent power to make, remake and unmake the Constitution.350. Although the Constitution did not use the term "constituent power," that did not deny that term juridical status. Constituent power as an attribute of sovereignty of the people meant that the Constitution was supreme because it was made by the people in whom constituent power was reposed. Primary constituent power was the power to build a new structure or system of government by the people themselves and secondary constituent power was the power to amend an existing Constitution.351. A constituent assembly also known as a constitutional convention or a constitutional congress or a constitutional assembly was a body assembled for the purpose of drafting or revising a constitution. In the Njoya case, a constituent assembly was said to be a body that had the people's mandate to make a Constitution.352. The Committee of Eminent Persons on the Constitution Review Process (CoE) was not a constituent assembly. It did not meet the threshold of a constituent assembly in the terms laid down in the Njoya case. The Draft Constitution that was subjected to a referendum in 2010 was not a product of the people's constituent assembly. It was a product of a committee of ten experts, none of whom could claim to have been elected by the people to represent their interest in the process.353. A constituent assembly was an organ for constitution-making. However, an amendment to the Constitution under Chapter Sixteen of the Constitution did not recognize a constituent assembly as one of the organs for the process. The Constitution of Kenya, 2010, like the repealed Constitution did not contemplate its replacement.354. In the context of an amendment to the Constitution under article 257 of the Constitution, the people did not exercise constituent power, even though the Constitution only referred to sovereign power.355. Both the High Court and the Court of Appeal made the determination that the proposed amendments to the Constitution had far-reaching effects and they amounted to a dismemberment of the Constitution. There was a difference between amendment and dismemberment as terms relating to constitutional amendment. Richard Albert in Constitutional Amendment and Dismemberment and in Constitutional Amendments: Making, Breaking and Changing Constitutions, (Oxford University Press, 2019) stated that an amendment was resorted to in order to remove errors and help improve the Constitution and it had to be designed to help the Constitution to achieve its purpose, values and objects. Further, Prof. Albert referred to the Rawlsian view in "Constitutional Amendment and Dismemberment" and stated that either a Constitution was amended in a manner that was consistent with its provisions or it was altered in so transformative a way that it could not be an amendment but it was conceptually the creation of a new Constitution.356. The theory of unconstitutional amendment or constitutional dismemberment had been criticised for ignoring the fact that such constitutional changes had served as a safety valve and provided a legal avenue to constitutional change that obviated a revolution and even benefitted society.357. The question that arose from the use of the term dismemberment with respect to the proposed constitutional amendments was whether the proposals would in effect unmake, replace, disassemble, completely change identity, abolish, tear apart, amputate or roughly mutilate the Constitution. The proposed amendments were amendments and not dismemberments. They were intended to be of benefit to the people of Kenya.358. The history of constitution-making in Kenya did not show that the people of Kenya intended to immunize any constitution provisions from amendment. The Constitution expressed the intention to allow amendment of the Constitution through a popular initiative or through a parliamentary initiative.359. A popular initiative to amend the Constitution, under the terms of article 257 of the Constitution, had to be commenced by promoters drafting a Bill and getting at least one million signatures in support of the Bill. Additionally, a popular initiative could take the form of a general suggestion or a formulated draft Bill.360. A popular initiative meant an initiative by the general public or simply the people. Further, it was apparent that the term “promoters” in the context of the amendment of the Constitution described persons who initiated or championed constitutional change.361. The CKRC Final Report acknowledged that apart from Parliament, it was necessary for the people in exercise of their constituent power to be involved in making constitutional changes. The Report recommended that citizens and civil society be accorded space to initiate constitutional amendments through a process called a popular initiative. That was the origin of the term "popular initiative" which found its place in article 257 of the Constitution.362. The President spearheaded the constitutional amendment process from its conception and only passed on the baton to the Building Bridges Initiative National Secretariat co-chairpersons late in the day. The President was ineligible to directly or indirectly initiate a constitutional amendment under the prescribed circumstances and he was not an ordinary citizen. He undertook actions toward constitutional amendments under his official capacity as the President of the Republic of Kenya.363. The allegation that the President's rights to equality and freedom from discrimination under article 27 of the Constitution had been violated was not proved. It was not enough to merely allege a violation without specifying how the violation occurred. There was no breach occasioned in asking the President to stay on his lane of the constitutional amendment process.364. It was apparent that the President's political rights under article 38 of the Constitution were not breached. It was not alleged that the President had been denied the right to be registered as a voter and to vote in the referendum for purposes of the constitutional amendment. In fact, the process had not reached the referendum stage.365. The President had a role in the constitutional amendment process. Under article 255(1) of the Constitution, it was the President's prerogative before assenting to a constitutional amendment Bill to request the IEBC to conduct a referendum for approval of the Bill. Apart from that the President was entitled to support a popular initiative by signing it and nothing stopped him from campaigning for or against it.366. The text of article 257 of the Constitution did not preclude the President from supporting a popular initiative. Kenya's history included hyper-amendments to the Constitution that were promoted by the Executive in conjunction with Parliament. The framer's intention, given that background, was to provide a check against a future imperial presidency, deliberately limiting presidential power to consenting to the constitutional amendment Bill and requesting the IEBC to conduct a national referendum.367. Clause 10 of the Amendment Bill proposed to amend article 89(1) of the Constitution so as to increase the number of constituencies from 290 to 360, translating to 70 additional constituencies. Further the Second Schedule to the Bill sought to distribute the proposed constituencies in various counties. What the Second Schedule did was to set its own timeline, introduce a new criterion on delimitation and to distribute the new constituencies amongst some 28 counties.368. The criterion provided for delimitation of boundaries for the new constituencies under the proposed constitutional amendments was the population quota and that was inconsistent with article 89 of the Constitution and therefore unconstitutional. The IEBC in delimiting boundaries could not be required to consider only one criterion; it needed to uphold national values and principles of governance including public participation and consult all interested persons in a boundary review exercise. The Second Schedule of the amendment Bill ignored the criteria set out in article 89(5), 89(6) and 89(7) of the Constitution.369. The proposed timeline set out under the amendment Bill for delimitation of boundaries was incompatible with the timelines set out under article 89(2) of the Constitution. Under the Constitution of the Kenya, 2010, the IEBC was to review the boundaries of constituencies at intervals of not less than 8 years and not more than 12 years. The proposed timelines for boundary delimitation and the process proposed for their creation and distribution was properly found to be flawed by the High Court and the Court of Appeal.370. The justifications for presidential immunity were to ensure the unimpeded performance of public functions, to bar any targeted prosecutions and to avoid the likelihood of distraction and embarrassment. However, such immunity had to be balanced with responsibility and accountability.371. The interpretation of the Supreme Court was sought with respect to the presidential immunity in civil proceedings and not criminal proceedings. Under article 143 of the Constitution, which provided for presidential immunity, it was necessary to consider the liability of a sitting President, the liability of a former President, liability for official acts and liability for personal or private actions.372. By issuing the two notices appointing both the BBI Taskforce and the BBI Steering Committee, the President was acting in his official capacity and not as a private citizen. Therefore, the President could not be sued in his personal capacity, in civil proceedings, for actions done in furtherance of the proposed constitutional amendments.373. The actions or omissions of the President while serving in office had to be presumed to be done or not done in exercise of constitutional powers because ultimately, the intentions of the framers of the Constitution was to protect the President from civil suits for personal liabilities while serving the nation, performing official functions. The CKRC Final Report expressed the position that the President should receive protection from any legal proceedings that could be instituted during his tenure of office.374. Any person who was aggrieved by the President's exercise of state power had a recourse. The first recourse was to name the Attorney General as a respondent in a judicial review application or a constitutional reference. The Attorney General in such an instance would be sued because he was the principal legal adviser to the Government and also because under article 156(6) of the Constitution he was enjoined to promote, protect and uphold the rule of law and defend public interest. The second recourse was to institute civil proceedings at the end of the President's tenure. Article 143(3) of the Constitution provided that the running of time for wrongful acts committed by a President in office would begin after he or she left the office. Further it was clear that article 143(3) of the Constitution was only applicable to civil wrongs of a personal nature that were not connected to the office. That had to be the intention of the framers of the Constitution. The third recourse was an impeachment motion under article 145 of the Constitution, where the President had engaged in gross violations of the Constitution or the law or where there were serious reasons for believing that the President had committed a crime under national or international law.375. Public participation was a constitutional imperative recognized as one of the principles of good governance and accountability. It was a mandatory requirement in all legislative processes, constitutional amendment and constitution-making.376. The role of the IEBC under article 257(4) of the Constitution was to verify that a popular initiative to amend the Constitution was supported by at least one million registered voters. Since the IEBC was a repository of voters' particulars, it was true that only the IEBC could verify that those whose particulars and signatures were submitted as evidence of support of the process were indeed registered voters according to their records.377. With respect to the constitutional amendment Bill, the IEBC was able to certify that 3.1 million registered voters expressed support for the initiative. That represented 2.1 million voters in excess of the threshold provided in article 257(4) of the Constitution. In fact, no one doubted that or identified any flaw with the verification. The IEBC confirmed that in the course of verification, names without signatures, signatures without names, national ID or passport numbers and duplicated names were removed. That was why 4.4 million registered voters were said to support the initiative but only 3.1 million signatures were verified.378. Under article 257(4) and 257(5) of the Constitution, the role of the IEBC after receiving the draft constitutional amendment Bill and the signatures in support of the Bill, was to verify that the initiative was supported by at least one million registered voters and to be satisfied that the initiative met the requirements of article 257 of the Constitution. It was only then that the IEBC would submit the draft Bill to each of the 47 county assemblies for consideration.379. Public participation in a constitutional amendment process should be seen as a continuum, from collection of signatures all the way to the referendum. It was equally true that public participation had to be conducted at each stage where it was required and it was illogical to wait until the process was concluded to ascertain whether it was effective or done in accordance with the law.380. With respect to the proposals on delimitation of constituency boundaries, there was no public participation and that rendered the proposed delimitation fatally flawed.381. The under article 257 of the Constitution, the IEBC was not required to ascertain whether the promoters of a popular initiative conducted public participation before the collection of signatures. It was also not part of the mandate of the IEBC at the stage when the draft Bill and signatures were submitted to it, to conduct another round of public participation.382. It was the promoters of a popular initiative that were expected to carry out public participation before collection of signatures. After persuading one million voters to support the initiative, the promoters had to also convince the County Assemblies and Parliament about the prospects of the initiative and ultimately at least 20% of registered voters in each of half of the counties and a simple majority of citizens voting in a national referendum.383. There was evidence on record of hard copies of the amendment Bill and the BBI Steering Committee's Report in English and the highlights of the two in both English and Kiswahili. However, there was no evidence with respect to copies of the draft Bill in Kenyan languages, sign language, braille and other communication formats and technologies accessible to persons with disabilities being circulated before collection of signatures.384. Although there were complaints that County Assemblies considered the draft constitutional amendment Bill in a speedy manner without adequate public participation, the certificates submitted to the two Speakers of Parliament were conclusive evidence of the propriety of the procedures undertaken by the assemblies with regard to the draft Bill prior to its introduction in Parliament.385. Upon receipt of the Amendment Bill from the county assemblies, two joint committees of Parliament published newspaper advertisements in the Daily Nation and Standard Newspapers inviting interested organizations and members of the public to submit any views or make representations on the Amendment Bill. Records show that on various dates, the committee received submissions from diverse groups, organizations and members of the public.386. Whether there was public participation or not was a matter of evidence. It was those that alleged that there was no public participation that had to prove the allegation. Not a single person was presented for purposes of rebutting evidence that there was public participation. From the uncontested evidence on record, there was sufficient public participation in respect of the Amendment Bill.387. There was concern that there was need for a legal framework on public participation to guide the constitutional amendment process and that there was no legal framework for the conduct of referenda. There was a Referendum Bill and a Bill on public participation which were pending passage before Parliament. However, the absence of enabling legislation on the conduct of referenda did not render constitutional provisions requiring it inoperative and unenforceable. Parliament was bound to enact such legislation as a matter of constitutional duty.388. The IEBC was not fully constituted when the amendment Bill and signatures were presented to it. There were four resignations in the commission that left it with only three members and allegations of lack of quorum to conduct the IEBC's affairs became an issue.389. Section 5 of the IEBC Act fixed the membership of the IEBC at seven; the chairperson and six members. Paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act set the quorum for the conduct of business at the IEBC to at least five members. The said paragraph 5 was amended in 2017 by the Election Law Amendment 2017 and only a quorum of three members of the IEBC was required for the conduct of the Commission's affairs. The amendment to paragraph 5 of the Second Schedule was challenged and declared unconstitutional by the High Court in the Katiba Institute case.390. Article 250 of the Constitution provided that each commission had to consist of at least three but not more than nine members. Whereas the Constitution provided that the IEBC was duly constituted with three members, the Second Schedule of the Independent Electoral and Boundaries Commission Act required a quorum of five. There was tension between the two provisions. However, the question before the court was not whether the said Second Schedule was inconsistent with the Constitution but whether the IEBC was properly constituted at the time the draft Bill and signatures were submitted to it.391. Under article 253 of the Constitution, the IEBC was a body corporate with perpetual succession and a seal. There was a distinction between the Commission and the commissioners, and the life of the Commission did not depend upon the commissioners. The Commission could only function legitimately if it had the minimum number of commissions prescribed in law.392. Constitutions were made to address specific mischiefs in society. When setting the minimum number of commissioners at three, the framers of the Constitution were aware of the functions and far-reaching powers of the IEBC. In their wisdom, the framers saw it fit to also establish a secretariat. The IEBC whether fully constituted at 7 members or with the minimum 3 members was responsible for the formulation of policy and strategy as well as providing oversight.393. Under paragraph 7 of the Second Schedule to the IEBC Act, unless the decision of IEBC at a meeting was unanimous, a decision was to be by the concurrence of a majority of all the members “present and voting." A clear majority vote was possible even where there were three commissioners at the IEBC. It was contradictory for the Court of Appeal and the High Court to make the finding that the IEBC was properly constituted with three commissioners but it lacked quorum to transact business and conduct its affairs.394. The controversy as to whether the effect of the High Court decision (Katiba Institute case) to declare the amendment, that reduced quorum at the IEBC from 5 members to 3 members, unconstitutional was irrelevant for the following reasons: -

The decision in the Isaiah Biwott case that the IEBC was quorate with three commissioners for purposes of conducting by-election was not challenged in the Court of Appeal. It was a judgment in rem to the extent that three commissioner of the IEBC was sufficiently quorate for the IEBC to conduct its functions.
The court could not handle abstract disputes; there had to be a real grievance. It was not demonstrated that the IEBC held any meeting at which it transacted business that was about the amendment of the Constitution and that a quorum of 5 commissioners was required.
The constitutional threshold of a minimum of three commissioners had to triumph over that set by a schedule to a statute especially where the intention of the framers of the Constitution was clear.

395. With three commissioners, the IEBC was properly constituted, quorate and competent to carry out its constitutional and statutory duties.396. There was a lacuna in law with respect to the manner of mode of submitting the proposed amendment to the people in a referendum. Article 257(10) of the Constitution stated that the proposed amendment had to be submitted to the people in a referendum.397. For a multi-subject amendment Bill there were various options on how the Bill would be presented in a referendum. The first option was for the public to vote to accept or reject the entire Bill. The second option was for the voters to separately vote to approve or reject every single individual proposed amendment. Lastly, the third option for a multi-subject constitutional referendum was for "related" proposals to be grouped together in the Bill. It was in the discretion of the IEBC to decide on the most suitable, practical and efficacious option in the circumstances of each proposed amendment.398. To the extent that the amendment Bill had not been received by the IEBC from Parliament, it was difficult to foretell how the question or questions would be framed by the IEBC, whose duty was, with absolute discretion, to frame the question or questions to be put to the people in a referendum. No rights or fundamental freedoms had been threatened.399. The complaint with respect to how the Bill would be presented to the people in a referendum clearly offended the doctrine of ripeness. The High Court ought to have downed its tools with respect to that matter but it did not and the Court of Appeal ought to have set aside the High Court's decision but it did not.

Appeal partly allowed; each party to bear their own costs.

Orders

The basic structure doctrine is not applicable in Kenya. (MK Ibrahim, SCJ dissenting).
In order to amend the Constitution of Kenya 2010, the four sequential steps as pronounced by the two superior courts below were not necessary. (MK Ibrahim, SCJ dissenting).
The President could not initiate constitutional amendments or changes through the popular initiative under article 257 of the Constitution. (NS Ndungu, SCJ dissenting).
The President initiated the amendment process in issue (NS Ndungu & I Lenaola, SCJJ dissenting).
Under article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 was unconstitutional (NS Ndungu & I Lenaola, SCJJ dissenting).
The Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional for being in breach of articles 10(2) and 89(7)(a) of the Constitution of Kenya, 2010 for lack of public participation.
Civil proceedings could not be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya, 2010.
There was no obligation under article 10 and 257(4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation.
There was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020. (PM Mwilu, DCJ; MK Ibrahim and SC Wanjala, SCJJ dissenting).
IEBC had the requisite composition and quorum to undertake the verification process under article 257(4) of the Constitution. (MK Ibrahim, SCJ dissenting)
The question raised regarding the interpretation of article 257(10) of the Constitution on whether or not it entailed or required that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination. (NS Ndungu, SCJ concurring).

Citations Cases

Click to Download the Judgment.
PETITION NO.12 OF 2021 CORRECTION ORDER

StatutesNone referred toAdvocatesNone mentioned

Judgment

JUDGMENT OF M. K. KOOME, CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT

A. Introduction

1.On 27^th August 2010, in what may be fittingly depicted as a symbol of national rebirth and renewal, Kenya promulgated a new Constitution which has been described world over as progressive. This moment marked a historic transition from the old order to a new one. The Constitution,2010 (the Constitution) represents the people’s aspirations, laid out in the text of its Preamble, Articles and Schedules. It is a framework for the realization of a shared vision and common agenda. The Constitution spells out far reaching fundamental institutional and other reforms meant to sustain human rights, equality, freedom, democracy, social justice and the rule of law for the present and future generations.

2.The history behind the making of the Constitution cannot be buried and forgotten as it continues to reverberate as the debate and discussions around its amendment harks back to the processes and sacrifices that were made by the Kenyan people over many decades during the search for a new constitutional order. Indeed, the Preamble thereto reminds us of “honouring those who heroically struggled to bring freedom and justice to our land ”.

3.It is the attempt to amend the Constitution as proposed in a document dubbed “Constitution of Kenya (Amendment) Bill, 2020” (the Amendment Bill) which led to the instant appeals before this Court. The Amendment Bill is at the core of the dispute that has engaged all the superior courts on the question of interpretation and application of the Constitution with regard to not only the provisions of Chapter Sixteen that provides for amendment of the Constitution, but also the entire body thereto as the canons of interpretation provided under Article 259 (3) enjoins courts to inter alia consider:“Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking …”

4.This means that the Constitution is always speaking to the present and future generations. Therefore, in discharging their interpretive mand ate within the framework of a legal dispute before them, courts are required to uphold the Constitution by breathing life to all its provisions whilst promoting the dreams and aspirations of the Kenyan people in a manner that is consistent with the Constitution. In addition, it is envisaged that the approach to interpretation of the Constitution adopted by a court should not render any Article or any provisions thereto superfluous or ineffective. Consequently, as the apex Court in the land and custodian of the Constitution, it is not lost to this Court that we are being called upon to provide an impartial and authoritative determination which will guide and act as an interpretative compass to the courts below, state agencies and all persons with respect to the questions before it.

5.Before delving into our mand ate under Article 163(4)(a) of the Constitution, as invoked by the appellants, it is instructive to place the appeals in context by setting out a brief background to the dispute.

B. Background

6.It is no secret that in striving to promote and strengthen our democracy, a number of attempts have been made to amend the Constitution. Of significance, is that there have been a total of three attempts to amend the Constitution by way of popular initiative under Article 257 of the Constitution. These are: Constitution of Kenya, 2010 (Amendment) Bill, 2015 (the Okoa Kenya initiative); Punguza Mizigo (Constitution of Kenya Amendment) Bill, 2019 (the Punguza Mizigo initiative); and more recently, the Amendment Bill. The first two initiatives failed for not garnering the requisite support at various stages of the amendment process while the Amendment Bill was subjected to the court process culminating in the instant appeals. Besides the above attempts under the popular initiative, there have been more than a dozen other unsuccessful attempts to amend various Articles of the Constitution since 2011 through the parliamentary initiative route under Article 256.

7.The instant appeals concern the Amendment Bill whose genesis can be traced to the outcome of the 2017 presidential elections. Following the initial and repeat presidential elections in 2017, His Excellency Hon. Uhuru Kenyatta, the President and Command er in Chief of the Kenya Defence Forces (the President) embarked on uniting a divided Nation, which led to the reconciliation famously known as the ‘Hand shake’ between Hon. Raila Odinga, the then leader of the opposition coalition, and himself on 9^th March, 2018. In line with their mutual commitment to create and foster a united Kenya, the President and Hon. Raila Odinga released a Joint Communique? known as Building Bridges to a new Kenyan Nation highlighting nine problem areas which they deemed as negatively impacting on peace and unity in the Nation.

8.Subsequently, the President established the Building Bridges to Unity Advisory Taskforce (the BBI Taskforce) vide Gazette Notice No. 5154 dated 24^th May, 2018. Its mand ate was to evaluate the nine identified problematic areas and make policy, administrative and reform proposals that would build lasting unity based on consultations with citizens. Towards that end, on 26^th November, 2019 the BBI Taskforce presented its report ‘Building Bridges to a United Kenya: from a Nation of blood ties to a nation of ideals’ (the BBI Taskforce Report) to the President and Hon. Raila Odinga which was unveiled to the public on 27^th November, 2019.

9.Intent on the implementation of the proposals in the BBI Taskforce Report, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee) vide Gazette Notice No. 264 dated 3^rd January, 2020. The main objectives of the BBI Steering Committee were to undertake validation of the BBI Taskforce Report with citizens as well as propose administrative, policy, statutory or constitutional changes it thought necessary for the implementation of the recommendations contained therein.

10.On completing its mand ate, the BBI Steering Committee presented its report, ‘The Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report’ (the BBI Steering Committee Report) on 21^st October, 2020. Annexed to the report were a number of documents including a draft Constitution of Kenya (Amendment) Bill, 2020 (the BBI Steering Committee Draft Bill) and proposed legislative amendment Bills.

11.Somewhere along the line, the BBI Steering Committee Draft Bill was reviewed culminating in the Amendment Bill which was published by the Government Printer about a month later on 25^th November, 2020. Thereafter, the Building Bridges to a United Kenya, National Secretariat (the BBI National Secretariat) put in motion the process of collecting signatures in support of the Amendment Bill. Upon collection of the requisite number of signatures, the BBI National Secretariat submitted the same together with the Amendment Bill to the Independent Electoral and Boundaries Commission (IEBC) for verification and thereafter, submission to the County Assemblies and Parliament for approval.

C. Litigation History

(i) At the High Court

12.While the amendment process was ongoing, eight (8) petitions were filed before the High Court challenging the constitutionality of the process which resulted in the Amendment Bill and the contents thereof. Seven petitions were consolidated on 21^st January, 2021 while the eighth one was consolidated with the rest on 10^th March, 2021. Kenya Human Rights Commission and four Law Professors, Dr. Duncan Ojwang’, Dr. John Osogo Ambani, Dr. Linda Musumba and Dr. Jack Mwimali were joined as amici curiae; while Kituo Cha Sheria and Phylister Wakesho were joined as interested parties.

13.Most of the petitions raised more or less similar issues which can be summarized as follows:

(a) Petition No. E282 of 2020, David Ndii & Others v. Attorney General & Others

14.The questions raised by David Ndii, Jerotich Seii, James Gondi, Wanjiru Gikonyo and Ikal Angelei (the 1^st to 5^th respondents) were whether the basic structure doctrine and its corollary doctrines were applicable in Kenya as far as amendments of the Constitution are cornered; whether by virtue of the doctrine(s) there was an implied limitation to the powers of amending the Constitution under Chapter Sixteen (Articles 255-257); and whether certain provisions of the Constitution were not amendable under Chapter Sixteen of the Constitution.

(b) Petition No. E397 of 2020, Kenya National Union of Nurses (KNUN) v. Steering Committee of BBI & Others

15.KNUN was aggrieved by the failure to include its proposal that called for establishment of an independent and constitutionally anchored Health Service Commission in the BBI Steering Committee Report as well as the Amendment Bill. In that regard, it raised the issues; whether the BBI Steering Committee was duty bound to include its proposal; and whether by disregarding the said proposal, the BBI Steering Committee’s action was an unfair administrative neglect of duty and abuse of powers.

16.Of concern to Thirdway Alliance, Mururi Waweru and Angela Mwikali (the 7^th to 9^th respondents) was whether an amendment to the Constitution through a popular initiative could be originated by state actors, in particular, the President; whether a popular initiative could be originated and undertaken without a guiding legal framework; whether there was need of civic education on the Amendment Bill prior to collection of signatures in support thereof; and whether County Assemblies could alter or improve the contents of an amendment bill.

(d) Petition. E401 of 2020, 254 Hope v. The National Executive of the Republic of Kenya

17.254 Hope similarly sought a determination of whether the National Executive or any state organ could commence a popular initiative and utilize public funds in the process.

(e) Petition No. E402 of 2020, Justus Juma & Isaac Ogola v. Attorney General & Others

18.Justus Juma and Isaac Ogola (the 11^th and 12^th respondents) were aggrieved with the creation of 70 additional constituencies; in particular, the Second Schedule attached to the Amendment Bill which they termed as unconstitutional and a usurpation of IEBC’s constitutional mand ate.

(f) Petition No. E416 of 2020, Morara Omoke v. Raila Odinga & Others

19.On his part, Morara Omoke sought a determination of whether IEBC had the requisite quorum to consider and approve policy matters relating to verification of signatures in support of the Amendment Bill and conduct of a referendum; whether the Amendment Bill could be submitted to County Assemblies and Parliament for consideration as well as be subjected to a referendum in the absence of a legal framework facilitating the same; whether the Amendment Bill could be subjected to a referendum before a nationwide voter registration exercise; whether the use of public funds by the President and Hon. Raila Odinga in the initiation and facilitation of the amendment process was constitutional; and whether Parliament had the requisite capacity to consider the Amendment Bill following the former Chief Justice’s, Hon. Mr. Justice David Maraga, advisory opinion to the President to dissolve Parliament for failing to comply with the two thirds gender representation principle.

(g) Petition No. E426 of 2020, Isaac Aluochier v. Uhuru Muigai Kenyatta & Others

20.In addition to seeking clarification on the President’s suitability to initiate a popular initiative, Isaac Aluochier’s (the 19^th respondent) petition also raised issues on whether civil court proceedings could be instituted against the President or a person performing the functions of the office of the President during their tenure of office; and whether the BBI Steering Committee had legal capacity to promote a popular initiative pursuant to Article 257 of the Constitution.

(h) Petition No. 2 of 2021, Muslims for Human Rights (MUHURI) v. Independent Electoral Boundaries Commission (IEBC) & Others

21.Last but not least, MUHURI’s major concern was a determination of whether IEBC could undertake verification of signatures in support of a popular initiative without an enabling legal framework to that effect.

22.In opposition to the petitions, the competency of the petitions was challenged on the grounds that issues raised were not justiciable since the amendment process was still ongoing and some of the issues were either res judicata or sub judice. It was argued that the Constitution could be amended as prescribed under Chapter Sixteen hence the basic structure doctrine and its corollary doctrines were not applicable in Kenya; that there was adequate legal framework regulating the collection and presentation of signatures in support the Amendment Bill as well verification of signatures; that there was no legitimate expectation in favour of KNUN entitling it to the inclusion of its proposal to the BBI Steering Committee Report or the Amendment Bill; and the Amendment Bill had been formulated in accordance with the Constitution.

23.Based on the foregoing, the High Court outlined thirteen (13) issues for its consideration and ultimately, by a Judgment dated 13^th May, 2021 allowed the petitions in part. In that regard, the High Court issued the following Orders:“i.A declaration hereby issues:(a)That the Basic Structure Doctrine is applicable in Kenya.(b)That the Basic Structure limits the amendment power set out in Articles 255 – 257 of the Constitution. In particular, the Basic Structure Doctrine limits the power to amend the Basic Structure of the Constitution and eternity clauses.(c)That the Basic Structure of the Constitution and eternity clauses can only be amended through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.ii.A declaration is hereby made that civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.iii.A declaration is hereby made that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a Popular Initiative under Article 257 of the Constitution.iv.A declaration is hereby made that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President vide Kenya Gazette Notice No. 264 of 3 January, 2020 and published in a special issue of the Kenya Gazette of 10 January, 2020 is an unconstitutional and unlawful entity.

v.A declaration is hereby made that being an unconstitutional and unlawful entity, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, has no legal capacity to initiate any action towards promoting constitutional changes under Article 257 of the Constitution.

vi.A declaration is hereby made that the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power.

vii.A declaration is hereby made that Mr. Uhuru Muigai Kenyatta contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.

viii.A declaration is hereby made that the entire unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report was unconstitutional, null and void.

ix.A declaration is hereby made that the Constitution of Kenya Amendment Bill, 2020 could not be subjected to a referendum before the Independent Electoral and Boundaries Commission carries out nationwide voter registration exercise.

x.A declaration is hereby made that the Independent Electoral and Boundaries Commission does not have quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum including the verification of signatures in support of the Constitution of Kenya Amendment Bill under Article 257(4) of the Constitution submitted by the Building Bridges Secretariat.

xi.A declaration is hereby made that at the time of the launch of the Constitutional of Kenya Amendment Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation and verification of signatures nor a legal framework to govern the conduct of referenda.

xii.A declaration is hereby made that the absence of a legislation or legal framework to govern the collection, presentation and verification of signatures and the conduct of referenda in the circumstances of this case renders the attempt to amend the Constitution of Kenya through the Constitution of Kenya Amendment Bill, 2020 flawed.

xiii.A declaration is hereby made that County Assemblies and Parliament cannot, as part of their constitutional mand ate to consider a Constitution of Kenya Amendment Bill initiated through a Popular Initiative under Article 257 of the Constitution, change the contents of such a Bill.

xiv.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to predetermine the allocation of seventy constituencies is unconstitutional.

xv.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation was unconstitutional.

xvi.A declaration be and is hereby made that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to have determined by delimitation the number of constituencies and apportionment within the counties is unconstitutional for want of Public Participation.

xvii.A declaration is hereby made that Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum made by the Independent Electoral Boundaries Commission are illegal, null and void because they were made without quorum, in the absence of legal authority and in violation of Article 94 of the Constitution and Sections 5, 6 and 11 of the Statutory Instruments Act, 2013.

xviii.A declaration is hereby made that Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the People.

xix.A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020.

xx.The prayer for an order that Mr. Uhuru Muigai Kenyatta makes good public funds used in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by Mr. Uhuru Muigai Kenyatta is declined for reasons that have been given.

xxi.The prayer for the orders that the Honorable Attorney General to ensure that public officers who have directed or authorized the use of public funds in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report make good the said funds is declined from the reasons that have been given.

xxii.The rest of the reliefs in the Consolidated Petitions not specifically granted are deemed to have been declined.

xxiii.This being a public interest matter, parties shall bear their own costs.”

(ii) At the Court of Appeal

24.Dissatisfied with the determination of the High Court, four appeals were filed before the Court of Appeal namely:

(a) Civil Appeal No. E291 of 2021, Independent Electoral Boundaries Commission (IEBC) v. David Ndii & 82 Others

25.IEBC vide its twelve (12) grounds of appeal challenged the High Court’s findings contending that the court erred by inter alia finding that; it lacked quorum to undertake its constitutional and statutory mand ate; its role under Article 257(4) entailed verification of the authenticity of the signatures tendered in support of a popular initiative; there was a requirement for it to undertake a nationwide voter registration exercise for the intended referendum; and it had an obligation to ensure that the promoters of the Amendment Bill had complied with the requirement of public participation before transmitting the same to the County Assemblies.

(b) Civil Appeal No. E292 of 2021, Building Bridges to a United Kenya, National Secretariat & Another v. David Ndii & 76 Others

26.The nineteen (19) grounds of appeal raised by the BBI National Secretariat and Hon. Raila Odinga are rather prolix and repetitive. I will nonetheless summarize them as follows; that the High Court erred for; holding that the basic structure doctrine and its corollary doctrines were applicable; introducing a mand atory four sequence amendment process unknown to the Constitution; imposing an obligation on the promoters of the Amendment Bill to conduct nationwide public participation exercise prior to collection of signatures in support of the amendment initiative; misinterpreting the role of the President in a popular initiative; misconstruing that Article 257(10) requires separate and distinct referendum questions as opposed to a Bill being put to the people in a referendum; and usurping the people’s sovereign power as far as the issue of delimitation and distribution of constituencies was concerned.

27.The Attorney General raised thirty-one (31) grounds of appeal faulting the High Court on similar grounds as IEBC, the BBI National Secretariat and Hon. Raila Odinga. In addition, the appeal was premised on the grounds that the High Court erred in holding that the Amendment Bill was not consistent with the provisions of the Constitution; that the President can be sued in his personal capacity; and that he had contravened Chapter Six of the Constitution and for issuing orders against the President without according him an opportunity to be heard contrary to Article 50(1) of the Constitution.

(d) Civil Appeal No. E294 of 2021, Uhuru Muigai Kenyatta v. David Ndii & 82 Others

28.The President’s seventeen (17) grounds of appeal were centered on the findings made against him. In particular, he took issue with the High Court for condemning him unheard; for misapprehending the scope and extent of presidential immunity enshrined under Article 143 of the Constitution; and proceeding to hear and determine the issue of legality of the BBI Taskforce and BBI Steering Committee which was res judicata by virtue of Thirdway Alliance Kenya & Another v. the Head of the Public Service – Joseph Kinyua & 2 Others; Martin Kimani & 15 Others (Interested Parties), H.C Constitutional Petition No. 451 of 2018; [2020]eKLR (Thirdway Alliance Case).

29.On 3^rd June, 2021 the aforementioned appeals were consolidated and Civil Appeal No. E291 of 2021 was designated as the lead file. Thereafter, the following cross appeals were filed:

(e) Cross Appeal by KNUN

30.The gist of this cross appeal, which was premised on six (6) grounds, was that the High Court erred by ignoring and misapprehending the doctrine of stare decisis; finding that KNUN’s petition was unmerited; and failing to take judicial notice of the state of health care in Kenya.

(f) Cross Appeal by 254 Hope

31.254 Hope challenged the High Court’s decision in part for failing to declare that, proposals made by the National Executive or any of its taskforces to amend the Constitution are subject to Article 47 of the Constitution; and there was violation or at the very least a threatened violation of prudent use of public resources (human and financial) when the National Executive initiated the amendment in issue.

(g) Cross Appeal by Morara Omoke

32.Mr. Morara Omoke faulted the High Court for declining to direct; the BBI Steering Committee, the President and Hon. Raila Odinga to publish particular details of the budget as well as the public funds allocated and utilized in the promotion of the Amendment Bill; the Auditor General to establish the amount of public funds utilized in the promotion of the Amendment Bill; and the President to make good public funds utilized in the process which culminated in the Amendment Bill. He also took issue with High Court’s failure to declare that Parliament had no legal or constitutional capacity to debate and either approve or disapprove the Amendment Bill in light of the retired Chief Justice’s, Hon. Mr. Justice David Maraga, advise for its dissolution.

33.In determining the aforementioned appeals the Court of Appeal framed twenty-one (21) issues which were considered by a bench of seven Judges who rendered their own individual opinions. However, the conclusions and their findings were pronounced in the lead judgment of Musinga, (P) dated 20^th August, 2021 as follows:“A.We uphold the judgment of the High Court to the extent that we affirm the following:i.The basic structure doctrine is applicable in Kenya. (Sichale, J. A. dissenting).ii.The basic structure doctrine limits the amendment power set out in Articles 255 – 257 of the Constitution. (Okwengu & Sichale, JJ.A. dissenting).iii.The basic structure of the Constitution can only be altered through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum. (Okwengu, Gatembu & Sichale, JJ. A. dissenting).iv.Civil Court proceedings can 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. (Tuiyott, J.A. dissenting).v.The President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution.vi.The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (The BBI Steering Committee) has no legal capacity to initiate any action towards promoting constitutional changes under Article 257 of the Constitution.vii.The Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional and a usurpation of the People’s exercise of sovereign power.viii.The Constitution of Kenya (Amendment) Bill, 2020 cannot be subjected to a referendum in the absence of evidence of continuous voter registration by the Independent Electoral and Boundaries Commission. (Sichale, J.A. dissenting).ix.The Independent Electoral and Boundaries Commission does not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification whether the initiative as submitted by the Building Bridges Secretariat is supported by the requisite number of registered voters in accordance with Article 257(4) of the Constitution. (Sichale, J.A. dissenting).x.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 referenda. (Sichale, J.A. dissenting).xi.County Assemblies and Parliament cannot, as part of their constitutional mand ate, change the contents of the Constitution of Kenya Amendment Bill, 2020 initiated through a popular initiative under Article 257 of the Constitution.xii.The second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purports to: predetermine the allocation of the proposed additional seventy constituencies, and to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation, is unconstitutional. (Sichale, J.A. dissenting).xiii.The Administrative Procedures for the verification of signatures in support of the Constitution Amendment Referendum made by the Independent Electoral and Boundaries Commission are 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. (Sichale, J.A. dissenting).xiv.A permanent injunction be and is hereby issued restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under Article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill, 2020.B.We hereby set aside the following declarations and orders of the High Court:i.That President, Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.ii.That Article 257(10) of the Constitution requires all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the People. (Nambuye, Okwengu & Kiage, JJ.A. dissenting).iii.The BBI Steering Committee established by the President vide Kenya Gazette Notice No. 264 of 3^rd January 2020 and published in a special issue of the Kenya Gazette of 10^th January 2020 is an unconstitutional and unlawful entity.C.The Cross appeals fail and are hereby dismissed.This being a public interest matter, the parties shall bear their own costs in these appeals and in the High Court.”

(ii) At the Supreme Court

34.The above outcome dissatisfied some parties hence three appeals were filed challenging the same. More specifically, Petition No.11 (E015) of 2021- Morara Omoke v. H.E. Uhuru Muigai Kenyatta & 83 Others dated 15^th September, 2021 was filed on 23^rd September, 2021 by Morara Omoke; Petition No. 12 of 2021 (E016 of 2021)- The Attorney General v. David Ndii & 73 Others dated 30^th September, 2021 was lodged on 1^st October, 2021 by the Attorney General; and Petition No. 13 Of 2021 (E108 of 2021)- Independent Electoral and Boundaries Commission v. David Ndii & 81 Others dated 30^th September, 2021 was lodged on 4^th October, 2021 by IEBC. These appeals raised several grounds and sought a variety of reliefs.

35.On 9^th November, 2021 this Court consolidated the three appeals designating Petition No. 12 of 2021 by the Attorney General as the lead file; and joined the 1^st- 8^th amici curiae to the proceedings. In addition, based on the grounds raised in the consolidated appeal, the Court framed seven (7) issues for determination namely:(i)Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power;(ii)Whether the President can initiate changes/amendments to the Constitution; and whether a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution;(iii)Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional;(iv)Whether civil proceedings can be instituted against the President or a person performing the functions of the office of the President during his/her tenure of office with regard to anything done or not done contrary to the Constitution;(v)The place of public participation under Article 10 vis-a- vis the role of IEBC under Article 257(4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020;(vi)Interpretation of Articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC; and(vii)Whether the interpretation of Article 257(10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions.

36.Parties were directed to file their written submissions and make oral highlights on the above issues while the amici curiae participation was restricted to the written briefs they had attached in their respective applications for joinder to the proceedings. Be that as it may, it came to the Court’s attention that some of the respondents (Dr. Duncan Ojwang’, Dr. John Osogo Ambani, Dr. Linda Musumba, Dr. Jack Mwimali and Kenya Human Rights Commission, (the 74^th, 75^th, 76^th, 77^th and 78^th respondents respectively)) in the consolidated appeal had actually been initially joined at the High Court as amici curiae but somehow on appeal to the Court of Appeal they were named as respondents, essentially designating them as parties, to the appeal.

37.It is well settled that a person admitted as amicus curiae is not a party to the proceedings but acts as a friend of the Court and the extent of their participation in the proceedings is limited by the Court. See Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, SC Petition No. 12 of 2013; [2015]eKLR. It follows therefore, amicus curiae cannot be converted to a party even at the appellate stage. Having joined the proceedings as amicus curiae one remains so at every stage of litigation. Consequently, I concur with the observations of Gatembu, J.A that amici curiae who had been joined at the High Court should not have been made parties in the appeals at the Court of Appeal.

38.It is precisely for that reason that this Court restricted the participation of the 74^th, 75^th, 76^th, 77^th and 78^th respondents in the appeal before this Court, to their written submissions like the 1^stto 8^th amici curiae herein.

D. Parties’ Submissions

39.For ease of reference and flow I shall set out the parties’ respective submissions starting with the Attorney General and IEBC followed by parties who supported their appeals. I will then set out submissions by parties who partially supported the Attorney General and IEBC. Subsequently, I will set out submissions of Morara Omoke, the 3^rd appellant, who opposed the appeals by the Attorney General and IEBC followed by parties who supported his appeal but opposed the appeals by the Attorney General and IEBC. Last but not least, I will set out submissions by amici curiae. However, by not setting out the parties’ arguments verbatim is by no means discounting their significance but it is meant to simply avoid unnecessary repetition.

(i) Attorney General

40.The Solicitor General, Mr. Kennedy Ogeto, appeared together with Mr. George Oraro, SC, Mr. Kamau Karori, SC and Mr. Paul Nyamodi for the Attorney General. The Attorney General filed two sets of written submissions dated 24^th November, 2021 and 14^th January, 2022 respectively.

41.Concerning the basic structure doctrine, the Attorney General began by submitting that right from its inception as a constitutional theory in France, the doctrine was not applied even in France where it originated. Rather, it acquired judicial recognition in India through Kesavanand a Bharati v. State of Kerala, (1973) 4 SCC 225 (Kesavanand a Case) wherein the Supreme Court of India held that despite the Indian Parliament being vested with the power to amend the Constitution it could not make any amendments which affected the basic foundation and structure of the Indian Constitution. Thereafter, the doctrine featured in many jurisdictions where it was either accepted or rejected.

42.The Attorney General contended that in Kenya the doctrine was adopted through the case of Timothy Njoya & 6 Others v. Attorney General & 3 Others, H.C Misc. Civil Appl. No 82 of 2004 (OS); [2004]eKLR (Njoya Case) followed by Patrick Ouma Onyango & 12 Others v. Attorney General & 2 Others [2008] 3KLR (EP) 84. However, in his view, the doctrine was applied in the above-mentioned cases within the context of the former Constitution wherein under Section 47 thereof, the power to amend the Constitution was exclusively in the hand s of Parliament. While the issue of Parliament’s power to amend the Constitution resurfaced again under the current Constitution in Commission for the Implementation of the Constitution v. National Assembly of Kenya & 2 Others, HC Petition No. 496 of 2013; [2013.eKLR (Commission for the Implementation of the Constitution Case), the Attorney General claimed that despite finding that Parliament’s power was limited Lenaola, J. (as he then was) did not delve into the tenor and effect of amendment provisions in Chapter Sixteen of the Constitution.

43.The Attorney General went on to argue that thereafter, the substance of Chapter Sixteen had been considered in a number of cases namely; Priscilla Ndululu Kivuitu & Another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 Others v. Attorney General & 2 Others, HC Petition 689 of 2008; [2015]eKLR (Priscilla Ndululu Case); Attorney General & Another v. Rand u Nzai Ruwa & 2 Others, Civil Appeal No. 275 of 2012; [2016]eKLR; and Senate & 48 others v. Council of County Governors & 54 Others, Civil Appeal No. 200 of 2015; [2019]eKLR to mention but a few. In summing up the effect of those decisions, he submitted that the superior courts below held a unilateral view that the amendment provisions of the Constitution in Chapter Sixteen are applicable without any limitation thereby disregarding the basic structure doctrine.

44.According to the Attorney General, abuse of the amendment power vested in Parliament through hyper-amendments of the Constitution without participation or approval of the people, which was prevalent in the previous constitutional order, had since been addressed and tamed by the very design of the Constitution. In his view, the same was evident beginning from the Preamble of Constitution which recognizes the sovereign and inalienable right of the people to determine the form of governance they desire to be subject to; Article 1(1) confirms that all sovereign power belongs to the people and can only be exercised in accordance with the Constitution; the Kenyan people reserved their right to exercise sovereign power directly or through their democratically elected representatives; and the multi- track amendment process set out in Chapter Sixteen of the Constitution.

45.The Attorney General submitted that the multi-track amendment process by dint of Article 255 distinguishes and delineates the entrenched constitutional provisions. That is, the basic structure (fundamental pillars and structures of the Constitution) form the entrenched provisions. It provides that amendment of the entrenched provisions can be either through a parliamentary initiative under Article 256 or popular initiative under Article 257 save that in both scenarios it prescribes a higher threshold compared to amendment(s) of non-entrenched provisions. In that, there is requirement for public participation, and a referendum. What is more, the threshold of approving such an amendment through a referendum is higher than what is required for the election of the President under Article 138(4) of the Constitution.

46.Consequently, Counsel urged that the amendment process set out in Chapter Sixteen of the Constitution is in line with the demand s and recommendations made by the Kenyan people during the constitutional review process. That is, for multi-track amendment provisions, unlike the single-track provision in Section 47 of the former Constitution; the people’s choice to exercise their sovereignty; and their right to effect an amendment to the entrenched provisions only through a referendum. To buttress that line of argument reference was made to the Constitution of Kenya Review Commission Report dated 10^th February, 2005 (the CKRC Final Report).

47.The Attorney General maintained that the amendment powers enshrined in Chapter Sixteen are not amenable to limitation let alone through an imported extra constitutional doctrine, the basic structure doctrine. In any event, he reiterated that where the involvement of the people in the amendment process of entrenched provisions is full-fledged, as in Chapter Sixteen, the four-sequence process of amendment advanced by the superior courts below has no application. In reinforcing this position, it was argued that the basic structure doctrine has predominantly been applied in jurisdictions with Constitutions, which unlike Kenya's, are silent on what constitutes the core structure, pillars, and elements of the Constitution, and which do not provide for the involvement and participation of the people in constitutional amendments through a referendum.

48.The Attorney General added that the role of courts in judicial review with respect to the amendment process of the Constitution is restricted to ensuring due compliance with the amendment procedures set out thereunder; and does not extend to review of the substance of the amendment which is within the preserve of the people. Towards this end, the Supreme Court’s decision in Judges & Magistrates Vetting Board & 2 Others v. Centre for Human Rights & Democracy & 11 Others; SC Petition 13A of 2013 as consolidated with SC Petitions Nos. 14 & 15 of 2013; [2014]eKLR (Vetting Board Case) was cited. Putting it differently, the Attorney General claimed that the substantive determination of an amendment of the Constitution (to approve or reject an amendment proposal) is reserved for the people or their democratically elected representatives as envisaged under Articles 1(2), 255 to 257.

49.As far as the Attorney General was concerned, the superior courts below contravened the principle on the sovereignty of the people and the supremacy of the Constitution by prescribing that the basic structure of the Constitution could only be amended through the primary constituent power comprising of a four sequential process, which terminologies are not used in the Constitution. Further, in distinguishing the judicial decisions relied upon by the superior courts below in support of the application of the doctrine in Kenya, he contended that none of them related to amendments by referenda or popular initiatives, as contemplated under Articles 255 to 257 of the Constitution.

50.As to whether the President can initiate changes or amendments to the Constitution, he submitted that the Constitution binds every citizen including the President to respect, uphold and defend the Constitution; and furthermore, Members of Parliament, like the President, take oath of office to obey and defend the Constitution. Nonetheless, there is no doubt that citizens as well as Members of Parliament may initiate amendments to the Constitution. Accordingly, it made no sense to the Attorney General why the President should be precluded from taking part in constitutional amendments yet, Article 257 does not exclude any citizens on the basis of their positions in society.

51.Besides, the Attorney General went on to urge that Article 1(2) of the Constitution provides that the people of Kenya may exercise their sovereign power either directly or through their democratically elected representatives. Therefore, he submitted that the President as an elected representative may legitimately initiate amendments to the Constitution through a popular initiative. In any event, the Attorney General contended that the fundamental ingredient of the popular initiative is the support it garners of at least one million registered voters, under Article 257(1) of the Constitution.

52.As far as the Attorney General was concerned, the superior courts’ finding that the President cannot participate in a popular initiative, unlawfully limits the President’s rights under Articles 27 and 38 of the Constitution.

53.Moving to the Second Schedule of the Amendment Bill, the Attorney General argued that the superior courts below misconstrued IEBC’s mand ate as far allocation or apportionment of new constituencies was concerned. Expounding on that line of argument, the Attorney General submitted that in the former Constitution the mand ate of determining the number of constituencies as well as their apportionment was vested in the then electoral body, Electoral Commission of Kenya. However, in the current Constitution the people deliberately excluded that mand ate from IEBC and left it to themselves.

54.The Attorney General maintained that prior to making the proposed amendment in its report, the BBI Steering Committee collected and collated the views of the people. What was more, the proposed amendment was geared towards progressive achievement of the universal principles of fair representation and equality of the vote. In any event, the Attorney General stated that the proposed amendment recognised IEBC’s mand ate to delimit boundaries of the proposed constituencies. In addition, the Attorney General claimed that the superior courts below disregarded the political nature of apportionment of constituencies. In his view, the process of determining which areas deserve new constituencies is a delicate matter that can only be achieved through political discussions and compromise.

55.The Attorney General went on to assert that the people in exercise of their sovereignty, have an inalienable right to make, remake and amend the provisions of the Constitution, as they see fit. Accordingly, he urged that the Second Schedule was a proposal and once it was approved as prescribed under Chapter Sixteen it would have become a constitutional provision hence could not be considered unconstitutional as the superior courts did.

56.On the issue of civil proceedings against the President, the Attorney General cited Articles 143, 144 and 145 of the Constitution and argued that the rationale for presidential immunity is to simply allow a sitting President to exercise his constitutional duties without fear of civil litigation. Moreover, he asserted that the nature of the various roles the President plays, as the Head of State and Government, the Command er in Chief of the Armed forces and the Chairperson of the National Security Council, require him to have decisional freedom that will enable him safeguard the interest of the country.

57.The Attorney General contended that the superior courts below failed to undertake a holistic reading of Article 143 of the Constitution. In particular, he submitted that if civil proceedings were to be brought against the President, then Article 143(3) of the Constitution, which otherwise seeks to give effect to Sub- Articles (1) and (2) thereof, would be rendered superfluous. In addition, the Attorney General argued that there was no lacuna with respect to the remedies available for any constitutional infractions or abuse of authority by the President. He went to state that the remedies in question may be obtained through a constitutional petition or judicial review proceedings instituted against the Attorney General as the principal respondent pursuant to Article 156(4) (b) of the Constitution as read with Section 12(1) of the Government Proceedings Act.

58.On the issue of public participation, the Attorney General argued that the superior courts below ignored the fact that Article 257 has inbuilt mechanisms to ensure public participation at various stages and in turn, they failed to consider the question of public participation as a continuum of the entire amendment process. Further, according to the Attorney General, the superior courts failed to appreciate that the issue of public participation was not ripe for consideration since the amendment process was still at the preliminary stages at the time the petitions were filed in the High Court. The Attorney General went on to argue that the burden of proof should have been placed on the petitioners before the High Court to demonstrate non-compliance with the public participation processes envisaged in the Constitution.

(ii) IEBC

59.Prof. Githu Muigai, SC leading Mr. Eric Gumbo, Mr. Justus Munyithia, Ms. Wambui Muiga, Mr. Delbert Ocholla, Mr. Steve Ochieng Wasonga, Mr. Moses Kipkogei and Mr. Ken Melly appeared for IEBC. IEBC filed two sets of submissions dated 25^th November, 2021 and 10^th January, 2022.

60.IEBC’s submissions were confined to three of the issues framed by this Court namely; its role under Article 257(4) of the Constitution with respect to public participation under Article 10 of the Constitution; its composition and quorum; and the nature of referendum questions required under Article 257(10) of the Constitution.

61.With regard to public participation, IEBC’s Counsel clarified that its appeal was limited to its role by virtue of the provisions of Article 257(4) and that it neither touched on the question of verification of signatures nor adequacy of the legal framework thereof hence, it urged this Court to disregard any arguments to that effect. Towards that end, IEBC contended that contrary to the clear provision of Article 257(4) of the Constitution, the High Court erroneously held that it was under an obligation to ensure that promoters of the popular initiative had undertaken public participation before submitting the Amendment Bill to the County Assemblies. According to IEBC, despite challenging that finding in its appeal, the Court of Appeal failed to determine the same hence left the High Court’s finding intact.

62.In addition, IEBC claimed that Gatembu, J.A imposed more onerous obligations upon it without any constitutional or legal basis. In a nutshell, IEBC took issue with the appellate Judge’s finding that there was an opportunity for it upon being satisfied that the requisite number of signatures in support of the initiative had been met, to undertake voter education and sensitization on the Amendment Bill.

63.IEBC maintained that its mand ate, as far as voter education is concerned, is limited to ensuring that voters are familiar with the processes governing the referendum as contemplated under Article 257(10) of the Constitution. Further, that the aforementioned role only comes into play once the President issues it with a notice to hold a referendum. Besides, relying on Republic v. County Assembly of Kirinyaga & Another Ex-Parte Kenda Muriuki & Another, HC JR Application No. 271 0f 2019; [2019]eKLR (County Assembly of Kirinyaga Case), IEBC argued that conceptually, public participation, civic education and voter education are quite different in content, scope and intention.

64.Therefore, IEBC claimed that the superior courts below misapprehended the provisions of the Constitution with respect to the question of public participation. To buttress its position, IEBC urged that at the point of receipt of the Amendment Bill from the promoters, its mand ate under Article 257(4) was limited to verifying that the initiative is supported by at least one million registered voters. It argued that at the point of delivery of the Amendment Bill to the County Assemblies it was not yet seized of the referendum hence could not engage the public. In any case, IEBC expressed doubts that it was expected to conduct civic education over a referendum it would preside over.

65.IEBC contended that at the core of the issue of its composition and quorum were two decisions rendered by the High Court in Katiba Institute & Another v. Attorney General & Another, Constitutional Petition No. 548 of 2017; [2018]eKLR (Katiba Institute Case) and Isaiah Biwott Kangowny v. Independent Electoral Boundaries Commission & Attorney General, Constitutional Petition No. 212 of 2018; [2018] (Isaiah Biwott Case).

66.IEBC submitted that the Katiba Institute Case was rendered against a backdrop of a series of amendments to the Independent Electoral and Boundaries Commission Act No. 9 of 2011 (IEBC Act), which initially provided that it shall constitute of eight (8) members and the Chairperson while Paragraph 5 of the Second Schedule thereto prescribed the requisite quorum of conducting business in its meeting as five (5). By the Election Laws (Amendment) Act No. 36 of 2016 (Election Laws Amendment 2016) its composition was reduced to seven (7) members whilst the quorum of conducting business remained the same. Further, vide Election Laws (Amendment) Act No. 34 of 2017 (Election Laws Amendment 2017) the quorum of conducting business was altered to read “…be at least half of the existing members of the Commission, provided that the quorum shall not be less than three members.” IEBC urged that it is the latter amendment which was challenged and declared unconstitutional in the Katiba Institute Case.

67.According to IEBC, the question that arose was the effect of the declaration of unconstitutionality. In this regard, IEBC stated that three possible scenarios became apparent. The first scenario, retrospective unconstitutionality which demand s that once a provision of a statute is repealed and replaced by another provision, the mere fact that the new provision has been annulled does not by itself render the repealed provision revived. To bolster that proposition, reference was made to this Court’s decision in Mary Wambui Munene v. Peter Gichuki King’ara & 2 Others, SC Petition No. 7 of 2014; [2014]eKLR (Mary Wambui Case).

68.IEBC went on to demonstrate a second scenario stating that retrospective unconstitutionality is limited to the party who instituted the proceedings before a court. In that, where a court appreciates potential negative effects that a retrospective declaration of unconstitutionality will have formulates a middle ground. That is, the court directs that the declaration applies retrospectively only in relation to the party who moved the court and prospectively to any other person(s) who seeks to benefit from such declaration. To anchor this argument, IEBC relied on the decision of the Irish Supreme Court in Murphy v. Attorney General [1982] IR 241.

69.As for the last scenario, which IEBC referred to as prospective unconstitutionality, it submitted that the declaration of unconstitutionality takes effect from the date of the determination or some future date. By way of illustration, this Court was referred to Boniface Oduor v. Attorney General & Another; Kenya Banker’s Association & 2 Others, HC Petition No. 413 of 2016; [2019]eKLR wherein the High Court suspended the invalidity of Section 33B of the Banking Act for a period of one year to enable the Attorney General and Parliament take remedial measures.

70.Consequently, IEBC maintained that the first scenario, as advanced by Tuiyott, J.A, is the correct position. As such, IEBC contended that both the superior courts below erred in relying on Paragraphs 5 and 7 of the Second Schedule of the IEBC Act as the basis of finding that it lacked quorum for purposes of carrying out its constitutional and statutory mand ate. This is because, as IEBC posited, the two superior courts erred by relying on repealed and non-existent law as opposed to being guided by the provisions of Article 250(1) of the Constitution.

71.Without prejudice to the above submissions, IEBC further contended that the issue of quorum was decided in the Isaiah Biwott Case. In giving a synopsis of the said case, IEBC submitted that the High Court found that there was no inconsistency between Paragraph 5 of the Second Schedule of the IEBC Act and Article 250(1) of the Constitution. Moreover, the issue of quorum was not only a matter provided for under the statute but was also a matter of common sense and construction dependent on the total number of the Commissioners appointed at any given time.

72.Pointing out that the said decision had not been challenged on appeal, IEBC argued that the question of quorum had already been settled by the Isaiah Biwott Case, which in its view, is a decision in rem, and binds the parties before the Court in question, the public at large as well as courts of concurrent jurisdiction. IEBC asked this Court to adopt the aforementioned perspective in order avert forum shopping with attendant consequences on the administration of justice. Therefore, relying on Article 250 and the Isaiah Biwott Case, IEBC argued that it was properly constituted as long as it had a minimum of three (3) Commissioners and was quorate at all material times.

73.Furthermore, IEBC submitted that in light of the Isaiah Biwott Case it had undertaken very many serious constitutional obligations most of which cannot be reversed; and any attempt to reverse the same would provoke far reaching consequences. Be that as it may, IEBC argued that even if the Court of Appeal made a merit review of the Isaiah Biwott Case it should have circumscribed and protected all decisions that were made by IEBC on the basis of the said decision. Likewise, that failure to do so had exposed it to potential challenges now and in the future in a manner that may not be remediable.

74.On referendum questions, IEBC submissions were in opposition to Morara Omoke’s appeal. Its contention was that Part V of the Elections Act No. 24 of 2011 (Elections Act) and more specifically, Section 49 thereof places the obligation of framing referendum question(s) on it. Nonetheless, it asserted that, as it pertained to the matter at hand , it was yet to receive any request to hold a referendum hence its mand ate of framing questions had not crystalized. Further, IEBC argued that there was no evidence that it had taken a position on the issue. Consequently, there was no live issue before the High Court for it to entertain or make the determination it did; and moreover, the High Court could not purport to render an advisory opinion which is exclusively reserved for this Court. Finally, IEBC submitted that the Court of Appeal was correct in setting aside the High Court’s finding on this issue and urged this Court to uphold the same.

75.In conclusion, IEBC submitted that each party should bear their own costs regardless of the outcome of the appeals due to the public interest nature of the matter. However, it urged that on account of Morara Omoke’s plea for costs, costs should follow the event with respect to his appeal.

(iii) Parties Supporting the Appeals by the Attorney General and IEBC

(a) Speaker of the National Assembly and the National Assembly (13^th and 15^th respondents)

76.Learned Counsel, Mr. Josphat Kuyoni and Mr. Mbarak Awadh appeared for the 13^th and 15^th respondents. They filed joint submissions dated 14^th December, 2021.

77.Beginning with the basic structure doctrine, the respondents submitted that by dint of Chapter Sixteen, all provisions of the Constitution including the basic structure are amendable provided the procedures laid thereunder are adhered to. Besides, to them, if indeed the framers of the Constitution intended that certain provisions could not be amended they would have expressly stated so like in the German, French and Italian Constitutions. Therefore, they contended that the finding by the two superior courts below that the basic structure could only be amended through the primary constituent power was not supported by the provisions of the Constitution; and the same had the effect of overthrowing the Constitution and subverting the sovereign power of the people. In any event, they urged that the Constitution has its own in-built restraint on Parliament’s power to amend the basic structure under Article 255 which is the very essence of the basic structure doctrine.

78.Supporting the Attorney General, the respondents held the view that nothing precludes an elected representative including the President from initiating a popular initiative under Article 257. Likewise, the respondents urged that the superior courts below failed to appreciate that the issue of public participation should be considered as a continuum of the entire amendment process based on the various stages prescribed under Article 257. Consequently, in their opinion since the process was ongoing the issue of public participation was not ripe for consideration.

79.They submitted that both Articles 256 and 257 make reference to a Bill that is either approved or rejected by Parliament depending on the subject being amended, hence in that context, there is no requirement for separate and distinct referenda questions.

(b) Speaker of the Senate and the Senate (14^th and 16^th respondents)

80.Learned Counsel, Mr. Job Wambulwa appeared together with Ms. Mercy Thanji for the 14^th and 16^th respondents. The respondents filed joint written submissions dated 10^th December, 2021.

81.It is important to note that the respondents on one hand , in their written submissions indicated that whilst the basic structure doctrine is recognized and applicable in Kenya, they disagreed with the manner in which the two superior courts below applied the doctrine. Conversely, on the other hand , the respondents Counsel in his oral highlight submitted that their position was that the doctrine was not applicable in Kenya.

82.Be that as it may, the respondents argued that the two superior courts below failed to recognize that Kenya had progressed beyond the Njoya Case by enacting the current Constitution, which was self-executing and had no shortcomings such as would require application of a foreign doctrine predicated on different circumstances that were not obtaining in Kenya. Furthermore, they contended that the superior court below failed to appreciate that the doctrine had received varied reception in different jurisdictions; and even legal and academic scholars were not in agreement on its applicability as evinced by amici briefs on record. In the respondents’ opinion, the inclusion of Chapter Sixteen was deliberate and indicative of the framers’ intention that all provisions of the Constitution are amendable in accordance with the procedure set thereunder.

83.According to the respondents, nothing stops the President from initiating a popular initiative, which route is available to the President especially when the parliamentary initiative approach is impractical. Further, as far as the issues of public participation and referendum questions were concerned, the respondents expressed similar views as the 13^th and 15^th respondents.

84.Mr. James Orengo, SC appeared together with learned Counsel, Mr. Paul Mwangi, Mr. Jackson Awele, Mr. Arnold Ochieng Oginga, Mr. Winfred Makaba and Prof. Ben Sihanya for BBI National Secretariat and Hon. Raila Odinga. The respondents filed joint submissions dated 7^th December, 2021.

85.In emphasizing the different context in which the basic structure doctrine was applied in India, the respondents submitted that the Indian people, unlike the Kenyan people, delegated the entire amendment power to Parliament without reserving any power for themselves. In addition, in Kenya the amendment power of Parliament is expressly limited as set out under Articles 255 to 257 of the Constitution; and as such, the express provisions obviate the need for any judicial interventions. Consequently, they urged that any attempts by the courts to carve out any role in so far as the amendment of the Constitution is concerned amounts to double-limitation of the amendment powers and is unconstitutional.

86.Besides, in their view, the superior courts below misapprehended and conflated the basic structure of a Constitution with the basic structure doctrine. In that regard, the respondents contended that even though the Constitution has certain features which may be perceived to constitute the basic structure, the basic structure is not synonymous with the adoption of the basic structure doctrine.

87.The BBI National Secretariat and Hon. Raila Odinga, like the Attorney General, urged that nothing prohibited the President from undertaking constitutional changes through the popular initiative route under Article 257 of the Constitution. They held the view that the superior courts’ declaration of the Second Schedule as unconstitutional elevated an existing constitutional provision, that is, Article 89 of the Constitution, above any future amendments. They equally submitted that the issue of public participation was not ripe for the simple reason that the amendment process was still ongoing.

88.On quorum of IEBC, the respondents asserted that it is a peremptory principle of the supremacy of the Constitution under Article 2(4) that any law that is inconsistent with the Constitution is void to the extent of the inconsistency. Accordingly, in their view, Paragraph 5 of the Second Schedule of the IEBC Act fell in that category for requiring IEBC’s quorum as five (5) members when the Constitution had stated it could be properly composed with three members. They also argued that the extraneous and unconstitutional requirement that separate and distinct referendum questions be put to the people in a referendum rather than a Bill, as advanced by Morara Omoke’s appeal, lacked legal foundation and merit.

(d) The President

89.Mr. Waweru Gatonye, SC appeared with Mr. Mohamed Nyaoga, SC, Mr. Kiragu Kimani, SC and learned Counsel, Ms. Jacqueline Chemng’eno. The President relied on his written submissions dated 22^nd December, 2021.

90.The President submitted that whilst Article 131 (2) (b) of the Constitution places an obligation upon him to promote and enhance national unity, the manner in which he executes the same is left to his discretion. In his view, he cannot initiate amendments to foster unity through Article 256 of the Constitution which is a clear preserve of the Legislature. Rather, the only recourse left for him is through a popular initiative under Article 257 of the Constitution.

91.The President asked this Court to examine presidential immunity as set out under Article 143 in light of judicial immunity under Article 160(5). According to him, Article 143(1) and (5) expressly provide that the President’s immunity against criminal proceedings is limited and does not extend to crimes for which the President may be prosecuted under international treaties ratified by Kenya. Similarly, under Article 160(5) the extent of judicial immunity is expressly prescribed to extend to only acts done in good faith. Therefore, the President urged that the above provisions were a clear demonstration that if the drafters of the Constitution intended to limit the President’s immunity with regard to civil proceedings they would have done so in express terms. To buttress his position, the President made reference to this Court’s decision in Bellevue Development Company Ltd. v. Francis Gikonyo & 3 Others, SC Petition 42 of 2018; [2020]eKLR (Bellevue Case).

92.The President maintained that Article 143 of the Constitution does not preclude the President from being held personally liable for any unlawful actions during his term of office once he is out of office. However, he submitted that there exist two alternative avenues to challenge the President’s actions or omissions while he is still in office: first, by suing the Attorney General; and second, through impeachment for gross violation of the Constitution or other law pursuant to Article 145 of the Constitution. Last but not least, the President urged that costs should follow the event and that Morara Omoke ought to pay his costs at the Court of Appeal and this Court.

(iv) Parties’ Partially Supporting the Appeals by the Attorney General and IEBC

(a) 254 Hope

93.Dr. Clarence Eboso appeared for 254 Hope and relied on the written submissions dated 10^th December, 2021.

94.254 Hope began by submitting that the basic structure doctrine is based on the theory of delegation of authority whereby the people are the principal, delegating authority to the government (agent) through the Constitution. It serves as an inherent and constitutional limit on the exercise of constituted power including secondary constituent power in the amendment of the Constitution. In that regard, 254 Hope went on to state that Article 1 of the Constitution asserts that only the people have unfettered power and any organ acting under the Constitution is only exercising a delegated form of authority which is limited. Consequently, 254 Hope argued that the basic structure doctrine is applicable in Kenya to the extent that it is not expressly barred by the Constitution; and serves to limit the exercise of amendment power as a constituent power, when exercised by any authority secondary to the people.

95.254 Hope contended that primary constituent power in constitution-making is a manifestation of sovereignty of the people; it is the primordial power to make a constitution that precedes the Constitution hence cannot be limited by the Constitution; it is the source of the authority and validity of the Constitution; and may be bold and external or assert itself within ‘pseudo-constraints’ of the existing constitutional norm. Laying emphasis that primary constituent power may be exercised within a preexisting Constitution, reference was made to what 254 Hope termed as a valid and complete exercise of the popular initiative to amend the Constitution under Article 257 of the Constitution. In its view, a popular initiative constitutes a constitutional primary constituent power because it is fully participatory from its initiation by one million signatures of registered voters, through the legislative and constituent assembly processes to the referendum exercise where an amendment relates to certain aspects of the Constitution.

96.254 Hope submitted that it was a remiss for the superior courts below to on one hand , assert that primary constituent power is exclusively a supra or extra constitutional entity, unbound by any prior constitutional norms and incapable of limitation by the existing Constitution; and yet, on the other hand , despite being creatures of the Constitution, go ahead to define, with near-surgical precision, a detailed procedure of how the primary constituent power is to be exercised and even specifically direct that other infra constitutional organs may collectively facilitate such a process. In its view, the superior courts below should have simply settled at declaring the exclusive extra or supra constitutional nature of primary constituent power and the applicability of the basic structure doctrine as a limit to the amendment power under the Constitution, as the Supreme Court of India did in the Kesavanand a Case.

97.On whether the President can initiate changes to the Constitution, 254 Hope indicated that the real issue was not whether the President can initiate an amendment, but whether he may propose, promote and support a popular initiative. To that extent, 254 Hope submitted that the President in his official capacity, for instance while exercising his obligation to promote and enhance unity, has implied authority to propose an amendment to the Constitution.However, he can only make proposals to Parliament or the people and has no capacity to either initiate an amendment under Article 256 or 257 or officially promote or support such process. Nevertheless, according to 254 Hope, in his private capacity the President enjoys his political rights including the right to promote an amendment through a popular initiative but cannot utilize public funds to that end.

98.On the constitutionality of the Second Schedule to the Amendment Bill, 254 Hope also submitted that the superior courts’ declaration of unconstitutionality elevated an existing constitutional provision, that is, Article 89 above any future amendments, without recourse to the doctrines of unconstitutional constitutional amendments, or to the constitutionality of the amending authority and procedure. It was argued that the superior courts below ought to have considered whether the procedure was proper, whether the provision attempted to determine the form of governance hence not amendable by the secondary constituent power or whether the amending authority is an exercise of the primary constituent power.

99.Similarly, 254 Hope submitted that the President enjoys both functional immunity, like all public officials who perform state duties, which protects them from civil liability for official functions; and sovereign immunity as the Head of State. According to 254 Hope, the only way civil proceedings could be instituted against the President for violations of the Constitution is through the process of impeachment. Reference was made to Minister for Internal Security and Provincial Administration v. Centre For Rights Education & Awareness (CREAW) & 8 Others, Civil Appeal 218 of 2012; [2013]eKLR to support that assertion.

100.On quorum of IEBC, 254 Hope stated that if the Election Laws Amendment 2017, more specifically, Paragraphs 5 and 7 of the Second Schedule were declared unconstitutional due to non-compliance with the enactment procedure, then it would imply that no valid legislation had been competently passed hence no repeal had taken place. On the other hand , it urged that if the unconstitutionality was on the substance of the amendment, then the provision would remain in the statute books but with no valid effect to the extent of its unconstitutionality. Ultimately 254 Hope, expressed that since Parliament had not reviewed the provisions that had been declared unconstitutional, then it followed that the previous provisions remained in force.

(b) The 19^th respondent (Mr. Isaac Aluochier)

101.Mr. Isaac Aluochier appeared in person, and he basically relied on his written submissions dated 9^th December, 2021. He postulated that by dint of Article 2(3) of the Constitution neither a court nor a State organ has the jurisdiction to challenge the legality or validity of the Constitution. As far as he was concerned, the imposition of the basic structure doctrine by the superior courts below amounted to a challenge to the express provisions of the Constitution hence should be set aside.

102.He went on to assert that the suggestion that the President could promote a popular initiative was untenable under the Constitution. Further, he claimed that presidential immunity under Article 143 does not extend to constitutional violations by the President. However, it was his view that the pronouncement by the superior courts below went beyond what he had sought in his petition before the High Court. He claimed that he had sought a declaration that the President had acted outside the functions of his office by establishing the BBI Steering Committee hence he was liable. Consequently, he urged this Court to revert to his prayer as set out in the High Court and set aside the judgments of the superior courts on this issue.

103.Regarding the issue on whether IEBC was quorate, Mr. Aluochier wholly associated himself with IEBC’s position. According to him, IEBC was wrongly declared inquorate hence this Court should vacate such orders. He went on to submit that a valid constitutional amendment bill can contain only one amendment. He added that if the promoters of the Amendment Bill desired to propose more than one amendment, it was incumbent upon them to have prepared separate Bills for each proposed amendment and subjected each Bill to the amendment processes under Articles 255 to 257. In other words, he agreed with the High Court’s holding on the issue and urged the Court to uphold the same.

104.Learned Counsel, Mr. George Gilbert appeared for the 72^nd respondent and relied on her written submissions dated 8^th December, 2021.

105.The 72^nd respondent submitted that the substantive provisions of the Constitution are found in Chapter Sixteen; and in her view, it is not by mere coincidence that the said provisions are at the end of the Constitution. She asserted that the real substratum of the Constitution is found under Article 255(1) wherein the Constitution, in her own words, has cherry picked what it considered the most important substratum of the Constitution and laid out special stringent means of amending the same. According to this respondent, Article 255 (1)(a) to (j) form the design and architecture of the Constitution; in other words, the basic structure which can only be amended by referendum.

106.All in all, the 72^nd respondent posited that by dint of Articles 255 to 257 not only is every part of the Constitution amendable but also the peoples’ power to amend the Constitution is unlimited. In that regard, the Court was referred to the High Court’s decision in Priscilla Ndululu Case. However, she reiterated that amendment of Article 255 has to be in line with the procedure outlined thereunder; otherwise, any amendment to the contrary is unconstitutional and null. Consequently, she faulted the Court of Appeal for importing what she believed was another basic structure, other than the one delineated under Article 255(1), and finding that the same cannot be amended.

107.On whether the President can initiate amendments to the Constitution, she asserted that under Article 38 of the Constitution, the President had equal rights as any other citizen to campaign for a political party or cause. The President does not cease being a citizen upon being elevated to presidency and as such, to assume that he could not initiate and promote an amendment to the Constitution through popular initiative without express provisions to that effect is discriminatory. She argued that all the President needed to do was to follow the prescribed procedures.

108.Moving to the constitutionality of the Second Schedule to the Amendment Bill, it was the 72^nd respondent’s position that the issue was abstract and moot. She stated that Article 89(4) of the Constitution stipulates that new boundaries shall not take effect for purposes of an election if they are formed within 12 months of the election in question. According to her, by the time this consolidated appeal is determined, the scheduled elections of 2022 will be barely 6 months away hence it is neither possible nor logical for any action to be advanced in relation the boundaries.

109.As for institution of civil proceedings against the President, she submitted that the President’s immunity is limited to private civil matters under Article 143 of the Constitution. Expounding on that line of argument, she contends that the President cannot hide behind immunity when he acts beyond and /or in violation of the Constitution; the High Court by dint of Article 165(3)(b) and (d)(ii) is clothed with jurisdiction to question whether anything said to be done under the authority of the Constitution or any law is inconsistent with the Constitution; and therefore, the President is not immune to constitutional or judicial review proceedings before the High Court which are civil in nature.

110.The 72^nd respondent echoed IEBC’s position that it has no role in ensuring public participation has taken place under Article 257(4); and its role thereunder is limited to verification of whether the initiative is supported by at least one million registered voters. Similarly, on composition and quorum of IEBC, she associated herself with IEBC’s submissions; that both the superior courts below relied on provisions that had been repealed and had no effect hence reached the wrong conclusion. She added that the IEBC has always been quorate to conduct its mand ate since Article 250(1) prescribes that each Commission shall comprise of a minimum of three members.

111.Opposing Mr. Morara Omoke’s appeal, as pertaining to the issue of the referendum questions, the 72^nd respondent argued it was not justiciable since the mand ate to formulate such questions, which falls within the purview of IEBC, had not yet arisen by the time the matter was filed in the High Court. In her view, this Court while sitting as an appellate court also lacks jurisdiction to entertain the issue based on the doctrine of ripeness.

(v) Parties Opposing the Appeals by the Attorney General and IEBC

(a) Mr. Morara Omoke

112.Learned Counsel Mr. Morara Omoke appeared in person together with Mr. Topua Lesinko and Mr. Justice Nyagah. His written submissions were dated 24^th November, 2021.

113.Though his appeal centered around the referendum questions, Mr. Omoke also opposed the appeals by the Attorney General and IEBC. In that regard, he submitted that the basic structure doctrine is applicable in Kenya as mirrored in the people’s aspiration under Article 1 of the Constitution. He contended that the Constitution does not limit amendment power under Article 257, but it does limit amendment power under Article 256. He therefore stated that the people’s intention at the inception of the Constitution was to preserve it for future generations unaltered. He therefore implored this Court to protect the architecture of the Constitution by upholding the applicability of the basic structure doctrine. On the issues of whether the President can initiate constitutional amendment, presidential immunity, public participation and quorum, Morara Omoke agreed with the findings of the two superior courts below.

114.Challenging the Court of Appeal’s decision on the referendum questions, he invited this Court to find that under Articles 255 to 257 of the Constitution, the phrases ‘a proposed amendment’; ‘the proposed amendment’; ‘the amendment’; ‘an amendment’; ‘a general suggestion’; are used in the singular deliberately. Moreover, he contended that those express terms do not countenance a large number of amendments in a single Bill. In his view, the Constitution restricts a draft Bill to a single amendment and nothing would have been easier than for the drafters of the Constitution to provide for ‘amendments’ in plural under Article 257, if that was their intention.

115.Mr. Morara further argued that due to Kenya’s troubled constitutional amendment history, the Constitution only permits an amendment at a time as a defence mechanism against its dismemberment through multiplicity of amendments in a single Bill to amend the Constitution either through a parliamentary or popular initiative. According to him, packaging multiple amendments into an omnibus Bill is a violation of Articles 38(3) and 257(10) of the Constitution and takes away the political right of every citizen to weigh each amendment on its own merit.

116.In other words, he submitted that omnibus Bills undermine the overarching values of democracy and accountability in so far as they do not allow the people to vote for or against specific items within them. He added that the requirement by Articles 10, 82(1)(d) and (2) that referenda should be conducted under a transparent system is informed by the need to ensure that constitutional amendments to every provision of the Constitution should not be hidden in the midst of other amendments such that they might not be noticed or considered by the people. Consequently, he stated that the Amendment Bill which contained seventy-eight (78) mostly unrelated amendments was a violation of Articles 255 to 257 of the Constitution.

117.In buttressing his position for single and distinct referendum questions, he propounded that the principle of unity of content or single-subject amendments would prevent the use of omnibus draft Bills for amendments and instead require promoters to propose amendments that focus on one subject alone. In that regard, he cited Michael, Douglas C. ‘Pre-election Judicial Review: Taking the Initiative in Voter Protection’ California Law Review, vol. 71, no. 4, 1983, pp. 1216–38. Further, he argued that the said unity of content doctrine requires the formulation of multiple referendum questions in cases where a Bill for amendment of the Constitution by way of a popular initiative seeks to effect seventy-eight distinct and unrelated changes across fifteen Chapters of the Constitution. Finally, he prayed for costs of his appeal, to be borne by the President, Hon. Raila Odinga, IEBC and the Attorney General for reasons that their actions or omission necessitated the litigation.

(b) The 1^st to 5^th respondents

118.Learned Counsel, Mr. Nelson Havi and Ms. Esther Ang’awa appeared for the 1^st to 5^th respondents. The respondents relied on their joint written submissions dated 20^th December, 2021.

119.Stand ing on his feet on behalf of the 1^st to 5^th respondents, Mr. Havi strenuously argued that a reading of the amendment provision in Chapter Sixteen reveals three features therein. Firstly, Article 255(1) entrenches certain provisions of the Constitution which can only be amended with the approval of the people through a referendum. Secondly, the Chapter codifies a dual track process of amending the Constitution either through parliamentary or popular initiatives and prescribes the conditions each must satisfy. Thirdly, the Chapter only contains provisions for amendments of the Constitution as opposed to its dismemberment.

120.Elaborating on the distinction between amendment and dismemberment, Mr. Havi submitted that an amendment is an alteration to the Constitution that corrects or modifies the same without fundamentally changing its nature, that is, it operates within the parameters of the existing Constitution; and the latter which alters constitutional fundamental values, norms and institutions amounts to dismemberment.

121.To Mr. Havi, the extent of the basic structure doctrine’s application can be traced from the history of the constitution-making process in the Commonwealth. In Kenya particularly, the history demonstrates that the Constitution is the final product of the people to constitute a government and limit its powers. It follows therefore, that the basic structure of the Constitution could only be altered through the primary constituent power comprising of the four-sequence process (civic education, public participation, constituent assembly and referendum), which is akin to the powers and procedures that were applied by the people in formulating the current constitutional order. Counsel went on to submit that even in the absence of express codification of the primary constituent power in the Constitution, its existence and application is inherent since it antecedes the Constitution. To buttress that line of argument, Counsel cited the Njoya Case and the writings of Prof. Ernst-Wolfgang Böckenförde from the book, Mirjam Künkler and Tine Stein (eds), ‘Constitutional and Political Theory: Selected writings of Ernst-Wolfgang Böckenförde’ (2017, Oxford University Press).

122.Moreover, according to the 1^st to 5^th respondents, the application of the basic structure doctrine is justified as it acts as a democracy enhancing device that maintains the ultimate power of the people over their elected representatives to fundamentally alter the entrenched provisions of the Constitution. Towards that end, reliance was placed on the writings by Rosalind Dixon and David Land au, ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment’, (2015) 13 International Journal of Constitutional Law 606 and Minerva Mills Ltd. & Ors v. Union of India 1980 AIR 1789, 1981 SCR (1) 206.

123.According to the 1^st to 5^th respondents, the Amendment Bill which proposed to effect seventy-four (74) amendments to the Constitution thereby altering the entire system of the government was not only unconstitutional but also destructive of the state of democracy hitherto prevailing in Kenya. As such, in their view, the superior courts below could not be faulted for finding that some of the amendments thereunder required the exercise of primary constituent power.

124.The 1^st to 5^th respondents maintained that under Articles 257(9) and Section 49(1) of the Elections Act, the President’s role in a popular initiative is limited to assenting to an amendment Bill and referring the same to IEBC for purposes of conducting a referendum. They further urged that based on the history of constitution-making in Kenya, the popular initiative was exclusively for use by voters. As far as they were concerned, there was a deliberate effort to disguise the Amendment Bill which was actually a parliamentary initiative as a popular initiative. In addition, they argued that presidential immunity envisaged under Article 143 of the Constitution does not extend to constitutional violations by the President.

125.In their view, public participation is a requirement of a social contract and exists both inside and outside of the Constitution. In point of fact, they submitted that the Constitution textualises public participation in Articles 10,118, 124, 174 and 196 in so far as the making of decisions by the government that affect people are concerned. They added that even in the United States of America, where they urged that constitutional amendment by popular initiative originated, public participation is recognized as mand atory requirement before acceptance of an amendment proposal by the electoral body.

126.Therefore, they asserted that the contention that public participation was a requirement at the tail end fails to appreciate that a referendum is in respect of only the entrenched provisions of the Constitution. In addition, such erroneous interpretation, to the respondents, translated to exclusion of public participation at any other stage of the amendment processes contrary to the aspirations of the people and the Constitution.

127.While submitting on the issue of quorum, Ms. Ang’awa was emphatic that a court should always adopt a purposive construction of Article 250 (1) of the Constitution. She argued that the minimum number of Commissioners provided thereto as three must be construed alongside the provisions of Paragraph 5 of the Second Schedule to the IEBC Act, which provided the quorum as five Commissioners. According to Counsel, this reasoning is anchored on the public interest to the effect that all Commissions would perform at optimum capacity, and a quorum of three would mean that at any given time two Commissioners could end up making far reaching decisions that are against public interest. Counsel therefore urged us to uphold and support the finding of the superior courts below that IEBC lacked quorum. In any event, it was the view of the 1^st to 5^th respondents that the Constitution makes no express provision for quorum and only provides for the minimum and maximum membership. The respondents were also of the view that a valid constitutional amendment Bill can contain only one amendment.

128.Learned Counsel, Mr. Elias Mutuma appeared together with Ms. Caroline Jerono for the 7^th to 9^th respondents, who filed joint submissions dated 9^th December, 2021.

129.Mr. Mutuma begun by urging this Court to find that the President is prohibited from pursuing a constitutional amendment through a popular initiative. In that regard, Counsel submitted that firstly, the people delegated legislative power to Parliament and not the President who exercises executive authority. Therefore, to allow the President to initiate a popular initiative would be going against the doctrine of separation of powers. Secondly, the respondents contended that the President is under a social contract with the people; that he took a solemn oath that he would inter alia obey, preserve, protect and defend the Constitution of Kenya; that to preserve means to maintain something in its original state; and therefore, the President in attempting to amend the Constitution goes against the very oath he took and violates his duty to the people under Article 131 of the Constitution. Thirdly, the respondents contended that the moment the President took office his private rights were limited by virtue of Article 24 of the Constitution.

130.Relying on Article 255, the respondents argued that Wanjiku’s role is not merely endorsement of the constitutional amendment process. Rather, Article 257 demonstrates that the place of public participation under the popular initiative is in a continuum, from the point of initiation of amendment proposals to their final adoption at the referendum. The 7^th to 9^th respondents contended that public participation must be purposive and meaningful. The burden of ensuring that the information reaches the people is upon the promoter of the popular initiative. To support this line of argument, they relied on the case of Doctors for Life International v. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (Doctors for life international Case).

131.It was also the respondents’ submissions that IEBC’s obligation under Article 257(4) of the Constitution is to not only validate the numeric compliance, but also to ensure that voters are educated on what they are endorsing incompliance with the voter education requirement under Article 88 (4)(g) of the Constitution. It followed therefore, according to the respondents, that IEBC is bound by Articles 10 and 33 of the Constitution. Therefore, IEBC should not overlook its role in ensuring that public participation is meaningfully and adequately carried out prior to receiving the draft Bill for amendment of the Constitution.

132.The respondents also urged that a valid constitutional amendment Bill can contain only one amendment. They too believed that it is the element of hyper- amendability that the Constitution sought to prevent under Articles 255 to 257 by prescribing a single amendment in each Bill.

(d) The 11^th and 12^th respondents

133.Learned Counsel, Mr. Elisha Ongoya and Mr. Evans Ogada appeared for the 11^th and 12^th respondents and in addition to relying on their clients written submissions dated 9^th December, 2021 they also made oral highlights.

134.They went on to urge that since IEBC had not challenged the superior courts’ findings on the Second Schedule of the Amendment Bill, the logical conclusion would be that IEBC agreed with the same. Likewise, the respondents contended that the issue was moot, vestigial and an academic exercise in light of the fact that new boundaries as had been proposed in the Amendment Bill could not take effect due to the general elections which were less than twelve (12) months away.

135.Be that as it may, they submitted that the proposed constituencies had not been established or apportioned in accordance with the proper procedures laid out under Article 89 hence, gave rise to issues of inequity. To them, the Attorney General’s argument that the delimitation was fair begs the questions, who determined its fairness and were the people consulted? Furthermore, to the respondents, the purported delimitation exercise under the Second Schedule was not only irregular, illegal, and unconstitutional but also amounted to blatant contempt of IEBC’s independence.

(e) Muhuri

136.Learned Counsel, Ms. Carolene Kituku appeared for MUHURI and relied on the written submissions dated 6^th December, 2021 as well as her oral highlights.

137.Although Ms. Kituku extensively submitted on the issue of verification of signatures by IEBC and the requisite legal framework thereof, it is instructive to note that, these issues were not the subject of the consolidated appeal. In point of fact, Counsel confirmed as much in her oral highlights that there had been no challenge with respect to the findings on verification of signatures and the requisite framework thereof.

138.On quorum, MUHURI submitted that the Isaiah Biwott case was not binding on the two superior courts below hence, they could depart freely from it, if they found it had been wrongly decided. It asserted that while appreciating the important mand ate of IEBC, Parliament stipulated that the number of Commissioners should be seven (7) while placing its quorum at five (5) members. Moreover, MUHURI submitted that any attempt to reduce the quorum to three (3) through the Election Laws Amendment 2017 was declared invalid in the Katiba Institute Case which was also a judgment in rem.

139.However, MUHURI contended that an order for prospective application or suspension of the declaration of invalidity could only be available, if firstly, it had been specifically pleaded and secondly, in the event it was not pleaded, the same was granted by the court seized of a matter as the most appropriate remedy. Accordingly, MUHURI submitted that the remedies of prospective applicability or suspension of the declaration of invalidity are not available to IEBC in this consolidated appeal. MUHURI emphasized that this Court lacked the power to grant such a remedy no matter how attractive or appropriate it may be since it is not sitting on appeal or review of the Katiba Institute Case. Further, it urged that since the provisions of Paragraph 5 of the IEBC Act had not been challenged in this appeal as being inconsistent with Article 250(1) of the Constitution, then Paragraph 5 maintained its legal effect.

(f) Kituo Cha Sheria (the 79^th respondent)

140.Learned Counsel, Dr. John Khaminwa, appeared for the 79^th respondent and relied on the respondent’s written submissions dated 1^st December, 2021.

141.Arguing on behalf of the 79^th respondent, Dr. Khaminwa laid emphasis on the arduous history of constitution-making which was reflected in the High Court’s observation that the Constitution was designed to respond to two sets of challenges that had plagued Kenya’s constitutionalism; that is, the culture of hyper- amendments wherein the political class amended constitutions with such ease and frequency rendering the same hollow shells; as well as realization of the emphasis on citizen led process of amendment of the Constitution.

142.As for the application of the basic structure doctrine, the respondent claimed that the answer lies in the Constitution. To the respondent, it was crystal clear from the Preamble of the Constitution that the people’s intention was that the basic structure should not be altered without their approval. Moreover, Counsel urged that since its recognition in India the basic structure doctrine has attained universal acceptance hence forms part of the general principles of international law which are applicable in Kenya by dint of Article 2(5) of the Constitution.

143.The 79^th respondent asserted that the President cannot be a promoter of a popular initiative under Article 257 since that would amount to an infringement of Article 10 of the Constitution and is tantamount to usurping the people’s power as well as voiding social contract between the people and the State. It was the respondent’s submission that by virtue of the office and the delegated power he holds, the President cannot be considered as ‘the people’ envisioned under the Constitution. Besides, the respondent claimed that any process by a sitting President to initiate and promote a popular initiative easily turns into populist constitutionalism that can lead to constitutional populism.

(vi) Amici Briefs

(a) Prof. Rosalind Dixon and Prof. David E. Land au (1^st and 2^nd amici curiae)

144.With regard to the basic structure doctrine, the amici’ brief focused on the scope of the constitutional amendment powers under Articles 255 to 257. In their opinion, the Constitution contains limitations on the constitutional power of amendments and several different tiers for constitutional amendment. However, the limitations and different tiers thereunder are not exhaustive rather they were designed to establish a floor as opposed to a ceiling on democratic constitutional entrenchment. In other words, it was the view of the learned Professors that what is provided under Chapter Sixteen reflects certain minimum requirements for a successful constitutional amendment but in no way exhausts or precludes the existence and applicability of the basic structure doctrine in Kenya. Indeed, they provide support or confirmation of the general position that the Constitution was designed to entrench and protect the minimum core of democracy as espoused by the doctrine.

145.They urged that the above opinion on implied limits on the power of formal constitutional amendment resonates with the decisions of leading constitutional courts such as the Indian Supreme Court and the Colombian Constitutional Court operating in constitutional democracies. In point of fact, they opined that where courts in other jurisdictions have rejected the doctrine like Malaysia, Singapore, Zambia, Ugand a and Tanzania, there exists legal-political differences between such countries and Kenya hence, those authorities are not persuasive.

(b) Gautam Bhatia (the 3^rd amicus curiae)

146.According to the 3^rd amicus, justification for the basic structure doctrine, as found by courts that have upheld its application (including the superior courts below), rests on certain core principles. These are: constitutional provisions are concrete expressions of a set of underlying principles which constitute the distinct and unique identity of the Constitution; every Constitution prescribes a procedure for its amendment which is distinct from the concept of its repeal or replacement; and the power to create a Constitution or new identity, that is, the primary constituent power is distinct from the power to amend the Constitution using its own provisions, that is, the secondary constituent power.

147.The 3^rd amicus went on to submit that, an amendment gives rise to the implicit assumption that what is being amended will retain its identity after the amendment; while repeal or replacement indicates the permanent loss of identity or creation of a new identity. Further, that primary constituent power is a sovereign act which is unbound by any existing legal structure while secondary constituent power flows from the Constitution. Consequently, the 3^rd amicus urged that the essence of the doctrine is that the basic structure as the expression of constitutional identity acts as a substantive limitation upon the power of constitutional amendment.

148.He argued that the specific form and content that the doctrine takes in any particular jurisdiction is determined by the jurisdiction’s constitutional text, structure and history. Making reference to India, he stated that where the final word on amendments rest with Parliament, the doctrine takes the form of a prohibition upon amendments that seek to destroy the basic structure of the Constitution. He urged that given Kenya’s history, as well as the text and structure of Article 257, which envisages participation of both the people and the representative organs, it would not be appropriate, unlike India, for the application of the doctrine to include a judicial veto on amendments that violate the basic structure. In his view, the role played by the Judiciary must necessarily be a limited and procedural one; that is, adjudication of whether an impugned amendment violates the basic structure; and where it does, require such amendments be ratified under conditions that were equivalent to founding of the existing Constitution, that is, the four-step process set by the superior courts below.

149.He added that a referendum is not, in itself equivalent to the exercise of sovereign power involved in founding or re-creation of the Constitution. Making particular reference to Article 257, he argued that it carves out a role for direct democracy in constitutional amendments, by stipulating the role of the people at the beginning of a popular initiative and the end (ratification through a referendum). Nonetheless, to him, that role of direct democracy is to complement and act as an alternative to parliamentary initiative hence, it amounts to constituent power as opposed to a primary constituent power. Accordingly, he submitted that the substantive limitations imposed by the basic structure doctrine apply both to representative constitutional amendments as well as constitutional amendments via referendum.

150.Pertaining to whether the President can initiate changes to the Constitution, the 3^rd amicus submitted that where a constitution is silent on an issue, as Article 257, a court should follow two principles. These are: if there are two equally plausible textual interpretations of Article 257, the one that maintains the balance between representative and direct democracy ought to prevail over one that undermines or skews it; and where a constitutional question involves a clash of two constitutional principles, the Court should resolve the conflict in a manner in which both principles are allowed to have a maximum scope, and neither is subsumed by the other.

151.Based on the two propositions he argued that Article 257 contains an implied limitation upon the President’s participation in initiating an amendment through a popular initiative. He further explained that interpretation of Article 257 as allowing the President to initiate an amendment would upset the balance between representative and direct democracy characteristic of the provision. Equally, he submitted that the Court of Appeal’s finding that the President’s political rights under Article 257 were curtailed as long as he was in office was in line with the afore stated propositions.

152.On the referendum questions, he argued that the unity of content approach taken by the High Court is the correct position. The 3^rd amicus went on to contend that the purpose of referenda is to give effect to the people's will, expressed directly through a yes or no vote on a question of national importance. Therefore, in his view, putting several issues unrelated by their content and nature, or several unrelated amendments to the Constitution, or several unrelated provisions of laws to a vote in a referendum as a single issue would deny determination of the actual will of the Nation regarding each significant issue.

153.In the 4^th amicus’ view, the superior courts below applied selective and erroneous version of the history of constitution-making in Kenya. In turn, the courts disregarded firstly, the role that political compromise and the political elite played in the attainment of the Constitution. Secondly, that the people of Kenya were not only aware of the dangers of the culture of hyper-amendments but were also wary of overly rigid amendment procedures. Thirdly, that the question of how the Constitution would be amended had been extensively deliberated and resolved during the first phase of the constitutional review process.

154.All in all, he argued that taking into account the history of the Constitution making process, it was clear that, the provisions in Chapter Sixteen are meant to strike a balance between amendment procedures that are not too simple and not too rigid; the people did not intend to immunize any of the provisions of the Constitution from amendment; the people could amend any provisions of the Constitution by exercising their secondary constituent power either by themselves through a popular initiative or by their representatives exercising constituent power, as long as the stringent procedures in Chapter Sixteen are met.

155.As far the 4^th amicus was concerned, the superior courts’ finding that people can only exercise their constituent power through the four mand atory sequential steps had no basis in constitution-making practice or the Kenya’s history. In point of fact, he asserted that the Constitution was neither made using all the four steps alluded to nor in the sequence advanced by the superior courts below; and what was more, the draft Constitution that was subjected to a referendum in 2010 had been altered by the political elite through a pact and moreover it was tinkered with by a Committee of Experts who were charged with the responsibility of harmonizing the drafts.

156.He argued that political settlements on constitutional reform or amendment initiatives, like the BBI initiative and the resulting Amendment Bill, should be encouraged. Therefore, courts should not injunct, stop or refrain any process which leads to a referendum vote. The rationale, as per the 4^th amicus, is that the people have the capacity and sensibility to reject constitutional amendments they consider not participatory or otherwise faulty, as they did the Wako Draft Constitution in 2005. In other words, he stated that a referendum is an effective constraint on those involved in the constitution-making process because it gives the people the final authority to approve or reject elite settlements.

(d) Prof. Richard Albert (the 5^th amicus curiae)

157.The 5^th amicus curiae also held the view that there is a distinction between constitutional amendment and dismemberment; and that the Amendment Bill, was a constitutional dismemberment as opposed to an amendment. He contended once a court finds that a proposed amendment is actually a constitutional dismemberment only three options are available. Firstly, it can opt to do nothing about it, and permit constitutional reformers to proceed with their constitutional transformation. Secondly, it can declare that it violates the fundamental presuppositions of the constitution, and ultimately invalidate the proposed constitutional reform on the basis of the basic structure doctrine. Finally, it may declare the proposed reform unconstitutional for violating the basic structure and concurrently offer a road map of how the reformers may lawfully proceed with the intended reforms. According to the 5^th amicus, the Court of Appeal opted for the third option and advanced the four-stage sequence of amendment, which in his view, was rooted in the rule of mutuality. He went on to submit that the rule of mutuality entails that a democratic constitution may be dismembered using the same procedure that was used to ratify it.

158.Be that as it may, the 5^th amicus submitted that while the doctrine of unconstitutional constitutional amendments has received varied reception, Article 165 and its interpretation leans more towards the courts accepting rather than rejecting the doctrine.

159.In his view, the Constitution is unclear on how to put the referendum question to voters. Nevertheless, he believed that only two options are available for voters in a referendum; voters must either approve or reject the entire package of reforms presented to them or separately approve or reject every single individual reform proposal. Outside of these, he added, a separate option occurs upon the determination by a court that an amendment Bill contains amendment proposals sufficiently related to each other. In his view, the Bill may be put to a single referendum question in its entirety, as one mega-package, for voters to either approve or reject the multi-subject Bill at once. He urged this Court to find that if an amendment Bill consists of several different subject-matter, the voting management body shall put different sets of related amendments to voters as separate self-stand ing referendum questions. Thereafter, the voters choose to approve or reject the various proposals as opposed to requiring the voter to reject the entirety of the multi-subject Bill.

160.He however warned that application of the ‘rule of subject-matter relatedness’ may attract criticisms that a court is interfering with the constitutional reform process. He urged that the Court may consider applying this ‘rule of subject-matter relatedness’ in the context of the Amendment Bill if it ultimately upholds this constitutional reform and authorizes it to proceed to a referendum.

(e) Prof. Yaniv Roznai (the 6^th amicus curiae)

161.Discussing the nature of constitutional amendment, the 6^th amicus curiae argued that a country’s amendment formula is significant in balancing between flexibility and rigidity and often gives insights into the intricacies and peculiarities of a country’s social and political culture. In that regard, he submitted that some jurisdictions incorporate selective rigidity in the amendment of some of their constitutional provisions which they deem fundamental, either by prescribing a difficult amendment process or out rightly demarcating such provisions as unamendable. Nevertheless, he contended that while the unamendable provisions serve as a mechanism for limiting amendment power they do not and cannot limit the primary constituent power. Putting it differently, he stated that even unamendable provisions are subject to changes introduced by extra-constitutional forces.

162.In addition, he urged that courts in various jurisdictions have even gone beyond the text of the constitution to recognize the idea of implied limitations on constitutional amendment power, like the basic structure doctrine. Nonetheless, he contended that whilst there was an increasing prevalence of the unconstitutional constitutional doctrine, it was yet to mature into a universal norm of constitutionalism. As such, in his view, circumstances under which a court may apply doctrines of implied limitations depend on firstly, the flexibility or rigidity of the amendment process; the more rigid the process is, the less need for implied limitation and vice versa; secondly, whether one party or the executive controls the amendment process; thirdly, whether a stable political-democratic culture that respects the rules exists; and fourthly, whether a country is part of a strong regional mechanism where there are various machineries to ensure rules and values are respected.

163.As for the scope of amendment power, the 6^th amicus submitted that it is a delegated power exercised by special constitutional agents of the people. It is therefore subordinate to the principal power, that is, the primary constituency power, it draws its legal competency from; and cannot be used to destroy the Constitution or its basic principles.

164.In conclusion, he urged that the basic structure doctrine is applicable in Kenya as several matters can only be amended by the people and not Parliament. Furthermore, he was of the view that the role played by the people under the multiple procedures prescribed in Chapter Sixteen for amending certain provisions in the Constitution including the referendum thereunder, does not amount to an exercise of primary constituent power. He argued that people may be regarded in two distinct capacities; as a source of absolute power (primary constituent power) that may create a new constitutional organ, and as a constitutional organ established by the Constitution for its amendment (secondary constituent power). In other words, that role played by the people in a popular initiative and referendum under Chapter Sixteen is derived from the Constitution hence, cannot be used to destroy the basic structure of the Constitution.

(f) Prof. Charles Manga Fombad (the 7^th amicus curiae)

165.According to the 7^th amicus curiae, the framers of the Constitution provided three procedures for amending it in Articles 255 to 257; that is, an amendment by Parliament with the special majority; an amendment by Parliament subject to approval at a national referendum; and an amendment by popular initiative subject to approval at a national referendum. He argued that the Judiciary could not introduce a fourth method for amending the Constitution as the superior courts below did.

166.In his opinion, the doctrines of basic structure, constitutional unamendability and eternity clauses pose risks to constitutionalism, the rule of law, and democracy. Besides, he submitted that the framers of the Constitution intended for the Constitution to be amendable and transformative, otherwise they would have crafted specific clauses on the applicability of the basic structure doctrine. He argued that in limiting constitutional amendments under Article 257 of the Constitution, the superior courts below placed an impermissible constraint on the sovereign power of the people. Furthermore, he urged that considerable caution is necessary when invoking theories and principles developed by non- African scholars since most of those theories are based on western constitutions.

(g) Dr. Adem K. Abebe (the 8^th amicus curiae)

167.In his brief, the 8^th amicus began by stating that the recognition of the existence of a basic structure in the Constitution does not necessary lead to judicial enforcement of limits on the amendment of such structure. As far as he was concerned, whether or not a basic structure exists and how it should be defended is best left to the regular political process involving the people, civil society, the media, public intellectuals, and political institutions at the national and county levels. He argued that indeed Chapter Sixteen of the Constitution intentionally specifies what is considered the fundamental core of the political framework and provides for a heightened process of its amendment designed to ensure critical political deliberation, high-level consensus, and a direct say of the people.

168.Moreover, he stated that unless judicial power is specifically granted or naturally flows from the Constitution, courts should steer away from invoking power to evaluate and replace the considered judgment of the people and political representatives regarding substantive quality of amendments. Accordingly, he submitted that the superior courts below erred in outlining a four-step sequence process of amending the basic structure, which is quintessentially for the sovereign to determine. In any event, he stated that the proposed sequential process has already been given effect through the current constitutional amendment process.

169.He submitted that the question as to whether amendment proposals should be presented as one, separate or clustered proposals should be left to those proposing the amendment given the interrelations between the various proposals. Further, he urged that had the referendum in respect of the Constitution, which was adopted as a single document, been held on each provision or even clusters of provisions, the outcome would have been widely different. In his opinion, separate presentations of amendment proposal are rare in comparative practice.

(h) Dr. Duncan Ojwang’, Dr. John Osogo Ambani and Dr. Linda Musumba

170.They submitted that the basic structure doctrine as expressed in Kesavanand a Case exists as a concept to limit and guard against irregular constitutional amendments and unconstitutional constitutional amendment processes. In that, while it allows constitutional changes it requires that changes which alter the constitution’s identity be effected through the use of constituent power.

171.According to them, the scope of the basic structure doctrine in Kenya can be gleaned from the Njoya Case, the Commission for the Implementation of the Constitution Case as well as the Thirdway Alliance Case. It seeks to identify and guard against amendments that dismember, alter or change the basic structure notwithstand ing the process used. In that regard, they urged that referendum process prescribed in Chapter Sixteen does not offer one a carte blanche to alter the Constitution by bypassing the sequential process identified by the superior courts below. They went on to submit that constitutional provisions that form the basic structure could only be amended through the exercise of primary constituent power (sequential process), which exists outside the Constitution as opposed to secondary constituent power which is a creature of the Constitution.

172.In their opinion, the history of the constitution-making process justifies the four sequential processes as a balance between rigidity and flexibility in amending the Constitution. Besides, amici argued that the interpretation of the Preamble and Article 1 of the Constitution indicates that the Kenyan people intended that the Constitution should be altered using the same process it had been adopted. In other words, they contended that what the people had in mind is that the Constitution would be changed through the exercise of primary constituted power comprised of the four stages as opposed to the secondary constituent power or constituted power.

173.They submitted that the President as the Head of the Executive and Government cannot be the promoter of a popular initiative under Article 257 based on the social contract of the Constitution, which emphasizes separation of powers, checks and balances. According to them, under the social contract theory, the constituent power belongs only to the private citizens called the people who form the social compact and not those who govern. Consequently, they urged that by virtue of Article 131 (2) of the Constitution, the President must safeguard the sovereignty of the people and not his sovereignty. Furthermore, Article 38 of the Constitution cannot be used by state officers to capture the people's sovereignty since once a citizen becomes the President, they cease to be an ordinary citizen; and are precluded from simultaneously playing participatory and representative democratic roles.

174.On the issue of referendum questions, amici associated themselves with the findings of the High Court.

(i) Dr. Jack Mwimali

175.He submitted that a holistic interpretation of the text, spirit, structure, and history of the Constitution leads to the finding that the basic structure doctrine applies in Kenya; and that it implicitly limits the amendment power in Articles 255 to 257. As such, he argued that any fundamental changes to the Constitution must be the subject of the four-step sequential process. According to him, the amendment powers in Articles 255 to 257 are secondary amendment powers derived from the Constitution and subject to the limitations imposed by the prescribed procedure thereunder. The amicus went on to urge that Judges may invalidate any exercises of the derivative amendment power that purport to violate the Constitution’s basic features.

176.According to Dr. Mwimali, if the Attorney General’s argument on presidential immunity was to be upheld, it would have the effect of hoisting the holder of the Office of the President above the law and immunize his conduct from judicial scrutiny.

(j) Kenya Human Rights Commission (KHRC)

177.KHRC submitted that the basic structure doctrine, eternity clauses and unamendable constitutional provisions are not only applicable in Kenya but can also be discerned from the Constitution. In particular, it urged that the basic structure doctrine as applied in Kenya protects certain fundamental aspects of the Constitution, which in its view are delineated under Article 255(1), from amendment through the use of either secondary constituent power or constituted power. Moreover, KHRC argued that the basic structure cannot be altered through the multi-tiered process prescribed under Chapter Sixteen of the Constitution.

E. Analysis

178.As previously observed, the instant consolidated appeal is predicated on Article 163(4)(a) of the Constitution which clothes this Court with jurisdiction to determine appeals from the Court of Appeal on questions of interpretation and application of the Constitution. Although the length and breadth of the pleadings and arguments as summarized above touched on several Chapters of the Constitution, the common denominator is that they are focused on the interpretation and application of Chapter Sixteen of the Constitution. The two superior courts below have given their elaborate views on how these provisions are to be interpreted and applied and in my view therefore, this Court’s jurisdiction is properly seized under Article 163(4)(a) of the Constitution.

179.Having set out the issues framed by the Court for determination beforehand , I will now proceed to deal with them sequentially.

(i) Basic Structure Doctrine

180.It is pertinent in the circumstances to point out that the basic structure doctrine as articulated by the High Court was also endorsed by the majority Judgment of the Court of Appeal. The sum total of the two decisions being that, beyond the three stipulated pathways for amending the Constitution provided in Chapter Sixteen, there are certain fundamental features in the eighteen (18) Chapters of the Constitution that are not amendable without first determining on a case by case basis whether a proposed amendment forms part of the basic structure. Further, that any amendment to those particular Articles identified as fundamental features of the Constitution, would follow a four sequential process being civic education, public participation and collection of views, constituent assembly debates, and a referendum. In effect, the two superior courts below concluded that certain provisions of the Constitution are beyond the reach of the enumerated amendment powers stipulated in Chapter Sixteen of the Constitution.

181.The history of the emergence and evolution of the basic structure doctrine was comprehensively captured in the very detailed judgments of the two superior courts below. Therefore, I will merely mention some of its key features to place my findings in perspective. The basic structure doctrine first received judicial recognition in 1973 in the Kesavanand a Case, a decision of the Supreme Court of India. The case concerned a challenge to the state government of Kerala’s attempts, under two land reform Acts, to allow the state government to acquire privately held land to fulfil its socio-economic obligations. Subsequently, the Indian Parliament passed the Constitution (24^th Amendment) Act, (25^th Amendment) Act, and (29^th Amendment) Act which in one way or the other shielded the Kerala State’s Land Reform Acts from being challenged in court. It is in this context, that the Supreme Court of India addressed the question of whether there were limits to Parliament’s power to amend the Constitution.

182.In a majority finding by seven (7) Judges, with six (6) Judges dissenting, the Supreme Court of India held that the Constitution (24^th Amendment) Act, (25^th Amendment) Act, and (29^th Amendment) Act passed by Parliament exercising its powers under Article 368 of the Constitution of India were unconstitutional to the extent that they damaged the basic structure of the Constitution. As enunciated therein, the doctrine places substantive limits on the amending power by placing the basic features of the Constitution beyond the Legislature’s power to amend the Constitution. In effect, the Supreme Court of India endorsed the idea that a constitutional amendment can be unconstitutional on substantive grounds.

183.The particular provision of the Constitution of India that was interpreted by the Supreme Court of India to yield the aforesaid finding was Article 368 which provided that:“An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.”It is irrefutable that a reading of the above provision clearly shows that the amendment process under the Constitution of India is exclusively vested in the Legislature. This therefore means, the amendment process of India’s Constitution can be described as falling under the flexible model of amendment powers in the flexible-rigid dichotomy used to categorise the nature of amendment powers in a given constitution. and for this preposition, see books by; Zachary Elkins et al in ‘The Endurance of National Constitutions’ (2009, Cambridge University Press) 81; and Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions’ (2019, Oxford University Press) 95.

184.Subsequently, the basic structure doctrine and the idea of limits on power to amend a constitution have been considered by courts in several jurisdictions across the world and received mixed reception. For example, the basic structure doctrine and its various variants have been accepted in Bangladesh, Belize, Colombia, Taiwan, Malaysia, Slovakia, and Peru; while courts in France, Georgia, South Africa, Singapore, Zambia, Ugand a, and Tanzania have rejected the doctrine. What this state of play demonstrates, which has been recognised by some of the distinguished scholars as reflected in the various materials cited before us, is that the basic structure doctrine has not yet matured into a universal norm of constitutionalism. It is in appreciation of this reality that Richard Albert et al, observe in ‘The Formalist Resistance to Unconstitutional Constitutional Amendments’ (2019) 70 Hastings Law Journal 639, at page 642 as follows:“But we should not take the increasing prevalence of the doctrine of unconstitutional constitutional amendment as evidence of its appropriateness for all constitutional states. It may well be that the doctrine fits in a given constitutional tradition and should be incorporated into its practices of adjudication. But this is a choice for a state and its domestic actors to make according to their own norms of governance. The politics of constitutionalism must remain localized in their particularized social and political circumstances. Otherwise, when combined with the enormous pressure on states in our day to conform to what may appear to be generally accepted stand ards of global constitutionalism, the trend toward adopting the doctrine of unconstitutional constitutional amendment might overwhelm the capacity of a state to evaluate whether the doctrine is right for itself in light of its own juridical history, political context, and constitutional traditions.The doctrine of unconstitutional constitutional amendment is most certainly not a necessary feature of modern constitutionalism, nor even of the narrower idea of modern liberal democracy. It is important for all constitutional actors to know that there is another answer to the question whether an amendment can be unconstitutional. Constitutional designers, adjudicators, and amenders should know that it is an altogether reasonable choice to deny the possibility of an unconstitutional constitutional amendment... [in effect] the doctrine has not yet matured into a global norm of constitutionalism.”

185.Given that the basic structure doctrine has not matured into a universal norm of constitutionalism or a doctrine of general application, courts have adopted the approach of evaluating its ‘fit’ within their constitutional systems before accepting its applicability in the various jurisdictions where it has been considered.

186.In the Kenyan context, this Court has already developed an approach which courts are obligated to follow in ascertaining whether to transplant any juridical idea to the Kenyan constitutional system in the post-2010 constitutional order. In the Vetting Board Case, this Court grappled with the question of the scope and effect of the ouster of the judicial review power of the High Court by a constitutional ouster clause. Whereas the Court considered similar jurisprudence on ouster clauses from other common law countries that had been inspired by the land mark decisionof the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission and Another [1969]2 A.C. 147, the following observation by Mutunga, CJ (as he then was) is pertinent:“210.….in interpreting the Constitution, Courts must take cognizance of Kenya’s unique historical context which is aptly captured in the majority opinion, and by the dissents of Murgor and Sichale, JJ.A. In holding that the English case, Anisminic was not applicable to the vetting process, Murgor, J.A observed that where the ouster clause is part of the Constitution itself, most jurisdictions such as the West Indies, India and England have followed the principles set out in Anisminic. The learned Judge held (at paragraph 76) that given Kenya’s unique historical circumstances, Anisminic was not applicable “on all fours,” in the interpretation of Section 23(2) of the Sixth Schedule to the Constitution; hence that case is to be distinguished.…218.Although certain jurisdictions, such as India and Germany, have perceived judicial review as an immutable structure of their Constitutions, these jurisdictions do not have Constitutions that are as unique as Kenya’s. We must ask whether the foreign jurisdictions we seek reliance upon, have Constitutions and , if they do, whether these Constitutions have provisions akin to Articles 1, 23, 159 and 259 which emphasize the sovereignty of the people; or whether they have principles and values, like the ones found in Article 10, which apply to the interpretation and application of the Constitution; or whether they have legislation similar to our Supreme Court Act, which introduces Kenya’s historical context into the interpretation of the Constitution. If the answers to these questions are in the negative, then the common law doctrines found in other jurisdictions, foreign cases and foreign constitutions, must be interpreted in such a manner as to reflect our modern Constitution, and our unique conditions and needs.”

187.I have considered the above dictum in light of the obligation imposed on this Court by Section 3(c) of the Supreme Court Act, No. 7 of 2011 which is to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth”. Accordingly, before declaring the applicability or otherwise of the basic structure doctrine in Kenya’s constitutional context, the Court is obligated to take into account our constitutional history especially bearing in mind that the doctrine, which found root in India in 1973, was available when the framers of the Constitution conceptualised the provisions of Chapter Sixteen on amendments. Another way of looking at the matter is to ask a pertinent question as to whether there was a gap identified in particular in regard to the provisions of Chapter Sixteen of the Constitution requiring to be sealed by the basic structure doctrine.

188.In addition, in evaluating whether the basic structure doctrine is applicable in our constitutional system, a court must take into account the purposive and value-based interpretation decreed by Articles 10, 20(4), 159, and 259(1) of the Constitution. Such an approach to constitutional interpretation begins from and remains rooted in the text of the Constitution whilst interpreting it holistically, giving effect to its values and principles, and never losing sight of the historical context and the backdrop of the provisions being interpreted. Therefore, to comprehend and contextualise whether the Constitution contemplates the basic structure doctrine, the starting point should be the rationale behind the provisions of Chapter Sixteen of the Constitution as documented in the preparatory documents from the constitution-making process.

189.It is an understatement to say that the Kenyan Independence Constitution endured a legacy of hyper-amendment during the post-independence period. The former Constitution was flexible giving the Legislature wide power and discretion in amending it. As a result, Parliament undertook so many amendments to the Constitution that it lost its original character. The most significant amendments being the merger of the Senate and the House of Representatives to establish a unicameral Legislature; abolition of the quasi-federal (regional) governments that led to the establishment of a unitary State; and alteration of the entrenched majorities required for constitutional amendments making it easier to amend the Constitution. Yet another repulsive amendment was the abolition of the security of tenure for Judges and other constitutional office holders. Ultimately, the amendment that finally broke the proverbial camel’s back giving rise to the clamour for a new constitutional order was the one that converted the country from a multi-party democracy to a de jure one-party State in 1982.

190.Informed by this history, Kenyans yearned for a stable constitutional system where the power to amend the Constitution would not be abused for short-term interests by the political elite. The CKRC Final Report records at page 74 that Kenyans expressed the view that:“There is need to protect the Constitution against indiscriminate amendments. If the amendment procedure is too simple, it reduces public confidence in the Constitution. The converse, however, is also true. If the amendment procedure is too rigid, it may encourage revolutionary measures to bring about change instead of using the acceptable constitutional means. Thus, a balance must be struck between these two extremes” [my emphasis].

191.What emerges from the historical account is that there was a strong concern that the country should adopt provisions on amendment power that are able to protect the constitutional order from abusive amendments. But this was not all. There was also a recognition that the Constitution must remain flexible in order to adjust to political, social, economic, technological and other changes that would take place in the polity. In effect, the overarching imperative that informed the drafting of Chapter Sixteen was the need to find a proper balance between rigidity and flexibility.

192.The quest for a balance between rigidity and flexibility is evident in the ‘tiered’ amendment provisions in Chapter Sixteen which stipulates three pathways for amending the Constitution. The first pathway under Article 256 provides for amendment by parliamentary initiative. This process involves public participation and approval by the Houses of Parliament through a vote of endorsement by two- thirds of all the members of each House during the second and third readings of an amendment Bill. The second pathway under Article 257 provides for amendment by popular initiative. This process involves collection of at least one million signatures from registered voters in support of the popular initiative by the promoters of an initiative; approval of the initiative by a majority of the County Assemblies; and passage of the Bill by a majority of the members of each House of Parliament. In this second process, if either House of Parliament fails to pass the Bill, the proposed amendment is submitted to the people in a referendum.

193.The third pathway stipulated in Article 255 relates to what has come to be known as the entrenched provisions of the Constitution. Some of the Court of Appeal Judges referred to these entrenched provisions as forming the basic structure of the Constitution. Article 255(1) of the Constitution stipulates that in addition to adopting either the parliamentary initiative or popular initiative pathway, where an amendment relates to the following Articles, a Bill to amend those provisions shall be subjected to a referendum:“the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance referred to in Article 10(2); 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 chapter sixteen on amendment of the Constitution.”Approval through the envisaged referendum under Article 255(2) must satisfy two conditions. At least twenty percent of the registered voters in each of at least half of the counties should vote in the referendum; and such an amendment should be supported by a simple majority of the citizens voting in the referendum.

194.A reading of the three pathways for amending the Constitution in Chapter Sixteen clearly shows that Kenyans were alive to the historical legacy of the culture of hyper-amendment in the pre-2010 era and sought to tame any abuse of the amendment power. In particular, Article 255(1) and (2) of the Constitution demonstrates that, alive to the culture of hyper-amendments, the Kenyan people sought to ring-fence the core or fundamental commitments of the Constitution by entrenching them and subjecting the process of their amendment to deepened public participation; as well as imposing a down-stream constraint or veto by stipulating that the entrenched provisions enumerated in Article 255(1) of the Constitution can only be amended through a referendum process. The rationale of entrenching the provisions mentioned in Article 255(1) of the Constitution is, in my view, informed by the very democratic idea that constitutional amendments of a fundamental nature should take place through a deeply participatory process and be ratified by the people, being the ultimate sovereign in the polity, through a referendum.

195.The approach in balancing flexibility and rigidity in constitutional amendment adopted in Chapter Sixteen reflects and compares favourably with modern constitutional architecture and design. Drafters of contemporary constitutions pursue the goal of balancing rigidity and flexibility through what has been termed as ‘tiered’ design of amendment rules. This argument is augmented by a number of articles cited before us, particularly: Rosalind Dixon and David Land au, ‘Tiered Constitutional Design’ (2018) 86 The George Washington Law Review 438, 441 and Richard Albert, ‘Constitutional Hand cuffs’ (2010) 42 Arizona State Law Journal 663, 709.

196.Under the ‘tiered’ design model, amendment rules vary with provisions that are core or fundamental to the constitutional system being placed on a higher tier and made more difficult to amend. The amendment rules under the Constitution adopt this modern ‘tiered’ constitutional design combining the virtues of rigidity and flexibility by having different amendment procedures apply to different parts of the Constitution. The core foundational values, principles and structures of the Constitution have been granted a high level of entrenchment to ensure the stability of the constitutional system. It follows therefore, that Kenyans were conscious of the core constitutional values, principles and structures that they wanted protected from abusive amendments and they protected them through the entrenched provisions in Article 255 of the Constitution. In my view therefore, the framers of the Constitution well aware of the basic structure doctrine, chose to ring-fence some key features from flexible amendments; and if it was their intention to provide for eternity clauses or the basic structure doctrine, nothing would have stopped them from so doing.

197.The next question that follows is whether it was necessary for the two superior courts below to adopt the basic structure doctrine and thereby devising a fourth pathway for amending the Constitution outside the three pathways stipulated in Chapter Sixteen.

198.To answer this question requires one to appreciate how the High Court and the majority of the Court of Appeal proceeded to analyse Chapter Sixteen. It was on the premise that based on the history of hyper-amendment of the repealed Constitution during the pre-2010 dispensation, the Constitution demand s heightened procedures beyond the ‘tiered’ design of the amendment procedures stipulated in Chapter Sixteen that would make the Constitution more difficult to amend. The two superior courts below however did not go into a detailed analysis and to specifically point out the actual shortcomings of the provisions of Chapter Sixteen especially in light of all the twenty-one (21) unsuccessful attempts that have been made over the last ten years to amend the Constitution.

199.The Court of Appeal in my respectful view had a duty to analyse the findings of the High Court and specifically point our whether there were apparent inadequacies as far as the provisions of Chapter Sixteen were concerned. Looking at the history as stated above, as well as the provisions of Chapter Sixteen, it is clear to me that Kenyans sought to achieve a balance between rigidity and flexibility in the amendment process. Kenyans did not want to shift from one extreme to another extreme in the amendment spectrum, that is, from hyper-amendments to ultra-rigidity in the amendment process. Rather, what Kenyans desired is a balance between rigidity and flexibility as reflected in the ‘tiered’ amendment process in Chapter Sixteen in the Constitution; with the core or essential features of the Constitution being accorded heightened protection but still open to amendment through an enhanced inclusive and participatory process that culminates in the people exercising their sovereign power through ratification in a democratic process in the form of a referendum.

200.The High Court and the majority of the Court of Appeal, with tremendous respect, failed to appreciate that the ‘tiered’ amendment procedure is one of the options available in the menu of constitutional design options for dealing with the practice of abusive amendments just like other design options that limit amendability (for example, eternity clauses and the basic structure doctrine). Therefore, where Kenyans have selected the ‘tiered’ amendment procedure as their response to the culture of hyper-amendability, I find it difficult to justify this judicially-created ‘fourth pathway’ of amending the Constitution founded on the basic structure doctrine. Unfortunately, there was no justification provided to demonstrate the lacuna in the Constitution and hence, the need to call in aid the basic structure doctrine to enhance the existing tools of interpretation. The pre- 2010 history of Kenya is replete with precedents of application of foreign laws and doctrines from the commonwealth and other jurisdictions which was done due to absence of local statutes. Today, I dare say that courtesy of our own Constitution, we have sufficient arsenals that include our own canons of interpretation which we must exhaust before borrowing from other jurisdictions.

201.Further, I also see a potential conflict within the constitutional system with this judicially-created ‘fourth pathway’ for amending the Constitution. This is for the simple reason that in our constitutional dispensation that is people- centered; our nascent democracy that respects the doctrine of separation of powers by vesting legislative power in the Legislature, to create a ‘fourth pathway’ within the scheme of amendments would bring into question the place of the participation of the people and the place of Legislature in that scheme. Taking into account where we are at in our constitutional democracy, Kenyans needed to be consulted on whether it is their wish to introduce the ‘fourth pathway’ for amending the Constitution. In other words, we, Judges should be vigilant lest we are accused of usurping the sovereign power vested in the people by introducing a constitutional amendment through judicial fiat.

202.Put differently, the ‘tiered’ amendment process provided in Chapter Sixteen of the Constitution is a design option for dealing with the problem of abusive amendments and obviates the need for judicially-created limits to amendment power like the basic structure doctrine. This is in line with the view expressed by Rosalind Dixon and David Land au in ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment’ (2015) 13(3) International Journal of Constitutional Law at page 613 where they remark thus:“The doctrine of unconstitutional constitutional amendment is useful as a partial solution to these threats. It is not the only possible response: another way in which the problem of abusive constitutional amendments can be dealt with at the level of constitutional design is via the use of some form of “tiered” amendment procedure. A system of tiered amendment thresholds has become a part of the comparative constitutional state of the art: many new constitutions include different amendment rules for different parts of the constitution. The point of these schemes is to require more demand ing demonstrations of popular will to amend some parts of the constitutional order as opposed to others, thus raising the costs of dangerous forms of constitutional change” [my emphasis].

203.My take home from this scholarly perspective is that ‘tiered’ design of constitutional amendment processes is one of the design options used in curbing the problem of hyper-amendment. This tells us that judicially-created basic structure doctrine is not the only option available in the design toolkit for curbing abusive amendment practice. Moreover, the ‘tiered’ design of amendment provisions is arguably superior to the judicially-created basic structure doctrine given its democratic legitimacy.

204.Prof. Yaniv Roznai rightly points out in his well-balanced amicus brief filed before this Court that the applicability of the basic structure doctrine depends, very much on context. The most important contextual consideration is the balance between flexibility and rigidity of the amendment process. The more difficult the amendment process is, the less there is a need for a doctrine of implied limits to amendment power. As Yaniv Roznai has observed in ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Richard Albert, and Bertil Emrah Oder, (eds) ‘An Unamendable Constitution? Unamendability in Constitutional Democracies’ (Springer, 2018) at page 45:“Moreover, the theory of unamendability calls for judicial restraint… Especially if constitutional amendments are adopted through demand ing amendment procedures which are multi-staged, inclusive, participatory, deliberative and time-consuming, courts should restrain themselves when adjudicating constitutional amendments.”

205.The jurisprudential underpinning of this view is that in a case where the amendment process is multi-staged; involve multiple institutions; is time- consuming; engenders inclusivity and participation by the people in deliberations over the merits of the proposed amendments; and has down-stream veto by the people in the form of a referendum, there is no need for judicially-created implied limitations to amendment power through importation of the basic structure doctrine into a constitutional system before exhausting home grown mechanisms. Moreover, I fully agree with the portion of the Judgment of Sichale, J.A where she questioned the viability of relying on Judges to interpret on a ‘case by case’ basis on whether a particular provision of the Constitution is amendable.

206.To put this into perspective with respect to our constitutional architecture, amendment of the entrenched provisions of the Constitution relating to the matters listed in Article 255(1) of the Constitution through popular initiative route requires: first, there must be public participation throughout the amendment process by dint of Article 10(2)(a) of the Constitution. Second, collection of one million signatures from registered voters in support of the initiative as stipulated in Article 257(1). Third, support of the initiative through approval of the Bill by a majority of the County Assemblies as stipulated in Article 257(7). Fourth, consideration of the Bill by the bicameral Houses of Parliament by dint of Article 257(10). Fifth, subjection of the Bill to a referendum in terms of Article 255(2), in which at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum and the amendment is supported by a simple majority of the citizens voting in the referendum. Sixth, it should also be appreciated that the processing of the Bill in the County Assemblies and the bicameral Houses of Parliament is also subject to a further public participation requirement in terms of Articles 196 and 118 respectively. Seventh, Article 88(4) (g) imposes an obligation of voter education on IEBC.

207.Amendment of the entrenched provisions under the parliamentary initiative route requires: first, by dint of Article 10(2) of the Constitution, public participation must inform the entire amendment process. Second, the amendment Bill has to go through the bicameral Houses of Parliament under Article 256. Third, the Bill shall not be called for second reading in either House within ninety days after the first reading of the Bill in either House as stipulated in Article 256(1)(c). Fourth, the Bill is deemed to have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House in terms of Article 256(1)(d). Fifth, the Houses of Parliament are under obligation to publicise the Bill and facilitate public discussion about it pursuant to Articles 118 and 256(2). Sixth, the President is to submit the Bill to IEBC to conduct a national referendum, within ninety days as stipulated in Article 256(5). Seventh, subjecting the Bill to a referendum in terms of Article 255(2), in which at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum and the amendment is supported by a simple majority of the citizens voting in the referendum. Eighth, Article 88(4)(g) of the Constitution imposes an obligation of voter (civic) education on IEBC.

208.Looking at the two pathways for amending the entrenched provisions, it is inescapable to conclude that amending the core or fundamental provisions of the Constitution is a multi-staged, multi-institutional, time-consuming process that ensures that a constitutional amendment process that touches on the core or fundamental aspects of the Constitution is transparent, inclusive and engenders the participation of the people in democratically deciding on their governance. I therefore find that the ‘tiered’ amendment process under the Constitution meets the set criteria as to when judicially-created basic structure doctrine is inappropriate and undesirable. Therefore, the two superior courts below erred by providing a fourth judicially-created pathway for amending the Constitution which is with respect tantamount to amendment of the Constitution through a judgment.

209.Indeed, reading Chapter Sixteen leaves me with the impression that Kenyans desired democratic self-government by opting for a balance of rigidity and flexibility. Chapter Sixteen provides citizens with a highly participatory process through which they can democratically reformulate the core aspects of the social contract. It enables them to exercise their sovereign power from time to time to reformulate their core commitments and update constitutional norms to conform to their will at any given time and respond to changing social, political, economic and technological needs and circumstances. This ensures that the Constitution reflects the desires of each generation, not past generations, however wise or well- intentioned. The constitution-making generation should not forever tether the future generations in what they may perceive as suitable for them during the constitution-making period. In addition, this would be tantamount to silencing some Articles against the canon of interpretation that the Constitution is speaking all the time.

210.In other words, denying people an opportunity to amend their Constitution through a judicially-created ultra-rigid process undermines democratic constitutionalism and self-government by stifling the voice of the present and future generations in governance. It is on this premise that I hold that where the amendment processes incorporate a ‘tiered’ process and the core or fundamental commitments of the Constitution can only be amended through an onerous process; that is, multi-staged, involving different institutional actors, deliberative, inclusive and participatory process, and involves ratification by the people in a democratically conducted referendum; then a court ought not to import the idea of a judicially-created basic structure doctrine. This is informed by the view that, in a context like Kenya, the Constitution has an explicitly in-built structure to discourage hyper-amendments and tame likely abuses of the amendment process by stealth or subterfuge.

211.To buttress this point further, the amendment practice in post-2010 Kenya illustrates that the ‘tiered’ amendment design is an adequate bulwark against abusive amendments. The attempts to amend the 2010 Constitution during the first decade of its operation and implementation demonstrate that the ‘tiered’ amendment design has ensured constitutional stability.

212.As pointed out by Sichale, J.A in her dissenting opinion at the Court of Appeal, there have been twenty-one (21) failed attempts to amend the 2010 Constitution during the first decade of its operation. Nineteen (19) of these were through the parliamentary initiative and two (2) were through the popular initiative route. It is also notable that although the Amendment Bill had gone the furthest in the amendment process, it was yet to be subjected to the ultimate down- stream veto of the referendum process. Comparatively, the independence Constitution had undergone twelve (12) major amendments by its tenth birthday. See Kenya Law, ‘The Amendments of the Constitution of Kenya from 1963 to 2019’ available at: http:kenyalaw.org/kl/index.php?id=9631. In essence, it is right to conclude that the resilience of the 2010 Constitution in its first decade is proof that Kenyans attained the goal of balancing flexibility with rigidity in designing the amendment power as reflected in Chapter Sixteen of the Constitution.

213.It ought to be appreciated that judicial protection of implied limitations to the amendment power, such as through the basic structure doctrine, become increasingly required in contexts where the country has a too flexible constitution that can be amended fairly easily. Therefore, while it was appropriate in the pre- 2010 dispensation for the High Court (Ringera, J.) in the Njoya Case to recognize the basic structure doctrine under the former Constitution, there is no such need under the 2010 Constitution. This view is founded on the premise that the risk of abusive amendments has been tamed by the ‘tiered’ amendment process that entrenches the core or essential provisions through a heightened and elaborate amendment process, which is participatory, inclusive and involves the direct involvement of the people in the ratification of proposed amendments in a referendum.

214.Considering the progressive nature of the Constitution, a three Judge bench of the High Court (Korir, Ngugi & Odunga, JJ.) in the Priscilla Ndululu Case expressed scepticism as to the continued relevance of the holding in the Njoya Case on the basic structure doctrine post-2010 Kenya in light of the provisions of Article 255 of the Constitution. In contrast, the unique context of India, with a too flexible Constitution that grants the Legislature a wide discretion in amending the constitution, arguably justifies the Judge made basic structure doctrine as developed and practiced in that country in order to stabilize the constitutional order and prevent the practice of abusive constitutional amendment given the low threshold for amendment in the text of the Constitution.

215.Although l think I have said enough to demonstrate why I disagree with the judgments of the majority of the Court of Appeal bench regarding the application of the basic structure doctrine in the post-2010 constitutional order, I will briefly, highlight some of the critical aspects which were not considered by the two superior courts; and if the learned Judges had, perhaps done so, they would have arrived at a different opinion.

216.One, the superior courts below failed to appreciate that the concern with the culture of hyper-amendment had already been taken into account during the drafting of the Constitution. This led to the design of the ‘tiered’ amendment process that balances flexibility and rigidity in the amendment process and protects the core or fundamental provisions of the Constitution through a heightened onerous, multi-staged, multi-institutional, inclusive, participatory process that culminates in ratification of amendments by the people in a referendum. In such a context, the correct judicial posture ought to be fidelity to the Constitution. This is informed by the reality that the Constitution to a large extent is self-contained and self-regulating in dealing with the legacy of abusive amendments in the former constitutional dispensation. Therefore, there is no justification for courts to go outside the four corners of the Constitution to create a ‘fourth pathway’ for amending the Constitution.

217.Two, the Court of Appeal failed to analyse the provisions of Chapter Sixteen and to arrive at its own independent conclusion on the shortcomings of the three- tiered process and to state clearly whether it was necessary to call in aid a foreign doctrine. Further to take into account the amendment practice in the post-2010 dispensation in their analysis of Kenya’s constitutional history, which shows that Chapter Sixteen of the Constitution has brought stability in the constitutional system in contrast to the culture of hyper-amendment under the former Constitution. There have been multiple attempts to amend the Constitution which were all unsuccessful meaning that the amendment process is not flexible as in the Indian Constitution.

218.Three, the Court of Appeal failed to take into account the fact that Chapter Sixteen is one of the entrenched parts of the Constitution under Article 255(1) of the Constitution. Therefore, it could not be amended by the courts through the created fourth pathway of amending the Constitution without following the constitutionally-ordained amendment process in Article 255(1) of the Constitution.

219.Four, the Court of Appeal failed to appreciate that Kenyans were aware of the idea around the basic structure doctrine during the constitution-making phase in light of the legacy of the Njoya Case; and yet did not embrace the idea of a veto to the amending power as represented in the basic structure doctrine as well as related doctrines like eternity clauses. The CKRC Final Report at page 76 indicates that Kenyans yearned for power to have a say in amending the core or fundamental features of the Constitution through a referendum and an inclusive and participatory process. This was done through the provisions of Article 255 of the Constitution.

220.Another aspect of the majority Judgment of the Court of Appeal that I need to address relates to how the two courts treated the historical background informing the drafting of Chapter Sixteen. It is evident that the decision on the question of the application of the basic structure doctrine within Kenya’s constitutional system has largely turned on historical inquiry to clarify and provide interpretative guidance on the intent of the Kenyan people during the drafting of Chapter Sixteen of the Constitution. While this Court has in the past celebrated the virtues and utility of historical context and the background to the adoption of the Constitution in constitutional interpretation [see In the Matter of the National Land Commission, SC Advisory Opinion No. 2 of 2014; [2015]eKLR (In the Matter of the National Land Commission) and Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others, SC Petition Nos. 14. 4A, 14B & 14C (Consolidated), [2014]eKLR (Communications Commission of Kenya Case)], courts must always bear in mind that historical narratives are interpretive and normative hence often informed by value judgments. This makes historical narratives subjective depending on the discretion of the interpreter. It is in appreciation of this that Renáta Uitz in ‘Constitutions, Courts and History: Historical Narratives in Constitutional Adjudication’ (Central European University Press, 2005) at page 53 has observed that:“...instead of providing objective, external, and neutral points of reference, historical inquiries provide a “history for today.” A keen eye might find that arguments from the history and traditions of the polity are normative claims, implying value judgments.”

221.Given the subjective nature of historical narratives, courts should endeavour to extract and have in view the complete account of the historical background to the constitutional provision being interpreted. Where a court embraces an account of history that marginalizes, excludes, suppresses or omits some portions of the historical account then such an incomplete or partial account of history is certain to distort rather than illuminate the meaning of the constitutional provision being interpreted hence misleading the court to reaching an erroneous conclusion.

222.In the instant case, the Kenyan people’s desire for a balance between the two extremes of hyper-amendability and ultra-rigidity that informed the drafting of Chapter Sixteen of the Constitution was lost in the superior courts. This happened because the High Court and the majority at the Court of Appeal focused solely on the past problem of hyper-amendability thus losing sight of the Kenyan people’s desire for a balance between rigidity and flexibility that is achieved through the ‘tiered’ design of the amendment provisions in Chapter Sixteen of the Constitution. This ought to serve as a cautionary tale to courts to take into account exhaustive and complete accounts of historical narratives if historical contexts or background information is to help in illuminating the purpose and meaning of constitutional provisions being interpreted.

223.Before leaving this part, I will address an argument advanced by learned Counsel, Dr. Khaminwa that the basic structure doctrine is applicable in Kenya pursuant to the provisions of Article 2(5) of the Constitution. The provision reads “The general rules of international law shall form part of the law of Kenya.” This Court has already provided judicial interpretation of Article 2(5) in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae), SC Petition No. 3 of 2018, [2021]eKLR (Mitu-Bell Case). The Court held at para. 140 as follows:“In light of the foregoing, we hold that the words general rules of international law in Article 2 (5) of the Constitution refer to customary international norms, including jus cogens” [my emphasis].

224.There is a general acceptance that customary international law requires, in the words of Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), “a general practice accepted as law,” that is, both a sufficiently widespread and consistent practice and what states have accepted as law (opinio juris) accompanying it. Examples of customary international law principles include: the doctrine of non-refoulement of refugees, and the granting of immunity for visiting heads of state. Since the basic structure doctrine is a constitutional law principle acceptable in just a number of states and not an international law principle, it does not amount to a customary international law principle. Therefore, Article 2(5) of the Constitution cannot be the basis for founding the applicability of the basic structure doctrine in Kenya.

225.On the four sequential steps recommended in the impugned opinions, just like the two superior courts below, I would wish to observe in obiter that Parliament needs to consider the onerous complexity in the implementation and compliance with the obligations in Chapter Sixteen and enact a legislation to guide the constitutional amendment process. This could be formulated in the mould of the Constitution of Kenya Review Act, No. 6 of 2009, which was enacted to guide the review of the repealed Constitution, only that the proposed legislation will provide a more detailed framework to guide the process of amendment according to the three tiered process, or if it is the desire of the people to add a fourth tier as proposed by the two superior courts. Moreover, it is necessary to also note that many of the petitions challenged the impugned amendment process because there was no legislation that was put in place to govern the collection of signatures, the verification, public participation and the conduct of a referendum. In my humble view, it is not at all reasonable to expect citizens to navigate all the numerous steps in the amendment process without a simplified guide drawn from legislation and even perhaps augmented by some rules or guidelines on the amendment process. The time and effort taken in determining this consolidated appeal is a testament that the provisions of Chapter Sixteen are complex and cannot be properly navigated without a legally ordained guide.

226.For a start, there has been no legislation to guide even public participation which is a key guiding pillar of governance in the post-2010 constitutional order. There is also the need for a comprehensive referendum law to guide the conduct of a referendum as far as Chapter Sixteen is concerned. If the people so desired, I see no problem with the Legislature taking up this recommendation to provide for the four sequential steps in the proposed legislation, given that in their true essence, they are but modalities and sites for deepening public involvement and participation in the amendment process which is already a constitutional requirement under Article 10(2).

227.In the end, I find that the basic structure doctrine and the four sequential steps for amendments as prescribed by the High Court and the majority of the Court of Appeal are not applicable in Kenya under the Constitution. Any amendment to the Constitution must be carried out in strict conformity with the normative stand ards and the provisions of Chapter Sixteen of the Constitution.

(ii) Whether the President can initiate amendments to the Constitution through a popular initiative

228.The question raised was whether the President could initiate the process of amending the Constitution through the popular initiative route as provided in Article 257 of the Constitution. The other related question was who started the process of amending the Constitution through the Amendment Bill?

229.Like other norm-producing processes, a constitution amendment process starts with an initial decision, that is, the initiation or activation of the process. The ‘initiative’ speaks to how the amendment process starts. This is what is in question before the Court. It is therefore imperative to start this analysis by tracing the process that led to the formulation of the Amendment Bill.

230.The story starts with the 8^th August, 2017 presidential elections in which the President was declared by IEBC as having been duly re-elected for a second term in office. The presidential elections results were challenged before the Supreme Court by Right Hon. Raila Odinga who had been declared as the runner up in the presidential elections. The Supreme Court annulled the results through a majority decision delivered on 1^st September, 2017. The Court ordered for fresh presidential elections to be conducted within 60 days of the nullification of the election. However, Hon. Raila Odinga and his political coalition, the National Super Alliance (NASA), withdrew from participating in the fresh presidential election which took place on 26^th October, 2017.

231.Subsequently, Hon. Raila Odinga and the NASA coalition vowed not to recognize the government that was formed as a result of the fresh presidential election. This led to some incidents of violence that brought about tension in the country. After months of tension, the President and Hon. Raila Odinga in an act of statesmanship, patriotism, and bipartisan accord, emerged on 9^th March, 2018 to announce to the public that there was cessation of hostilities between the two political sides in what they called the ‘Hand shake’. Through a Joint Communiqué, they promised the two political sides will work towards ‘Building Bridges to a New Kenyan Nation’.

232.It is in a quest to implement this noble objective of promoting national unity and overcoming other challenges identified in the Joint Communiqué that the President appointed the BBI Taskforce. The terms of reference of the BBI Taskforce were three pronged, being:(a)evaluate the national challenges outlined in the Joint Communiqué of Building Bridges to a New Kenyan Nation’, and having done so, make practical recommendations and reform proposals that build lasting unity;(b)outline the policy, administrative reform proposals, and implementation modalities for each identified challenge area; and(c)conduct consultations with citizens, the faith-based sector, cultural leaders, the private sector and experts at both the county and national levels.

233.On 26^th November, 2019 the BBI Taskforce released the BBI Taskforce Report which was unveiled to the public. It had various policy and administrative reform recommendations which included constitutional amendments, policy reforms, statutory enactments, institutional reforms, as well as behavioral and ethical changes amongst the citizens.

234.On 10^th January, 2020 the President appointed the BBI Steering Committee whose terms of reference were to: (a) conduct validation of the BBI Taskforce Report through consultations with citizens, civil society, the faith-based organizations, cultural leaders, the private sector, and experts; and (b) propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the BBI Taskforce Report, taking into account any relevant contributions made during the validation period. The BBI Steering Committee released the BBI Steering Committee Report on 26^th October, 2020 which was accompanied with annextures of twelve (12) Bills including the BBI Steering Committee Draft Bill. Thereafter, the BBI Steering Committee Draft Bill proposing to amend the Constitution was further revised and the final version – the Amendment Bill was unveiled for collection of signatures on 25^th November, 2020.

235.As far as the President’s actions with respect to the setting up of the BBI Taskforce and the BBI Steering Committee to further the agenda of promoting national unity were concerned, in my view these actions cannot be faulted. Indeed, they are laudable acts of statesmanship executed within the ambit of the provisions of Article 131(2)(c) of the Constitution. This Article demand s nothing less from the President as it directs the holder of that venerable office to “promote and enhance the unity of the nation.”

236.However, it is important to clarify that the legal and constitutional question before this Court does not go to the propriety of the pursuit of the Building Bridges to Unity project. The question before the Court is a narrow one and it relates to whether a constitutional amendment process initiated by the President can be pursued through the popular initiative route prescribed in Article 257 of the Constitution. The relevant provision to call in aid to resolve this question is the same Article 257 which provides:“

257.Amendment by popular initiative

(1)An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.(2)A popular initiative for an amendment to this Constitution may be in the form of a general suggestion or a formulated draft Bill.(3)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.(4)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.(5)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.(6)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.(7)If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay.(8)A Bill under this Article is passed by Parliament if supported by a majority of the members of each House.(9)If Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Article 256(4) and (5).(10)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.(11)Article 255(2) applies, with any necessary modifications, to a referendum under clause (10).”

237.To answer the question as to who may initiate an amendment process through a popular initiative, requires that we understand the purpose that is intended to be served by the introduction of the popular initiative as a route for amending the Constitution. This is pursuant to the purposive interpretation decreed by the Constitution at Article 259(1) of the Constitution. The appropriate starting point for this inquiry is the preparatory documents from the constitution making process. It is recorded in the National Constitutional Conference Documents: The Final Report of Technical Working Committee Group ‘K’ on Constitutional Commissions and Amendments to the Constitution (2005) at page 4 that:“The committee introduced a novel idea called popular initiative. This is an innovation where the citizens can 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 committee explained that their intention was a starting point towards curbing dictatorship by Parliament” [my emphasis].

238.The above constitution-making history demonstrates that a popular initiative was a tool curved out exclusively as a route for constitutional amendments by the citizens. In essence, amending the Constitution through a popular initiative was intended to be a citizen-driven and citizen-centered process. The citizen-centric nature of a popular initiative is linked to the fact that it is conceived as a means for direct sovereign power to be expressed as contradistinguished with a parliamentary initiative which lies at the realm of derived or delegated sovereign power. Under this understand ing, the popular initiative is supposed to be triggered ‘from below’ at the initiative of the citizenry as opposed to representative institutions.

239.In other words, the popular initiative is intended to give citizens, acting outside the institutions of the State, a means to activate or trigger the exercise of their sovereignty. This understand ing of the centrality of the citizens in activating a constitutional amendment process through the popular initiative is projected in the book by Joel Colón-Ríos, ‘Constituent Power and the Law’ (2020, Oxford University Press) at pages 150-151 where it has been observed as follows:“Since constituent power, almost by definition, was exercised against the constituted institutions (in order to alter them or to override an executive, legislative, or judicial decision), it was necessary to ensure that citizens, acting outside of the ordinary institutions of government, had a means of triggering its exercise. A solution …was the recognition of the right to change the constitution through popular initiative. This solution was not presented as a means of facilitating participatory democracy but as one of controlling the power of the three branches of government” [my emphasis].

240.The above position is also reflected in persuasive judicial reasoning, such as, by the Constitutional Court of Hungary in Decision 52/1997, On Referenda and Popular Sovereignty, 14^th October, 1997 where the court held as follows in this regard:“If the Initiative was launched by the representative organs or its ‘descendants,’ the inclusion of the people serves merely the ex post facto legitimization of the decision of the representative sphere… The expression by the people of their will in this case does not equal the complete, direct exercise of sovereignty by the people. … [the Popular Initiative] differs from this on the theoretical level as well. Each element of it is under the ‘influence’ of the voters concerned: the initiation, the formulation of the question as well as the enforceability (provided that the number of signatures necessary has been gathered). The ‘people’ control the situation with regard to every element of the direct exercise of power” [my emphasis].

241.My analysis of Article 257, the history of the constitution-making process, and the above authoritative but persuasive writings indicates that a popular initiative is an exercise of direct sovereign power; and excludes representative institutions (for example, the Legislature, and the Presidency) which only exercises power that is derived or delegated sovereign power as distinguished in Article 1(2) and (3) of the Constitution. In other words, it is a means of direct democracy; and indeed, direct democracy can only be exercised by the people not their representatives since that would convolute the form of democracy at play. It follows therefore that a popular initiative in a constitutional amendment process ought to be seen as an avenue through which citizens engage in the exercise of their sovereignty. As such, State organs, not being bearers of direct sovereignty, have no right to activate the popular initiative. This leads to the conclusion that the popular initiative is a preserve of the citizens, ‘the Wanjiku’, in Kenyan popular lexicon.

242.It ought to be appreciated that the Constitution provides normative markers for how, when, where and by whom particular powers are to be exercised. Article 257 delineates who has the power to undertake what duty or obligation or has a right to undertake specified measures with respect to the constitutional amendment process. It is in appreciation of this, that I need to interrogate the argument that the institution of the presidency has the authority to initiate a popular initiative in light of the overarching leitmotif of the Constitution which is concerned with tempering or limiting the powers of the Presidency.

243.In its architecture and design, the Constitution strives to provide explicit powers to the institution of the presidency and at the same time limit the exercise of that power. This approach of explicit and limited powers can be understood in light of the legacy of domination of the constitutional system by imperial Presidents in the pre-2010 dispensation. As a result, Chapter Nine of the Constitution lays out in great detail the powers and authority of the President and how such power is to be exercised. In light of the concerns over the concentration of powers in an imperial President that animate the Constitution, I find that implying and extending the reach of the powers of the President where they are not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes.

244.Another reason that supports the finding that the President was not envisaged as an initiator of a popular initiative is the role of the President with respect to entrenched matters listed in Article 255(1) of the Constitution. Article 256(5) as read with Article 257(10) of the Constitution grants the President a role that can be typified as serving a ‘guardianship’ role over the amendment process. In that, where a constitutional amendment Bill is presented for assent, the President has the obligation of reviewing the Bill and referring the Bill to undergo the referendum process where it involves matters listed in Article 255(1) of the Constitution. Such a ‘guardianship’ role over the amendment process ought not to be undertaken by a player in the amendment process. I therefore endorse, the finding by the two superior courts that the President ought not to be both a player and umpire in the amendment process.

245.The last reason for finding that state institutions and organs are excluded from using the popular initiative is found in Article 255(3)(b) of the Constitution. This provision states that an amendment by popular initiative under Article 257 of the Constitution is by ‘the people and Parliament’. It shows that the Constitution recognizes a distinction between ‘the people’ and state bodies like ‘Parliament’. It therefore follows that a state body like the institution of the presidency cannot fall within the rubric of ‘the people’ as the very text of the Constitution makes this distinction.

246.This leads me to the inescapable conclusion that state institutions and state organs, such as the Presidency, cannot initiate a constitutional amendment process using the popular initiative route provided in Article 257 of the Constitution. Such state organs or state institutions are precluded from the initiation and promotion of a constitutional amendment process through the popular initiative route.

247.Nonetheless, this finding does not dispose of the issue as Counsel for the President and even the Attorney General sustained an argument that barring the President from initiating or pursuing a constitutional amendment process through a popular initiative was a violation of the President’s political rights as protected in Article 38(1) of the Constitution. Article 38(1) provides as follows:“Article 38. Political rights(1)Every citizen is free to make political choices, which includes the right–(a)To form, or participate in forming, a political party;(b)To participate in the activities of, or recruit members for, a political party; or(c)To campaign for a political party or cause.”

248.Given that a process to amend the constitution is a democratic process which is meant to give effect to self-government, the initiation and promotion of an initiative to change the Constitution is a political choice protected under Article 38(1)(c) of the Constitution. However, there is an additional hurdle in deciding whether a right is applicable in a given factual situation. This is the concern with a right’s range of application as found in the edict in Article 20(2) of the Constitution which is to the effect that:“Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom” [my emphasis].

249.What I deduce from this provision is that a court is under an obligation to interrogate whether a person alleging a violation of a right is a beneficiary of the right in question. In this context, it is notable that Article 38(1) grants the freedom to make political choices to every citizen. The citizen qualifier speaks to the range of application of the freedom to make political choices, by limiting the right’s enjoyment to citizens. Therefore, for one to be a beneficiary of the freedom to make political choices they must fall within the category of a citizen.

250.Based on the citizenship qualification, the freedom to make political choices is a right that does not accrue to state organs or institutions. State organs or institutions cannot be citizens because under Chapter Three of the Constitution, citizenship is limited to living human beings excluding state organs and institutions. In a relevant persuasive reasoning in this respect, the High Court (Majanja, J.) held in Famy Care Limited v. Public Procurement Administrative Review Board & Another, HC Petition No. 43 of 2012; [2013]eKLR as follows:“Though the term “citizen” is not defined in Article 260, citizenship is dealt with under Chapter Three of the Constitution, Articles 12 to 18. The purport and effect of these provisions is that citizenship is in reference to natural persons… A juridical person is neither born nor married as contemplated by these Articles. Similarly, the provisions on citizenship by registration and dual citizenship set out in Articles 15 and 16 of the Constitution negative an intention to define a citizen as including a juridical person…“A reading of the Constitution and an examination of words “person” and “citizen” within the Constitution can only lead to one conclusion: That the definition of a citizen in Articles 35(1) and 38 must exclude a juridical person and a natural person who is not a citizen as defined under Chapter Three of the Constitution.”The above reasoning which I find to be the correct position in law was also followed by Mumbi Ngugi, J. (as she then was) in Nairobi Law Monthly Company Limited v. Kenya Electricity Generating Company & 2 Others, HC Petition No. 278 of 2011; [2013]eKLR.

251.Consequently, while the President when acting in his private capacity as a citizen can enjoy the freedom to make political choices, this right does not accrue to the institution of the Presidency which is a state organ. The Presidency and other state organs do not fall under the rubric of citizens. I therefore, find that exclusion of the institution of the Presidency and other state institutions from initiation of a process to amend the Constitution through the popular initiative route does not violate political rights protected under Article 38(1) of the Constitution.

252.The last aspect of this issue relates to whether it was established through evidence that the process to amend the Constitution through the Amendment Bill was initiated by the President. At the outset, it should be pointed out that the concurrent findings by the two superior courts below was that the President by a number of antecedent acts had initiated the process and the state was the real force behind the amendment process including through the use of state resources to support the process. In a challenge to this finding, it was argued by the Attorney General, and the BBI National Secretariat, that it is the BBI National Secretariat, through Hon. Dennis Waweru and Hon. Junet Mohamed, who were the initiators and promoters of the impugned constitutional amendment initiative and not the President.

253.An examination of the evidence before the courts reveals a number of things relevant to this factual determination. For starters, the President and the National Executive took certain actions which portray his role in the initiation and promotion of the constitutional amendments. The President did not do those things as a private citizen and this is clearly demonstrated in a number of ways. The President signed off the initial Communiqué of 9^th March, 2018 in the official title of President; the Communiqué was published on a paper bearing the coat of arms of the Republic and seal of the President; the President appointed the BBI Taskforce and BBI Steering Committee through gazette notices 5154 and 264 of 2018 and 2020 respectively; and the President received the official reports through a state function as the President. As a result, it cannot be disputed that the President was involved in the initiation of the Amendment Bill. However, in my considered view, the President cannot be blamed for this, because it is the promoters who took over the Amendment Bill under the auspices of the BBI National Secretariat who erred by invoking the popular initiative route under Article 257 to pursue the amendment process.

254.It is my finding that the genesis of the Amendment Bill can be traced to the terms of reference of the BBI Steering Committee which included:“(b)propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report, taking into account any relevant contributions made during the validation period” [my emphasis].This is the foundation upon which the BBI Steering Committee formulated the BBI Steering Committee Draft Bill which was an annexure to the BBI Steering Committee’s Report. In effect, I find that the BBI Steering Committee was implementing the directive of the President as the Committee’s appointing authority. Therefore, the President cannot be delinked from a product that emerged as a natural consequence or result of implementing a task assigned by the President.

255.In point of fact, the President’s written submissions dated 22^nd December, 2021 filed before this Court confirm that this is the correct position at page 3, para. 9 where it is indicated as follows:“The Petitioner (Isaac Alouchier erroneously cited as the 21^st Respondent herein) impleaded the President in his personal capacity arguing that the acts done were unconstitutional and that the President was acting in his personal capacity. However, the official documents (the Gazette Notices) clearly shows that they were signed by or on behalf of the 22^nd Respondent (the President) in his official capacity.”This assertion resonates with the evidence before the Court that all actions by the President leading to the Amendment Bill were undertaken in his official as opposed to his personal capacity. They were actions by the office of the President as a state organ or institution and ought not to be attributed to the person holding that office in personal capacity.

256.I therefore affirm the factual finding by the two superior courts below that the President was the real force or driving principal behind the Amendment Bill. I particularly endorse the view expressed by Tuiyott, J.A. in his Judgment to the effect that:“…the process of popular initiative must be guarded from abuse. A state actor, who is otherwise barred from initiating a popular initiative, cannot 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 will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will [be.an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation.”

257.I believe I have stated enough to support my conclusion that the President or state organs or institutions are not permitted to initiate or promote a constitutional amendment process through the popular initiative route envisaged in Article 257 of the Constitution. Therefore, the promoters erred by pursuing the Amendment Bill as a popular initiative and this rendered the amendment process unconstitutional.

(iii) Second Schedule to the Amendment Bill

258.The question for resolution from the above issue is whether the Second Schedule to the Amendment Bill was unconstitutional based on the findings by the two superior courts below that it was unlawful for the Amendment Bill to directly allocate and apportion the seventy (70) constituencies proposed therein.

259.To put this question in context, it ought to be appreciated that the Second Schedule was intended to serve as a transitional scheme of implementing Clause 10 of the Amendment Bill. Clause 10 which intended to amend Article 89 of the Constitution provided:“Article 89(1) of the Constitution is amended by deleting the words “two hundred and ninety” and substitute therefor with the words “three hundred and sixty.”

260.The Second Schedule of the Amendment Bill which provided for the delimitation of the proposed additional seventy constituencies stated that:“Within 6 months of the commencement of the Act, the IEBC shall, subject to subsection 2 determine the boundaries of the additional seventy constituencies created in Article 89(1) using the criteria in Article 81(d) and 87(7) (sic).The seventy constituencies shall be spread among the counties set out in the first column in a manner specified in the second column.”

261.Clause 1(2) of the Second Schedule proceeded to distribute the additional seventy constituencies among the counties as follows: Mombasa Three; Kwale Three; Kilifi Four; Mand era One; Meru Two; Embu One; Machakos Three; Makueni One; Kirinyaga One; Murang’a One; Kiambu Six; Turkana One; West Pokot One; Trans Nzoia Two; Uasin Gishu Three; Nand i One; Laikipia One; Nakuru Five; Narok Three; Kajiado Three; Kericho One; Bomet Two; Kakamega Two; Bungoma Three; Siaya One; Kisumu Two; Nyamira One; and Nairobi City Twelve.

262.It is necessary to point out that Article 89 of the Constitution provides for delimitation of electoral units, a role that is vested in IEBC. This is what Article 89 provides:“Article 89. Delimitation of electoral units(1)There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97(1)(a).(2)The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.(3)The Commission shall review the number, names and boundaries of wards periodically.(4)If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.(5)The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6) to take account of — (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.(6)The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— a) forty per cent for cities and sparsely populated areas; and b) thirty per cent for the other areas.(7)In reviewing constituency and ward boundaries the Commission shall — (a) consult all interested parties; and (b) progressively work towards ensuring that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota.(8)If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.(9)Subject to clauses (1), (2), (3) and (4), the names and details of the boundaries of constituencies and wards determined by the Commission shall be published in the Gazette, and shall come into effect on the dissolution of Parliament first following their publication.(10)A person may apply to the High Court for review of a decision of the Commission made under this Article.(11)An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.(12)For the purpose of this Article, “population quota” means the number obtained by dividing the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.”

263.It is in the above context that the constitutionality of the Second Schedule directly allocating and apportioning the proposed constituencies to specified counties was challenged. The two superior courts were unanimous in their finding that the Second Schedule to the Amendment Bill was unconstitutional. This finding was based on substantive grounds that the Second Schedule violated the basic structure of the Constitution by purporting to take away the mand ate of IEBC, an independent body under the Constitution.

264.Further, it was contended that the Second Schedule impermissibly directed IEBC on the execution of its constitutional functions; set criteria for the delimitation and distribution of constituencies contrary to Article 89(5); ignored the principle of due process in delimiting and distributing constituencies, namely, the public participation requirement; imposed timelines for the delimitation exercise contrary to the Constitution; impermissibly took away the rights of individuals who are aggrieved by the delimitation decisions of IEBC to seek judicial review of those decisions; tucked in the apportionment and delimitation of the seventy newly created constituencies in the Second Schedule using a pre-set criteria which is not within the constitutional stand ard enshrined in Articles 89(4), (5), (6), (7), (10) and (12) of the Constitution; and extra-textually amended or suspended the intended impacts of Article 89 of the Constitution which they found formed part of the basic structure of the Constitution.

265.It is imperative to begin the analysis on the constitutionality of the Second Schedule of the Amendment Bill by pointing out that given my earlier finding that the basic structure doctrine does not apply under the Constitution of Kenya 2010, my determination of this question rests on the procedural concerns linked to whether there was public participation in coming up with the Second Schedule. This is because the provisions of Article 89 are amendable as long as due process is followed.

266.It ought to be appreciated that amendments touching on matters falling within the remit of Article 255(1), which are the core or fundamental commitments of the Constitution, ought to be undertaken through a highly participatory and inclusive process. It should be noted that, directly allocating and apportioning constituencies usurps the mand ate of IEBC, an independent constitutional commission; removing the possibility of judicial review of the delimitation has an effect on the independence of the Judiciary; the centrality of constituencies as units of political representation in the National Assembly means that they ought to be apportioned and allocated by a neutral and professional actor; much more so, because malapportioned constituencies have the potential of diluting the power of the vote hence threatening the animating goal of fair and effective representation, which is at the heart of the foundational value of democratic governance enshrined in Articles 4(2) and 10(2)(a) of the Constitution. Further, since constituencies are units of social and economic development through allocation of National Government Constituencies Development Fund (NG-CDF) and the recruitment into disciplined forces, such as the Kenya Defence Forces and the National Police Service, delimitation of constituencies has implications on the constitutional values and principles of equity, and social justice enshrined in Article 10(2)(b) of the Constitution.

267.It goes therefore without saying that the delimitation of constituencies must be accompanied by a process that is fair and just, which is the golden thread that runs through our constitutional order as elaborated in the preceding paragraphs. Therefore, the process of allocating and apportioning constituencies demand s deepened public participation to ensure such a process is not carried out through stealth or subterfuge. Indeed, it is this perspective that informs the specific and in- built requirement of public participation in delimitation of electoral units in Article 89(7)(a) of the Constitution.

268.This Court set the threshold for assessing whether public participation has been met in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v. Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party), SC Petition. No. 5 of 2017; [2019]eKLR (BAT Case). The Court at para. 96 of the Judgment set the constitutional test for adequate public participation as being the “reasonableness” threshold. The Court observed thus:“Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.”Following from this, I will now examine whether reasonable notice and opportunity was afforded to the public for generating views and deliberating on apportioning and allocating of the disputed seventy constituencies.

269.An examination of the process leading to the BBI Taskforce Report and the BBI Steering Committee Report reflects that there was reasonable participation and involvement of the people in coming up with the recommendations in those two reports. However, it is noteworthy that the BBI Steering Committee Draft Bill, which was annexed to the BBI Steering Committee Report, did not contain any clause dealing with apportioning and allocation of constituencies. It is in the Amendment Bill published on 25^th November, 2020 where the impugned Second Schedule first emerged.

270.There is no evidence of any form of public participation or deliberation between 21^st October 2020 and 25^th November 2020 when changes to the BBI Steering Committee Draft Bill including the Second Schedule was added that shows public engagement and consideration of the issue of apportioning and allocating the subject seventy constituencies. This leads to the conclusion that the constitutional threshold of reasonable public participation was not met in coming up with the Second Schedule of the Amendment Bill. Consequently, I come to the conclusion that the Second Schedule of the Amendment Bill is unconstitutional for want of public participation, a constitutional obligation that flows from Articles 10 (2)(a) and 89(7)(a) of the Constitution.

(iv) Presidential Immunity

271.The question before the Court, as I understand it, relates to the nature, scope and reach of protection from civil legal proceedings enjoyed by the President or a person performing the functions of the office of the President under Article 143(2) of the Constitution.

272.At the outset it is important to point out that given that the Court of Appeal held that the President was not served with HC Petition No. E400 of 2020 in the proceedings before the High Court, in which this question arose, it was improper for the Court of Appeal to proceed and adjudicate the question of interpretation of Article 143(2) of the Constitution. However, as conceded in the President’s written submissions filed before this Court, there is a public interest element in the need for this apex Court to clarify and settle the law on the nature and scope of protection of the President from civil legal proceedings considering the findings by the two superior courts below. It is on this basis that I will proceed to determine this issue.

273.The majority decision of the Court of Appeal (Musinga, (P), Nambuye, Okwengu, Kiage, Gatembu & Sichale, JJ. A) upheld the finding of the High Court to the effect that the President can be sued in his personal capacity during his tenure of office for anything done or not done contrary to the Constitution. In their view, it is apparent from Article 143(2) that the President or any other person holding that office is only protected from civil proceedings in respect of anything done or not done in the exercise of their powers under the Constitution. Expressing a different opinion, Tuiyott, J.A found that Article 143(2) and (3) read together struck a balance by giving functional immunity to a sitting President during his tenure of office but leaving it open for him to still be held personally accountable once out of office for any act or omission in his official capacity contrary to the Constitution.

274.Article 143 of the Constitution provides as follows:“Article 143. Protection from legal proceedings–(1)Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.(2)Civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.(3)Where provision is made in law limiting the time within which proceedings under clause (1) or (2) may be brought against a person, a period of time during which the person holds or performs the functions of the office of the President shall not be taken into account in calculating the period of time prescribed by that law.(4)The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.”To understand the ambit of protection from legal proceedings envisaged under Article 143(2) of the Constitution requires teasing out of the purpose intended to be served by the above provision and the animating idea underlying it.

275.It is generally recognised that immunity from legal proceedings usually takes two forms: first, immunity from liability protects officials, not from proceedings being undertaken, but from personal liability at the end of the proceedings which relate to enforcement. Second, immunity from proceedings, is a broader form of immunity that overthrows the court’s or tribunal’s jurisdiction to hear a matter in question because the party against whom the proceedings are undertaken enjoys immunity. Neither proceedings nor liability may arise from this second form of immunity.

276.It is also necessary to recognise the distinction between sovereign immunity and functional immunity. Sovereign immunity is the immunity enjoyed by a sovereign state or the heads of states or their representatives who have diplomatic immunity and entails that the holders of such immunity cannot be subjected to the jurisdiction of certain courts, either their own local or foreign courts. In contrast, functional immunity is conferred on state or public officers not to be tried or made liable for acts done (usually in good faith) in discharge of their official functions. The former emanates from the tradition that a sovereign cannot be subjected to its own courts without its consent, while the latter derives from the need to let persons lawfully performing their functions not be subjected to unnecessary suits.

277.Further, there is absolute and qualified immunity. Absolute immunity (whether functional or sovereign, jurisdictional or enforcement immunity) has no limitations as to its application while qualified immunity usually has limitations like the extent of actions and whether related to the official function or whether done lawfully and in good faith or out of malice or whether it was a discretional act or not. See Charles Manga Fombad and Enyinna Nwauche, ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’ (2012)5 African Journal of Legal Studies 91,102.

278.The Constitution contemplates immunity of certain officials in the performance of their functions. Examples include:(a)Article 160(5) provides that: “a member of the judiciary is not liable in an action or suit in respect of anything done or not done in good faith in the lawful performance of a judicial function.”(b)Article 250(9) provides that: “a member of a commission, or the holder of an independent office, is not liable for anything done in good faith in the performance of a function of office.”(c)Article 143 (1) provides that: “criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.”(d)Article 143(2) provides that: “civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”In addition, the Privileges and Immunities Act, and the Parliamentary Powers and Privileges Act, 2017 provide different scopes of immunities for respective individuals.

279.From a structural reading of the above provisions, there are glaring distinctions that illuminate the nature and scope of presidential immunity envisaged in Article 143(2) of the Constitution. Firstly, all the officials set out above enjoy immunity as persons (holder of office, member of commission) but not their offices; whereas, the President enjoys immunity as both the person in the office, and the office itself. This is evident from the choice of phraseology used in Article 143(2) to the effect that: “President or the person performing the functions.” To make the point clearer, one can contrast the nature of immunity envisaged in Article 143(2) with that in Article 250(9) for a holder of an independent office. The difference in phraseology between these two provisions yields the view that the holder of the office of the Auditor General may not be liable but the office of the Auditor General may be liable, but neither the office of President nor the holder of that office may be liable.

280.Secondly, the President enjoys immunity from proceedings in any court, whereas the other officials enjoy immunity from liability but not expressly from proceedings that lead up to liability. Thirdly, the President’s immunity is limited to the duration of their tenure of office whereas that of the other officials would remain beyond even their tenure of office. This is to say, that the person performing the functions of the office of President ceases to enjoy immunity from proceedings once they cease to hold office as President but the other officials continue to enjoy the immunity for the actions they did while they were still in office. Fourthly, the immunity of the President is not qualified by good faith whereas that of the other officials is qualified by the requirement or the assumption that they performed the function in good faith. It is notable that for judicial officers, it is also expected that the act or omission in issue should be within the lawful performance of their functions for them to enjoy the stipulated immunity.

281.There is a compulsive tone in the protection of the President from proceedings which stems from the use of ‘shall not’ in Article 143(1) and (2), and a deliberateness in the overthrowing of jurisdiction of any court to try the President or any person performing the functions of the office during the tenure of that office. This only changes with the caveat in Article 143(4) which provision withdraws the entire cloak of immunity when the President (and not any other person) is tried for crimes for which the President may be prosecuted under any treaty to which Kenya is a party, and which prohibits such immunity.

282.Consequently, this leads to the inescapable conclusion that the immunity of the President is unlike that of the other state actors. The President not only enjoys functional immunity like all public officials who perform state duties, which protects them from civil liability for official functions, they further enjoy sovereign immunity as the Head of State and the single representation of the sovereignty of the Republic. Indeed, it is only sovereign immunity that can immunize anyone against both proceedings and criminal liability because any other immunity would be related to official functions and therefore would inherently be a ‘qualified immunity’. This is the only explanation why all other public officials would be liable to criminal prosecutions even while in office, but the President would not only not have criminal proceedings instituted against them, but also any criminal proceedings that may have been ongoing would be discontinued in the duration of the President’s tenure of office. It is this sovereign immunity that the Head of State, like all heads of states, enjoys that makes Article 143(4) relevant in that, the immunity shall be waived by consent of the Republic through ratification of a treaty that forbids such immunity. Likewise, that is also why this immunity (from any proceedings, and especially from criminal liability) is limited to the duration during which the person represents the sovereignty of the Republic, and expires upon expiry of such term.

283.The two superior courts below, especially the majority opinion of the Court of Appeal, relied on the phrase “… in the exercise of their powers under this Constitution” in Article 143(2) to emphasize that when the President exercises powers not granted by the Constitution, then the immunity is extinguished. It is true that, that is one of the interpretations one may obtain from a plain reading of the Sub Article, but a purposive interpretation of the phrase yields a different result. Taking into account the logic and animating idea behind Article 143(2) leads to an interpretation of the phrase to mean that the immunity is in relation to the President’s official functions and not personal suits.

284.I am conscious that part of the President’s role in the performance of their functions is the interpretation of the Constitution as to whether or not it gives them power to perform particular roles. Upon such interpretation, the President either acts or fails to act in the belief that either that power exists or does not exist. It would follow then that if proceedings were to be instituted against the President after an interpretation which is considered to have been a wrong interpretation, then such proceedings would fall within the immunity contemplated by Article 143(2); in that, it would be within the performance of the President’s functions. There is no provision allowing or requiring the President to seek an advisory opinion from the judiciary before exercising their duties or before determining whether they have power to perform any official act; and in any event, this would generally blur the separation of powers.

285.Further, the two superior courts below held that the President or the person performing the functions of the office of the President is not above the law and should be amenable to the law if they act against the Constitution. The implication of this finding is far reaching and therefore calls for a very careful analysis and consideration by this Court. The submissions and concern of the proponents of the said finding is that total immunity would provide cover for impunity by the President or a person acting in that capacity. Therefore, they argued that there is need to address what I would call the ‘accountability gap’ concern through a balance between accountability and impunity.

286.The response to the ‘accountability gap’ concern is that the Constitution provides for political and legal accountability of the President hence giving effect to the protection from legal proceedings in Article 143(2) would not foster a culture of lawlessness and impunity. Indeed, it should be appreciated that by enshrining the rule of law, accountability, and good governance as national values and principles of governance in Article 10(2), the Constitution recognises that the exercise of public power is a constrained power that cannot be beyond the reach of the law.

287.It is necessary to state that the Constitution has provided for how the President and the Executive in general can be kept in check through political accountability, with the provision that the President is liable for impeachment under Article 145 of the Constitution. The grounds for impeachment listed under Article 145(1) of the Constitution include gross violation of the Constitution or any law, commission of a crime under national or international law, or gross misconduct. This means that there is a clear avenue to check the President’s conduct as acknowledged by the Court of Appeal in Minister for Internal Security and Provincial Administration v. Centre for Rights Education & Awareness (Creaw) & 8 Others, Civil Appeal 218 of 2012; [2013]eKLR at para. 37 thus:“There were also issues raised regarding the immunity of the President as provided in the Constitution in respect to civil and criminal litigation, we wish to say no more on this issue as the Constitution is clear, if the President violates the law, he or she can only be subjected to the process of impeachment, however the former Constitution did not have provisions of impeachment.”

288.With respect to legal accountability, the protection of the President from legal proceedings under Article 143(2) does not mean that a President’s actions or omissions cannot be challenged in court. Anybody or party aggrieved by the President’s actions or failures can initiate proceedings against the Attorney General who by virtue of being the legal representative of the government in legal proceedings also represents the President, who is the Head of Government. The immunity on the other hand offers protection that shields the President from civil suits being filed against them in their personal capacity. As rightly conceded by the President in his written submissions before this Court:“....an aggrieved litigant has the option of challenging the President’s decision or actions in court by suing the Attorney General.”As such, pursuant to Article 156(4) of the Constitution, the exercise of public power by the President can be challenged in a court of law by suing the Attorney General through an action of judicial review or constitutional petition wherein the court may issue appropriate remedies. See the High Court’s decisions in Republic v. Chief Justice of Kenya & 6 Others Ex-parte Moijo Mataiya Ole Keiwua, Misc. Appl. No. 1298 of 2004; [2010]eKLR; and Julius Nyarotho v. Attorney General & 3 Others, Misc. Appl. No. 36 of 2012; [2013]eKLR (Nyarotho Case).

289.It should also be appreciated that the protection of the President or a person acting in the office of the President from legal proceedings was a clear desire by Kenyans as captured in the CKRC Final Report which records at page 425 that:“The President should receive protection from any legal proceedings that may be instituted during his tenure of office.”

290.In effect, the finding by the superior courts below had the ramifications of rendering Article 143(2) of the Constitution ineffective or superfluous. This is an interpretive path that, in my view, is not open to the courts. An interpretation of the Constitution that results to an amendment vide a judgment is tantamount to judicial overreach. As pointed out by the Constitutional Court of South Africa in Khumalo and Others v. Holomisa (CCT 53/01), 2002 (5) SA 401 at para. 32:“We cannot adopt an interpretation which would render a provision of the Constitution to be without any apparent purpose.”

291.I therefore agree with the interpretation by Tuiyott, J.A in his dissenting opinion which held that the import of Article 143(2) of the Constitution with respect to protection of the President from civil proceedings is as follows:“(a)Immunity does not extend to acts or omission of a sitting President done in purely personal capacity not connected with his office.(b)The immunity is only in respect to acts or omissions connected with the office and functions of that office.(c)Where an action or inaction/omission is in official capacity but bereft of any constitutional authority or power whatsoever or is in fact done in gross or serious violation of the Constitution then it is actionable against the President in person but only after he leaves office.(d)For acts and omissions falling under (c) above and which must be questioned or challenged immediately, the President can be sued, not in his personal name, but through the Attorney General.”

292.This leads me to the conclusion that the learned Judges unfortunately fell in error in their interpretation and application of Article 143(2) of the Constitution by holding that civil proceedings can 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. I hold that civil proceedings cannot 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. Such proceedings can be instituted against the President vide the Attorney General.

(v) Public Participation

293.The issue as framed by the Court contains two components. The first relates to the role of IEBC under Article 257(4) of the Constitution and in particular, whether IEBC is under an obligation to ascertain that promoters of a popular initiative have undertaken public participation during the collection of signatures. The second part deals with the broader question as to whether there was public participation in respect of the Amendment Bill. I will deal with these questions in turn; first by revisiting Article 257(4) which is couched in the following terms:“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.”

294.It is clear to me that there is no direct requirement arising from this provision that imposes an obligation on IEBC to ascertain that promoters of a popular initiative have undertaken public participation. Nonetheless, the High Court held that IEBC was obligated to ensure that the promoters of the impugned popular initiative complied with the requirements of public participation. In other words, the High Court found that it was imperative for IEBC to ascertain there was public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies. The rationale embraced by the learned Judges was that under Article 10(1), IEBC was not only interpreting but also applying the Constitution.

295.On appeal against this finding, the majority of the Judges of the Court of Appeal did not determine the issue leaving the determination by the High Court intact. It is only Gatembu, J.A who addressed the issue peripherally by reasoning that there was an obligation on IEBC to undertake voter education and sensitization on the amendments proposed in a draft Bill to empower the citizenry to engage meaningfully and from a point of information, with their representatives at the County Assemblies. It is in light of this, that IEBC appealed to this Court seeking clarification on its obligation under Article 257(4).

296.It is necessary to keep reminding ourselves that IEBC being a creature of the Constitution and statute can only discharge a mand ate vested in it explicitly by the law. This is a direction given in Article 10(2) which identifies the rule of law as a national value and principle of governance. In a persuasive dictum, the Constitutional Court of South Africa in Law Society of South Africa & Others v. Minister for Transport & Another, 2011 (1) SA 400 (CC) at para. 32 expressed itself as follows:“…the rule of law... is a founding value of our constitution. The rule of law requires that all public power must be sourced in law – this means that state actors exercise public power within the formal bounds of the law.”

297.The same court held in Fedsure Life Assurance Ltd & Others v. Greater Johannesburg Transitional Metropolitan Council & Others, 1999 (1) SA 374 at para. 56 as follows:“It is a fundamental principle of the rule of law, recognized widely that the exercise of public power is only legitimate where lawful. The rule of law – to the extent at least that it expresses this principle of legality - is generally understood to be a fundamental principle of constitutional law. This has been recognized in other jurisdictions. In The matter of a Reference by the Government in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada the Supreme Court of Canada held that: “Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. V. The Queen, [1985]1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.”

298.It follows that IEBC, like all other public bodies, cannot by craft of innovation or interpretation extend its powers to include ascertaining whether a promoter of a popular initiative has complied with the public participation requirements under the Constitution where the law does not explicitly grant it that mand ate. The power granted to IEBC under Article 257(4) is limited to “verifying tha

Case Search

Petition 12, 11 & 13 of 2021 (Consolidated)

Case Metadata

Advocates