[BREAKING] High Court of Kenya rules Basic Structure doctrine applicable in Kenya; Kesavananda Bharati cited by petitioners

 The judgment was rendered by a Constitution Bench in a petition filed in public interest challenging the Building Bridges Initiative and the resulting Constitution Amendment Bill initiated by President Uhuru Kenyatta.

 

High Court of Kenya and Supreme Court of India

 The High Court on Kenya has ruled that the Basic Structure doctrine, 

 which limits power of legislature to amend the Constitution, is applicable in Kenya. 

 

The judgment was rendered by a 5-judge Constitution Bench in a petition filed in public interest challenging the Building Bridges Initiative and the resulting Constitution Amendment Bill initiated by President Uhuru Kenyatta.

The petitioners had argued that the Bill proposed to discard the doctrine of separation of powers and checks and balances first, by threatening to reverse the Presidential system of government. The Petitioners also argued that the proposed Bill threatened to alter the functions of Parliament, the Judicial Service Commission, the County Assemblies as well as oust the mandate of the Independent Electoral and Boundaries Commission.

During the hearing of the case, the petitioners had placed extensive reliance on the judgment of Supreme Court of India in Kesavananda Bharati v. State of Kerala to buttress their case regarding scope and limits on amending power of parliament.

The High Court of Kenya held the following:

- The Basic Structure Doctrine is applicable in Kenya.

- The Basic Structure Doctrine limits the amendment power set out in Articles 255 – 257 of the Constitution. In particular, the Basic Structure Doctrine limits the power to amend the Basic Structure of the Constitution and eternity clauses.

- The Basic Structure of the Constitution and eternity clauses can only be amended through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.

The Court also declared that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through a Popular Initiative under Article 257 of the Constitution.

The Court further issued a declaration that President Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.

[Read Judgment]

 

 

  

 source ; barandbench.com

Social media is bold.

Social media is young.

Social media raises questions.

 Social media is not satisfied with an answer.

Social media looks at the big picture.

 Social media is interested in every detail.

social media is curious.

 Social media is free.

Social media is irreplaceable.

But never irrelevant.

Social media is you.

(With input from news agency language)

 If you like this story, share it with a friend!  

We are a non-profit organization. Help us financially to keep our journalism free from government and corporate pressure.