Independent Electoral and Boundaries Commission v David Ndii & 8 others

The majority traced the hyper-amendment history of the independence Constitution, the Njoya and Onyango decisions on constituent power, Article 255(1)'s entrenched themes, and the purposive interpretive command of Article 259. They held that alterations which fundamentally change the Constitution's identity amount to dismemberment, not amendment, and can only be legitimated by the same participatory process that birthed the Constitution. Sichale, JA dissented, holding the Constitution contains explicit amendment provisions with inbuilt safeguards and no implied bar.

The President appointed the BBI Taskforce and Steering Committee by Gazette Notice in his official capacity; the Bill emanated from the Steering Committee's report; and the process bore the imprimatur of State involvement throughout, including deployment of public officers to collect signatures. A popular initiative is a citizen-conceived, citizen-initiated and citizen-driven process. The lack of meaningful civic education and public participation before signature collection further vitiated the process.

Reading Article 1(2) with Articles 256 and 257, the Court held the popular initiative route exists for those without recourse to Parliament; the President, as head of the executive and symbol of national unity, cannot shed his office to act as an ordinary citizen. He may pursue amendments through Parliament via the Attorney General. A sitting President is in office twenty-four hours a day and cannot declothe himself of his official capacity.

The President acted lawfully in establishing the Taskforce and Steering Committee under Articles 131 and 132 to foster national unity, and the High Court erred in declaring the Steering Committee an unconstitutional entity (res judicata also applied in part per Okwengu, JA). However, a presidential creation mandated to propose constitutional changes could not hijack the citizens' popular initiative route; to that extent the Committee's promotion of the Bill was unconstitutional.

The Katiba Institute declaration of unconstitutionality of the 2017 amendment reducing quorum, being silent on effective date, meant the amendment was void and the pre-existing quorum of five remained the law. IEBC's own admission that its register was last updated in 2017 and the statutory command for prompt filling of vacancies reinforced this. The verification of signatures supporting a constitutional amendment was a policy-level exercise requiring a quorate Commission.

Article 143(2) limits immunity to acts done or not done in exercise of powers under the Constitution, unlike section 14 of the repealed Constitution which was absolute. Acts done in gross violation of the Constitution in official name enjoy only transient protection, with personal accountability deferred until the end of term, while immediate challenges proceed against the Attorney General. However, the declaration that the President personally contravened Chapter 6 was set aside for want of service.

The petitioner's claimed service to cos@president.go.ke was not shown to be the President's personal email, was effected before the court's service directions, and the trial court made no enquiry into service before proceeding against an unrepresented party. Denial of the right to be heard renders any decision null and void ab initio. The trial court ought to have satisfied itself on the record of proper service before hearing the matter.

The task of delimiting constituencies exclusively belongs to the IEBC under Article 89; entrusting allocation to persons with declared political interests amounts to gerrymandering. The transitional provisions impermissibly suspended the operation of Article 89 without textually amending it, creating a constitutional loophole through which the basic structure could be amended without triggering the primary constituent power.

The issues were constitutional rather than political questions; the political question doctrine cannot oust the High Court's jurisdiction under Article 165. Where the basic structure or design of the Constitution is under threat, courts can genuinely intervene even before a violation crystallises; a party need not wait for actual violation. Had the judges declined jurisdiction they would have violated their oaths of office.

Kiage, JA reasoned that the singular conception of 'an amendment' in Articles 255 and 257 means each proposed amendment must be presented separately and distinctly, avoiding laundering of unpopular provisions and preserving voter freedom of choice. Musinga, P held what goes to the people is the Bill, with the IEBC framing questions subject to Article 10 values. The Court was unanimous that lumping 74 amendments into one Bill was improper.

IEBC failed to adduce sufficient evidence of continuous voter registration or sensitisation, but the lack of a specific Referendum Act was held not per se to suspend the constitutional process provided constitutional values, especially Article 10, are observed. The Court recommended enactment of a dedicated Referendum law.