Courts to play a deciding role in the amendment of the constitution

Parliament buildings in Nairobi on April 28, 2021 [Elvis Ogina, Standard]

On Wednesday and Thursday, Senators and Members of the National Assembly held a special sitting to deliberate on the Constitution of Kenya Amendment Bill which seeks to amend the constitution through the popular initiative.

This means that they are to consider the Bill as sent from the counties and vote on whether they endorse the proposed changes by simple majority threshold.

There have been indications that some members desire to amend certain sections of the Bill. I opine that this is not possible at this stage because they are deliberating on a document that is not theirs and that came to life through a popular initiative. Article 257 of the Constitution does not contemplate any alteration of the Bill by MPs.

Be that as it may, any MP could have, and can still, initiate constitutional amendments through a parliamentary initiative under Article 256 - save that they subject the bill to public participation; it is passed by two-thirds of the members; and, goes to a referendum if it touches on issues earmarked for a referendum.

Weirdly, it has emerged that the versions of the Bill that were shared with several counties and both houses differed in one way or another. This raises very serious issues as to the validity of the entire process given that the document will determine the relationship between the people and the state and rights and obligations for decades to come. 

As the amendment process hits a crescendo, very pertinent legal issues framed in over five constitutional petitions in our courts stand in the way of constitutional amendments. In March 2020, a five-judge bench fired a warning shot by barring the IEBC and the president from doing certain things before they hear and determine petitions before it.

These issues include the assertion that the ‘popular initiative’ is in fact a government-sponsored project between the Head of State and his political opponent. The petitioners opine that public resources and, or civil servants were illegally used in the signature collection process and the BBI Secretariat thereby bastardising Article 258 which intended a people-driven process instead of a political class one.

Others contend that the document itself is flawed because it purports to prescribe where and how 70 constituencies are to be distributed within the 47 counties with some counties appearing to unjustifiably benefit from more representation.

They insist that IEBC is the only body that is charged with delaminating constituencies under Article 89 which requires IEBC to consult all parties; progressively work towards ensuring that the number of inhabitants in each constituency and ward is compliant with the population quota which was 133,138.26 during the last delimitation. IEBC is also required to consider geographical features and urban centres; community of interest, historical, economic and cultural ties. Did these considerations come into play?

The joint parliamentary committee has tabled a fairly well-founded report on the Constitution Amendment Bill. It correctly highlights that certain amendments are unconstitutional such as the one transferring National Police Service Commission core functions to the Inspector General of Police; new provisions on principles on equitable share and other financial laws; and the Introduction of a Judiciary Ombudsperson. In a strange twist, the committee goes ahead to nonetheless endorse the Bill with a rider that the provisions “will require urgent re-consideration at an appropriate time”. Which begs the question: when is this opportune or appropriate time to urgently reconsider unconstitutionality?