Analysis of the BBI Constitutional Amendment Judgement: A Journey Through the Courts

This article provides a comprehensive analysis of the significant legal challenge to the proposed constitutional amendments in Kenya, tracing the case from its origin in the High Court through the Court of Appeal to the final determination by the Supreme Court. The core of these appeals revolved around the interpretation and application of Articles 255, 256, and 257, which form Chapter 16 of the Constitution, concerning constitutional amendments. The cases originated from a judgment of the High Court sitting in Nairobi dated May 13, 2021, in constitutional petitions challenging the validity of the proposed amendment by popular initiative under Article 257.

High Court Proceedings and Key Determinations

The High Court heard consolidated petitions challenging the validity of the constitutional amendment process. The issues raised in these petitions were deemed not mere political questions but rather constitutional issues requiring determination by a constitutional court with jurisdiction under Article 165. The court’s jurisdiction under Article 165 includes hearing any question respecting the interpretation of the Constitution, including whether anything done under constitutional authority is inconsistent with or in contravention of the Constitution. A party can institute proceedings challenging a contravention or threatened contravention of the Constitution.

Among the many complex issues considered, the High Court made several key determinations that became central to the subsequent appeals:

• Applicability of the Basic Structure Doctrine: The High Court found that the doctrine of basic structure is applicable in Kenya, limiting the amendability of the Constitution.
• Definition of Basic Structure: It identified the basic structure as comprising the foundational structure provided in the Preamble, the eighteen chapters, and the six schedules of the Constitution. This expansive definition led to complaints that it effectively encompassed the entire Constitution.
• Exercise of Constituent Power: The High Court held that the primary constituent power could only be exercised by the people through four mandatory sequential processes: civic education, public participation and collation of views, constituent assembly debate, and ultimately, a referendum.
• Presidential Immunity: The court declared that civil court proceedings could be instituted against the President. It found that the immunity granted under Article 143 of the Constitution was not absolute.
• IEBC Composition and Quorum: The court made findings regarding the composition and quorum of the Independent Electoral and Boundaries Commission (IEBC) in relation to undertaking certain processes.
• Interpretation of Article 257(10): The High Court concluded that Article 257(10) requires that all specific proposed amendments be submitted as separate and distinct referendum questions to the people, to be voted for or against separately.
• Justiciability and Ripeness: The court found that the consolidated petitions fully complied with the tenets of justiciability and ripeness, particularly as they touched on the threat of violation of the Bill of Rights. It determined that the dispute was neither abstract nor academic because the impugned Bill had been published and the process initiated. An issue is ripe when there is a factual matrix for determination.

The High Court’s judgment, delivered by a bench of five judges, stated that their conclusions were based on a sound and proper interpretation of the applicable constitutional provisions.

Court of Appeal Proceedings and Judgment

The High Court judgment triggered a wave of appeals and cross-appeals. The Court of Appeal, as a first appellate court, has the mandate to reappraise the evidence and draw its own inferences of fact, though it should consider that it neither saw nor heard the witnesses. The core of the appeals centered on challenging the High Court’s findings.

The Court of Appeal addressed several thematic issues. Their reasoning and conclusions included:

• Basic Structure Doctrine: This was the subject of furious and sustained attack by appellants. The judges had varied conclusions. The majority affirmed the High Court’s finding that the basic structure doctrine is applicable in Kenya and limits the amendment power set out in Articles 255-257. Arguments supporting this included Kenya’s unique history of hyper-amendments under the former constitution. Appellants argued against it, suggesting the High Court placed disproportionate weight on context over text and that the doctrine was not in the CKRC report. Some judges noted the doctrine is nascent and unsettled internationally.
• Constituent Power and Sequential Steps: The majority of the Court of Appeal judges affirmed the High Court’s finding that the primary constituent power requires the four sequential processes (civic education, public participation/collation of views, constituent assembly debate, referendum). Appellants argued this declaration amounted to a re-writing of the Constitution. The court noted the constitutional distinction between direct and representative exercise of sovereign power.
• Presidential Immunity: The Court of Appeal unanimously agreed with the High Court that the immunity granted to the President while in office under Article 143(2) is not absolute. It applies only to actions or omissions done in the exercise of powers under the Constitution and is limited to the tenure of office.
• IEBC Composition/Quorum: The High Court’s findings on IEBC’s capacity were challenged. One justice held that IEBC’s actions based on a previous, unchallenged High Court decision (Isaiah Biwott) regarding its composition were valid in law.
• Separate Referendum Questions: The Court of Appeal judges had differing views on the interpretation of Article 257(10). The majority affirmed the High Court’s finding that specific proposed amendments must be submitted as separate questions to be voted on distinctly. However, one judge disagreed, stating a plain reading of Article 257 requires submitting a “Bill” to the people, not questions.
• Public Participation: The court found there was a degree of public participation at the first two levels of the Article 257 process. However, it concluded that this participation was not in accordance with national values and principles under Article 10 due to a failure to provide reasonable notice. The court emphasized that public participation is a core constitutional principle, justiciable and enforceable, and requires providing adequate information. The mode, degree, scope, and extent of public participation are determined on a case-by-case basis.
• Justiciability and Ripeness: The Court of Appeal affirmed the High Court’s finding that the petitions were justiciable and ripe. It held that processes leading up to referenda are subject to judicial review. The court agreed that a real threat of constitutional violation, such as to the basic structure, justifies judicial intervention even before an act is fully enacted.
• Constitutional Interpretation: The court stressed the importance of interpreting the Constitution holistically, purposively, and as a transformative charter, rejecting formalistic or positivistic approaches. Interpretation must consider text, structure, history, context, values, and principles. Supreme Court guidance on interpretation is binding.
• Amicus Curiae: The court acknowledged the valuable role of amici curiae (friends of the court) in assisting the court, especially in promoting constitutional rights. Amici should offer reasoned, professional judgment, address novel legal aspects, and maintain neutrality.

The Court of Appeal’s judgment, like the High Court’s, was detailed and complex, reflecting the significance and novelty of the questions raised.

Supreme Court Proceedings and Final Determination

The appeals from the Court of Appeal’s decision brought the matter to the Supreme Court, the final arbiter on the interpretation and application of the Constitution. The Supreme Court’s jurisdiction under Article 163(4)(a) allows it to determine appeals from the Court of Appeal on questions of constitutional interpretation and application.

The Supreme Court, in its judgment, addressed the key issues as follows:

• Basic Structure Doctrine: The Court acknowledged that this was a highly contested issue with varied and divergent views among parties and amici. Some justices acknowledged the existence of the doctrine as a legal principle to preserve the Constitution’s fabric. However, the Court ultimately concluded that while the Constitution has a basic structure, this is distinct from the basic structure doctrine as an external concept. Several justices questioned the High Court’s approach of seeking a declaration on the applicability of a doctrine upfront. The Court emphasized that interpretation should focus on the Constitution’s text, history, and context, not rely implicitly on external doctrines. The safeguards against hyper-amendment are found within Chapter Sixteen itself.
• Constituent Power and Sequential Steps: The Supreme Court questioned the basis for the four sequential steps mandated by the lower courts for exercising primary constituent power. While the historical process of making the 2010 Constitution involved various stages, the Court held that the Constitution itself, specifically Chapter Sixteen, provides the pathways and procedures for amendment. The Constitution distinguishes between direct and representative exercise of power.
• Presidential Immunity: The Court addressed the issue of presidential immunity under Article 143(2) due to its public interest, despite potential ripeness concerns. It agreed with the lower courts that the immunity is not absolute and applies only to actions or omissions done in the exercise of powers under the Constitution during the President’s tenure.
• IEBC Composition/Quorum: The Supreme Court agreed with the Court of Appeal that actions taken by IEBC based on a previous, unchallenged High Court decision (Isaiah Biwott) validating its composition were legally sound. The Court set aside the findings of the High Court and Court of Appeal on this specific issue.
• Separate Referendum Questions: The Supreme Court found this issue to be not ripe for determination. At the time the petitions were filed, IEBC had not yet received the request to hold a referendum, framed the questions, or determined the formula for doing so. Therefore, there was no “live controversy” for the court to pronounce upon. While one justice addressed the issue obiter dicta (in passing) due to public interest and found Section 49 (multi-option) inconsistent with Article 257(10) (requiring a Bill), the majority ruling deferred on the issue for lack of ripeness.
• Public Participation: The Court reiterated that the constitutional threshold for public participation is reasonableness of notice and opportunity. The mode, degree, scope, and extent vary case by case. Public participation is a vital principle of governance that must be infused at every stage. While one justice found sufficient public participation, another observed that despite some degree of participation, it failed to meet Article 10 values due to lack of reasonable notice.
• Justiciability and Ripeness: The Court reaffirmed that courts should only decide “real earnest and vital controversies,” not hypothetical or academic issues. An issue must be ripe through a factual matrix. However, the Supreme Court, as the apex court, may sometimes address unripe issues of grave public interest to provide authoritative interpretive guidance.
• Constitutional Interpretation: The Supreme Court consistently emphasized the methodology of holistic, purposive, and value-based interpretation, rooted in the Constitution’s text, history, and context. It stressed that the Constitution must be read as a whole, not in bits and pieces, and that it cannot subvert itself. The Court has a duty to provide clear interpretive guidance.
• Standing: A petitioner must demonstrate with precision the constitutional provision violated and the manner of violation. Threat of violation is sufficient.

The Supreme Court’s judgment, delivered after extensive arguments, refined and, in some instances, overturned the findings of the lower courts, providing crucial guidance on the interpretation of Chapter Sixteen and the process of constitutional amendment in Kenya. The complexity and depth of the issues reflected the significant stakes involved in interpreting the limits of constitutional amendment power and the role of the people in the process.