The hydra and the sword: Constitutional amendments, political process, and the BBI case in Kenya

Abstract

This study examines the landmark rulings in the "BBI Case", adjudicated successively by the High Court, Court of Appeal, and Supreme Court of Kenya, from the perspective of comparative political process theory ["CPPT"]. The BBI case involved a constitutional challenge to a set of seventy-four proposed constitutional amendments to the Constitution of Kenya, 2010. It raised a host of issues, ranging from the applicability of the basic structure doctrine, the role of the President in initiating constitutional change, Presidential immunity, and Fourth Branch institutions, among others. This paper analyses two crucial issues in the case: the articulation - for the first time in its history - of a process-oriented basic structure doctrine, by the High Court and the Court of Appeal; and the concurrent holding of the High Court, the Court of Appeal, and the Supreme Court prohibiting the President of Kenya from initiating a constitutional amendment through the "popular initiative"route. It argues that on these issues, the Kenyan courts' reasoning constitutes a creative, unique, and valuable contribution to CPPT, in the context of constitutional change. When faced with the possibility of abusive amendments within the framework of a two-tiered amendment process, the Kenyan courts responded by setting out rigorous procedural constraints upon the amendment power. As a corollary, the role of the judiciary under this approach is not to invalidate or veto abusive constitutional amendments, but to ensure that they pass through a substantive, rich, and deep process of public participation.