Five Kenyans among them economist David Ndii have gone to court seeking answers on whether some aspects of the constitution can be amended in a petition that threatens to derail the Building Bridges Initiative (BBI) spearheaded by President Uhuru Kenyatta and Raila Odinga.
Dr Ndii together with Jerotich Seii, James Ngondi, Wanjiru Gikonyo and Ikal Angelei want the High Court to determine three key issues among them whether the basic structure of the constitution can be amended.
“Accordingly, an amendment to the constitution cannot be made that had the effect of overthrowing or obliterating the Constitution itself. Simply put the Constitution’s basic structure is infrangible,” the petition filed through lawyer nelson Havi stated.
President Kenyatta and opposition leader Mr Odinga have been pushing for the amendment of the constitution through the BBI. Mr Odinga has already visited a number of counties in a bid to popularize the initiative.
The five, however argue that no amendment “can do violence to its basic structure and a constitution could not simply put a suicide clause which destroys itself”. “Simply put, you can’t cut your leg and expect to walk,” they said.
The petitioners want the case certified as urgent and sent to Chief Justice David Maraga to constitute a bench to determine the issues raised.
“The three questions set out hereinabove, amongst other matters raised in the Petition dated 16th September, 2020 are substantial, novel and require consideration by an uneven number of Judges, being not less than three to be assigned by the Chief Justice,” Mr Havi submitted.
They stated that Chapters one Sovereignty of the people and supremacy of the Constitution, Chapter Two the Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary and its provisions, among others form the basic structure of the constitution and therefore cannot be amended by Parliament under Article 256 or through popular initiative under Article 257.
They further argued that certain fundamental provisions enacted and passed by consensus during the constitution making process are non-amendable through the constitutional amending procedures and powers established by the parent Constitution.
“These “basic structures” of the constitutional are given a transcendental position under the Constitution and are kept beyond the reach of the political processes spearheaded either by the people or parliament,” the petition stated.
It is their argument that an amendment cannot depart from the scheme and purpose of the original constitution and that “the essential form and character of the government cannot be overturned through an amendment clause due to the existence of intrinsic limitations to the amendment power”.
They stated that Parliament has been barred from exercising its power with regard to certain constitutional subjects which are regarded to be the foundational basis of the constitution.
“The legal foundation is premised on the constitutional theory that certain aspects of the Constitution are unchangeable, immutable and so bound up with the fabric of the Constitution itself, that as long as the Constitution exists, they too must necessarily exist,” the petitioners said.
They also argue that an amendment must be a real amendment, and not the substitution of a new constitution’, since a wholly new constitution can be adopted only by the same authority and through the same rigorous and open process that adopted the current constitution.