Authored By: Eshirera Kimberly
Riara University
- Case Title & Citation
David Ndii & Others v Attorney General & Others [2021] eKLR (Consolidated Petitions No. E282 & E397 of 2020)
Appeal Citation: Attorney General & Others v David Ndii & Others [2022] eKLR (Civil Appeal E401 of 2021)
- Court Name & Bench
High Court: The High Court of Kenya at Nairobi (Constitutional and Human Rights Division). Judges: Justices J. Ngugi, M. Matheka, E. Mureithi, W. Korir, and E. Nderi. Court of
Appeal: The Court of Appeal of Kenya at Nairobi.
Judges: Justices D. Musinga (President), R. Nambuye, H. Omondi, P. Kiage, G. Kairu, F. Sichale, and I. Lenaola.
Supreme Court: The Supreme Court of Kenya.
Judges: Chief Justice M. Koome, Deputy Chief Justice P. Mwilu, and Justices M. Ibrahim, S. Wanjala, N. Ndung’u, I. Lenaola, and W. Ouko.
- Date of Judgment
High Court Judgment: 13th May 2021.
Court of Appeal Judgment: 20th August 2021.
Supreme Court Judgment: The Supreme Court largely declined to hear the substantive appeal on 9th September 2022, affirming the Court of Appeal’s decision.
- Parties Involved
Petitioners/Respondents (David Ndii & Others): A diverse coalition of citizens, civil society organizations, and professional bodies. They challenged the constitutionality of the entire BBI process. Key figures included economist David Ndii, the Kenyan Chapter of the International Commission of Jurists (ICJ-K), and the Law Society of Kenya.
Respondents/Appellants (Attorney General & Others): The State, represented by the Attorney General, who defended the process. Other key appellants were the BBI Secretariat and the Independent Electoral and Boundaries Commission (IEBC), which was involved in the referendum aspect.
- Facts of the Case
The story of the BBI case begins not in a courtroom, but in a famous “handshake” on the 9th of March 2018. Following a contentious and divisive 2017 presidential election, President Uhuru Kenyatta and his rival, Raila Odinga, publicly reconciled. This act of political truce birthed the “Building Bridges to a United Kenya Initiative,” tasked with addressing nine key issues, or “handshake ailments,” facing the nation, such as ethnic antagonism and lack of national ethos.1 The BBI taskforce conducted public participation and produced a report, which eventually morphed into a concrete proposal to amend the Constitution of Kenya, 2010. The proposed amendments were extensive, seeking to, among other things:
∙ Create an executive structure with a President, a Prime Minister, and two Deputy Prime Ministers.
∙ Expand the Parliament by creating 70 new constituencies.
∙ Increase allocation of national revenue to county governments from 15% to 35%.
∙ Reintroduce the position of the Official Leader of the Opposition.
The process to enact these changes was initiated through a popular initiative, a constitutional pathway typically reserved for citizens. The petitioners, however, argued that this was a sham, and that the entire process was fundamentally driven by the President and state machinery, making it an unlawful and unconstitutional exercise of power. The case, therefore, put the very soul of Kenya’s 2010 Constitution heralded for its robust checks and balances on trial.
- Issues Raised
The High Court and the Court of Appeal framed several profound legal questions, which can be distilled as follows:
∙ The Basic Structure Doctrine: Does the Kenyan Constitution possess an unamendable “basic structure” that cannot be altered through popular initiative or parliamentary processes?
∙ The Role of the President: Can the President, under the Kenyan Constitution, initiate a popular initiative to amend the Constitution? Does such initiation amount to a violation of the President’s oath to uphold and defend the Constitution?
∙ The Validity of the BBI Process: Was the BBI process a genuine “popular initiative” as envisaged under Article 257 of the Constitution, or was it a state-driven process masquerading as one?
∙ The Role of the IEBC: Did the Independent Electoral and Boundaries Commission (IEBC) have a properly constituted quorum to verify the signatures and undertake its constitutional duties regarding the BBI bill?
∙ Civil Proceedings against the President: Can the President, as the head of state, be sued in their personal capacity for actions undertaken in their official capacity?
- Arguments of the Parties
Arguments by the Petitioners (David Ndii & Others):
The petitioners’ case was a robust defence of constitutionalism. They contended that the President, by initiating and promoting the BBI bill, had overstepped his constitutional boundaries. They argued that the President’s role is to execute government policy, not to initiate constitutional amendments, which is a power reserved for the people and Parliament.2 They invoked the “Basic Structure Doctrine,” a jurisprudential concept from India, arguing that certain foundational pillars of the Constitution like sovereignty of the people, the supremacy of the Constitution, and the democratic nature of the state are immutable and cannot be amended even by a popular initiative.3 They also challenged the IEBC’s capacity to act, noting it did not have the constitutionally mandated quorum of five commissioners.
Arguments by the Respondents (Attorney General & Others):
The State’s defence was rooted in a literal and populist interpretation of the Constitution. The Attorney General argued that the Constitution of Kenya does not recognize the “Basic Structure Doctrine” and that the amendment process under Article 257 is open to “any Kenyan citizen,” a category that logically includes the President.4 They framed the BBI as a people-driven process born from public participation and argued that the courts should not stand in the way of the people’s sovereign will expressed through a referendum. On the issue of presidential immunity, they maintained that the President enjoys immunity from civil proceedings during their tenure in office for official acts.
- Judgment / Final Decision
High Court (13th May 2021): In a landmark decision, the five-judge bench delivered a resounding victory for the petitioners. They declared the entire BBI process null and void.5 The court held that the President cannot initiate a popular initiative, that the Basic Structure Doctrine is applicable in Kenya, and that the IEBC was not properly constituted.
Court of Appeal (20th August 2021): The seven-judge bench largely upheld the High Court’s decision, delivering a detailed and scholarly judgment that reinforced the lower court’s findings.6 They affirmed the applicability of the Basic Structure Doctrine, reiterated that the President cannot initiate a popular initiative, and found that the IEBC lacked a lawful quorum. The appeal was dismissed.
Supreme Court (9th September 2022): The Supreme Court’s role was primarily appellate. While it made some technical corrections for instance, clarifying that the Basic Structure Doctrine is a descriptive tool for interpretation rather than a specific doctrine with a capital ‘D’ in Kenya, and that the President can be sued in certain circumstances it ultimately declined to hear the substantive appeal on the BBI itself.7 This decision effectively left the Court of Appeal’s judgment, which halted the BBI, as the final word on the matter.
- Ratio Decidendi
The legal reasoning, particularly from the Court of Appeal, was profound and has become a cornerstone of Kenyan constitutional jurisprudence.
On the Basic Structure Doctrine: The courts reasoned that the 2010 Constitution was not created in a vacuum but was a fundamental break from the past, designed to secure a democratic state based on the sovereignty of the people. The Court of Appeal held that while the term “Basic Structure Doctrine” is not expressly mentioned, the Constitution’s architecture implies that its “essential features and underlying structure” cannot be destroyed through the amendment process.8 They identified these features to include sovereignty of the people, the supremacy of the Constitution, the bill of rights, democracy, and the principle of devolution. To allow these to be abrogated would be a betrayal of the will of the people who promulgated the Constitution.
On the President’s Role: This was a pivotal finding. The courts drew a clear distinction between the President as a person and the President as an institution. The Court of Appeal reasoned that Article 257 of the Constitution, which provides for a “popular initiative,” is designed for ordinary citizens to exercise their sovereign power directly. The President, as the head of the Executive and a powerful state organ, cannot use this pathway. To allow this would be to create an “unfair advantage” and “subvert the sovereignty of the people” by allowing state machinery to be used for a process meant to check that very state power.9 The ratio here is that a state organ, including the President, is constitutionally barred from initiating a popular initiative.
On the IEBC Quorum: The court applied a strict interpretation of the law. The IEBC Act required a minimum of five commissioners for the commission to be properly constituted. At the time of verifying the BBI signatures, the IEBC had only three commissioners in office. The court held that the actions taken by an improperly constituted commission were invalid and of no legal effect.10
- Observations
The BBI case is more than just a legal judgment; it is a defining moment in Kenya’s democratic journey. It represents the triumph of constitutionalism over political expediency. The courts, faced with immense political pressure, stood firm as guardians of the Constitution, demonstrating the maturity and independence of Kenya’s judiciary. The case’s impact is multifaceted. Firstly, it firmly established, in a Kenyan context, the principle that a constitution has an unalterable core, a concept that will protect the nation’s foundational values from arbitrary alteration by transient political majorities. Secondly, it clarified the limits of presidential power, reinforcing that no one, not even the President, is above the law. Finally, it underscored the importance of independent institutions like the IEBC, insisting that they must operate within their legally mandated structures.
While the political goal of the “handshake” national unity was noble, the judiciary’s message was clear: the ends, no matter how appealing, cannot justify unconstitutional means. The BBI case will forever be cited as the precedent where “We the People” of Kenya, through their courts, defended their Constitution from a powerful, state-backed attempt to alter its fundamental character. It is a powerful reminder that in a constitutional democracy, the final word does not belong to the rulers, but to the rule of law.
Reference(S):
1 The Building Bridges to a United Kenya Taskforce Report, (Nairobi, 2019).
2 David Ndii & Others v Attorney General & Others [2021] EKLR, paras 345-360
3 Kesavananda Bharti v State of Kerala (1973) 4 SCC 225 ( The Indian Case Established the Basic Structure Doctrine)
4 Attorney General 7 Others v David Ndii 7 Others[ 2022] eKLR ( Civil Appeal E401 Of 2021), Submissions of the 1st Appellant ( Attorney General)
5 David Ndii (n2) para 592.
6 Attorney General v David Ndii (n4)
7 Attorney General & 4 others v David Ndii & 73 Others [2022] eKLR ( Supreme Court Advisory Opinion Application No. 6 of 2002)
8 Attorney General v David Ndii (n4) para 412
9Ibid, para 385.
10 David Ndii (n2) paras 530- 545
