Following the Constitution of Kenya (Amendment) Bill, 2020 (the Amendment Bill), which was a proposal to amend the Constitution, 2010, eight petitions were filed in the High Court challenging the process that resulted in the Amendment Bill and its contents on the ground that they were not following the Constitution.
The High Court in a Judgment dated 13th May 2021 allowed the petitions in part and issued several Orders. Thereafter, appeals were filed in the Court of Appeal and by a judgment dated 20th August 2021 the Court of Appeal set aside some of the orders of the High Court.
Aggrieved with the Court of Appeal’s decision, the Attorney General, Independent Electoral Boundaries Commission and Mr Morara Omoke filed appeals in the Supreme Court which were eventually consolidated.
The consolidated appeals were asking the Supreme Court to interpret the provisions of Chapter Sixteen (Articles 255- 257) of the Constitution which provides for how the Constitution can be amended and determine whether the Court of Appeal’s judgment was sound in law.
The Key Seven Issues
Having appreciated the consolidated appeals, the Supreme Court framed seven issues as arising for its consideration and has partly allowed the appeals in the following terms:
1. The basic structure doctrine is not applicable in Kenya. To amend the Constitution of Kenya 2010, the four sequential steps are not necessary as pronounced by the two Superior courts below. (Ibrahim, SCJ dissenting).
2. The President cannot initiate Constitutional amendments/ changes through the popular initiative under Article 257 of the Constitution. (Njoki Ndungu, SCJ dissenting).
The President initiated the amendment process in issue (Njoki Ndungu & Lenaola SCJJ dissenting). Consequently, under Article 257 of the Constitution, the Constitution Amendment Bill of 2020 is unconstitutional (Njoki Ndungu & Lenaola SCJJ dissenting).
3. The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of Article 10 (2) of the Constitution of Kenya 2010 there has been no public participation in the Schedule. (Unanimous)
4. Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010. (Unanimous)
5. There was no obligation under Article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. (Unanimous)
There was public participation concerning the Constitution of Kenya (Amendment) Bill, 2020 (Mwilu; DCJ & VP, Ibrahim and Wanjala, SCJJ dissenting).
6. The IEBC had the requisite composition and quorum to undertake the verification process under Article 257(4). (Ibrahim, SCJ dissenting)
7. The question raised regarding the interpretation of Article 257(10) of the Constitution on whether or not it entails/ requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination (Njoki Ndungu, SCJ concurring).