BBI:

HC/COA: BSD EXISTS, CHAP 1,2,4,9,10 AND CANNOT BE AMENDED BY 256/257 that would be
equivalent w replacing it w a new constitutions, MUST BE AMENDED BY CPDR.

CJ OPINION: ARTICLE 255 ADEQUATE.

BSD doesn’t apply in Kenya as already stipulated 3 pathways to amend under article 16 and all
amendments must pass through those pathways. Kenyans sought to stop hyper amendments and
also wanted a SAY in matters therefore chapter 16 was created. BSD being present WOULD MEAN
that the people are not sovereign bc (Constitution not respected + they would not have a say as
BSD means that all provisions are unamendable) 21 failed attempts since 2010 constitution show
success of Chapter 16 hence no need for 4th pathway created by the Judiciary that could also be
deemed as unconstitutional. Denying people an opportunity to amend their constitution through a
judicially created ultra rigid process undermines democratic constitutionalism. Judges should be
vigilant lest accused of usurping sovereign power of the people.

M.K IBRAHIM OPINION: (BSD EXISTS TO PROTECT SOVEREIGNTY OF THE PEOPLE)

BSD applies in Kenya, and it exists to protect essentials of Const. by limiting the power to amend and
may only be carried out by the Kenyans in exercising primary constituent power and cannot be
carried out by delegated authority.

-Since BSD is subject to abuse, should be applied to develop the law and must protect democratic
norms. (SoP, fundamental rights)

Parliament= NO BSD. Said in Njoya that Ringera implied that BSD was there bc limit on Parliament’s
power to amend. Stated that Chap. 1,2,4,9,10 was basic structure and can only be altered through
formation of a new constitution. States that basic structure doctrine may be equated to family
house, when roofs destroyed it may be restored if the basic structure still exists.

Although BSD exists, no unamendable provisions, BS (art 255> referendum) other amendments
(256,257). Courts intervening means that BSD exists

Article 255 forms BS.

Power to frame a Constitution belongs to the people, power to amend is derived power from the
constitution and subject to procedure.

PRIMARY CONSTITUTENT POWER: In framing the Constitution, the process is fully participatory.
(unbound)

SECONDARY CONSTITUENT POWER: After promulgation the people’s power is limited to public
participation and a referendum .

-4 sequential steps for Primary Constituent power IN CHANGING CONST.; Civic Education (collect,
collate views on proposals to alter const, education materials- KHRC concluded that areas like
Turkana had low literacy levels therefore never engaged meaningfully), Public participation (views),
Debate, Referendum to ratify.

-Secondary Constituent power: Public participation, Referendum

-Constituted power: Parliament only.

NJOYA/PATRICK ONYANGO CASE- Collation of views, Constituent Assembly, Referendum

DISTINGUISHES BBI AND NJOYA: Timeline pre 2010 fairly easily amended therefore BSD would
apply and art 255 didn’t exist, Nj didn’t distinguish between Primary, secondary. Just expressed
constituent power required

Kubo J dissented by saying article 47 does not limit the power of Parl to amend/repeal/replace.

WILLIAM OUKO;BSD NOT APPLICABLE

References Prof. Charles Manga said courts should rely on decisions which reject limitations on
amendments based on BSD.

Article 368 (5) deems Parliament to be ‘primary constituent power’ in India. In Germany Article 76
barred ay amendment concerning basic principles to do w democracy, rule of law, SoP. In Kenya, pre
2010, Article 47(1) stated Parliament may alter this constitution.

DCJ: BSD NOT APPLICABLE.

BS- account for history and aspirations of the citizens. BSD- Any amendment to BS= alteration. Who
decides whether a particular change constituted a eternity clause? Judges on a case-by-case basis.
Judicial reasoning cannot be elevated to a doctrine above the Constitution.

Mitubell- Only as applicable in our Constitution> foreign legal principles.

FOR:Related it to John Locke and Baron De Montesquieu to assert it is not alien but is rooted in
antiquity as a feature of democratic governance.

Protection from hyperamendment= amendment process and NOT eternity clauses

LENAOLA:

Arguments against BSD: Kenya already knows core structure+ includes people in participatory
process. Our Constitution limits Parl powers (therefore Kesavananda doesn’t apply). BSD is judicial
power, Application limits sovereignty of people= unconstitutional.

Arguments for BSD: BSD applies to limit amendments through Constituent power (Parl) however
does not limit primary constituent power. Argues that BSD applies bc of Article 1 being preserved
and the people wanting the constitution to be preserved for future generations.

BSD- Can amend BUT SEVERELY LIMITED. NO BSD- CAN AMEND, NOT LIMITED AS LONG AS FOLLOWS
ART 255,256,257.