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.
The process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support.
Kenya’s historic May 13, 2021 High Court decision to declare the Building Bridges Initiative unconstitutional was widely hailed as a testament to the strength and independence of the country’s judiciary. But a deteriorating political situation and uncertainty surrounding the 2022 elections is raising concerns about the future of the country. Heinrich-Böll-Stiftung (HBS) Nairobi Office, in collaboration with the Elephant, cordially invite you to the Building Bridges Initiative (BBI) Judgement Series. This new series seeks to interrogate the effects of the historic May 13, 2021 judgment declaring the Building Bridges Initiative unconstitutional and what this means to Kenya's constitutional path. This webinar was recorded on 19th August 2021.
The Building Bridges Initiative has only opened up the more important discussion of Kenyans coming to terms with their social realities. It cannot be expected to be the silver bullet that will solve the country’s problems.