UNIT TITLE : CONSTITUTIONAL LAW 1

UNIT CODE: LPL 104

LECTURER: MS LYDIA ADUDE

GROUP WORK ON AMENDABILITY OF THE CONSTITUTION

BY GROUP 10 STREAM ONE

NAME REGISTRATION SIGNATURE

NUMBER
1, VITALICE MATILDA MARGARET L95S/15571/2023
(GROUP LEADER)
2. MYRA WAMBUI NDEGWA L95S/15239/2023

3. NDUNDA CATHERINE MWENDE L95S/15246/2023

4. KEMUNTO FAITH MAUTI L95S/15390/2023
5. MORAA NYANCHOKA L95S/15237/2023
6. SCHIFFER NYAKORA L95S/15534/2023
7. LITALA PATIENCE KHASANDI L95S/15537/2023

8. JANICE WAMBUI WANJIRU L95S/15586/2023

9. SETH SOITANAE SOLITEI L95S/15824/2023

10. SIPHANUS CANDIS LUMULA L95S/15873/2023

CONSTITUTIONAL AMENDABILITY

The word amend comes from the Latin amendere which means to correct or improve. Amend
does not mean ‘to deconstitute or reconstitute,’ to replace one system with another or abandon its
primary principles.

Constitutional amendability refers to the ability to modify a country's constitution. It

encompasses the processes and mechanisms outlined in the constitution itself that allow for its
changes.

This includes, but is not limited to:

i.) Who can propose amendments?

ii.) What steps are required for approval?

iii.) Any limitations on what aspects of the Constitution can be changed.

Some constitutions establish a clear and relatively simple amendment process, while others make
amendments quite challenging.

This can depend on factors like:

a) Required Vote Thresholds

Some amendments might require a simple majority vote, while others may necessitate a
supermajority or approval from individual states or provinces.

b) Legislative Approval

The process might involve passing the amendment proposal through both houses of the
legislature.

c) Public Referendum

In some cases, amendments may need to be ratified by a popular vote in a national referendum.

d) Judicial Review

Courts might hold the power to review amendments and strike them down if they violate the
Constitution's core principles.
Article 255(1) of the constitution of Kenya, 2010 provides that a proposed amendment to the
constitution should be enacted in accordance with Article 256 or 257, and approved with clause
(2) by a referendum if the amendment relates to any of the following matters 1:

i.) The supremacy of the constitution

ii.) The territory of Kenya
iii.) The sovereignty of the people
iv.) The national values and principles of governance mentioned in Article 10 (2) (a) to (d)
v.) The Bill of Rights
vi.) The term of office of the president
vii.) The independence of the Judiciary and the commissions and independence offices
to which Chapter Fifteen applies
viii.) The functions of parliament

Reasons for Constitutional Amendability

1) Reflecting the will of the people

Amendments can be a way for the people to have a say in how their government is structured and
functions. This can be particularly important after a major political revolution or period of unrest.

2) Addressing unforeseen circumstances

Constitutions can't anticipate every situation that might arise. Amendments allow for the
inclusion of provisions to address new challenges or emergencies.

3) Adapting to social change

Societies evolve, and constitutions need to be flexible enough to accommodate these changes.
For example, amendments might be made to address new technologies, social movements, or
economic realities.

4) Correcting errors or ambiguities

The original constitution may contain errors, omissions, or unclear language. Amendments can
be used to fix these problems and ensure that the constitution is unambiguous.

1 Article 255 (1) of the Constitution of Kenya

 5) Responding to new challenges in the country

New challenges, such as environmental threats or terrorism, may necessitate changes to the
constitution. Amendments can allow the government to address these challenges effectively.

6) Protecting fundamental rights

Sometimes, amendments are necessary to protect fundamental rights that were not adequately
addressed in the original constitution.

7) Improving government efficiency

Amendments can be used to streamline government processes or make the government more
accountable to the people.

Who Can Propose Amendments?

In Kenya, two main entities can propose amendments to the constitution:

1. Parliament

Both houses of the Kenyan Parliament, the National Assembly and the Senate have the authority
to initiate amendments. This can be done by introducing a bill proposing the amendment 2.

2. Citizens

Kenyan citizens can also propose amendments through a popular initiative. This requires
collecting signatures from at least one million registered voters in support of the proposed
amendment3. The initiative can either be a general suggestion or a formulated draft bill outlining
the specific changes.

2 Article 257(2) of the Constitution of Kenya, 2010

3 Article 257(1) of the Constitution of Kenya, 2010
Methods of Constitutional Amendments

There are several methods for amending a constitution, each with varying degrees of difficulty
and popular participation. Here are some common methods:

a) Legislative Amendment

This method involves a vote by the legislature or parliament, often requiring a supermajority.
The United States is an example of a country that uses this method.

b) Legislative-Executive Amendment

This method requires approval from both the legislature and the executive branch, such as the
president. France uses this approach.

c) Legislative-Referendum Amendment

In this method, both the legislature and the people, through a national referendum, must approve
the amendment. Ireland follows this process.

d) Constituent Assembly

A special elected body is convened to draft and adopt amendments. South Africa used this
method after apartheid.

e) Judicial Review

Some countries, like Canada, allow courts to invalidate laws that conflict with the Constitution.
This can effectively amend the Constitution through judicial interpretation

Kenya's constitution employs a Legislative-Referendum Amendment method for enacting

changes. This two-part process involves:

i. Approval by Parliament

Amendments must first be passed by a⅔ majority vote in both houses of the Kenyan Parliament.
 ii. Ratification by Referendum

If successful in Parliament, the proposed amendment goes to a national referendum where a

simple majority vote is required for approval.

Process of Constitutional Amendment in Kenya

The process for amending Kenya's Constitution of 2010 involves two main tracks depending on
the type of amendment and whether it touches on core issues.

1. Parliamentary Approval:

a.) Ordinary Amendments

These amendments deal with matters outside the entrenched clauses in Article 255(1) of the
Constitution. The process typically involves:

i. A proposal for the amendment is introduced in either house of Parliament4.

ii. Approval is done by a majority of members in both houses of Parliament5.
iii. The Parliament publicizes any bill to amend the Constitution and facilitate public
discussion about the Bill6.
iv. Parliament passes a bill to amend the Constitution and the two speakers of both houses
jointly submit to the President7
v. Subject to clause (5), the president assents to the bill and cause it to be published within
thirty days after the bill is enacted by Parliament 8.

b.) Entrenched Clause Amendments

These amendments touch on core elements of the Constitution as outlined in Article 255(1),
including the Bill of Rights. The process necessitates:

a) It follows the same steps as ordinary amendments for Parliamentary approval.

b) If either house of Parliament rejects the amendment or it touches on entrenched clauses, it
proceeds to a national referendum.

3. Public approval through a referendum with a simple majority vote for the amendment to
pass.

4 Article 256(1)(a) of the Constitution of Kenya, 2010

5
Article 256(1)(d) of the Constitution of Kenya, 2010
6
Article 256(2) of the Constitution of Kenya, 2010
7
Article 256(3) of the Constitution of Kenya, 2010
8
Article 256(4) of the Constitution of Kenya, 2010
In the case of Malindi Law Society & 12 others v Attorney General & 2 others (20199) where
the court held that public participation in any amendment should be reasonable depending on
various factors. They included the nature, the importance of the legislation and the intensity of its
impact on the public.

In the case of & The Law Society of Kenya V Attorney General & 2 others (2019)10 the court
held that the amendment process must follow due process which includes public participation
which enables the Legislature to consider the views of the people and consultation with various
stakeholders.

Limitations On What Aspects Of The Constitution May Not Be Amended.

The Constitution of Kenya 2010 employs a nuanced approach to amendment. While there aren't
explicitly unamendable clauses, the concept of a "basic structure doctrine" introduces significant
hurdles for certain alterations.

This doctrine, developed through judicial interpretation, posits that the Constitution possesses a
core framework of principles essential to its character. These principles are considered highly
resistant to amendment through the standard procedures outlined in the document.

The core principles likely protected by the basic structure doctrine include:

a) Democratic Character of the State

The constitution's vision of Kenya as a democratic republic with a framework for representative
government is likely a fundamental element.

b) Supremacy of the Constitution

The notion that the Constitution is the supreme law of the land, binding all persons and state
organs, is likely a cornerstone principle.

c) Essential Human Rights and Freedoms

The fundamental rights and freedoms enshrined in the Constitution are likely considered core
and resistant to significant modification.

9
Petition 19 & 291 of 2016( Consolidated)[2021]
10 Civil Appeal 96 of 2014(2019)
Any amendments seeking to fundamentally change these core principles would likely be
challenged in court based on the argument that they violate the basic structure doctrine.

Procedural Challenges: Amending the Kenyan Constitution is a complex process outlined in

Articles 255-257. Depending on the nature of the amendment, it may require approval by a
supermajority in both houses of Parliament followed by a national referendum with a simple
majority vote. This complex process inherently discourages frivolous or hasty amendments.

Therefore, amendments that fundamentally alter these core principles would likely face legal
challenges based on the basic structure doctrine. This doctrine adds a layer of complexity to the
amendment process, safeguarding the Constitution's core tenets from impulsive or potentially
destructive changes.

Constitutional changes in Kenya since independence

There have been many amendments which have been done to the constitution since gaining
independence in 1963.

The Constitution was tinkered with at least 27 times, making a wide range of amendments each
time.

1. Constitution of Kenya (Amendment) Act No. a28 of 1964: Assented to on 23 November 1964.
It established the office of the President and Vice President. It enabled Mzee Kenyatta to
transition to President on 12 December 1964 and Oginga Odinga Vice President.

2. Constitution of Kenya (Amendment) Act No. 38 of 1964: Sought to weaken the regional
government by the repeal of levying revenue. Regional governments became dependent on the
Central Government.

3. Constitution of Kenya (Amendment) Act No. 14 of 1965: Curtain raiser to detention without
trial. It amended approval for a state of emergency by Parliament to a simple majority.
Amendment of the constitution was amended from 90 per cent in the Senate and 75 per cent in
the House of Representatives both placed at 65 per cent.

4. Constitution of Kenya (Amendment) Act No. 17 of 1966: Introduced the requirement for the
Speaker’s permission for MPs absent for more than eight consecutive days. Such an MP would
lose their seat unless pardoned by the President.
5. Constitution of Kenya (Amendment) Act No. 17 of 1966: Calculated to tame KPU defectors
after Limuru I Conference. It stated that an MP resigning from a political party to lose the seat
and seek a fresh mandate.

6. Constitution of Kenya (Amendment) Act No. 18 of 1966: State of emergency powers removed
from Parliament and handed the President. It enabled the start of detention without trial.

7. Constitutional Amendment Act No. 40 of 1966: Abolished the Senate and House of
Representatives. There was creation of the National Assembly. Senators were absorbed into the
assembly.

8. Constitution of Kenya (Amendment) Act No. 16 of 1968: Killed and buried federalism. All
provincial councils were abolished. All regionalism laws were repealed.

9. Constitutional Amendment Act No. 45 of 1968: Driven by fear of a parliamentary coup. It

made the President to be elected by the public and not through Parliament by MPs.

10. Constitutional of Kenya Act No.5 of 1969: An omnibus amendment that gave the president
more powers, such as the appointment of the Electoral Commission. Previously powers belonged
to the Speaker of the National Assembly.

11. Constitution of Kenya (Amendment) Act of 1974: Lowered the voting age from 21 years to
18 years. It recognized use of Kiswahili in the National Assembly.

12. Constitution of Kenya (Amendment) Act of 1975: Allowed presentation of Parliamentary

Bills in both English and Kiswahili.

13. Constitution of Kenya (Amendment) Act No. 14 of 1975: Gave the president the sole power
to forgive various kinds of law offenders, including pardoning election offenders. It sought to
allow Paul Ngei to run for Kangundo Constituency after election nullification for election
offences.

14. Constitution of Kenya (Amendment) Act No. 13 of 1977: Established the Court of Appeal
of Kenya after the demise of the East African Community. Chief Justice tallowed to sit both as a
High Court judge and a Court of Appeal judge.

15. Constitution of Kenya (Amendment) Act No. 1 of 1979: Affirmed dual use of English and
Kiswahili in Parliament. To address language challenges by members with difficulties in
Kiswahili.

16. Constitution of Kenya (Amendment) Act No. 5 of 1979: Public servants wishing to contest
parliamentary elections to resign at least six months to nominations for the elections.
17. Constitution of Kenya (Amendment) Act of 1982: Introduced Section 2A to the
Constitution, which converted Kenya into a one-party state. It calculated to Odinga and radical
politicians out of competitive politics.

18. Constitution of Kenya (Amendment) Act No. 7 of 1984: Gave the High Court the last word
on election petitions.

19. Constitution of Kenya (Amendment) Act No. 6 of 1985: The limited right to citizenship by
repealing Section 89 of the Constitution.

20. Constitution of Kenya (Amendment) Act No. 14 of 1986: Removed security of tenure for
Attorney General, Controller, and Auditor General. It compromised independence of critical
state officers. It also increased the number of parliamentary constituencies to a maximum of 188
and a minimum of 168.

21. Constitution of Kenya (Amendment) Act No. 20 of 1987: Made unbailable capital offences
punishable by death under the Penal code (Cap 62).

22. Constitution of Kenya (Amendment) Act No. 4 of 1988: An increased period of holding
capital offence suspects before court presentation from 24 hours to 14 days. There was removal
of security of tenure for Public Service Commissioners. There was creation of High Court judges
and Court of Appeal judges. There was creation of the Offices of the Chief Magistrate and
Principal Magistrate.

23. Constitution of Kenya (Amendment) Act No. 2 of 1990: Restored security of tenure for
Public Service Commissioners, High Court judges and Court of Appeal judges, due to civil
society pressure.

24. Constitution of Kenya (Amendment) Act No. 10 of 1991: Raised the maximum number of
constituencies to 210, up from 188.

25. Constitution of Kenya (Amendment) Act No. 12 of 1991: Repealed Section 2A of the
Constitution. It restored multiparty politics.

26. Constitution of Kenya (Amendment) Act No. 10 of 1997: Introduced Section 1A. It
reinforced multiparty democracy. It also amended Sections 7, 33, 41, 42A, 82 and 84. It
empowered President to appoint ministers from MPs from other political parties. Nomination of
special MPs to Parliament removed from the president to MPs. Sweeping democratic changes
introduced.

27. Constitution of Kenya (Amendment) Act 2008: Created a coalition government with a
president and prime minister with two deputy prime ministers. It allowed Kibaki and Odinga to
share power after the botched election of 2007.
There was also the Building Bridges Initiative (BBI) which aimed at solving the challenges in
the Constitution. These challenges had been characterized by lack of interpretation,
implementation and inconsistencies. After the annulment of the 2017 presidential election there
was a political and social crisis which led to Kenya being engulfed in a political uncertainty.
Despite all that, on 18th march 2018 there was “the handshake” between the President Uhuru
Kenyatta and Raila Odinga which gave birth to the Building Brides Initiative team whose key
mandate was underpinned by a nine-point agenda. This was outlined as Lack of National Ethos,
Responsibilities and Rights, Ethnic Antagonism and Competition, Divisive Elections,
Inclusivity, Shared Prosperity, Corruption, Devolution and Safety and Security. On the 26 th
October, 2020 the report “Building Bridges to a united Kenya: from a nation of blood ties to a
nation of ideals” was unveiled 11. However the BBI was faced by a setback where it was
challenged in the court. In the case of David Ndii & Others V Attorney General & Others12 also
known as the BBI Judgment was a ruling made in the High Court of Kenya on 13 th May 2021, it
declared an injunction on Kenya’s Independent Electoral and Boundaries Commission from
proceeding with President Uhuru Kenyatta’s and retired Prime Minister Raila Odinga’s
Building Bridges Initiative. The five-judge bench led by Joel Ngugi was to determine seventeen
questions that were raised on the petition against the BBI process. The bench declared the
process unconstitutional and stopped the IEBC from conducting a referendum on the
Amendment Bill. The bench also ruled that the president acted in excess of his powers when he
initiated the process of amending the constitution through BBI. They said that BBI was the
president’s initiative which is contrary to article 257 of the Constitution. The court also stated
that a sitting president can be sued personally in civic proceedings if they act against the
constitution for his actions 13.

However, these would not be the only amendments to be proposed. It is clearly seen that there
would be other amendments to the constitution in the future.

The Basic Structure Doctrine

The basic structure doctrine is a legal doctrine according to which even in the absence of explicit
limitations on the constitutional amendment power, there are implied constitutional limitations
by which the constitution should not be amended in a way that changes the basic structure and
the features of the constitution and its identity.

In The BBI Judgment, it was seen that the basic structure doctrine applies in Kenya. The doctrine
limits the authority of amending the constitution (as set forth in section 255-257) in a way that
would change the basic structure of the 2010 Constitution.

11 The BBI Summary report

12 David Ndii & others v Attorney General & others (2021) eKLR
13 https://en.wikipedia.org/wiki/BBI_Judgement
The objectives of the basic structure doctrine

a) The principle gives effect to the strategy of checks and balances.

b) It maintains liberty and safeguarding against tyranny.
c) It indicates that authority is distributed across the centers of decision-making namely the
legislature, judiciary and executive.

The basic structure doctrine does not protect every clause in each of the 18 chapters and 6
schedules from non-substantive alterations. The basic structure doctrine safeguards the
Constitution’s core architecture, underlying structure and principles while allowing some parts to
be amended as long as they do not significantly shift the basic structure 14. Certain clauses are
unamendable; they could not be amended by using secondary constituent power or constituted
power. Only the exercise of primary constituent power might modify their specific formulations
and manifestations in the constitution. Those clauses are normally known as ‘eternity clauses.’ 15

In conclusion, the basic structure doctrine’s goal is to prevent any country from radical and
excessive constitutional change.

Advantages of Constitutional Amendability

a.) It promotes adaptability

It allows a constitution to evolve alongside society, addressing new challenges and incorporating
changing values.

b.) It enhances democratic Participation

Amending processes like referendums can empower citizens to have a say in shaping their
government.

c.) It helps in correcting errors in the

Amendments can rectify ambiguities or errors within the constitution.

d) The process prevents abuse of power

Amending the constitution prevents an individual from one political party changing the rules for
his own benefit.

14
ibid
15 Studocu.com
Disadvantages of constitutional Amendability

i.) Instability

Frequent amendments can undermine the constitution's stability and make it difficult to plan for
the long term.

ii.) The difficult process involved in amending the constitution

Complex amendment procedures can create gridlock and prevent necessary changes.

iii.) Tyranny of the Majority

Amending entrenched clauses protecting minorities may become difficult if opposed by the
majority.

iv.) Difficulty Protecting Core Values

Amending core principles can be difficult, potentially weakening the constitution's foundation.