Editor's Review

The legal experts are seeking to participate in the BBI case as friends of the court.

The Building Bridges Initiative (BBI) court case has attracted some of the leading constitutional law experts from around the world.

According to Nation, the legal experts are seeking to partake in the case as friends of the court.

They are; Richard Albert (USA), Yaniv Roznai (Israel), Rosalind Dixon (Australia), David E. Landau (USA) and Gautam Bhatia (India).

BBI Secretariat Co-Chairs; Junet Mohammed, Dennis Waweru and other leaders at a presser. |Photo| Courtesy|

However, though they might be impartial in the undertaking, their opinions appear to be opposed to the Constitution Amendment Bill 2020.

According to Professor Albert, the BBI bill is more of a Constitutional dismemberment bill than an amendment bill, citing the numerous proposed changes.

“The Bill seeks to transform the Constitution of Kenya in a way that exceeds the boundaries of the existing constitution. The Bill is 45 pages in total, it contains 74 amendment articles, and it includes two Schedules appended to the main text,” he was quoted as saying.

He argued that if adopted, the bill would necessitate the amendments of numerous other clauses from the Constitution of Kenya 2010 either expressly or by implication.

Prof Albert and Prof Reznai will address the court, posing questions all in relation to Constitutional amendment.

According to Roznai, the basic structure doctrine is applicable, arguing that multiple clauses of the Constitution can only be amended by the people and not by parliament.

Professors Dixon, Landau and Bhatia will also address the court that the constitution has a basic structure, contrary to Attorney General Paul Kihara's who wants the Supreme Court to declare that the Constitution does not have a basic structure. 

“As in other countries around the world, the express limitations and procedures found in Arts 255-57 of the Kenyan Constitution are complements to a basic structure doctrine in Kenya, and in fact provide support for the existence of a basic structure doctrine,” they stated.

The professors agreed with the ruling by the Court of Appeal regarding the creation of 70 new constituencies.

They concurred that the creation of new constituencies was the work of the Independent Electoral and Boundaries Commission (IEBC).

“Comparative experience clearly shows that where electoral districts are drawn by political incumbents, or in a highly partisan manner, this threatens basic principles of electoral democracy by allowing those actors to create a “tilted” playing field that renders elections increasingly unfair,” their brief reads in part.

The professors stated in their application that they seek to help the judges in determining the questions posed by appellants. 

The BBI case moved to the Supreme Court following a petition filed by the AG, IEBC and lawyers Omoke Morara and Charles Kanjama.