This archive report was first published on 20 August 2021.
On August 20, 2021, the Court of Appeal dealt a significant blow to the Building Bridges Initiative (BBI) constitutional review process, upholding a Constitutional Court judgment that declared it null and void.
Justices Daniel Musinga, Patrick Kiage, Francis Tuiyott, Gatembu Kairu, Hannah Okwengu, and Roselyn Nambuye supported the basic structure doctrine, while Fatuma Sichale dissented.
According to Justice Tuiyott, the making and unmaking of the constitution is a preserve of people exercising their constituent power. He observed that the textual reading of Article 255(1) matches or is in accord with contextual interpretation of the clause that power to change the constitution rests elsewhere and need not be codified.
The court also held that the basic structure doctrine limits amendment power in Articles 255, 256, and 257, with two judges – Sichale and Okwengu – dissenting.
Justice Kiage stated that the amendments proposed by the BBI initiative were so far-reaching in character, scope, and content as to shake the foundation and alter the identity and character of the Constitution.
The Court of Appeal unanimously upheld the verdict by the Justice Ngugi-led Constitutional Court bench that the BBI steering committee had no legal capacity to propose amendments to the constitution through a popular initiative provided for under Article 257 of the Constitution.
The court also ruled that the amendment could not be subjected to a referendum in the absence of evidence of continuous voter registration by the Independent Electoral and Boundaries Commission (IEBC), and that the verification of signatures in support of the proposed amendments was null and void since IEBC lacked the statutory quorum of four commissioners.
