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Parliament accuses courts of blocking law review

By Kamau Muthoni and Paul Ogemba | Jan 19th 2022 | 2 min read

Parliament past session during a special sitting to deliberate on the BBI among other issues. [Elvis Ogina, Standard]

Parliament has accused the Court of Appeal of making it impossible to amend the Constitution by stopping the Building Bridges Initiative (BBI).

In their submissions before the Supreme Court, both the Senate and National Assembly argued that it was wrong to conclude that the Constitution cannot be amended through a popular initiative without following four sequential process.

“The Appellate Court was wrong in their declaration that the basic structure doctrine is applicable in Kenya when the doctrine is used in other countries to only limit the power of parliament to amend the constitution and not the people through a popular initiative,” said Titus Koyoni, who is representing Parliament.

Both the Court of Appeal and the High Court had declared that the basic structure doctrine applies in Kenya and that it limits the power to amend the Constitution unless the four sequential processes of civic education, public participation, constituent assembly debate and referendum are followed.

However, Koyoni argued that the Court of Appeal placed the Constitution above the people when the people are supreme and have the power to determine what they want to be in their Constitution.

Lawyer Job Wambulwa added that the import of the lower courts’ finding in declaring BBI unconstitutional elevated the Constitution to the level of a holy book.

“It is only a holy book that cannot be amended and we believe and apply what is there,” he said.

The two defended Presdient Uhuru Kenyatta’s involvement in the BBI process, arguing that he - just like any other Kenyan - has political rights to initiate changes to the Constitution.

On the declaration by the Court of Appeal that the president should have used the parliamentary route to amend the Constitution, they argued that there was no provision saying that State actors can only use the parliamentary route to amend the Constitution and that only citizens can initiate a popular initiative.

“We are therefore urging the Supreme Court to correct the errors committed by the High Court and Court of Appeal and declare that the BBI was a constitutional process that complied with all requirements,” Wambulwa told the court. Hearings continue today.

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