Supreme Court judge Mohamed Ibrahim said the basic structure doctrine applies in Kenya, in a dissenting ruling delivered yesterday.
Justice Mohamed said the country has over time grappled with amendable and non-amendable clauses of the Constitution for years. He said the courts have recognised the principle of basic structure by finding that Parliament has no powers to amend the Constitution.
According to the judge, the battle over whether the Constitution can be changed was first before court during the Bomas Draft process. “The question on the basic structure is not entirely new to Kenya because it has been here and we continue to grapple with it. Any amendments should, however, be through proper consultations and framing of the amendment questions,” he ruled.
Justice Mohamed said it is the people who give the Constitution validity and purity, and therefore they are the only ones who can decide to amend the document or not.
“The applicants in their submissions did concede that the people’s power cannot be restrained,” he ruled.
The judge said the recognition that the people are sovereign is among non-amendable clauses of the Constitution.
In his 125-page judgment, Justice Mohamed said there should be civic education, public participation, constitutional assembly and a referendum to amend the basic structure.
“I come to a conclusion on the first issue noting our history and context. I find that basic structure doctrine is applicable to Kenya and the structure can only be altered through the primary constituent power.”
On the question of whether the president can initiate changes to the Constitution, Justice Mohamed ruled that a popular initiative is citizen-driven and should be left to Wanjiku.
The judge said the president has a role in the amendment process, that is to assent and forward the same to the IEBC to conduct a referendum. Justice Ibrahim said that allowing the president to be involved in a popular initiative drive from the start would be unfair as he would be both a player and an umpire.
The judge said the president ceases being an ordinary person once he assumes office. He stated that owing to the powers granted to him, he couldn’t be a promoter or an initiator. The genesis of the BBI was Uhuru, right from the handshake following a contested 2017 election.
The judge also found that the second schedule of the BBI Bill was unconstitutional, saying the BBI task force could not create new constituencies or delimit boundaries.
He said the task force did not subject the schedule to public participation. The judge also departed from the Court of Appeal finding that the president could be sued in a civil court.
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On the referendum question, he agreed that the issue was not ripe for debate.