In a 5-2 ruling, the Kenya Court of Appeal upheld a decision by the Kenya High Court on Friday declaring the Building Bridges Initiative (BBI), a constitutional amendment bill unconstitutional. The ruling came on a series of appeals stemming from the High Court ruling in May, which called the BBI usurpation of the exercise of power by the people.
In its analysis, the Court of Appeal asserted the applicability of the basic structure doctrine in the area of constitutional law of Kenya. The court indicated that the said doctrine limits the power of amendment provided for in Articles 255 to 257 of the Constitution. Therefore, the basic structure of the constitution can only be changed by the main constituent power, i.e. the people, in a process that must go through four sequential stages: civic education, public participation and collation of points of view, debate of the constituent assembly and, finally, referendum.
In addition, the decision clarified the role of the president in the process of constitutional change. Essentially, the court ruled that the president did not have the power to initiate changes to the constitution and that it was a prerogative of parliament. In addition, the court said the president is subject to civil suit while in office for actions taken or inaction contrary to the constitution.
Another salient point of the decision is the composition and quorum of the Independent Electoral and Boundaries Commission (“the Commission”). The court said the commission did not have a quorum to conduct its business regarding the proposed referendum. Finally, the court issued a permanent injunction prohibiting the Commission from initiating any process concerning the bill.
However, the court overturned three of the lower court’s orders and directives. Attorney General Paul Kariuki criticized the appeal court’s decision and said the president, like any other citizen, enjoys his own independent civil and political rights which allow him to initiate constitutional amendments. Kariuki has expressed his intention to appeal the decision to the Supreme Court.