The High Court has temporarily stopped Parliament from forwarding the Constitution of Kenya (Amendment) Bill to President William Ruto for assent, pending the outcome of a constitutional petition filed by civil society group Katiba Institute.
In its ruling, the court said the Bill raises “weighty constitutional questions” that merit full judicial consideration and cannot be dismissed as idle arguments. Justice Lawrence Mugambi, delivering the decision, stated that “suspending what is reasonable serves the public better than proceeding with a doubtful process which could lead to problematic constitutional amendment.”
Court Asserts Jurisdiction
The judges rejected claims that the petition was premature, holding that the doctrine of ripeness does not apply in this instance. They affirmed that the High Court has jurisdiction to hear and determine the dispute.
Chief Justice Martha Koome has been asked to appoint an even number of judges to form a special bench to hear and determine the petition.
Bill Barred From Assent
Until the petition is concluded, the court directed, the Bill must not be forwarded to the President for assent. If it is assented to in the interim, the law shall remain suspended and not take effect until the case is determined.
Katiba Institute’s Arguments
At the core of the petition are two key arguments. First, Katiba Institute contends that the entire Bill is constitutionally superfluous because the funds it seeks to create are inconsistent with the letter and spirit of the Constitution. It also claims that the Bill and its accompanying public participation process violate the principles of prudence and responsibility in public spending.
Second, the organisation argues that the Bill contains provisions that can only be approved through a referendum. It faults Parliament for failing, for more than 14 years, to enact a referendum law as required by the 2010 Constitution, insisting that such legislation must be in place before any constitutional amendment process can lawfully proceed.
Far-Reaching Implications
The petition is likely to have major implications for the ongoing push to amend the Constitution. The decision by the High Court underscores the judiciary’s role as a check on both the legislature and the executive in the constitutional amendment process.
Observers say the ruling could also pressure Parliament to enact a referendum law, which has been pending since the promulgation of the 2010 Constitution, before introducing further amendments.
The case will now be placed before the bench to be appointed by the Chief Justice, with its final outcome expected to shape the trajectory of constitutional reforms in Kenya.