According to the Court, the people can only amend these aspects of the Constitution using their sovereign constituent power and not merely through a referendum. Further, the Court concludes that certain provisions of the Constitution are “eternity clauses” and consequently insulated from any amendment at all. Nevertheless, the Court acknowledges that some provisions of the Constitution can be amended through the stipulated procedures as long as they do not change its basic structure. On the basis that the people can only amend the basic structure and eternity clauses of the Constitution using their constituent power, the Court then determined that the process culminating in the Constitution of Kenya Amendment Bill 2020 (the BBI Bill) was unconstitutional. This article contends that the Court’s formulation and application of the Basic Structure (or Unconstitutional Constitutional Amendments) Doctrine will undermine democracy in Kenya if it is not overturned.

Source: The Star May 31, 2021 01:52 UTC