Written By John Mutiso 📝
The Building Bridges Initiative (BBI) constitutional amendment dispute has been transferred to the East African Court of Justice after an activist group filed a suit on Thursday challenging some of the Supreme Court’s findings on the matter.
The group, Legal Advice Centre, also known as Kituo Cha Sheria, has filed a lawsuit at the regional court in Arusha, Tanzania, seeking a declaration that the basic structure doctrine applies in Kenya.
They also want the regional court to rule that the Supreme Court erred in concluding that the adoption of the doctrine by the Kenyan High Court and Court of Appeal hampered the process of amending the Constitution.
They have asked the regional court to rule that changing the Kenyan Constitution requires four sequential steps: civic education, public participation, constituent assembly debate, and a referendum.
In its March 31, 2022 decision, the Supreme Court ruled that the steps in amending the Constitution are not required and that the doctrine of basic structure is not applicable in Kenya.
However, Kituo Cha Sheria claims that the Supreme Court erred in its decision and failed to recognize the historical context of the Kenyan Constitution.
According to the report, the top judges ignored history in relation to both the independence and the 2010 Constitutions.
“Through its decision, the Supreme Court failed to uphold good governance, democracy, the rule of law and human and people rights in failing to appreciate that the text, structure, history and context of the Constitution of Kenya, 2010 yield the conclusion that the Basic Structure Doctrine is applicable in Kenya,” says the organization.
It has filed a lawsuit against the Attorney-General on behalf of Kenya’s Supreme Court.
According to the group’s lawyers, Dr. John Mwairiri and John Khaminwa, the Apex Court’s decision has far-reaching implications for governance, democracy, the rule of law, and human rights as provided for in the country’s supreme law.
“The Supreme Court failed to appreciate the historical context of the Kenyan Constitution was designed to respond to two sets of challenges that had plagued Kenyan constitutionalism (starting from independence in 1963). The first was a “culture of hyper-amendment” and the second aspect was history that culminated in the 2010 Constitution,” argues the lawyers.
In faulting the Supreme Court, the lawyers are apprehensive that the Supreme Court may have opened the door for the political class to amend the Constitution with such ease and frequency.
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