Authored By: Tessy Musila
Catholic University of Eastern Africa
- Case Citation and Basic Information
Full Case Name: Attorney General & 2 others v. David Ndii & 79 others; Dixon & 7 others (Amicus Curiae)
Citation: [2022] KESC 8 (KLR)
Court: Supreme Court of Kenya (7-Judge Constitutional Bench)
Date of Decision: March 31, 2022
Bench Composition: Koome (CJ & President), Mwilu (DCJ & VP), Ibrahim, Wanjala, Njoki, Lenaola, and Ouko, SCJJ.
- Introduction
The BBI Case represents the most significant constitutional milestone in Kenya since the promulgation of the 2010 Constitution. Arising from the “Building Bridges Initiative” (BBI) a political project spearheaded by President Uhuru Kenyatta and Raila Odinga following the 2018 “Handshake” the case scrutinized the limits of executive power and the sanctity of the democratic process. At its core, the litigation questioned whether a sitting President could bypass the traditional legislative amendment route to initiate a “popular” constitutional overhaul. Its significance extends internationally, particularly in India, as it offers a profound judicial critique of the Basic Structure Doctrine within an African context. This summary explores the procedural journey and the Supreme Court’s final word on the “Primary Constituent Power,” ultimately determining who truly holds the power to initiate constitutional change in a modern democracy.
- Facts of the Case
The origins of this case lie in a political truce between President Uhuru Kenyatta and opposition leader the late Raila Odinga, aimed at ending ethnic antagonism following the disputed 2017 elections. This truce led to the BBI Taskforce, which produced a report recommending massive constitutional changes, including the creation of a Prime Minister post and 70 new constituencies. To implement these, the President appointed a Steering Committee via Gazette Notice, which drafted the Constitution of Kenya (Amendment) Bill, 2020.
The BBI National Secretariat launched a “popular initiative” under Article 257 of the Constitution, collecting over four million signatures. These were submitted to the Independent Electoral and Boundaries Commission (IEBC) for verification. However, eight consolidated petitions were filed in the High Court challenging the process. The Respondents (David Ndii and others) argued that the Bill sought to alter the “Basic Structure” of the Constitution, which they claimed was beyond the reach of ordinary amendment powers. They alleged that the President had “hijacked” the popular initiative route, which is exclusively reserved for ordinary citizens to bypass a reluctant government, not for the government to bypass Parliament.
Procedural History: The High Court issued a sprawling 500-page judgment declaring the BBI process unconstitutional. It held that the Basic Structure Doctrine applied to Kenya and that the President lacked the authority to initiate a popular initiative. Furthermore, it found the IEBC lacked a legal quorum (having only three commissioners) to verify signatures.
The Court of Appeal largely upheld this decision, famously declaring that “the BBI was a presidential initiative masquerading as a popular one.” The Attorney General and the BBI Secretariat then moved to the Supreme Court. They sought to overturn the findings on the Basic Structure Doctrine, the President’s immunity from civil suits, and the procedural requirements for amending the Constitution. They argued that the lower courts had essentially “frozen” the Constitution by making it impossible to amend, thereby infringing on the people’s right to self-determination.
- Legal Issues
Whether the Basic Structure Doctrine is applicable in Kenya and if it limits the power of amendment under Articles 255-257.
Whether the President or State organs can initiate a constitutional amendment through the “popular initiative” route (Article 257).
Whether civil proceedings can be instituted against a sitting President for actions or omissions during their tenure (Article 143).
Whether the IEBC was legally constituted with a three-commissioner quorum for signature verification.
Whether the Second Schedule of the Bill was unconstitutional in its attempt to predetermine the allocation of 70 new constituencies.
- Arguments Presented
5.1 Appellant’s Arguments (Attorney General & BBI Secretariat)
The Appellants argued that the lower courts erred by “importing” the Basic Structure Doctrine from India. They contended that the Kenyan Constitution is “self-internalizing” and “autochthonous,” containing its own tiered and rigorous amendment process under Articles 255-257. They argued that any amendment that passes the referendum threshold is valid, as the people’s sovereign will cannot be limited by “implied” judicial doctrines. On the President’s role, they argued that as a citizen, the President enjoys political rights under Article 38 and should not be barred from supporting a popular initiative. Finally, they maintained that Article 143 provides absolute immunity from civil suits to ensure the President is not distracted by litigation while performing national duties.
5.2 Respondent’s Arguments (David Ndii & Others)
The Respondents argued that the Constitution has “foundational pillars” that cannot be amended without exercising “Primary Constituent Power.” This requires deep civic engagement, a constituent assembly, and a referendum not just a signature drive. They asserted that Article 257 is a “reserve power” for the people; allowing the President to use it would be a “constitutional hijack.” They argued the President has a dedicated path to amend the Constitution through Parliament (Article 256) and should stay in his lane. Regarding the IEBC, they contended that while three members may exist, they do not constitute a “quorum” for high-stakes policy decisions like verifying millions of signatures for a constitutional overhaul.
- Court’s Reasoning and Analysis
In a landmark analysis, the Supreme Court addressed the Basic Structure Doctrine by distinguishing the Kenyan context from the Indian precedent of Kesavananda Bharati. The majority reasoned that while the doctrine exists to prevent a dominant Parliament from destroying the Constitution, Kenya’s 2010 document already contains “internal” safeguards. By creating a “tiered” system where fundamental Articles (like the Bill of Rights or Judiciary) require a referendum under Article 255, the drafters already anticipated and mitigated the risk of a “legal revolution.” Therefore, the Court found the doctrine inapplicable: the written text provides the limit, not the judge’s interpretation of “implied” structures.
Regarding Article 257 (Popular Initiative), the Court engaged in a deep purposive interpretation. It traced the history of the 2010 Constitution, noting that the “popular initiative” was born from a desire to empower citizens against an overbearing State. The Court reasoned that the President, as a State organ, cannot “shedding his official skin” to act as a private citizen in a constitutional amendment process. If the President initiates the process, it is no longer a “popular” initiative but a “State” initiative. The Court held that the President’s role is strictly limited to the “Parliamentary Initiative” under Article 256, ensuring a clear separation between the rulers and the ruled.
On Presidential Immunity, the Court analyzed the tension between accountability and the stability of the State. It reasoned that Article 143 serves as a shield for the Office, not the individual. To allow civil suits against a sitting President for constitutional violations would create a “litigative siege” that would paralyze the Executive. However, the Court clarified that this immunity is only temporary; once the President leaves office, the shield falls, and they can be held civilly liable for any actions taken during their tenure.
Finally, the Court addressed the IEBC Quorum. It looked at the IEBC Act and Article 250(1) of the Constitution, which states a commission shall have at least three members. The Court reasoned that since the Commission had three members at the time of signature verification, it met the constitutional minimum. To hold otherwise would allow the resignation of commissioners to effectively “veto” the functioning of a constitutional body, which would be an absurd result.
- Judgment and Ratio Decidendi
The Final Decision: The Supreme Court issued a permanent injunction stopping the BBI referendum, declaring the specific BBI process unconstitutional.
Ratio Decidendi:
Basic Structure: Rejection of the doctrine. The Constitution of Kenya is self-contained regarding its amendment process.
Presidential Limitation: A sitting President is barred from initiating or promoting a constitutional amendment via the popular initiative route (Article 257).
Immunity: A sitting President enjoys absolute immunity from civil proceedings during their tenure.
Constituencies: The power to delimit constituencies belongs exclusively to the IEBC; the Second Schedule of the BBI Bill was therefore unconstitutional.
- Critical Analysis
8.1 Significance: The judgment is a monumental affirmation of Constitutional Literalism. By rejecting the Basic Structure Doctrine, the Supreme Court signaled its preference for the “written word” over judicial “activism,” asserting that the 2010 Constitution is robust enough to protect itself without foreign judicial imports.
8.2 Implications and Impact: The most profound impact is the “firewalling” of Article 257. By declaring the BBI a “presidential initiative masquerading as a popular one,” the Court protected the only avenue private citizens have to challenge the government’s power. This ensures that the “People’s Door” remains a reserve power for civil society, preventing future executives from using state resources to engineer “popular” consent for their own expansion.
8.3 Critical Evaluation: While the judgment provided legal finality, it left several “legal knots” untied. The finding on Presidential Immunity (Article 143) is particularly contentious. While it protects the stability of the office, it risks creating a “constitutional vacuum” where a President can act with impunity in civil matters until their term ends. Furthermore, the rejection of the Basic Structure Doctrine assumes that a referendum is always a sufficient guardrail. In highly polarized or populist-driven environments, a 50% + 1 majority could theoretically be used to dismantle democratic pillars like the Bill of Rights.
However, from a practical standpoint, the Court exercised masterful judicial restraint. By stopping the BBI on procedural grounds (the President’s role) rather than “implied” doctrines, it avoided a direct political confrontation with the Executive while still upholding the supremacy of the law. This balanced approach is vital for young democracies where the judiciary must prove its independence without causing state collapse.
- Conclusion
The BBI Judgment serves as a definitive roadmap for constitutional change in Kenya. It successfully struck a balance between preserving the President’s functional immunity and safeguarding the sovereign power of the citizens. The case proves that the 2010 Constitution is not a static document but a “living” shield that can withstand even the most powerful political alliances.
The lasting impact of Attorney General v. Ndii will be felt in its clarification of the “Popular Initiative.” It established that constitutional change must be a genuine “bottom-up” process, free from the shadow of state sponsorship. For legal scholars, particularly in Commonwealth jurisdictions like India, the case serves as a primary example of a court’s refusal to adopt the Basic Structure Doctrine, choosing instead to trust in its own domestic tiered protections. Ultimately, the judgment reinforced the principle that in Kenya, no one not even the President is above the “basic” requirements of the law.
- Reference(S):
(Bluebook 20th Ed. Style)
Attorney General & 2 others v. David Ndii & 79 others, [2022] KESC 8 (KLR) (Kenya).
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).
Constitution of Kenya, 2010.
Independent Electoral and Boundaries Commission Act, No. 9 (2011) (Kenya).
Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, Gazette Notice No. 283 (2018).
