NAIROBI, Kenya, Sep 3 – The Attorney General has moved to the Supreme Court to challenge the decision by the Court of Appeal to uphold a finding by the Constitutional Court that the basic structure doctrine is applicable in Kenya.
The State Law Office listed the basic structure question among eight ground for appeal in a notice filed at the Supreme Court registry on Thursday.
AG Kihara Kariuki expressed dissatisfaction with a finding that the basic structure doctrine limits the amendment power set out in Articles 255, 256 and 257 of the Constitution.
He is opposed to the find that the supreme law can only be altered through the primary constituent power which must follow a four sequential processes i.e. civic education, public participation, constituent assembly debate and ultimately a referendum.
“The Attorney General, being dissatisfied with the decision of the Court of Appeal given at Nairobi on the August 20, 2021 intends to appeal to the Supreme Court against the said decision,” the notice of appeal read.
The AG also expressed dissatisfaction with the finding that the President can be sued if he does anything contrary to the Constitution, as well as the verdict that the President cannot 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.
In addition the AG is also challenging the judgment that the BBI constitutional review process contravened the Constitution and that the constitutional amendment process was unconstitutional and a usurpation of the people’s exercise of sovereign power.
The appeal arose from a judgement on a petition against the Building Bridges Initiative (BBI) constitutional review process in which both the Constitutional Court and Court of Appeal declared the bid to amend the Constitution under BBI null and void.
