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ELECTION 2022

Inside Ndii and team’s push against law review

NATIONAL
By Kamau Muthoni and Paul Ogemba | Jan 18th 2022 | 3 min read

Economist David Ndii. [Courtesy]

Challengers of the Building Bridges Initiative (BBI) want the Supreme Court to uphold the verdicts of the High Court and Court of Appeal that stopped the push to amend the Constitution.

Economist David Ndii, Jerotich Seii, Jane Ngondi, Wanjiru Gikonyo and Ikal Angelei have argued that the sections floated for amendment would alter Kenya’s Constitution if the proposed changes are allowed.

They said this in their reply to the appeal filed by Attorney General Kihara Kariuki challenging the lower courts’ decision to stop the BBI ‘reggae’.

Through lawyer Nelson Havi, they have argued that the Constitution has eternity clauses that cannot be amended.

Ndii and his team have anchored their argument on the writings of Nigerian Prof Ben Nwabueze, a legal scholar who never practiced law but was elevated to a senior counsel’s position for his published works.

“It is submitted on behalf of the first to the fifth respondents that there is a clear dichotomy between the power of amendment and disbarment of the Constitution. The distinction between the two has been extensively made by Prof Ben Nwabueze in the chapter titled presidentialism and constituent power,” argues Havi.

The issues boil down to whether the Constitution can be amended and if so, which chapters and how an amendment should be done.

At the heart of the case is Article 257 of the Constitution and Chapters One, Two, Four, Nine and Ten.

Article 257 deals with the process through which the Constitution can be amended. It provides 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.

If the electoral commission is satisfied that the initiative meets the requirements, it will then submit the draft to each of the 47 county assemblies for consideration.

Economist David Ndii speaks during the launch of the 'Linda Katiba Campaign' at Serena Hotel, Nairobi. February 2021. [Emmanuel Mochoge, Standard]

“If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the speakers of the two houses of Parliament, with a certificate that the county assembly has approved it.”

Parliament should support the Bill by majority of the members of each House and if passed, the Bill is handed to the President for assent.

If either of the Houses fails to pass the Bill or does not agree on a specific matter in the proposed amendment, that matter is settled by the people through a referendum.

Ndii’s team has argued that Kenya already has a good Constitution. The only problem, they say, is failure to implement it.

Those against BBI say President Uhuru Kenyatta should have given up his office if he wanted to engage in the process of amending the Constitution. To them, the process should be done through Parliament or be driven by a private citizen.

Ndii’s team has claimed that a few politicians want to drive the process as opposed to what the case was when Kenyans came together to do away with the 1969 Constitution in 2010.

They have argued that changing the Constitution will leave Kenya’s political future uncertain.

Kenya is sailing in familiar waters. The first attempt to amend a constitutional provision was made in 1787 in America. Eternity clauses were conceived in Germany, born in India, died in Uganda and resurrected in Kenya.

Ndii and team have argued that BBI aimed to scrap the presidential system, remove clauses on separation of powers and interfer with the Judiciary’s independence.

They also say that President Kenyatta initiated the BBI process, contrary to the law. The have also faulted his handshake partner, Raila Odinga, and the BBI secretariat for distancing the President from the process. They want the appeal dismissed and with costs. 

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