BBI CASE BRIEF SUMMARY

By

LEVEL: HIGH COURT /COURT OF APPEAL/ SUPREME COURT

David Ndii & others v Attorney General & others [2021] Eklr (Petition 12 of 2021)

QUESTIONS:

1. Discuss the BBI case of 2021 from the High Court, Court of Appeal to the Supreme Court
of Kenya while focusing on the following: (Use the basic doctrine principle)
a) Legal facts
b) Legal arguments
c) The ruling

2. Discuss how the Kenyan constitution can be amended citing constitutional provisions. - This
one was well clarified by the Supreme Court decision in the BBI case. I quote it verbatim “A
constitutional amendment can only be initiated through two avenues: by Parliament through a
parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the
Constitution.’’ Also note that the Supreme Court further held that The President is ineligible to
directly or indirectly initiate a constitutional amendment either through a parliamentary initiative
under Article 256 or a popular initiative under Article 257. He cannot act as an ordinary citizen
because he is not; and that all actions taken in his name and on his behalf in the amendment process
will be all in the official capacity, as the President of the Republic of Kenya, therefore null and
void.
Q.1
Introduction
After the tabling of a constitutional petition before the High Court, the Executive Arm of
Government would start the rushed plans to see the BBI being effected. The petitions will
immediately file a miscellaneous Application seeking conservatory orders to stop this move. This
publication will highlight the major steps taken in the 8 BBI consolidated petitions, analysis of the
basic structure doctrine and the final judgment by the Supreme Court.

Brief facts of the Case

The Petitioners’ case was that on 31st May, 2018, the President had appointed “The Task Force
on Building Bridges to Unity Advisory” whose mandate was to evaluate the national challenges
outlined in the Joint meeting of 'Building Bridges to a New Kenyan Nation, and having done so,
make practical recommendations and reform proposals that build lasting unity. On 26th November,
2018, the Taskforce presented its report to the president titled, “Building Bridges to a United
Kenya; from a nation of blood ties to a nation of ideals”.

The Report consisted of a raft of proposals on constitutional and legislative amendments as well
as the Draft Constitution of Kenya (Amendment) Bill 2020, (hereinafter referred to as “the
Constitutional Amendment Bill”) Draft Legislative Bills, Administrative measures and other
recommendations. It was also pleaded that on the 25th of November, 2020, the President launched
the Constitution of Kenya (Amendment) Bill, 2020 and the roll out for collection of signatures
commenced. When the IEBC later concluded that the BBI bill had received the necessary
signatures, it moved the BBI Constitution amendment process to a new stage. The next stage was
the referendum. The Petitioners rushed to court to stop this.

The Petitioners therefore asserted that unless the application for conservatory orders was heard,
Kenyans risked losing Billions of money in a process that was in blatant violation of their sovereign
power. Accordingly, they urged that it was in the interest of justice that the operations of the
Respondents and the Interested Parties be put on hold pending the hearing and determination of
their constitutional petitions.

Issues (Forms the Chronological legal arguments)

1. Whether the process that was being followed to enact the Constitutional Amendment Bill
was constitutional. Also the constitutionality of the process through which the
Constitutional Amendment Bill had originated was in question.

Explanation: The petitioners were concerned as the process lacked an overall legislation
structuring how the process was to be undertaken especially in the County Assemblies.;
Remember that the County Assemblies could have opted for any of the following two
routes towards the passing of the Constitutional Amendment Bill.
 i) Firstly, they had the option of introducing the Bill, by way of a Notice of motion, which
if seconded, was to proceed to being debated upon, and ultimately a vote could have
been taken. That option, according to the Applicants (of the miscellaneous application
in discussion), effectively circumvented the constitutional requirement and safeguard
of public participation in law-making.

ii) The County Assemblies also had the alternative of introducing the Bill as a Public
Bill, which would have entailed the rigors of a First Reading, Committal to Committee,
Public Participation, Second Reading, Committal of the Bill to the Committee of the
Whole County Assembly, debate, Third reading, and ultimately taking a vote as to
whether a Motion passes or not. Obviously the County Assemblies could have taken
the first route.

2. The critical question of the legal competency of the IEBC Commission, based on its
composition to carry out a referendum;

3. The contents of the amendments given claimed existence of a judicial doctrine of basic
structure and “eternity clauses”. Whether the basic structure doctrine and its corollary
doctrines were applicable in Kenya as far as amendments of the Constitution are cornered;
whether by virtue of the doctrine(s) there was an implied limitation to the powers of
amending the Constitution under Chapter Sixteen (Articles 255-257); and whether certain
provisions of the Constitution were not amendable under Chapter Sixteen of the
Constitution. The High Court , had stated as follows:

“From a holistic reading of the Constitution, its history and the context of the making of
the Constitution, the Basic Structure of the Constitution consists of the foundational
structure of the Constitution as provided in the Preamble; the eighteen chapters; and the
six schedules of the Constitution. It also includes 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. The Basic Structure Doctrine protects the core edifice,
foundational structure and values of the Constitution but leaves open certain provisions
of the Constitution as amendable through the procedures outlined in Articles 255, 256 and
257 of the Constitution in as long as they do not change the Basic Structure.”

4. The adequacy of the public participation in the process;

Holding at the High Court: The High Court threw a spanner in the works by issuing a
conservatory order. This was contributed to the cost that was to be incurred by the IEBC in
preparing for the referendum. The High Court found that the dangers here were real and imminent.
Conducting a referendum would cost billions of shillings and, if the amendment process were
found to be unconstitutional, those costs would never be recovered. As the court explained,
allowing the IEBC to proceed may mean that "the country’s scarce financial resources would have
been unnecessarily expended."

Further, the High court (in the consolidated petitions) ruled that the Basic Structure Doctrine was
applicable in Kenya. In addition, the Basic Structure limited the amendment power set out in
Articles 255 – 257 of the Constitution. In particular, the court further held that the Basic Structure
Doctrine limited the power to amend the Basic Structure of the Constitution and eternity clauses.
Moreover, 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.

It is also important to note that the court also held that the BBI Steering Committee and 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.

Holding at the Court of Appeal: Dissatisfied with the determination of the High Court, four
appeals were filed before the Court of Appeal. The court held (with some judges having dissenting
opinions) that the basic structure doctrine was applicable in Kenya, the basic structure doctrine
limited the amendment power set out in Articles 255 – 257 of the Constitution, the basic structure
of the Constitution could only be altered through the Primary Constituent Power which included
the four sequential processes namely: civic education; public participation and collation of views;
Constituent Assembly debate; and ultimately, a referendum, the Constitution of Kenya
(Amendment) Bill, 2020 is unconstitutional and a usurpation of the People’s exercise of sovereign
power (Inter alia).

Holding at the Supreme Court:

Here before we delve into the Holding it will be vital to mention the main issues in dispute. The
Court framed seven (7) issues for determination namely: (But let’s pick the 3 main issues under
study)

(i) Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its
application; whether the basic structure of the Constitution can only be altered through
the primary constituent power; and what constitutes the primary constituent power;

(ii) Whether the President can initiate changes/amendments to the Constitution; and
whether a constitutional amendment can only be initiated by Parliament through a
parliamentary initiative under Article 256 of the Constitution or through a popular
initiative under Article 257 of the Constitution;

(iii) The place of public participation under Article 10 vis-a- vis the role of IEBC under
Article 257(4) of the Constitution; and whether there was public participation in
respect of the Constitution of Kenya (Amendment) Bill, 2020;

Summary of Findings (By the Supreme Court)

(i) Basic Structure Doctrine

 -To the extent that the basic structure doctrine limits the amendment power to amend
the Constitution contrary to the express terms of Chapter Sixteen of the Constitution, it
does not apply to the Constitution of Kenya.

-There are no four sequential steps for the amendment of the Constitution other than
the steps outlined in Chapter Sixteen; those steps are not a replication of constitution-
making process, which is distinct and do not mirror the process adopted in the making
of the 2010 Constitution.

-Primary constituent power is the power to build a new structure by the people
themselves and the secondary constituent power is, the power to amend an existing
constitution. Under Chapter Sixteen, this power, called in Article 1(1), the sovereign
power, belongs to the people of Kenya and is exercised by them people in a popular
initiative or donated by them to elected representatives in a parliamentary initiative

The basic structure doctrine in India

The Basic Structure doctrine has its origins in India. The Indian Constitution granted its
parliament limited power to amend the constitution. In the case of Minerva Mills Ltd versus
Union of India AIR 1980 SC 1789, the Supreme Court of India stated that Parliament
cannot seek to amend the constitution in a manner that destroys its essential and basic
features. This formed the basis for what later on became known as the Basic structure
doctrine.
The ‘Doctrine of Basic Structure’ is a doctrine which was propounded by the Indian
Judiciary on 24th April 1973 in Keshavananda Bharati V State of Kerala to put a limitation
on the amending powers of the Parliament so that the ‘basic structure of the basic law of
the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution.
Though attempt was first made in the year 1967 in Golakh Nath case by M. K. Nambyar
to get it approved in the name of ‘necessary implied restraint on the amending power of
the Parliament’ but it took almost half decade for the Indian judiciary to overcome its
hesitancy and pronounce it in Keshavananda case.
The judicial journey and development of the ‘Basic Structure’ doctrine has been covered
from Shankari Prasad v. Union of India (1951), Sajjan Singh v. State of Rajasthan (1965)
, I. C. Golakhnath v. State of Punjab (1967) and finally the Keshavananda Bharati v. State
of Kerala (1973). The Pramati Educational and Cultural Trust case (2014) where the
Supreme Court applied the Basic Structure doctrine and declared that Articles 15(5) and
21-A of the Indian Constitution are in consonance with the spirit of the doctrine and are
not violative of the Basic Structure doctrine.
Article 368 of the Indian Constitution grants the power to the Parliament to make
amendments in the Constitution, whenever necessary. The Doctrine of Basic Structure is
nothing more than a judicial invention designed to prevent Parliament from abusing its
amendment power. The concept is that the core aspects of the Indian Constitution should
not be changed to the point that the Constitution’s uniqueness is lost. The idea of basic
 structure supports that the Indian Constitution upholds certain principles that are the
governing norms for the Parliament. No amendment can modify these principles.

(i) Initiation of a popular initiative by the President

The President is ineligible to directly or indirectly initiate a constitutional amendment

either through a parliamentary initiative under Article 256 or a popular initiative under
Article 257. He cannot act as an ordinary citizen because he is not; and that all actions
taken in his name and on his behalf in the amendment process were all in the official
capacity, as the President of the Republic of Kenya, therefore null and void.

A constitutional amendment can only be initiated through two avenues: by Parliament

through a parliamentary initiative under Article 256 or through a popular initiative
under Article 257 of the Constitution.