NAIROBI, Kenya, Aug 20 – Court of Appeal judge Patrick Kiage has endorsed the basic structure doctrine saying amendment power is intrinsically limited, mirroring findings of Justice Francis Tuiyott and Gatumbe Kairu..
Kiage said appellants in the Building Bridges Initiative (BBI) constitutional review suit had failed make a case to allow the appellate court to undo a declaration by the Constitutional Court declaring the basic structure doctrine applicable in Kenya.
“Power to amend the constitution as provided in Article 255 and 257 is limited,” he declared on Friday.
“The amendments proposed by the BBI initiative were so far reaching in character, scope and content as to shake the foundation and alter the identity and character of the Constitution,” Justice Kiage added.
He said an amendment process must include civic education, public participation, the debate and eventually a referendum, adding any amendment that radically alter the core ethos and principles of a constitutional charter is not an amendment but a dismemberment and is deemed unconstitutional.
“I would hold without hesitation that a referendum cannot be effective as contemplated by the constituent power unless the steps have been involved and engaged in real and substantive as opposed to a ritualist and minimalist manner akin to a mere ticking of boxes,” the judge outlined.
In his ruling, Justice Kiage also found that President Uhuru Kenyatta’s role in BBI was irregular saying the popular initiative was a preserve of ordinary citizens.
“The President does not shoulder any obligation to initiate constitution changes. His duty is to obey and defend it in keeping with the oath of allegiance. A popular initiative is a citizen-conceived, citizen-initiated and citizen-driven process. If the process is born of presidential fiat, no matter how well-intentioned, it ceases to be a popular initiative and must be named a state or presidential initiative,” he asserted.
He further faulted the rush by the County Assemblies to pass the bill linking it to the car grants given to Members of Counties of Assembly by the national government following President Uhuru Kenyatta’s directive.
“Many county assemblies made absolutely no attempt to involve citizen residents in their counties, their rush was spurred by certain incentives benefiting themselves including their demand Sh2 million car grant which was granted by the Government, what happened was a mad rush to demonstrate personal gratitude and party loyalty with some passing the bill in a couple of days, the people did not matter,” Justice Kiage pointed out.
Justice Fatuma Sichale, nonetheless dismissed the basic structure doctrine applicability in Kenya as had been ruled by the High Court.
“The situation in Kenya after the promulgation of the 2010 Constitution is different. There are explicit provisions on the amendment of the constitution as well as inbuilt mechanisms which limit parliament in amending the constitution,” she ruled.
