Kenya’s Supreme Court will today make a ruling on perhaps its most consequential case since the nullification of the 2017 presidential election.

The seven-judge Bench will determine questions on whether the President can initiate changes to the Constitution through a popular vote and whether the Independent Electoral and Boundaries Commission (IEBC) had quorum while verifying signatures for the Building Bridges Initiative (BBI).

The battle started at the High Court when a group of activists led by economist David Ndii petitioned  and secured orders that the law reforms advanced under the BBI were  “unconstitutional, null and void.”

Civil society groups

The Ndii group was represented by former  Law Society President Nelson Havi, while Dr. John Khaminwa and Martha Karua held brief for a group of civil society groups whereas Senator James Orengo led the defence for Raila Odinga with Solicitor General Ken Ogeto appearing for the State in the matter.

In a stinging ruling, a five-judge High Court Bench declared the President cannot spearhead constitutional amendments through the popular initiative saying route was reserved for Wanjiku.

The High Court also held that the Basic Structure Doctrine – the tenet that certain sections of the Constitution were protected from amendments applied to Kenya.

Moreover, the High Court declared the polls agency was not properly constituted when handling matters related to the BBI, particularly the verification of signatures.

Vicious legal battles at the Court of Appeal by President Uhuru Kenyatta, Opposition leader Raila Odinga to salvage the BBI suffered a blow  when judges ruled to affirm the decision of the lower court, with a stinging rebuke to the Executive and the IEBC.

 The Attorney-General and BBI lawyers who had teamed up with those of electoral commission in the Supreme Court hope judges will today overturn the decision of the lower courts that law changes under the project were constitutional. In their August 2021 ruling the Appeal Court judges upheld the decision of the High Court to find the three-year quest by President Uhuru and Raila to amend the Constitution through the BBI as unconstitutional.

The seven-judge bench also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum, saying that I lacked quorum signature verification process.

On appeal,  judges also held  the President cannot promote amendment of the Constitution through a popular Initiative and that he can be sued with respect to his actions or omissions in the Constitution.

But in their argument before the Supreme Court, lawyers for the electoral agency through lawyers Prof Githu Muigai and Eric Gumbo argued the Court of Appeal and the High Court erred in law by finding it was not properly constituted.

“The Constitution sets a minimum number of commissioners the body needs to operate and that at the time, the three required commissioners by law were present,” Githu Muigai told the Supreme Court Judges.

Githu argued that a judgement of the High Court had declared the said provision to be unconstitutional.

“The learned judges of the High Court and the Court of Appeal, and I say that, with respect, misconstrued that the relevant provisions of the law in relation to the question of the petitioners relating to quorum to conduct its business,” he argued

He argued Section 5 and Section 7 of the IEBC Act had been declared unconstitutional and were now dead and unavailable for any use.

Repealed law

“Both the High Court and the Court of Appeal, relied on a repealed law, a law that was no longer in existence, and it is our very humble submission that was an incurable defect in law. We submit that the effect is that the subject provision of statute ceases to have legal effect and cannot be relied upon in the Katiba case,” he added.

Githu argued the IEBC Act had contemplated that vacancies would arise and the mere fact there was a vacancy did not render the commission unconstitutional.

“The work of commission must continue because the law recognises the existence of a vacancy…The bench ignored several authorities that were brought to their attention,” he claimed.

It was his argument that an amendment of a statute is a legislative act, and while it is open to a court to declare an amendment to be unconstitutionally void, the declaration does not revive the former provisions.

The National Assembly, the Senate and the BBI Secretariat also made their case supporting the Appeal by the Attorney General and IEBC.

In August, the  Court of Appeal rejected the argument by the attorney-general and the BBI secretariat that Kenya’s Constitution does not have a basic structure.

Parliament through their lawyers told the Supreme Court that  the basic structure adopted had its origin in Asia and specifically the case that has been largely cited and the doctrine is mainly  concerned with limiting the power of Parliament to make amendments to the constitution.

“It does not address issues of amendments through the popular initiative and only addresses amendments to the constitution through Parliament,” argued Parliament. On the issue of whether the President can initiate changes to the constitution, the law makers argued there was no  constitutional barriers for him to do so.

“It’s our submission that it’s not prohibited in the Constitution and if it’s not prohibited, then it is allowed,” the Supreme Court heard.

BBI Secretariat through lawyers James Orengo, Paul Mwangi and Arnold Ochieng’  on their part described basic Structure as “an unruly horse  which you don’t  know where it will take  where it is going to carry you.”

“This doctrine does not have any agreed on jurisprudence. It began as a theory by a German philosopher, Dietrich Conrad, and this is way before it was picked up by the Supreme Court in India.But even when it was picked up by the Supreme Court in India, it was employed for purposes of reading limitations to the power of amendment of the Indian Parliament,” argued Paul Mwangi. He claimed that the country  must warn ourselves against the romanticism of other jurisprudence in basic structure, doctrine.