Deputy Chief Justice Philomena Mwilu yesterday said that the Constitution has a basic structure.
In her dissenting finding, she, however, found that the doctrine on what clauses can be amended and cannot be amended is not applicable in Kenya.
She disagreed with Building Bridges Initiative (BBI) opponents, who included David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei, on India’s first-ever case– Kesavananda Bharati versus State of Kerala–on amendable and non-amendable clauses of a constitution and its application to Kenya.
Although Justice Mwilu pointed out that the Constitution has a basic structure, she also said that it has mechanisms to block abuse by political players.
The judge was in the majority who agreed that the Constitution can be amended but only through an elaborate process that the promoters of an initiative have to follow.
Their lawyer, Nelson Havi, told the judges that the 1963 Constitution allowed Parliament to alter any part of the supreme law but not Article 156, which gave directions on regional governance. According to Mr Havi, the 1969 Constitution had similar terms. In his submissions, the lawyer said that since Independence, Kenyans have shielded the Constitution from dismemberment. At the heart of the case was Article 257 of the Constitution, particularly chapters 1, 2, 4, 9, and 10.
Article 257 explains the process through which the Constitution can be changed. It says that an amendment may be proposed by a popular initiative supported by at least one million registered voters. The popular initiative can either be in form of a general suggestion or a draft Bill.
Justice Mwilu said, “The Constitution of 2010 has a basic structure, but for a basic structure doctrine, I find the same is not derivable from our Constitution.”
The judge, however, found that the president could not initiate amendments to the Constitution through a popular initiative. According to her, the route is through Parliament in which he plays an indirect role.
“An amendment of the Constitution can only be initiated through a parliamentary or popular initiative under Articles 256 or 257 of the Kenya Constitution 2010,” she stated.
The judge said the BBI Bill was unlawful for its proposal to have the Independent Electoral and Boundaries Commission (IEBC) create 70 constituencies without following the proper process. “The Bill is unconstitutional in that it directs the IEBC on not only the delimitation of the number of constituencies, but also the distribution of proposed new constituencies.”
On the president’s immunity, Justice Mwilu ruled that Uhuru cannot be sued in a civil court until he exits office. She said that even cases prior to his assent to office should be halted until his term is over.
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