What you need to know:
- Five Kenyans including the economist have gone to court seeking answers touching on BBI.
- They want the High Court to determine three key issues among them whether the basic structure of the Constitution can be amended.
- President Kenyatta and opposition leader Mr Odinga have been pushing for the amendment of the Constitution through the BBI.
A case has been filed against proposed constitutional amendments under the Building Bridges Initiative (BBI), whose report is due to be submitted to President Uhuru Kenyatta and Orange Democratic Movement leader Raila Odinga.
Five activists, including economist David Ndii, moved to the High Court seeking orders to block planned changes to the Constitution to expand the Executive, given the BBI report proposes introduction of the posts of Prime Minister and deputy premiers.
The petitioners, including Jerotich Seii, James Ngondi, Wanjiku Gikonyo and Ikal Angelei, want the court to declare that Chapter Nine of the Constitution (Executive) cannot be amended either by Parliament or through popular initiative (referendum).
Other chapters that they want declared “unamendable” and “eternity clauses” are Chapter One on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on The Republic, Chapter Four on the Bill of Rights and Chapter Ten on the Judiciary.
They want a declaration that the five chapters and their provisions fall under the doctrine of the “basic structure” of a constitution and theory of “constitutional entrenchment clauses”.
Limitation to amendments
The petitioners want the court to find that there is an implicit limitation to constitutional amendments in Kenya.
Should the court rule in their favour, it would derail the proposals by the team appointed by President Kenyatta and Mr Odinga following their March 2018 Handshake to end the tension following the disputed 2017 presidential vote.
The BBI task force said the new positions were aimed at making the government more inclusive.
Last month, President Kenyatta said that time had come to amend the 2010 Constitution. He added that the crafters of the document fashioned it as a work in progress.
“Ten years later, the moment to improve on it is now. We must treat a constitution as a living document that must constantly adjust to emerging realities,” President Kenyatta said in an address to the nation.
But according to the petitioners, the Executive should not be altered. They have further said the petition has raised serious constitutional issues and hence they want Chief Justice David Maraga to appoint a three-judge bench to address the case.
“The questions set out amongst other matters raised in the petition are substantial, novel and require consideration by an uneven number of judges, being not less than three to be assigned by the Chief Justice,” Ms Seii said.
They have listed the Attorney General, Speaker of the National Assembly, Speaker of the Senate and the Independent Electoral and Boundaries Commission as the respondents in the petition.
“Recent developments in Kenya’s legislative history confirm a threatened abrogation, contravention and violation of the five chapters of the Constitution and in particular Articles 256 and 257 by the respondents,” reads the petition.
Articles 256 talks about amendment of the Constitution by parliamentary initiative, while Article 257 is about amendment through popular initiative.
The legal foundation of the petition is premised on the constitutional theory that certain aspects of the Constitution are unchangeable, immutable and as long as the Constitution exists, they too must necessarily exist.
The BBI team has concluded its report, which will be presented to the two leaders anytime soon. Mr Odinga has declared that with the expected easing of Covid-19 restrictions, BBI campaigns, which were halted when coronavirus struck, will resume.