This is the last of three articles in which Gautam Bhatia analyses the judgments of the High Court, the Court of Appeal and the Supreme Court following the constitutional challenge to the BBI Bill.
This is the second of three articles in which Gautam Bhatia analyses the judgments of the High Court, the Court of Appeal and the Supreme Court following the constitutional challenge to the BBI Bill.
This is the first of three articles in which Gautam Bhatia analyses the judgments of the High Court, the Court of Appeal and the Supreme Court following the constitutional challenge to the BBI Bill.
What is at stake is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change.
By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion.
Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it.
Katiba Institute adds to the growing comparative discussion around constitutional statutes and therefore ought to be keenly studied by students of comparative constitutional law.
At its heart, the BBI Judgment is about power, and the judges in the majority believe that the constitution acts as a barrier against the concentration of power, and as a channel for its dispersal.
It is now 11 years since we voted in the current Constitution. Its implementation has been a case of hits and misses. Now a new wind of political disquiet is driving the call for a referendum. Is it too soon to try and change a document we have barely implemented? A conversation between The Elephant and Mutemi Wa Kiama.
The Court of Appeal on Friday, August 20 ruled that President Uhuru Kenyatta’s attempt to change the Constitution through the BBI process was unconstitutional. Constitutional lawyer Gautam Bhatia opines that this landmark ruling has great implications for both the people of Kenya and constitutional law.
The IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation.
On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya, where the Constitution Amendment Bill of 2020, containing seventy-four proposed amendments to the 2010 Kenyan Constitution, had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions.