The High Court of Kenya has ruled that the Basic Structure doctrine, which limits power of legislature to amend the Constitution, is applicable in Kenya.
The judgment was rendered by a 5-judge Constitution Bench during a petition filed publicly interest challenging the Building Bridges Initiative and therefore the resulting Constitution Amendment Bill initiated by President Uhuru Kenyatta.
The petitioners had argued that the Bill proposed to discard the doctrine of separation of powers and checks and balances first, by threatening to reverse the Presidential system of state . The Petitioners also argued that the proposed Bill threatened to change the functions of Parliament, the Judicial Service Commission, the County Assemblies also as oust the mandate of the Independent Electoral and limits Commission.
During the hearing of the case, the petitioners had placed extensive reliance on the judgment of Supreme Court of India in Kesavananda Bharati v. State of Kerala to buttress their case regarding scope and limits on amending power of parliament.
The high court of Kenya held the following:
– the Basic Structure Doctrine is applicable in Kenya.
– the Basic Structure Doctrine limits the amendment power began in Articles 255 – 257 of the Constitution. especially , the Basic Structure Doctrine limits the facility to amend the essential Structure of the Constitution and eternity clauses.
– the Basic Structure of the Constitution and eternity clauses can only be amended through the first Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.
The Court also declared that the President doesn’t have authority under the Constitution to initiate changes to the Constitution, which a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through a well-liked Initiative under Article 257 of the Constitution.
The Court further issued a declaration that President Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
Source: https://www.barandbench.com/news/litigation/basic-structure-doctrine-applicable-in-kenya-rules-kenya-high-court-kesavananda-bharati
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