The Austerity Of Tabulated Legalism? Constituent Power And The BBI Consolidated Judgement.

Abstract

Since independence, Kenya has not had a harmonized constitutional review process. This paper delves into the history of constitutional review in Kenya, concepts of constituent power and constituted power and the appearance of constituent power in David Ndii & Others v Attorney General & Others (2021) eKLR (hereinafter the BBI judgment) on the doctrine of Basic Structure. It argues that the amendment powers under the 2010 constitution puts into play both constituent and constituted powers and from a reading of the Constitution there are no limitations upon the amendment powers on a Parliamentary Initiative subsequent to a referendum as well as a Popular Initiative subsequent to a referendum in amending the Basic structure.

Keywords: Austerity of tabulated Legalism, constituent power, constituted power, BBI judgment