We the Limited People? On the People as a Constitutional Organ in Constitutional Amendments

Abstract

This article engages with one crucial question: When the people are included within the formal constitutional procedures for amending the Constitution, do they exercise primary - and thus unlimited - authority or a secondary - and thus limited - authority?

This question is explored against the backdrop of the Building Bridges Initiative (BBI) saga in Kenya, dealing with eventy-four amendments to Kenya’s 2010 Constitution. The High Court of Kenya, and then the Kenyan Court of Appeal both found the Bill unconstitutional for a variety of substantive and procedural reasons. Importantly, the two courts have held that the Basic Structure Doctrine applies in Kenya. According to this doctrine, certain institutions, rules and principles, are so important to the Constitution and its identity, that their amendment is implicitly prohibited. The constitutional challenge was then decided by the Supreme Court, which agreed that the bill was unconstitutional for procedural reasons but rejected the lower courts’ judgments that the Basic Structure Doctrine applies in Kenya.

The important of these judgments is because that in Kenya, as in some other countries, the people are directly involved in the amendment process. The people participate in a referendum as part of the amendment procedure. That is why the question is then raised, whether they act in their capacity as primary constituent power, and are thereby unlimited by constitutional limits, or whether they act as a secondary constituent power, and are therefore limited by the Constitution. Accordingly, these three judgments center around a crucial question for constitutional theory: whether the people, when included in the process of amending the Constitution, are limited in their capacity to bring about constitutional changes – even revolutionary ones.

My main argument is that constitutional amendment procedures that include the people in the process still act as delegated constitutional organs. They operate within the constitutional order and are thus limited and may be subject to various limitations and even judicial review.

Keywords: basic structrure doctrine, constituent power, constitutional amendment, Kenya, BBI