BBI dispute goes to regional court

The dispute on amendment of the Constitution through the Building Bridges Initiative (BBI) has moved to the East African Court of Justice after an activists’ group on Thursday filed a suit challenging some findings of the Supreme Court on the matter.

In the lawsuit lodged at the regional court in Arusha, Tanzania, the group, Legal Advice Centre also known as Kituo Cha Sheria, is seeking a declaration that the basic structure doctrine applies in Kenya.

They also want the regional court to declare that the Supreme Court erred in finding that the adoption of the doctrine by the Kenyan High Court and Court of Appeal was to make the process of amending the Constitution difficult.

In the suit, they have urged the regional court to rule that the Kenyan Constitution can only be changed by following four sequential steps -civic education, public participation, constituent assembly debate, and a referendum.

The Supreme Court, in its judgment dated March 31, 2022, had said the steps are not necessary in the amendment of the Constitution and that the doctrine of basic structure is not applicable in Kenya. 

But Kituo Cha Sheria says the apex court erred in its finding and that it failed to appreciate the historical context of the Kenyan Constitution. It says the top judges disregarded history related to both the independence and the 2010 Constitutions.

“Through its decision, the Supreme Court failed to uphold good governance, democracy, the rule of law and human and people rights in failing to appreciate that the text, structure, history and context of the Constitution of Kenya, 2010 yield the conclusion that the Basic Structure Doctrine is applicable in Kenya,” says the organization.

It has sued the Attorney-General on behalf of Kenya’s Supreme Court.

Through lawyers Dr John Mwairiri and John Khaminwa, the group says the decision of the Apex court has far-reaching implications on governance, democracy, the rule of law and human rights as provided for in the supreme law of the country. 

“The Supreme Court failed to appreciate the historical context of the Kenyan Constitution was designed to respond to two sets of challenges that had plagued Kenyan constitutionalism (starting from independence in 1963). The first was a “culture of hyper-amendment” and the second aspect was history that culminated in the 2010 Constitution,” argues the lawyers.

In faulting the Supreme Court, the lawyers are apprehensive that the Supreme Court may have opened the door for the political class to amend the Constitution with such ease and frequency.

The disputed doctrine emerged from India in 1793 with the Supreme Court of Kenya saying that the same has not attained wider global acceptability. The doctrine protects the “core element” of a constitution and prevents amendments, according to law experts.

The Supreme Court led by Chief Justice Martha Koome said the Constitution of Kenya is self-executing in dealing with any threat of any possibility of abusive amendments as witnessed in the pre2010 era.

“The Basic Structure doctrine is not applicable in Kenya. The High Court and Court of Appeal erred in holding that the Kenyan constitution has a basic structure. They arrived at an erroneous finding. No provision is unamenable,” said the top court.