Attorney General v Ndii & 73 others; Fombad & another (Amicus Curiae)
The bottom line
#Supreme Court allows scholars to file briefs on constitutional amendment limits.
What this practically means
#The Supreme Court of Kenya has allowed two constitutional law scholars, Prof Charles Manga and Dr Adem K Abebe, to submit written arguments in a case about changing the Constitution. The court said their expertise on the basic structure doctrine and other constitutional limits could help decide the case. However, they cannot make oral presentations during the hearing. The ruling sets out clear rules for when experts can join cases as friends of the court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the implied limitations based on the basic structure doctrine, constitutional un-amendability and eternity clauses doctrines apply to the amendment of the Kenyan Constitution
- 2.The risks to constitutionalism, the rule of law and democracy posed by implying such limitations to the amendment of the Kenyan Constitution
- 3.The limits of global comparative experiences in determining the applicability to the amendment of the Kenyan Constitution of implied limitations based on the basic structure, constitutional unamendability and eternity clauses doctrine
- 4.Why a judicially enforceable basic structure doctrine is not applicable in Kenya
- 5.Why courts should be hesitant to outline specific constitutional amendment procedures
- 6.Why courts should be hesitant to establish a general rule regarding the form of constitutional referendum questions
Key legal issues
#Whether the applicants should be admitted as amici curiae in the appeal.
The court allowed the application, finding that the applicants demonstrated relevant expertise, impartiality, and that their briefs would assist the court without causing prejudice.
The court considered the application under rule 19 of the Supreme Court Rules 2020 and the guiding principles from Trusted Society of Human Rights Alliance v Mumo Matemu. It found that the applicants had proven expertise in constitutional matters, their briefs were timely and limited to legal arguments, and no partiality was evident. The court exercised its discretion to admit them, noting the public interest in developing the law on constitutional amendment.
Legal principles established
#- Applicants for amicus curiae status must meet legal requirements under Supreme Court Rules 2020, including proven expertise and impartiality.
- The court may admit amici if their briefs address novel legal points not already covered by parties.
- Amicus briefs must be timely, neutral, and limited to legal arguments without showing prejudice or partiality.
- The court has discretion to allow amicus participation even if some parties do not object.
- Amici curiae may be restricted to written submissions only, without oral arguments.
- Each party bears its own costs in amicus applications unless the court orders otherwise.
Court orders
#- 1.The notice of motion dated October 20, 2021 and lodged on October 25, 2021 by the intended amici curiae is allowed.
- 2.The amici briefs attached to the application are deemed as filed and the applicants shall not make oral submissions at the hearing of the petitions.
- 3.Parties shall bear their own respective costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 1, 2, 3, 10, 48, 159, 160, 164 and 259 of the Constitution; sections 3, 3A, 3B of the Appellate Jurisdiction Act; rules 19(1) and (2) of the Supreme Court Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The notice of motion dated October 20, 2021 and lodged on October 25, 2021 by the intended amici curiae is allowed.
Parties shall bear their own respective costs.
We therefore exercise our discretion and allow the application.
Key timeline
#Practical implications
#New amicus curiae standards
When applying for amicus status, ensure your client meets rule 19 requirements: proven expertise, independence, and public interest. The court will scrutinize timeliness and neutrality. Prepare detailed written briefs covering novel legal points, as oral submissions may be denied. This ruling clarifies that non-opposition from parties does not guarantee admission.
Constitutional amendment risks
This case tests whether Kenya's Constitution has unchangeable parts. If the basic structure doctrine is adopted, future amendments affecting fundamental rights or governance structures could face legal challenges. Businesses should monitor this appeal as it may impact regulatory stability and investment climate. Engage constitutional lawyers to assess risks in sectors like land, natural resources, or devolution.
Your voice in constitutional cases
You cannot directly join as amicus curiae unless you have recognized expertise or represent a public interest group. However, this ruling shows courts value expert input on complex issues like constitutional change. If you have specialized knowledge, consider partnering with a legal organization to apply. Otherwise, follow the case through media or court websites to understand how it may affect your rights.
Frequently asked questions
#What is an amicus curiae in Kenya?+
An amicus curiae, or friend of the court, is a person or organization not a party to a case but allowed to provide expert legal arguments to help the court decide. In Kenya, the Supreme Court Rules 2020 set requirements for joining, including proven expertise and impartiality.
Can the basic structure doctrine limit constitutional amendments in Kenya?+
The Supreme Court is currently considering whether Kenya's Constitution has implied limits on amendments, such as the basic structure doctrine. This case will decide if certain core features cannot be changed. The ruling will clarify the scope of Parliament's amendment power.
How do I apply to be an amicus curiae in a Kenyan court?+
You must file a formal application under the relevant court rules, showing your expertise, independence, and how your input will assist the court. The application should include a brief outlining novel legal points. The court has discretion to admit or reject you.
What is the Supreme Court's role in constitutional interpretation in Kenya?+
The Supreme Court is the highest court on constitutional matters. It interprets the Constitution, resolves disputes on its amendment, and sets binding precedents. This case on the basic structure doctrine will guide future constitutional changes and protect fundamental principles.
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Ndii & 73 others; Fombad & another (Amicus Curiae)", Case Analysis (2021). Petition E016 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/18/eng@2021-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.