Weekly Newsletter 013/2021



Kenya Law

Weekly Newsletter


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Kenya Law
Case Updates Issue 020/2021
Case Summaries  

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

David Ndii & others v Attorney General & others
Petition No E282 of 2020
(Consolidated with Petition Nos 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021)
JM Ngugi, GV Odunga, J Ngaah, EC Mwita & MT Matheka, JJ
May 13, 202
Reported by Beryl Ikamari

Download the Decision

Constitutional Law - interpretation of the Constitution - applicability of the basic structure doctrine on constitutional amendments to the Constitution - implications of the basic structure doctrine in Kenya for the amendment powers provided under the Constitution - whether certain provisions of the Constitution could only be amended through a referendum - Constitution of Kenya, 2010, articles 255, 256 and 257.
Constitution Law - constitutional amendments - amendment through a popular initiative - persons that could be promoters of proposed constitutional amendments through a popular initiative - where the President could be the promoter of a popular initiative to amend the Constitution – whether the President’s role in promoting national unity could include promotion of constitutional amendments through a popular initiative – Constitution of Kenya 2010, article 131(2)(c).
Constitutional Law - national values and principles of governance - public participation - where there were allegations that before the public was afforded an opportunity to append their signatures to a draft constitutional amendment bill, there was no civic education conducted to enable them to make informed decisions and the proposed draft bill was not translated into Kiswahili or Braille or availed in print format  - whether there was adequate public participation in the BBI Steering Committee's process of initiating amendments to the Constitution.
Constitutional Law - constitutional amendment - adequacy of the available legal and regulatory framework for constitutional amendment - effect of not having an adequate legal regulatory framework to guide the process of undertaking a constitutional amendment through a popular initiative.
Constitutional Law - public finance - use of funds to conduct a constitutional amendment process - where there were allegations that the process as conducted was unconstitutional - whether the President and public officers who directed or authorized expenditure on the process should be ordered to refund the money spent - Constitution of Kenya, 2010, article 226(5).
Constitutional Law - interpretation of constitutional provisions - amendments to Constitution undertaken through a popular initiative - whether Parliament and County Assemblies could make changes to a popular initiative constitutional amendment bill - Constitution of Kenya, 2010, articles 255, 256 and 257.
Constitutional Law - interpretation of constitutional provisions - referendum to amend the Constitution - where a constitutional amendment bill was an omnibus bill covering a range of subjects - whether it was necessary for specific subjects to be covered by different and separate questions which would allow the public to select the proposed amendments that they accepted and those that they rejected.
Constitutional Law - national values and principles of governance - public participation - where a proposal was made for the creation of the Constitutional Health Service Commission but the proposal was left out - whether the implementation of views collected from the public during a public participation exercise was mandatory.
Constitutional Law - constitutional amendments - legality of proposed constitutional amendments - where a constitutional amendment bill provided for an additional 70 constituencies and also directly allocated and apportioned the constituencies amongst certain counties, without paying regard to the functions of the Independent Electoral and Boundaries Commission (IEBC) in the delimitation of boundaries under article 89 of the Constitution - whether the manner in which the constituencies were to be created under the proposed constitutional amendments was lawful - Constitution of Kenya, 2010, article 89.
Constitutional Law - constitutional amendments - amendment undertaken through a popular initiative - referendum - role of the Independent Electoral and Boundaries Commission (IEBC) - lack of quorum at the IEBC and adequacy of the legal regulatory framework for the verification of signatures in a popular initiative for constitutional amendment by the IEBC-  where the IEBC created a regulatory framework for signature verification without showing its authority to exercise legislative power- effect of lack of quorum and adequate legislative regulatory framework during the required signature verification exercise undertaken by the IEBC - whether it was necessary for the IEBC to conduct nationwide voter registration before a referendum for purposes of effecting the constitutional amendments was undertaken.
Constitutional Law - fundamental rights and freedoms - right to health - whether the conduct of a referendum before the State had combated COVID-19 and it’s spread in Kenya exposed the public to potential COVID-19 infections and was a violation of the right to health - Constitution of Kenya, 2010, article 43.
Civil Practice and Procedure - court orders - propriety of issuing orders where an issue was also at issue in another matter pending before another court - where the parties involved in the pending matter differed from the parties involved in the matter before the court - where the issue was about whether the court should issue an order for the President to dissolve Parliament pursuant to the Chief Justice’s Advice issued pursuant to Article 261(7) of the Constitution - whether the court could issue that order given that it related to an issue that was under consideration in another court.

Brief facts

After the intensely contested presidential election in 2017, there was a charged political climate. The President and Mr Raila Odinga, who participated in the elections as contestants, shared what was known as the handshake on March 18, 2018. The President later appointed the Building Bridges to Unity Advisory Taskforce (BBI Taskforce). It comprised of 14 committee members and two joint secretaries. The key mandate of the BBI Taskforce was to come up with recommendations and proposals for building lasting unity in the country. In November 2019, the Taskforce came up with an interim report and on January 3, 2020, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report (the BBI Steering Committee) which comprised of 14 members and two joint secretaries.
The Steering Committee was required to engage in consultations with different segments of the public in order to validate the taskforce Report and also to propose administrative, policy, statutory or constitutional changes that could be necessary for the implementation of the recommendations contained in the Taskforce Report, while considering contributions made during the validation exercise. The report of the BBI Steering Committee became the Constitution of Kenya Amendment Bill, 2020, after it was handed over to the President. Signatures were collected in support of the popular initiative to amend the Constitution. The signatures were submitted to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the County Assemblies and Parliament for approval.
There were eight consolidated constitutional petitions filed in court to challenge the Building Bridges Initiative and the resulting Constitution Amendment Bill and its associated popular initiative. The consolidated petitions were Petition Nos E282 of 2020, 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021.

Petition No. E282 of 2020
The petitioners in Petition No. E282 of 2020 argued that the judicial doctrines and theory of the basic structure of a Constitution, the doctrine of constitutional entrenchment clauses, unamendable constitutional provisions, the doctrine of unconstitutional constitutional amendments, theory of unamendability of eternity clauses, essential features, supra-constitutional laws in a constitution were applicable to the Constitution of Kenya 2010. They said that certain provisions of the Constitution were incapable of amendment either under article 256 of the Constitution by Parliament or through popular initiative under article 257 of Constitution. According to the petitioners, the unamendable provisions of the Constitution of Kenya, 2010, included Chapter One on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on the Republic, Chapter 4 on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten.
The contentions of the petitioners relating to the basic structure of the Constitution and unamendability were challenged by the Attorney General on two grounds. One was that the doctrines related to unamendability were inapplicable in Kenya. Secondly, the Attorney General stated that the issues raised were not justiciable and were speculative and not specific enough.
The Speaker of the National Assembly filed grounds of opposition in response to all the eight consolidated petitions. He stated that the issues raised were non-justiciable as they were based on speculative future contingencies. He added that the amendment bill was under consideration before Parliament and the court lacked jurisdiction to intervene in an active parliamentary process. The Speaker explained that the only limitation to the people’s power to amend the Constitution was the procedure set out under the Constitution. He also said that the Constitution was a living document that had to respond to the new needs and changing societal demand.
The Speaker of the Senate argued that the people of Kenya were granted sovereignty under the Constitution and they had an inalienable right to determine their form of governance. The Constitution, according to the Speaker of the Senate, provided for how the Constitution could be amended directly through popular initiative or through democratically elected representatives of the people. He added that under article 255 of the Constitution provision was made for the basic structure of the Constitution which could only be amended by the people exercising their sovereign right directly in a referendum.
The BBI secretariat together with Mr Raila Odinga filed a joint response to the consolidated petitions. They said that the petitions were an abuse of court process and vexatious because they were speculative and they offended the principles of pleading with precision. They added that the petition invited the court to encroach into the legislative mandate of Parliament in breach of the doctrine of separation of powers. They also stated that some issues raised were res judicata and others were sub judice. Other issues, according to the BBI Secretariat and Mr Raila Odinga, were founded on a misinterpretation of the law and were speculative. They offended the political question doctrine and sections 106 and 107 of the Evidence Act as they were mere generalizations. They said that the petitions did not demonstrate any violation or contravention of the law to warrant the intervention of the court. 

Petition No E397 of 2020
In Petition No E397 of 2020, the Kenya National Union of Nurses stated that it had submitted various proposals to the BBI Steering Committee. The proposals included the establishment of an Independent Constitutional Health Service Commission, recognition of universal health care as a human right, expansion of free basic education and the removal of the Salaries and Remuneration Commission. The main aspiration of the Nurses' Union was for health sector personnel to be transferred from County Governments to an Independent Health Service Commission to enable sharing of very limited health experts.
An initial report from the BBI taskforce of October 2019 reflected those aspirations. However, a report released in October 2020 limited the functions of the proposed Health Service Commission to reviewing standards on the transfer of health workers, facilitation of resolution of disputes between employers and health workers and accreditation of health institutions through a proposed bill to amend the Health Act as opposed to a constitutional amendment. The Union felt that the failure to fully incorporate its proposals into the subsequent report meant that its legitimate expectations had been breached.
In response to the Union's contention, the BBI Steering Committee stated that the petition invited the court to usurp the role of Parliament and the County Assemblies and substitute their views with those of the petition. The BBI Steering Committee said that it collected divergent views and not all of them could be accommodated. Further, according to the BBI Steering Committee, an entity could not be allowed to force its views on the popular initiative. The Attorney General also opposed the petition on grounds that all views collected during a public participation exercise need not be implemented and that compelling the respondents to incorporate the views of the Nurses' Union would amount to an unlawful interference with their discretion.

Petition No E400 of 2020
In Petition No E400 of 2020, the petitioners contended that the collection of signatures for the constitutional amendment bill was hurriedly done. They said that the public did not get civic education so as to enable them to make informed decisions and to exercise their free will.
The petitioners further contended that the terms of reference of the BBI Taskforce set out in the Gazette Notice Number 5154 dated May 24, 2018 did not contemplate proposals for the amendment of the Constitution. They said that the appointment of the BBI Steering Committee was an afterthought. The petitioners averred that the subsequent process of validation of the initial report, formulation and publication of the amendment bill was unconstitutional. Additionally, the petitioners said that the initiation of the constitutional amendment process by the President violated the sovereign right of the people of Kenya to exercise power directly by proposing an amendment to the Constitution as it was disguised as a popular initiative when in fact it was not. It was not contended that an amendment to the Constitution by popular initiative as envisaged in article 257 of the Constitution had to originate from the electorate devoid of the influence of any representative.
The petitioners averred that under article 257(10) of the Constitution, it was necessary to allow the people to exercise their free will to approve or reject specific proposals and a mere "yes" or "no" to the entire amendment bill violated the exercise of free will by the people as they could not distinguish between proposals that they accepted and those that they rejected. They also said that the IEBC lacked capacity, to receive, verify and approve signatures of the alleged Kenyan voters who endorsed the impugned bill and that Kenyans were not given reasonable time to process the over one thousand paged document which was only accessible online. They also said that since IEBC did not have specimen signatures of the registered voters in Kenya to warrant a comparison for verification and approval of the signatures collected, any attempt to carry out verification was unlawful and/or illegal.

Petition No E401 of 2020
The petitioner was 254Hope, an unincorporated body suing in public interest. It stated that amendments to the Constitution could only be done in accordance with the Constitution and that the National Executive, any state organ or Taskforce could not initiate constitutional amendments through popular initiative. Further, the petitioner said that the National Executive could not use public resources to steer constitutional amendments through popular initiative. The petitioner also said that some of the proposed constitutional amendments were constitutionally defective. It stated that the collection of signatures and submission of the same to the IEBC by the National Executive for purposes of pursuing constitutional amendments through popular initiative was not authorized.
The Attorney General filed grounds of opposition against the petition. He stated that the petitioner was unincorporated and incapable of suing or being sued. The Attorney General averred that the President's role included promoting unity in the nation and that the Constitution of Kenya did not preclude any state organ, body, person or public entity from initiating a constitutional amendment. He also stated that the rationality or otherwise of the proposed amendments was subject to approval or disapproval by Kenya's legislative assemblies and by the people. On the issue of use of public resources, the Attorney General stated that there was no proof that principles of public finance had been breached and that it would be wrong under the doctrine of separation of powers for the court to intervene when the Constitution had assigned the management of public finance to specific constitutional bodies.

Petition No E402 of 2020

The petitioner's main contention was about the proposed constitutional amendments that would increase the number of constituencies by 70 from 290 constituencies to 360 constituencies. Section 74 of the amendment bill directed the IEBC on the manner of delimitation and distribution of the 70 constituencies in various counties, the time frame within which the constituencies had to come into existence and the criteria on how the constituencies would be distributed. Under the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020, the allocation of the 70 constituencies was pre-determined.
The petitioners said that the role of creating constituencies and delimiting the boundaries was within the competence of the IEBC and it could not be done in pre-determined manner without public participation.
The Attorney General filed grounds of opposition in response to the petition. He said that the petition was not justiciable on account of want of ripeness. The issues raised on the new constituencies and their distribution entailed political questions and the legislative assemblies were best placed to decide on them. He added that the Constitution's provisions on amendments gave absolute sovereignty to the people to amend their constitution either through a popular initiative or through directly elected representatives. The Attorney General also averred that the issue as to whether there was sufficient public participation in the constitutional amendment process was premature and could only be considered after a referendum.

Petition No E416 of 2020
The petitioner was a public-spirited lawyer. He stated that there was no legislative framework to operationalize article 257 of the Constitution. That legal framework was necessary for purposes of providing for the submission of a constitutional amendment bill to the County Assemblies and the Speaker of the two Houses of Parliament for consideration and how the referendum would be conducted. Further, the petitioners said that it was necessary to stop efforts to process the constitutional amendment bill, including the conduct of a referendum, until the Covid-19 pandemic was combatted by the state. Moreover, according to the petitioner, the IEBC had to conduct a nationwide voter registration exercise before any referendum could be conducted. They also averred that under section 8 of the Independent Electoral and Boundaries Commission Act, there were requirements as to quorum and the IEBC as constituted lacked quorum and it could not verify signatures as it had purported to do or conduct a referendum.
The petitioner alleged that there had been violations of articles 7, 10, 33, 35 and 38 of the Constitution when signatures were collected before members of the public were provided with copies of the Interim and Final BBI Report and the Constitution of Kenya (Amendment) Bill, 2020 in English, Kiswahili, indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. According to the petitioner, it was necessary to give the public reasonably sufficient time to read and understand the documents that should have been availed in various communication formats. The petitioner also stated that it was not constitutional for public funds to have been spent in order to promote the constitutional amendment initiative and that any public funds utilized should be refunded. The petitioner further contended that bills for constitutional amendments should be prepared and tabled before Parliament by the Attorney General and that any other entity should not exercise that role. Furthermore, the petitioner challenged the constitutionality of sections 10, 13(a)(i), 33, 37(b), 39, 41 and 44 of the Constitution of Kenya (Amendment) Bill, 2020.
There were various reliefs sought in the petition and they included a mandatory injunction for the President to dissolve Parliament under article 267(7) in accordance with the advice of the Chief Justice to the President pursuant to article 261(7) of the Constitution dated September 21, 2020.

Petition No E426 of 2020
The petitioner’s prayers included findings that he wanted the court to make. The petitioner was averred that the court should find that the President could be sued, during tenure of office, in civil proceedings for acts or omissions that were not authorized under the Constitution. The petitioner contended that the President lacked authority to initiate constitutional amendments that were to be undertaken through a popular initiative. He also alleged that the BBI Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President as notified in Gazette Notice No. 264 dated January 3, 2020 and published in a special issue of the Kenya Gazette dated January 10, 2020, with terms of reference for considering and promoting constitutional changes, was an unlawful entity under the laws of Kenya.
The petitioner prayed for a declaration that the BBI Steering Committee lacked locus standi to promote constitutional changes under article 257 of the Constitution. He also sought orders related to the use of public funds during the constitutional amendment process including orders for the sums spent to be accounted for. Lastly, he also sought orders for the constitutional amendment process to be terminated.

Petition No 2 of 2021
The petitioner was Muslims for Human Rights (MUHURI). On December 18, 2020, they requested IEBC to provide information about whether there were rules to guide and regulate the signature verification process, whether the IEBC held specimen signatures of all registered voters and whether funds had been allocated for the signature verification exercise. The IEBC responded and stated that it developed procedures for signature verification, that it had biographic and biometric data of registered voters but not specimen signatures and that it had funds from treasury for the signatures verification exercise which had been launched at the Bomas of Kenya.
In a press statement published on January 21, 2020, the IEBC stated that it had published the names of persons who had appended their signature in support of the constitutional amendment bill, on its website. The IEBC invited the public to access the information on their website and in case of any complaint, it required the complaint to be made in writing to the IEBC by January 25, 2021. The signature verification exercise concluded with the IEBC saying that the requirements of article 257 of the Constitution in relation to the constitutional amendment bill had been met. The IEBC proceeded to submit the BBI bill to the 47 counties for consideration and approval or rejection.
According to the petitioner, there was no regulatory framework governing the collection of signatures or their verification and any procedures applied by the IEBC were in violation of articles 10, 94 and 249 of the Constitution as the IEBC did not have legislative power. They said that the conduct of the signature verification exercise without a regulatory framework, was a violation of article 81 of the Constitution. Additionally, MUHURI said that the procedures used were developed without legal authority and failed to comply with sections 5, 6, and 11 of the Statutory Instruments Act. The petitioner added that failure to maintain a database of specimen signatures of registered voters by the IEBC violated articles 257(4) and 257(5) of the Constitution as it had rendered IEBC incapable of discharging the mandate of signature verification.

Issues:

  1. Whether an appeal met the constitutional threshold under article 163(4)(a) of the Constitution, which was about the Supreme Court's appellate jurisdiction in matters of constitutional interpretation and application.
  2. Whether the High Court had jurisdiction to entertain a suit about the ownership of a hospital and its assets and liabilities.
  3. Whether the Court of Appeal had jurisdiction to make determinations about the ownership of a hospital and its assets and liabilities where the High Court did not hear and determine the dispute on its merits.
  4. Whether the basic structure doctrine on constitutional amendments was applicable in Kenya.
  5. What were the implications of the basic structure doctrine in Kenya for the amendment powers provided under articles 255 to 257 of the Constitution?
  6. Who could initiate constitutional amendments through a popular initiative as provided for under the Constitution?
  7. Whether the BBI Steering Committee's process of initiating amendments to the Constitution conformed with the applicable legal and constitutional requirements.
  8. Whether the President and public officers who directed or authorized the use of public funds for the BBI constitutional amendment process could be ordered to refund the monies so used.
  9. Whether there was an adequate legislative framework to guide the process of undertaking constitutional amendments through a popular initiative and whether, if such a framework was inadequate or lacking, it would render any constitutional amendment processes incurably defective.
  10. Whether Parliament and County Assemblies could propose changes to a constitutional amendment bill that was promoted through a popular initiative.
  11. Whether it was necessary for specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions.
  12. Whether it was lawful for the BBI Steering Committee to leave out a proposal on the establishment of the Constitutional Health Service Commission, which was proposed during a public participation exercise, from the constitutional amendments bill which was the outcome of the BBI Steering Committee's work.
  13. Whether it was lawful for a constitutional amendment bill to set the number of constituencies and to effectively increase their number by 70 constituencies.
  14. Whether it was lawful for a constitutional amendment bill to directly allocate and apportion the constituencies that it had created without requiring the conduct of a delimitation exercise using the criteria and procedure set out in article 89 of the Constitution.
  15. Whether a referendum to effect proposed amendments to the Constitution could be undertaken without the conduct of a nationwide voter registration process by the Independent Electoral and Boundaries Commission.
  16. Whether the Independent Electoral and Boundaries Commission was properly constituted in terms of quorum for purposes of verifying signatures for purposes of a popular initiative for constitutional amendment and submitting the proposed constitutional amendment bill to county assemblies and also conducting a referendum.
  17. Whether a legal regulatory framework for the verification of signatures by the Independent Electoral and Boundaries Commission and other processes required under article 257(4) and 257(5) of the Constitution was necessary and in existence.
  18. Whether the conduct of a referendum would provide an environment that was conducive to the spread of COVID-19 and whether it was a violation of the right to health under article 43 of the Constitution.
  19. Whether the court should issue an order for the President to dissolve Parliament pursuant to the Chief Justice’s Advice issued pursuant to Article 261(7) of the Constitution.  Read More..

     

Held:

  1. The Constitution of Kenya, 2010, had a transformative character. Transformative constitutionalism was an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. In its transformative character, the Constitution reconfigured the interplays between the State's majoritarian and non-majoritarian institutions, to the intent that the desirable goals of governance, consistent with dominant perceptions of legitimacy, be achieved.
  2. The transformative nature of the Constitution informed methods of constitutional interpretation in Kenya. In particular, four principles of constitutional interpretation emerged in Kenya's jurisprudence, namely;
    1. The Constitution had to be interpreted holistically. That meant that in interpreting a constitutional provision, it was necessary to undertake a contextual analysis wherein that provision would be read alongside other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.
    2. Formalistic approaches to constitutional interpretation were not favoured. The Constitution could not be interpreted in the same way that a statute would be interpreted.
    3. The Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes.
    4. Non-legal considerations were important in giving the Constitution its true meaning and value. The historical, economic, social, cultural and political context was fundamentally critical in discerning the various provisions of the Constitution.
  3. The process that culminated in the promulgation of the Constitution of Kenya, 2010, was participatory. The public participated directly and meaningfully in the process and that was a different process from having experts write a constitution.
  4. The 1963 independence Constitution was negotiated to mark the end of colonial rule and to establish a Government elected by Kenyans and to ensure the devolution of powers among other checks and balances of excessive Executive and Presidential power. However, by the end of 1980 Kenya had effectively become an authoritarian state. By 1991 when Kenya officially became a multi-party state after close to a decade of being a de jure one-party state, the 1963 Constitution had been amended many times and stripped of most of its initial democratic and social justice protections. There had been a culture where the Constitution had been amended and changed profoundly and rapidly to the point that it lost its value content and significance.
  5. Kenyans intended to protect the basic structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments. That doctrinal illumination was discernible by correctly interpreting both the history of constitution-making and the structure of the Constitution Kenyans made for themselves. The process leading to the promulgation of the Constitution of Kenya, 2010, showed that Kenyans wanted a Constitution in which an ordinary citizen took centre-stage in debating and designing. Kenyans were clear about the need for informed public participation in the process. The 2005 Wako Draft was rejected because it failed the public participation test and verged on political elite consensus.
  6. Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through an informed and participatory process. They also intended that the essence of the constitutional order they bequethed themselves in 2010 would only be changed in the exercise of primary constituent power (civic education, public participation, constituent assembly plus referendum) and not through secondary constituent power (public participation plus referendum only) or constituted power (Parliament only).
  7. There was no clause in the Constitution that explicitly made any article in the Constitution un-amendable. However, the scheme of the Constitution, coupled with its history, structure and nature created an ineluctable and unmistakable conclusion that the power to amend the Constitution was substantively limited.
  8. The text, structure, history and context of the Constitution of Kenya, 2010, all read and interpreted using the canon of interpretive principles decreed by the Constitution yielded the conclusion that the basic structure doctrine was applicable in Kenya. The basic structure doctrine protected certain fundamental aspects of the Kenyan Constitution from amendment through the use of either secondary constituent power or constituted power.
  9. Sovereignty of the people in constitution-making was exercised at three levels: -
  1. The primary constituent power was the extraordinary power to form (or radically change) a constitution; the immediate expression of a nation and thus its representatives. It was independent of any constitutional forms and restriction and was not bound by previous constitutional rules and procedures.
  2. 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.
  3. The constituted power was created by the Constitution and was an ordinary, limited power, a delegated power derived from the Constitution, and hence limited by it. In Kenya, the constituted power was exercised by Parliament, which had limited powers to amend the Constitution by following the procedures set in articles 255-257 of the Constitution.
  1. The essential features of the Constitution that formed the basic structure could only be altered or modified by the people using their primary constituent power. Primary constituent power was only exercisable after four sequential processes had been followed: -
  1. Civic education to equip people with sufficient information to meaningfully participate in the constitution-making or constitution-altering process;
  2. Public participation and collation of views in which the people – after appropriate civic education – generated ideas on the type of governance charter they wanted and gave their views about the constitutional issues;
  3. Constituent assembly debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making or constitution- alteration; and
  4. Referendum to endorse or ratify the Draft Constitution or changes to the basic structure of the Constitution.
  1. The basic structure of the Constitution consisted of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution. That structure outlines the system of government Kenyans chose – including the design of the Judiciary, Parliament, the Executive, the Independent Commissions and Offices and the devolved system of Government. It also included the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment including land and environment, leadership and integrity, public finance and national security.
  2. It was not every clause in each of the eighteen chapters and six schedules which was inoculated from non-substantive changes by the basic structure doctrine. Differently put, the basic structure doctrine protected the core edifice, foundational structure and values of the Constitution but left open certain provisions of the Constitution as amenable for amendment as long as they did not fundamentally tilt the basic structure.
  3. There were certain provisions in the Constitution which were inoculated from any amendment at all because they were deemed to express categorical core values. Those provisions were therefore, unamendable: they could not be changed through the exercise of secondary constituent power or constituted power. Their precise formulations and expressions in the Constitution could only be affected through the exercise of primary constituent power. Those provisions could also be termed as eternity clauses.
  4. An exhaustive list of eternity clauses was inadvisable in a vacuum. Whether a particular clause consisted of an eternity clause or not would be a fact-intensive determination to be made after due analysis of the Constitution, its foundational structure, its text, its internal coherence, the history of the clause and the constitutional history and other non-legal considerations permitted by Kenya's canons of interpretation.
  5. The power to amend the Constitution was prescribed in articles 255 to 257 of the Constitution. There were two ways in which a constitutional amendment could be initiated, either by parliamentary initiative or by popular initiative.
  6. Since under article 2(2) of the Constitution, no person could claim or exercise State authority except as authorised under the Constitution, it necessarily follows that, subject to the role of the primary constituent assembly, there was no other constitutionally permissible avenue available to any person to initiate a constitutional amendment except the prescribed ones.
  7. It was clear that the constitutional amendment bill was an initiative of the President. It could not be otherwise since the BBI Taskforce was set up courtesy of his initiative and the subsequent BBI Steering Committee was tasked with implementing the BBI Taskforce Report and the membership of the two entities remained the same.  
  8. Under the Constitution, the President was not a Member of Parliament and therefore he could not directly, purport to initiate a constitutional amendment pursuant to article 256 of the Constitution. That was because under article 94(1) of the Constitution, the legislative authority of the Republic at the national level, was vested in and exercised by Parliament. It follows that the President had no power under the Constitution, as President, to initiate changes to the Constitution under article 256 of the Constitution since Parliament was the only State organ granted authority by or under the Constitution to consider and effect constitutional changes. The President, if he so desired, could however, through the Office of the Attorney General, use the parliamentary initiative to propose amendments to the Constitution.
  9. Both a textual analysis of Kenya's Constitution and a historical exegesis of the clause on popular initiative made it clear that the power to amend the Constitution using the popular initiative route was reserved for the private citizen. Neither the President nor any State Organ was permitted under the Constitution to initiate constitutional amendments using the popular initiative option.
  10. Allowing the President to initiate constitutional amendments through the popular initiative would have the effect of granting him both the roles of promoter and referee. That was because article 257(5) of the Constitution provided that if a bill to amend the Constitution proposed an amendment of matter specified in article 255(1) of the Constitution, before assenting to the bill, the President had to request the IEBC to conduct, within 90 days, a national referendum for approval of the bill.
  11. Article 257(5) of the Constitution, arguably, gave power to the President to determine whether or not a referendum was to be held. In circumstances where the President, whether in his official or personal capacity was the promoter of the amendment bill, his role in determining whether or not the bill was to be subjected to a referendum could amount to a muddled up conflict of interest. The President could not be both a player and the umpire in the same match.
  12. It had been argued that the President was acting in his personal capacity and not as the Chief Executive of the Republic of Kenya. That argument was, however, betrayed by the very fact that the BBI Steering Committee was established via a Gazette Notice, an official publication of the Government of the Republic of Kenya and its report was addressed to the President in his official capacity.
  13. Article 257 of the Constitution was reserved for situations where the promoters of a constitutional amendment bill did not have recourse to the route contemplated under article 256. If the President intended to initiate a constitutional amendment, he could do so through Parliament.
  14. A popular initiative to amend the Constitution, being a process of participatory democracy that empowered the ordinary citizenry to propose constitutional amendments independent of the lawmaking power of the governing body, could not be undertaken by the President or State Organs under any guise.
  15. Previous constitution-making initiatives in 2005 and 2010 were sponsored by the State. That would not justify attempts to have the Constitution amended in a similar way because those previous initiatives were undertaken under the repealed Constitution which did not make provision for its amendment in a similar fashion as the Constitution of Kenya, 2010.
  16. Sections 6 and 7 of the Civil Procedure Act governed situations where a litigant raised issues that were either sub judice or res judicata. The rationale for staying matters on grounds of them being sub judice was that it was vexatious and oppressive for a claimant to sue concurrently in courts. Where two courts were faced with substantially the same issue, that issue should only be determined in one of the courts and the other court should stay the claim.
  17. For a suit to be stayed on grounds of sub judice, the matter in issue in the suit had to be directly and substantially in issue in the previously instituted suit and the parties in the two suits had to be the same parties or parties claiming under them or litigating under the same title.
  18. The matters in issue in Petition No 12 of 2020 (Omtatah Petition) were covered under the consolidated petitions. However, the consolidated petitions covered a wider range of issues than the Omtatah Petition. Therefore, only a segment of issues in the consolidated petition were directly and substantially in issue in the consolidated petitions. Additionally, the parties in the Omtatah Petition were different from the parties in the consolidated petitions.
  19. The consolidated petitions were wider in scope than the Omtatah Petition and could not be said to be an abuse of the process. There was no evidence that steps had been taken to prosecute the Omtatah Petition. The nature of the dispute that the consolidated petitions raised demanded an expedient determination and it was in public interest that they be resolved at the earliest opportunity.
  20. The provisions of section 7 of the Civil Procedure Act on res judicata were based on the fundamental doctrine that there had to be an end to litigation. The doctrine of res judicata could be pleaded by way of estoppel so that where a judgment had been given, and it was a matter of record, an 'estoppel by record' arose.
  21. The nature of an estoppel pleaded by the Attorney General was an issue estoppel to the effect that specific questions concerning the legality or constitutionality and the mandate of BBI Steering Committee had been resolved by the High Court in Third Way Alliance Kenya & another versus Head of Public Service & 2 others, Petition No. 451 of 2018, High Court at Nairobi (Third Way Alliance Case). The consolidated petitions asked questions that were not asked in the Third Way Alliance Case. For example, one question was on whether a popular initiative to amend the Constitution could be started by the President and the other was whether the BBI Steering Committee and any actions undertaken by it were constitutional. The judgment in the Third Way Alliance Case was incapable of answering such questions because the court in that instance was not asked to answer those questions.
  22. The court was not estopped from discussing the constitutionality of the BBI Steering Committee and its mandate. That issue was not res judicata.
  23. Article 143(1) of the Constitution was to the effect that criminal proceedings were incapable of being instituted against the President or a person performing the functions of that office, during their tenure of office. On the other hand, article 143(2) of the Constitution provided that civil proceedings could not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in repsect of anything done or not done in exercise of their powers under the Constitution. The correct position was that the President could be sued in any civil proceedings and the only protection was against actions that were in respect of anything done or not done in exercise of his powers under the Constitution. In appropriate circumstances, for example where the President took actions in violation of the Constitution and also destructive to the nation, any person could invoke the jurisdiction of the court and sue the President whether in his person or official capacity.
  24. The BBI Taskforce which eventually morphed into the BBI Steering Committee was the President’s and not the peoples’ initiative. The bill to amend the Constitution was as result of the proposals of the BBI Steering Committee. It was, therefore, quite clear that what has been presented as a popular initiative to amend the Constitution was in reality the presidency’s initiative which was certainly contrary to article 257 of the Constitution. To the extent that the BBI Steering Committee was created to perpetuate what was clearly an unconstitutional purpose, it was an unlawful, and at any rate, an unconstitutional outfit.
  25. Article 132(4)(a) of the Constitution provided that the President could only establish an office in the public service on the recommendation of the Public Service Commission. There was no evidence that the President complied with that provision when he created the BBI Steering Committee.
  26. A reading of the Constitution clearly showed that only Parliament could enact legislation. However, that did not mean that only Parliament could draft bills. Therefore, anybody including the BBI Steering Committee, if lawfully established, could draft bills. Under article 257(2) of the Constitution it was clear that the promoter of a popular initiative to amend the Constitution was required to come up with a draft amendment bill. The bill would then be submitted to the IEBC which would then send it to the Speakers of County Assemblies and Parliament for approval or rejection.
  27. Public participation was one of the principles of good governance; a constitutional right that had to be complied with at every stage of a constitutional amendment process.
  28. The right to make political decisions went beyond voting or deciding on whether to append a signature on a constitutional amendment bill. The right to make political decisions included the availability of information to citizens in order to enable them to make informed decisions.
  29. Kenyan voters were entitled, at a minimum, to copies of the Constitution of Kenya Amendment Bill to read and understand what the promoters were proposing to amend. At the very least, the copies ought to have been in the constitutionally required languages namely, English, Kiswahili and Braille. The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under article 7(3)(b) of the Constitution.
  30. The only copy of the constitutional amendment bill that was availed was in English and it was not printed and distributed to the people, it was only available online.
  31. Since meaningful public participation and sensitization of people prior to collection of signatures in support of the constitutional amendment bill was not done, the exercise of collecting signatures in support of the bill was constitutionally flawed.
  32. Before transmitting the bill to the County Assemblies for voting, the IEBC was obligated to ensure that the BBI Steering Committee had complied with constitutional requirements on public participation.
  33. Under article 226(5) of the Constitution, if the holder of public office, including a political office, directed or approved the use of public funds contrary to law or instructions, the person was liable for any loss arising from that use and had to make good the loss, whether the person remained the holder of the office or not. No evidence was tendered to show that the BBI Steering Committee spent public funds on its operations.
  34. What the President did through the BBI Steering Committee was a clear attempt to stretch his authority under article 131(2)(c) of the Constitution to include power to initiate constitutional amendments. The President's role in promoting and enhancing national unity did not include initiating constitutional amendments through a popular initiative.
  35. Article 35 guaranteed every citizen the right of access to information held by the State and information held by another person, which was required for the exercise or protection of a right or fundamental freedom. Access to information was a critical constitutional right for open and democratic conduct of governmental affairs. The State or State organ responsible was obliged to disclose information to citizens whenever sought.
  36. The petitioner in Petition No. E416 of 2020 had a right to seek information from relevant authorities while complying with the procedure set out in the Access to Information Act. The petitioner had not demonstrated that he had sought that information. He only prayed for orders from the court for publication of details of the budget and money allocated and used in promoting the BBI activities.
  37. In order to carry out the referendum process as contemplated under the Constitution, it was necessary that the legislation be enacted. The fact that the Constitution did not provide for the enactment of such legislation did not mean that the legislation was unnecessary. That legislation would deal with the manner in which County Assemblies would process a constitutional amendment bill, including the number of readings for the bill, the manner of conducting public participation, whether they could amend the bill before approving it and whether such a bill would be passed by a simple majority.  It would also contain provisions on the correct procedure to be used by Parliament in approving the bill.
  38. The legislation on the processing of a constitutional amendment bill and the referendum necessary for its passage, would deal with questions such as how an amendment bill that had proposals that included those that required a referendum under the Constitution and those that did not require a referendum would be handled.  Such legislation, if enacted would also answer questions as to whether specific aspects of the bill required separate approval or rejection as opposed to having the entire list of proposals in the amendment bill approved or rejected.
  39. Part V of the Elections Act dealt with referendum. It did not adequately cover the process contemplated under the Constitution for a referendum. For example, it did not address public participation requirements and it did not provide for how a constitutional amendment bill would be handled by county assemblies where the Constitution mandated consideration of such a bill by county assemblies. The lacuna in law was incapable of being addressed by Part V of the Elections Act.
  40. The absence of legislation to operationalize a constitutional provision would not render the provision inoperative or unenforceable. In the absence of enabling legislation for the conduct of a referendum, a referendum could be undertaken as long as constitutional expectations, values, principles and objects were met.
  41. The terms term “consideration” and “approve” as used in article 257(5) and 257(7) of the Constitution did not give room to the legislative organs, whether at the national level or county level, to alter and or “improve” the contents of a constitution of Kenya amendment bill. Such alteration could mean the constitutional amendment bill in the context of a popular initiative would be hijacked and even turned into what it could have been if it had been promoted as a parliamentary initiative.
  42. Depending on the proposed constitutional amendments, a multi-option referendum could be necessary. What the Constitution contemplated under articles 255 to 257, was that each proposed constitutional amendment had to be considered on its own merit and not within the rubric of other amendments. Some proposed amendments could be agreeable to voters while the same voters could find that they did not agree with other proposed amendments.
  43. A faithful reading of article 255(1) of the Constitution showed that each proposed constitutional amendment clause ought to be presented as a separate question. That would avoid confusion and allow voters to decide on each presented amendment question on its own merit.
  44. Section 49 of the Elections Act supported the preposition that omnibus amendments ought to be presented as separate referendum questions. What should be subjected to a referendum was those questions and not the entire constitutional amendment bill.
  45. The fact that an entity was required to consider public views did not necessarily mean that those views had to be incorporated into the final decision. While the Kenya National Union of Nurses made proposals for the setting up of the Health Service Commission as a constitutional commission, it was not the case that the BBI Steering Committee made representations that their proposals would be incorporated in their report.
  46. A legitimate expectation arose where a clear and unambiguous promise had been given by a public authority. That authority had to have had the competence to make the promise and it would have to be lawful for it to make a promise.  There could be no legitimate expectation against provisions of the law or the Constitution.
  47. Had there been a representation made by the BBI Steering Committee that the views of the Kenya National Union of Nurses would be incorporated in the Constitution of Kenya Amendment Bill, the Union would have been justified in contending that it ought to have been afforded an opportunity of being heard. The Union's claims that there was unreasonableness and unfair administrative action had to be disallowed.
  48. A constituency in Kenya was a unit of representation that was at the heart of Kenya's electoral process. It went to the root of the enjoyment of the democratic right to representation. It was seen as a unit for taking development to the people.
  49. The constitutionality of the constitutional amendment bill in terms of the proposal to create 70 new constituencies was challenged. The courts would not exercise judicial restraint or apply the doctrine of constitutional avoidance but would instead proceed to consider the merits of that question. Threatened violations of the Constitution could found the basis of a constitutional petition. A litigant did not have to wait for an actual violation to occur before approaching the court.
  50. The doctrine of separation of powers did not bar the court from exercising jurisdiction under article 165(3)(d)(ii) of the Constitution. The court could determine whether the state, in pursuing certain policy decisions or undertaking certain actions, had failed to fulfil constitutional dictates.
  51. The argument by the Attorney General that the petitioners had alternative avenues of redress, such as persuading Parliament and the Kenyan people to reject the constitutional amendment bill, was a misapprehension of the doctrine of exhaustion. A party was only debarred from approaching the court where a statute or policy had created a mechanism for determining a dispute related to the subject matter in question. The political route of persuading Parliament, County Assemblies and the Kenyan people, was not a dispute settlement mechanism within the meaning of the doctrine of exhaustion.
  52. The history and text of the Constitution showed that Kenyans were not particular about the number of constituencies. They were more concerned with the process, procedure, timelines, criteria and review process of the delimitation of electoral units. Article 89(1) of the Constitution – which provided for the exact number of constituencies – was not an eternity clause and it was capable of amendment while following the procedure set under articles 255 to 257 of the Constitution.
  53. The provisions of the Constitution of Kenya Amendment Bill which directly allocated and apportioned the 70 additionally without a delimitation exercise as set out in article 89 of the Constitution, were unlawful and unconstitutional for the following reasons: -
  1. they impermissibly directed the IEBC on the execution of its constitutional functions;
  2. they purported to set a criteria for the delimitation and distribution of constituencies which was at variance with that created under article 89(5) of the Constitution;
  3. they ignored public participation as a key consideration in delimiting and distributing constituencies;
  4. they imposed timelines for the delimitation exercise which were at variance with those in the Constitution;
  5. they took away the rights of those aggrieved by a delimitation exercise to seek judical review;
  6. by having an additional 70 constituencies provided for under the Second Schedule while using a pre-set criteria, which did not accord with standards set in articles 89(4), 89(5), 89(6), 89(7), 89(10) and 89(12) of the Constitution, they had the effect of amending or suspending the intended impacts of article 89 of the Constitution, which was part of the basic structure of the Constitution which was unamendable.
  1. Section 5(1) of the Independent Electoral and Boundaries Commission Act provided that the IEBC had to consist of the chairperson and six other commissioners. Further, paragraph 5 of the Second Schedule to the Independent Electoral and Boundaries Commission Act provided for a quorum of at least five members for the conduct of business at a meeting of the IEBC. The existing composition of the IEBC was the chairperson and two commissioners.
  2. The issue of quorum in the IEBC was decided in the case of Isaiah Biwott Kangwony v Independent Electoral & Boundaries Commission & another [2018] eKLR (Isaiah Biwott Kangwony case). The court in that case held that lack of quorum limited the IEBC'S operations when dealing with policy issues but that the IEBC could conduct by-elections as that did not require quorum to make decisions.
  3. The issue before the court was on whether the IEBC was properly constituted for purposes of verifying signatures and did not have quorum to conduct a referendum. It was different from the issues in the Isaiah Biwott Kangwony case.
  4. The Independent Electoral and Boundaries Commission Act was clear in providing that a quorum of five commissioners was required in order for the IEBC to conduct business. Therefore, the court respectfully departed from the holding in the Isaiah Biwott Kangwony case as the statute did not distinguish between the need for quorum in policy decisions as compared to other business.
  5. Verification of signatures and determining whether a constitutional amendment bill met constitutional requirements set out under article 257(4) of the Constitution was a policy issue that required determination by the IEBC as a commission. Such a serious constitutional question could not be determined by a committee of the IEBC. The IEBC needed quorum in order to make such a determination.
  6. The IEBC did not have the quorum of five members when it conducted verification of signatures and determined that the BBI Secretariat had met the constitutional threshold under article 257(4) of the Constitution to move the constitutional amendment process to the next stage. Therefore, all the decisions made by the IEBC in relation to the proposed constitutional amendments were invalid, null and void for lack of quorum.
  7. The mandate of the IEBC under article 257(4) of the Constitution was a two-step process. First, it was to ascertain the numbers of registered voters in support of a popular initiative to amend the Constitution, and secondly, it was to verify the authenticity of the signatures of registered voters claimed to be in support of the popular initiative.
  8. The existing regulatory framework was not sufficient for the verification of signatures by the IEBC under article 257(4) of the Constitution. To fill the gap, the IEBC developed Administrative Procedures approved on April 15, 2019. The Administrative Procedures were within the definition of statutory instruments provided under section 2 of the Statutory Instruments Act but they were not gazetted as required by section 22 of the Statutory Instruments Act. Therefore, the Administrative Procedures were invalid for lack of public participation as well as failure to comply with the provisions of the Statutory Instruments Act. They were also invalid for two other reasons: -
  1. the Administrative Procedures were developed and revised without the IEBC having the quorum necessary to conduct its business.
  2. the Administrative Procedures did not have provisions or procedures for the authentication of signatures which was a necessary step in the verification process required under article 257(4) of the Constitution.
  1. In carrying out the verification process, the IEBC did not comply with the Administrative Procedures. The IEBC published a list of persons who had appended their signature in support of the constitutional amendment bill online and gave the public five days to raise any issues they had with the list. The period allowed for that process would be two weeks if the IEBC had complied with the Administrative Procedures.
  2. Holding a referendum without voter registration, updating the voters register, and carrying out voter education, would particularly disenfranchise citizens who had attained voting age but had not been given an opportunity to register as voters, thus violating their constitutional right to vote and make political choices. Holding a referendum without first conducting voter registration would violate the very essence of the right of a class of citizens who had not been given the opportunity to register and vote in deciding their destiny.
  3. Article 43(1)(a) guaranteed every person the right to the highest attainable standard of health, which included the right to health care services and reproductive health. The right to health was different from the right to be healthy. The right to health meant the right to enjoy a variety of goods, services and conditions that was necessary to one's wellbeing. It was usually based on government programmes and goals that were realized on a long-term basis, usually dependent on availability of resources.
  4. The petitioner in Petition No E416 did not provide evidence to support his contention that the conduct of a referendum would provide an environment for the spread of Coronavirus.
  5. The issue as to whether Parliament could not consider the constitutional amendment because it should be dissolved by the President was raised in petition E416 of 2020. The basis for the dissolution of Parliament was the advice rendered by the Chief Justice on September 21, 2020, under article 261(7) of the Constitution. That issue was however pending before another bench of the High Court. It was being canvassed in the case of Milimani High Court Petition No. 302 of 2020 Third way Alliance v Speaker of the National Assembly & another (consolidated with JR No. 1108 of 2020 and Petition Nos. E291 of 2020 and 300 of 2020.) The petitioner could apply to join that matter.

Petition partly allowed.

Orders: -

  1. A declaration that:
  1. the basic structure doctrine was applicable in Kenya.
  2. the basic structure doctrine limited the amendment power set out in articles 255 – 257 of the Constitution. In particular, the basic structure doctrine limited the power to amend the basic structure of the Constitution and eternity clauses.
  3. That the basic structure of the Constitution and eternity clauses could only be amended through the primary constituent power which had to include four sequential processes namely: civic education, public participation and collation of views, Constituent Assembly debate and ultimately, a referendum.
  1. A declaration that civil court proceedings could be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.
  2. A declaration that the President did not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment could only be initiated by Parliament through a parliamentary initiative under article 256 or through a popular initiative under article 257 of the Constitution.
  3. A declaration that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President vide Kenya Gazette Notice No. 264 of January 3, 2020 and published in a special issue of the Kenya Gazette of January 10, 2020 was an unconstitutional and unlawful entity.
  4. A declaration that being an unconstitutional and unlawful entity, the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, had no legal capacity to initiate any action towards promoting constitutional changes under article 257 of the Constitution.
  5. A declaration that the entire BBI Process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the people’s exercise of sovereign power.
  6. A declaration that Mr. Uhuru Muigai Kenyatta had contravened Chapter 6 of the Constitution, and specifically article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
  7. A declaration that the entire unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report was unconstitutional, null and void.
  8. A declaration that the Constitution of Kenya Amendment Bill, 2020 could not be subjected to a referendum before the Independent Electoral and Boundaries Commission carried out nationwide voter registration exercise.
  9. A declaration that the Independent Electoral and Boundaries Commission did not have quorum stipulated by section 8 of the IEBC Act as read with paragraph 5 of the Second Schedule to the Act for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification of signatures in support of the Constitution of Kenya Amendment Bill under article 257(4) of the Constitution submitted by the Building Bridges Secretariat.
  10. A declaration that at the time of the launch of the Constitutional of Kenya Amendment Bill, 2020 and the collection of endorsement signatures there was no legislation governing the collection, presentation and verification of signatures nor a legal framework to govern the conduct of referenda.
  11. A declaration that the absence of a legislation or a legal framework to govern the collection, presentation and verification of signatures and the conduct of referenda in the circumstances of the case rendered the attempt to amend the Constitution of Kenya through the Constitution of Kenya Amendment Bill, 2020 flawed.
  12. A declaration that County Assemblies and Parliament could not, as part of their constitutional mandate to consider a Constitution of Kenya Amendment Bill initiated through a popular initiative under article 257 of the Constitution, change the contents of such a Bill.
  13. A declaration that the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to predetermine the allocation of seventy constituencies was unconstitutional.
  14. A declaration that the Second schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to direct the Independent Electoral and Boundaries Commission on its function of constituency delimitation was unconstitutional.
  15. A declaration that the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 in so far as it purported to have determined by delimitation the number of constituencies and apportionment within the counties was unconstitutional for want of public participation.
  16. A declaration that Administrative Procedures for the Verification of Signatures in Support of Constitutional Amendment Referendum made by the Independent Electoral and Boundaries Commission were illegal, null and void because they were made without quorum, in the absence of legal authority and in violation of article 94 of the Constitution and sections 5, 6 and 11 of the Statutory Instruments Act, 2013.
  17. A declaration that article 257(10) of the Constitution required that all the specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions to the people.
  18. A permanent injunction to restraining the Independent Electoral and Boundaries Commission from undertaking any processes required under article 257(4) and (5) in respect of the Constitution of Kenya (Amendment) Bill 2020.
  19. The prayer for an order for Mr. Uhuru Muigai Kenyatta to make good public funds used in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by Mr. Uhuru Muigai Kenyatta was declined.
  20. The prayer for the orders for the Honourable Attorney General to ensure that other public officers who had directed or authorised the use of public funds in the unconstitutional constitutional change process promoted by the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report to make good the said funds was declined.
  21. The rest of the reliefs in the Consolidated Petitions not specifically granted were deemed to have been declined.
  22. Parties had to bear their own costs.

CIVIL PRACTICE AND PROCEDURE 

Withdrawal of diplomatic passports issued to judges of the High Court and courts of equal status and their withdrawal of access to various Very Important Person (VIP) lounges in airports across the country was discriminatory and in contravention of the independence of the judiciary

Jonathan Munene v Attorney General & 2 others; Kenya Judges Welfare Association (Interested Party) [2021] eKLR
Petition 404 of 2019
High Court at Nairobi
J A Kamau, J
February 21, 2021
Reported by John Ribia

Download the Decision

Civil Practice and Procedure – locus standi – locus standi to institute a constitutional petition – where a person who was not a judge instituted a petition on behalf of judges - whether the petitioner, who was not a judicial officer, had locus standi to institute a petition on behalf of judges of superior court – Constitution of Kenya, 2010, articles 22 and 258.
Constitutional Law – fundamental rights and freedoms – equality and freedom from discrimination – where the third schedule to Kenya Citizenship and Immigration Regulation, 2012 included judges of the Court of Appeal and the Supreme Court as persons entitled to hold diplomatic passports but failed to include judges of the High Court and courts of equal status – whether the  failure to include judges of the High Court of Kenya and courts of equal status in the third schedule to Kenya Citizenship and Immigration Regulations, 2012 as persons entitled to hold diplomatic passports was discriminatory – Constitution of Kenya, 2010, article 27; Kenya Citizenship and Immigration Regulation 2012, third schedule.
Constitutional Law – independence of the judiciary – independence of judges of the High Court and courts of equal status – where the diplomatic passports of  judges of the High Court and courts of equal status had been withdrawn – whether the withdrawal of diplomatic passports issued to judges of the High Court and courts of equal status and their  withdrawal of access to various Very Important Person (VIP) lounges in airports across the country was in contravention of the independence of the judiciary – Constitution of Kenya, 2010, article 160; Kenya Citizenship and Immigration Regulation 2012, third schedule.
Constitutional Law – independence of the judiciary – remuneration of judicial officers – benefits of judicial officers - whether there was a nexus between the independence of judiciary and remuneration and benefits payable to judges.

Brief facts:

The petitioner filed the instant petition on behalf of judges of the High Court and judges of courts of equal status who he claimed to have been discriminated against by 2nd and 3rd respondents by being denied diplomatic passports while their counterparts, thus the justices of Court of Appeal and Supreme Court enjoyed those benefits. Further, the appellant contended that judges of the High Court, Judges of courts of equal status; justices of Court of Appeal and Supreme Court had been denied access to VIP lounges at Airports within the country, a variation to their benefits contrary to the Constitution of Kenya, 2010, without any reasonable justification. The petitioner urged that articles 3, 10, 22, and 258 of the Constitution empowered him to defend the Constitution by instituting court proceedings where the Constitution had been contravened or was threatened with contravention.
On their part, the respondents alleged that the petitioner had no locus standi to file the petition on behalf of the judges of the High Court and judges of courts of equal status because his individual constitutional rights had not been violated by the respondents and neither had he suffered any personal harm as a consequence of the respondents’ actions. On that basis, the respondents urged the court to dismiss the instant petition.

Issues:

  1. Whether the petitioner, who was not a judicial officer, had locus standi to institute a petition on behalf of judges of superior court.
  2. Whether there was a nexus between the independence of judiciary and remuneration and benefits payable to judges.
  3. Whether the failure to include judges of the High Court of Kenya and courts of equal status in the third schedule to Kenya Citizenship and Immigration Regulations, 2012 as persons entitled to hold diplomatic passports was discriminatory.
  4. Whether the withdrawal of diplomatic passports issued to judges of the High Court and courts of equal status and their withdrawal of access to various Very Important Person (VIP) lounges in airports across the country was in contravention of the independence of the judiciary.
  5. What was the test for unfair discrimination?  Read More...

Held:

  1. Kenya’s jurisprudence provided a broad approach that gave locus standi to any member of the public acting on bona fide and had interest in instituting an action to redress any wrong or injury. That broad approach not only ensured that courts fulfilled their constitutional mandate, but also allowed a person with genuine grievances to access the seat of justice and enjoy the full measure of protection that they were entitled to under Kenya’s liberal and progressive Constitution of Kenya, 2010 (the Constitution).
  2. Article 22 and 258 of the Constitution expressly provided that everyone had the right to institute court proceedings claiming that either a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened or that the Constitution had been contravened or was threatened with contravention respectively. The court proceedings could be instituted by;
    1. a person acting on behalf of another person who could not act in their own name;
    2. a person acting as a member, or in the interest of, a group or class of persons;
    3. a person acting in the public interest; or
    4. an association acting in the interest of one or more of its members.
  3. It therefore followed that despite the liberal approach that was applied by the courts in determining whether a party had the requisite locus standi, and the provisions in the Constitution that supported public interest litigation, the rule on locus standi was relevant, and where it was evidently demonstrated that a party had no business in bringing a matter to court, the matter would be dismissed to prevent the abetment of abuse of court process.
  4. In the instant petition, the petitioner had contended that articles 2, 10, 23, 27, 160 and 162 of the Constitution had been violated and that the respondents’ actions were arbitrary and unreasonable. In view whereof the petitioner could not be faulted for instituting the instant proceedings against the respondents since their actions were alleged to have adverse impact on the administration of justices and further it is in the public interest to ensure that state and public authorities in particular respect, uphold and defend the Constitution. As such, the instant petitioner had the requisite locus standi to institute the instant proceedings as he had raised issue that was aimed at protecting the public’s interest and had demonstrated that he had bona fide grounds for believing that the Constitution was under threat. The petitioner was not in any way shown to be motivated by malice or bad faith in filing the petition.
  5. A cause of action was a fact that provoked a person to institute proceedings against another. A scandalous matter was grossly disgraceful (or defamatory) and irrelevant; a frivolous matter lacked legal basis or merit and a vexatious matter sought to harass and annoy a party. The instant petition could not be perceived as scandalous, frivolous, vexatious or disclosing no reasonable cause of action since the petitioner had presented the factual and legal basis upon which the present petition was founded, and the court had an obligation to uphold the values and principles of the Constitution by not only affording the petitioner an opportunity to prove the mischief and unconstitutionality of the respondents’ actions and omissions, but also the manner in which the respondents actions and omissions had adversely impacted on the due administration of justice. Courts had to ensure that parties were not deprived of their right to a plenary trial unless the suit was totally unarguable and incontestably bad. The instant petition was not scandalous, frivolous, vexatious nor constituted an abuse of court process. In view of the issues raised in the petition, it ought to be heard and determined on its merits.
  6. Article 160(4) of the Constitution provided that the remuneration and benefits payable to or in respect of a judge should not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge should not be varied to the disadvantageof the retired judge during their lifetime. That ring-fencing of the judges on the remuneration and benefits aimed at ensuring that the judges rendered their services and mandate independently and impartially, free from undue influence or wrong albeit any uncertainties the future held. The judicial independence therefore had everything to do with remuneration and benefits contrary to the assertion by the respondents.
  7. Under article 160(4) of the Constitution, judges included judges of the Supreme Court, the Court of Appeal, the High Court and the courts of equal status as the High Court by virtue of article 162(2) of the Constitution. Article 162(2) of the Constitution, on the system of courts, the Supreme Court, Court of Appeal, High Court and courts of equal status were classified as superior courts whose occupants held the same status as judges of superior courts.
  8. By subjecting the judges to disparity on their remuneration and benefits through enactment and implementation of the Kenya Citizens and Immigration Regulations, 2012, which excluded judges of the High Court, judges of the courts of equal status and their spouses from the list of persons that were entitled to Diplomatic Passports, and the refusal to grant some judges access to the VIP Lounges in the Kenyan airports, the respondents’ not only abdicated their constitutional and statutory mandate, but also curtailed those judges’ legitimate expectation to have their Diplomatic Passports issued and/or renewed, and to have access to the VIP Lounges in the Kenyan airports.
  9. Article 1 of the Constitution delegated sovereign power to the respondents (Parliament and the legislative assemblies in the county governments and the national and executive structures in the county governments). They were under obligation to perform their functions in accordance with the Constitution, the grund norm of all Kenyan law and, due to its importance, was enacted by way of a referendum, to allow the citizens of Kenya to express their will. Failure to do so allowed the petitioner and anyone else to seek recourse under article of the Constitution which expected the respondents to bow to the will of the citizens of Kenya.
  10. With regard to judges, especially of the High Court and courts of equal status, they had legitimate expectation to have their Diplomatic Passports issued and/or renewed, and to be granted access to the VIP Lounges in the Kenyan Airports by virtue of the provisions of article 47(1) and (2) of the Constitution and sections 5 and 6 of the Fair Administrative Action Act.
  11. The respondents were obliged to either give written reasons or a statement for their decision to exclude judges of the High Court and those of equal status as the High Court and their spouses from the list of persons that were entitled to Diplomatic Passports in the Kenya Citizen and Immigration Regulations, and for denying judges of the Supreme Court (other than the Chief justice), Court of Appeal, the High Court and courts of equal status access to VIP Lounges in the airports within the Republic of Kenya without any notice, explanation or reason. The failure to provide any reasons upon being questioned was a clear demonstration that their decision was taken arbitrarily and without good reason at all.
  12. The implementation of the Kenya Citizens and Immigration Regulations, 2012 promoted and encouraged discrimination and unfair treatment amongst the judges in violation of article 27 of the Constitution. The mere implementation of the Regulations and refusal to grant judges access to VIP Lounges in the Kenyan airports was not aimed at pursuing a legitimate aim and/or dealing with factual inequalities. If anything, the respondents’ intention was to subjugate the judges and entrench inequality, oppression and differential treatment since no reasons were given to justify the decision being made. Thus, the respondents not only violated articles 2, 10, 23, 27, 160 and 162 of the Constitution but also abdicated their constitutional and statutory mandate. In addition, the respondents’ actions were arbitrary, unreasonable, unjust, unwarranted, ill-advised, discriminatory and unconstitutional. The instant court had jurisdiction to reinstate the privileges, rights and freedoms that had arbitrarily been deprived of the different cadres of superior Courts’ judges and censuring the acts of the respondents for express violation of the Constitution.
  13.  Under article 162 of the Constitution, the Supreme Court, the Court of Appeal, the High Court and courts of equal status were classified as superior courts whose occupants held the same status as judges of superior courts.  The 2nd and 3rd respondents in purporting to discriminately afford and or vary benefits entitled to those judges, while in office, without any unreasonable justification amounted to unfair discrimination. When determining whether a claim based on unfair discrimination should succeed, the courts had to determine;
    1. whether the provisions differentiated between people or categories of people; and,
    2. whether the differentiation amounted to unfair discrimination.
    The answer to the first question on whether the provisions differentiated between persons was in the affirmative since the judges of the High Court and courts of equal status were differentiated from judges of the Court of Appeal and the Supreme Court in the Third Schedule to the Kenya Citizenship and Immigration Regulations, 2012. That was contrary to article 162 of the Constitution that classified them all as judges of superior courts.
  14. The superior courts under article 162 of the Constitution included judges of the Supreme Court, Court of Appeal, the High Court and courts of equal status and not judges of the Supreme Court and Court of Appeal only as intimated by the list of persons entitled to Diplomatic Passports in the Third Schedule to the Regulations, or only the Chief Justice as intimated by granting him or her access into the VIP lounges to the exclusion of all the other Judges of the Superior Courts. In doing so, the 2nd and 3rd respondents were affording differential treatment to the judges of the superior courts, being judges in similar situation with same status. That arbitrary conduct and law demeaned the status of the judges of the High Court and courts of equal status and denoted them as inferior to or less deserving of respect than judges of the Supreme Court and Court of Appeal.
  15.  The burden of proof lay on the respondents to show that the discriminating treatment of judges of the High Court and courts of equal status was justified under article 24 of the Constitution. The respondents failed to demonstrate any justification or to cite any provision of the law justifying discriminating treatment of the judges of the High Court and courts of equal status and that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Therefore, the discrimination by the respondents against the judges of High Court and courts of equal status was unjustifiable, unlawful and unconstitutional.
  16. Article 23(3) of the Constitution granted the High Court the authority to uphold and enforce the Bill of Rights, and allowed it to grant various reliefs including a declaration of rights, an injunction, conservatory order, among others, in any proceedings brought under article 22 of the Constitution. Further, section 11 of the Fair Administrative Action Act empowered the High Court to grant any order that was just and equitable in judicial review proceedings.
  17. The only exception to the provision of article 160(4) of the Constitution was provided for under article 168(6) which outlined the variation to the remuneration and benefits payable to a judge that had been suspended. A benefit meant the advantage or privilege something gave or a profit or gain. Thus, the issuing of a diplomatic passport was indeed a privilege and therefore a benefit under article 160(4) of the Constitution. The impugned regulation effectively varied the benefits due to judges of the High Court and courts of equal status by excluding them from the list of persons entitled to Diplomatic Passport under the Third Schedule to the Regulations. That variation was contrary to article 160(4) of the Constitution and therefore void as provided for under article 2 of the Constitution.

Petition allowed with costs to the petitioner and interested party.

Orders: -

i. A declaration was issued that the 1st respondent’s failure to include judges of the High Court of Kenya and courts of equal status in the Third Schedule to Kenya Citizenship and Immigration Regulations,2012 as persons entitled to hold diplomatic passports was arbitrary, unreasonable and amounted to discrimination against all persons serving as judges of the High Court and courts of equal status contrary to article 27 of the Constitution.

ii. A declaration was issued that the distinction and differentiation in treatment by the 2nd and 3rd respondents of judges of the High Court and courts of equal status and judges of the Court of Appeal and Supreme Court was unconstitutional.

iii. A declaration was issued that the Third Schedule to the Kenya Citizenship and Immigration Regulations, 2012 in so far as it excluded judges of the High Court and Courts of equal status as persons entitled to a diplomatic passport was discriminatory to the extent that it subjected judges of the High of Kenya and judges of courts of equal status to lesser benefits  than the judges of the Court of Appeal and Supreme Court.

iv. A declaration was issued that the withdrawal of diplomatic passports hitherto issued to judges of the High Court and courts of equal status was in contravention of article 160 of the Constitution.

v. A declaration was issued that that withdrawal of access by judges of the High Court of Kenya and judges of courts of equal status to various Very Important Person (VIP) lounges across the country with similar reciprocal arrangements in other jurisdiction was in contravention of article 160 of the Constitution.

vi. An order of mandamus was issued reinstating of judges of the High Court and courts of equal status to the rights and benefits previously enjoyed by them including the provision of diplomatic passports.

vii. An order of mandamus was issued compelling the respondents to immediately include judges of the High Court and courts of equal status and their spouses in the Third Schedule to the Kenya Citizenship and Immigration Regulations, 2012, and or other restore to them and their spouses right to diplomatic passports.

CIVIL PRACTICE AND PROCEDURE

The Supreme Court does not have jurisdiction to review factual disputes

Housing Finance Company of Kenya Limited & another v Sharok Kher Mohamed Ali Hirji & another
Petition (Application) 46 of 2019
Supreme Court
P M Mwilu, Ag. CJ & Ag. P; M K Ibrahim, S C Wanjala, N Ndungu & I Lenaola, SCJJ
March 24, 2021
Reported by John Ribia

Download the Decision

Civil Practice and Procedure – reviews – jurisdiction of the Supreme Court to review its decisions – application for review where the applicant was not initially a party to the proceedings either at Supreme Court – application grounded on the fact that the applicant stood to be affected by decision if not reviewed - whether a person who was affected by a Supreme Court decision and was not a party to the trial and appellate court’s proceedings could be allowed to seek a review of that decision.

Brief facts:
The matter was an application seeking review of an order of the instant court. The order had adopted a consent of the parties and marked Petition of Appeal No. 46 of 2019 as settled. While delivering the decision adopting the consent order, the court noted that on record there was a letter by an advocate who was not a party to the proceedings but was opposed to the adoption of the consent order. Therefore, the applicant sought the court to review the order on the grounds that consent order was entered into without his knowledge yet he was the principal under power of attorney whose proprietary interests were at the risk of being substantially prejudiced by the adoption of that consent. He submitted that he only learnt about the consent after the fact and on that ground it ought to be vitiated.

Issue:

Whether a person who was affected by a Supreme Court decision but was not a party to the trial and appellate court’s proceedings could be allowed to seek a review of that decision.Read More...

Held:

  1. The court before making the impugned decision had declined to delve into the issue of the proper representative of the principal, as in doing so would have been making a factual finding, which it did not have the requisite jurisdiction to do. Having done so, the proper parties to the suit at the time of that decision remained Housing Finance Company Kenya, Watts Enterprises Limited and Sharok Kher Mohamed Ali Hirji. The applicant was not a party in that matter. Consequently, and as a result of that 5-bench decision of the instant court, the parties to the suit entered into a consent before the court in which they agreed to compromise the entire suit by a deed of settlement, thus marking petition 46 of 2029 as settled.
  2. The applicant was neither a party to previous related proceedings before the court nor had he shown that that the consent was based on fraud, collusion or by an agreement contrary to the policy of the court given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement. Further, the applicant was not disputing that the respondent was a holder of the power of attorney and instituted the suit from the High Court to the Court of Appeal resulting in several decisions of the given Courts. However, he challenged the extent, nature and validity of such power and consequent authority to deal with the matter. Therefore, the instant suit was a factual dispute that could not be resolved by the instant court.

Application disallowed; costs to be borne by the applicant.

Janet Munywoki - Ag. CEO and Editor

e: editor@kenyalaw.org

The Kenya Law Team

Where Legal Information is Public Knowledge.

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