Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedPetition 12, 11 & 13 of 2021 (Consolidated)

Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae)

Supreme Court of Kenya
31 March 2022
Martha Karambu KoomeMartha KoomePhilomena Mbete MwiluPhilomena MwiluMohammed Khadhar IbrahimMohamed IbrahimSmokin Charles WanjalaSmokin WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaIsaac LenaolaWilliam OukoWilliam Ouko
261,826 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~1047 min to read original · ~4 min brief

The bottom line

#

President cannot initiate constitutional amendments; basic structure doctrine rejected in Kenya.

What this practically means

#

The Supreme Court ruled that the President cannot start a constitutional amendment through the people's initiative process. The court also said Kenya does not follow the 'basic structure doctrine' from India. However, the President's involvement in the BBI process made it invalid. The court upheld that the IEBC had the right to verify signatures and that the Second Schedule of the Bill lacked public participation.

Executive summary

#
This consolidated appeal arises from the Court of Appeal's judgment on the constitutionality of the Building Bridges Initiative (BBI) process and the Constitution of Kenya (Amendment) Bill, 2020. The Supreme Court framed seven issues for determination. On the first issue, the court held by a majority that the basic structure doctrine is not applicable in Kenya. The Constitution of Kenya, 2010 has a 'tiered' amendment process in Chapter Sixteen that provides sufficient safeguards against abusive amendments, obviating the need for the judicially-created doctrine. The four sequential steps (civic education, public participation, constituent assembly, referendum) prescribed by the lower courts were also rejected. On the second issue, the court held by a majority that the President cannot initiate constitutional amendments through the popular initiative route under article 257. The popular initiative is a citizen-driven process reserved for the people. The court found that the President initiated the amendment process in issue, rendering the Constitution (Amendment) Bill, 2020 unconstitutional. On the third issue, the court unanimously held that the Second Schedule to the Amendment Bill is unconstitutional for lack of public participation, as it purported to predetermine the allocation of 70 new constituencies and direct IEBC on its delimitation function without public input. On the fourth issue, the court unanimously held that civil proceedings cannot be instituted against the President during their tenure of office for acts done under the Constitution. The President enjoys immunity, but accountability can be achieved through impeachment or by suing the Attorney General. On the fifth issue, the court held by a majority that IEBC had no obligation to ensure promoters complied with public participation requirements, and that there was public participation with respect to the Amendment Bill. On the sixth issue, the court held by a majority that IEBC had the requisite composition and quorum to undertake the verification process under article 257(4). On the seventh issue, the court held that the question of whether article 257(10) requires separate and distinct referendum questions was not ripe for determination. The court ordered each party to bear their own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power
  2. 2.Whether the President can initiate changes/amendments to the Constitution; and whether a constitutional amendment can only be initiated by Parliament through a parliamentary initiative under article 256 of the Constitution or through a popular initiative under article 257 of the Constitution
  3. 3.Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional
  4. 4.Whether civil proceedings can be instituted against the President or a person performing the functions of the office of the President during his/her tenure of office with regard to anything done or not done contrary to the Constitution
  5. 5.The place of public participation under article 10 vis-a-vis the role of IEBC under article 257(4) of the Constitution; and whether there was public participation in respect of the Constitution of Kenya (Amendment) Bill, 2020
  6. 6.Interpretation of articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC
  7. 7.Whether the interpretation of article 257(10) of the Constitution entails/requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions

Key legal issues

#
01

Whether the Basic Structure Doctrine is applicable in Kenya.

Holding

The basic structure doctrine is not applicable in Kenya. The Constitution of Kenya, 2010 has a 'tiered' amendment process in Chapter Sixteen that provides sufficient safeguards against abusive amendments, obviating the need for the judicially-created doctrine.

Reasoning

The court held that the basic structure doctrine, which originated in India to limit Parliament's exclusive power to amend the Constitution, is not applicable in Kenya. The Kenyan Constitution has a unique 'tiered' design in Chapter Sixteen (articles 255-257) that provides for different amendment procedures for different provisions, including a referendum for entrenched provisions. This design, born from Kenya's history of hyper-amendments, strikes a balance between rigidity and flexibility. The court found that the doctrine is not a universal norm of constitutionalism and that the Kenyan Constitution is self-contained and self-regulating, with no need for implied limitations on the amendment power. The four sequential steps (civic education, public participation, constituent assembly, referendum) prescribed by the lower courts for amending the basic structure were also rejected as not being required by the Constitution.

p. 146
02

Whether the President can initiate changes/amendments to the Constitution through a popular initiative under article 257.

Holding

The President cannot initiate constitutional amendments through the popular initiative route under article 257. The popular initiative is a citizen-driven process reserved for the people, not state organs or the President.

Reasoning

The court, by a majority, held that the popular initiative under article 257 is a means of direct democracy reserved for the people (Wanjiku). The history of the provision shows it was intended to curb dictatorship by Parliament and to give citizens a means to initiate constitutional changes independent of state institutions. The President, as a state organ and the head of the Executive, cannot initiate a popular initiative. The court found that the President was the real force behind the Amendment Bill, having appointed the BBI Taskforce and Steering Committee, and that the process was therefore not a genuine citizen-driven initiative. The President's role in the amendment process is limited to assenting to Bills and requesting referendums, not initiating the process.

p. 146
03

Whether the Second Schedule to the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional.

Holding

The Second Schedule to the Amendment Bill is unconstitutional for lack of public participation, as it purported to predetermine the allocation of 70 new constituencies and direct IEBC on its delimitation function without public input.

Reasoning

The court unanimously held that the Second Schedule was unconstitutional. While article 89(1) is amendable, the process of creating and allocating the 70 new constituencies violated the constitutional requirement for public participation under articles 10(2)(a) and 89(7)(a). The Second Schedule was a late addition to the Bill, introduced between October 21 and November 25, 2020, without any evidence of public engagement. It also usurped the constitutional mandate of IEBC by directing it on how to delimit constituencies and by setting timelines inconsistent with article 89.

p. 523
04

Whether civil proceedings can be instituted against the President during his/her tenure of office for acts done contrary to the Constitution.

Holding

Civil proceedings cannot be instituted against the President or a person performing the functions of that office during their tenure in respect of anything done or not done under the Constitution.

Reasoning

The court unanimously held that the President enjoys immunity from civil proceedings during their tenure of office for acts done in the exercise of their powers under the Constitution. Article 143(2) provides that 'civil proceedings shall not be instituted in any court against the President... during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.' The court distinguished between sovereign immunity (which protects the office) and functional immunity. The President's immunity is broader than that of other officials. However, the court noted that the President is not above the law; accountability can be achieved through impeachment (article 145) or by suing the Attorney General (article 156(4)) to challenge the legality of presidential actions.

p. 523
05

The place of public participation under article 10 vis-a-vis the role of IEBC under article 257(4) of the Constitution.

Holding

IEBC has no obligation under article 257(4) to ensure that promoters of a popular initiative have complied with public participation requirements. Its role is limited to verifying that the initiative is supported by at least one million registered voters.

Reasoning

The court unanimously held that IEBC's mandate under article 257(4) is strictly limited to verifying that the initiative is supported by at least one million registered voters. There is no constitutional or legal obligation on IEBC to ascertain whether the promoters conducted public participation before submitting the Bill and signatures. IEBC, as a creature of the Constitution, can only exercise powers explicitly granted to it. The obligation for public participation lies with the promoters and other actors at different stages of the process (County Assemblies, Parliament, and ultimately the referendum).

p. 61
06

Interpretation of articles 88 and 250 of the Constitution with respect to composition and quorum of IEBC.

Holding

IEBC had the requisite composition and quorum to undertake the verification process under article 257(4) of the Constitution.

Reasoning

The court, by a majority, held that IEBC was properly constituted and quorate when it undertook the verification of signatures. Article 250(1) provides that each commission shall consist of 'at least three, but not more than nine, members.' At the material time, IEBC had three commissioners, which meets the constitutional minimum. The court distinguished between 'composition' (the number of members) and 'quorum' (the number required to transact business). While the IEBC Act had previously set quorum at five, the court found that the constitutional provision prevails, and IEBC with three members was competent to act. The court also noted that IEBC had acted in reliance on the High Court decision in Isaiah Biwott Kangwony v IEBC, which had held that IEBC was validly constituted with three commissioners.

p. 61
07

Whether article 257(10) requires all specific proposed amendments to be submitted as separate and distinct referendum questions.

Holding

The question of whether article 257(10) requires separate and distinct referendum questions was not ripe for determination.

Reasoning

The court held that this issue was not ripe for judicial determination. At the time the petitions were filed, the amendment process had not reached the stage where IEBC was required to frame referendum questions. IEBC had not received a request to hold a referendum, and its mandate to frame questions under section 49 of the Elections Act had not crystallized. The court applied the doctrine of ripeness, which prevents courts from deciding hypothetical or abstract issues before they have matured into a concrete controversy. The court declined to provide an advisory opinion on this matter.

p. 147

Legal principles established

#
  • The basic structure doctrine does not apply in Kenya; the Constitution's amendment process is self-contained.
  • The President cannot initiate constitutional amendments via the popular initiative under Article 257.
  • Civil proceedings cannot be brought against the President during their term for actions under the Constitution.
  • IEBC is not required to ensure promoters of a popular initiative complied with public participation requirements.
  • The Second Schedule of the BBI Bill was unconstitutional for lack of public participation on constituency allocation.

Court orders

#
  1. 1.The appeal is allowed on issue No 1; The basic structure doctrine is not applicable in Kenya.
  2. 2.The appeal is allowed on issue No 4; Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done contrary the Constitution of Kenya, 2010.
  3. 3.The appeal is allowed on issue No 5; There was no obligation under article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation. and there was public participation with respect to the Constitution of Kenya (Amendment) Bill, 2020.
  4. 4.The appeal is allowed on issue No 6; The IEBC had the requisite composition and quorum to undertake the verification process under article 257(4).
  5. 5.The appeal is allowed on issue No 7; The question raised regarding the interpretation of article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination.
  6. 6.The appeal is disallowed on issue No 2; The President cannot initiate Constitutional amendments or changes through the popular initiative under article 257 of the Constitution; that the President initiated the amendment process in issue. Consequently, under article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 is unconstitutional.
  7. 7.The appeal is disallowed on issue No 3; The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of articles 10(2) and 89(7)(a) of the Constitution of Kenya, 2010.
  8. 8.Each party shall bear their own costs.

The bench

#

Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Martha Karambu Koome
Martha KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
Philomena MwiluDCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority

Wrote the judgment

Smokin Charles Wanjala
Smokin WanjalaSCJ
Currently serving
majority

Wrote the judgment

Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority

Wrote the judgment

Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority

Wrote the judgment

William Ouko
William OukoSCJ
Currently serving
majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya
Civil Appeal No E291 of 2021 (Consolidated with E292, E293, E294 of 2021)
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010
Consolidated with
Petition 11 (E015) of 2021 - Morara Omoke v HE Uhuru Muigai Kenyatta & 83 others, Petition 13 of 2021 (E108 of 2021) - Independent Electoral and Boundaries Commission v David Ndii & 81 Others

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The basic structure doctrine and the four sequential steps for amendments as prescribed by the two superior courts below are not applicable in Kenya under the Constitution.
p. 146 Basic Structure Doctrine
The President or state organs or institutions are not permitted to initiate or promote a constitutional amendment process through the popular initiative route provided in article 257 of the Constitution.
p. 146 Presidential Power to Initiate Amendments
The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 is unconstitutional for being in breach of articles 10(2) and 89(7)(a) of the Constitution of Kenya 2010 for lack of public participation.
p. 523 Unconstitutionality of Second Schedule
Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010.
p. 523 Presidential Immunity
There was no obligation under article 10 and 257 (4) of the Constitution, on IEBC to ensure that the promoters of the Constitution of Kenya (Amendment) Bill, 2020 complied with the requirements for public participation.
p. 61 IEBC's Role in Public Participation
IEBC had the requisite composition and quorum to undertake the verification process under article 257(4).
p. 61 IEBC Quorum
The question raised regarding the interpretation of article 257(10) of the Constitution on whether or not it entails or requires that all specific proposed amendments to the Constitution should be submitted as separate and distinct referendum questions was not ripe for determination.
p. 147 Ripeness of Referendum Questions Issue
Each party shall bear their own costs, this being a public interest matter.
p. 523 Costs Order

Key timeline

#
2020
Constitution of Kenya (Amendment) Bill, 2020 (BBI Bill) introduced.
2021
High Court and Court of Appeal declare parts of BBI process unconstitutional.
2022
Supreme Court partially allows appeal, ruling on key issues.

Practical implications

#
For lawyers

Advise clients on amendment routes

Lawyers must now advise that any constitutional amendment via popular initiative must be genuinely citizen-driven, not state-originated. The basic structure doctrine cannot be used to challenge amendments. Also, the President is immune from civil suits during tenure, so litigation strategies must account for this.

For businesses

Stable constitutional framework

Businesses can rely on the Constitution's amendment process being predictable and not subject to judicially imposed limits like the basic structure doctrine. However, any future amendment attempts must come from citizens, not the Executive, reducing risk of sudden constitutional changes driven by political interests.

For individuals

Citizens retain amendment power

Individuals can still use the popular initiative to propose constitutional changes, but must ensure the process is independent of state organs. The ruling confirms that the President cannot hijack this citizen-driven process. Also, individuals cannot sue the President during their term for constitutional violations.

Frequently asked questions

#
Can the President amend the Constitution in Kenya?+

No, the President cannot initiate constitutional amendments through the popular initiative under Article 257. That route is reserved for citizens. The President's role is limited to assenting to Bills or requesting a referendum.

What is the basic structure doctrine in Kenya?+

The basic structure doctrine, which limits how a constitution can be amended, does not apply in Kenya. The Supreme Court ruled that Kenya's Constitution has its own tiered amendment process that provides sufficient safeguards.

Can I sue the President in Kenya?+

No, civil proceedings cannot be instituted against the President during their tenure for anything done or not done under the Constitution. This immunity applies while the President is in office.

What was the BBI ruling in Kenya?+

The Supreme Court partially allowed the appeal on the BBI Bill. It upheld that the President cannot initiate amendments via popular initiative and that the Second Schedule lacked public participation. However, it rejected the basic structure doctrine.

Later judgments citing this (17)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae)", Case Analysis (2022). Petition 12, 11 & 13 of 2021 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/8/eng@2022-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.