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Constitutional making process is not free from human errors because humans were born to err so Constitutional amendments must be expected but such reforms must be within the premises stipulated in the constitution itself

But such amendments cannot encroach the basic structure which is defined as human rights, democracy, the rule of law and good governance and the spirit of the constitution itself.

Albeit the constitution of Kenya is reticent on the basic structure but the powers to amendability of the constitution are restricted by chapter 16 of the Kenyan constitution.

Basic structure encapsulated the visions, values and aspirations of all Kenyans of equality, freedom and the rule of the law, peace and unity.

Such basic structure premises are beyond parliamentary encroachment

Basic structure is applicable in Kenya to such extent envisaged amendments must abide to chapter 16 of the constitution

The path to amend the constitution under Article 257 must abide to the spirit, values and aspirations of Kenyans well captured in the constitution itself.

Our Take

Basic structure of the constitution is a glue which holds the nation together.
It shouts the distinct characteristics of that nation which are values, aspirations of that nation

Under Kenyan constitution presidential appointees must be vetted and approved by the public commissioners and Uhuru Kenyatta did not abide by this clear requirements of the law.

So the appointment of steering Committee and the task committee were illegal because of reasons narrated above

President efforts to foster national unity were done in good faith.

BBI steering & Task Committees formation however violated clear provisions of the law

The 5th Judge dissents on steering Committee and holds that it had no power to promote constitutional reforms under Article 257 of the Kenyan constitution

BBI was not a common mwananchi initiative but an executive one and hence unconstitutional and unlawful.

The fifth Justice of the Appeal Court dismisses the appeal on its entirety.


Two Justices to go

The Kenyan president is bound by civil litigation if steps from constitutional boundaries.

So she sets aside orders which bar president Uhuru Kenyatta from being prosecuted in civil Court

She also declare the IEBC had no power to spearhead the enactment of the BBI in the Kenyan constitution because the IEBC did not have the prerequisite quorum

She commends all the learned advocates who participated in this case.

All parties are winners because the constitution has won.

The sixth Justice now in session delivering her monumental ruling

She promises to restrain herself from repetition of what her colleagues has already covered

The doctrine of basic structure is inapplicable in Kenya. That values and aspirations are fickle and therefore subject to change.

Hence, the Kenyan constitution is subject to change to capture and reflect values and aspirations of the people of Kenya existing at that time in question

The public body cannot purported to act in the interests of the public while violating the law.

The appellants did not lawfully seek the information and come to the court of law and seek the orders of reinstatement of the BBI.

So, she dismisses the appeal in its entirety