Supreme Court declares the Constitution (Amendment) Bill, 2020 unconstitutional.
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.
- 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).
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 74th, 75th, 76th, 77th and 78th respondents in the instant appeal to their written submissions like the 1st to 8th 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)  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  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 3rd 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;  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;  (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;
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 1st to 5th 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);  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.