Weighty Isssues - BBI is KAPUT
http://kenyalaw.org/caselaw/cases/view/207503/5. The Consolidated Petitions as we understand them raise, inter alia, the following issues:
a. Whether the legal and judicial doctrines of the “Basic Structure” of a Constitution, the doctrines of “Constitutional entrenchment clauses” “Un-amendable Constitutional Provisions”, “Unconstitutional constitutional amendments” “essential features” “supra-constitutional laws” in a Constitution, and the implied limitations of the amendment power in a constitution are applicable in the Republic of Kenya;
b. If the legal and judicial doctrines described in (a) above are applicable in Kenya, whether they apply to limit the amendability of Chapter ONE on Sovereignty of the People and Supremacy of the Constitution, Chapter TWO on the Republic, Chapter FOUR on the Bill of Rights, Chapter NINE on the Executive and Chapter TEN on the Judiciary and the provisions therein either under Article 256 by Parliament or through popular initiative under Article 257 of the Constitution;
c. Whether in the process of formulating the Constitutional Amendment Bill, the provisions of Articles 27 and 47 of the Constitution as read with Section 4 of the Fair Administrative Action Act were adhered to;
d. Whether the entire BBI process culminating with the launch of the Constitutional Amendment Bill was undertaken constitutionally having regard to Articles 1, 2, 3, 10, 255 and 257 of the Constitution;
e. Whether the Constitutional Amendment Bill is a Popular initiative as envisaged under Article 257 of the Constitution and if not, whether the process chosen to enact the constitutional amendment is fundamentally flawed and constitutionally infirm;
f. Whether at the time of launch of the Constitutional Amendment Bill and the collection of endorsement signatures, there was a legislation governing the collection, presentation, and verification signatures or a legal framework or administrative structure to govern the conduct of referenda in the Country, and whether the absence of such legal and administrative framework is fatal for the Constitutional Amendment Bill under consideration;
g. Whether the 3rd Respondent, the Independent Electoral and Boundaries Commission (the Commission), and the County Assemblies can exercise their powers under Article 257 of the Constitution to receive, verify and approve the Constitutional Amendment Bill in the prevailing circumstances;
h. Whether, by dint of Article 257 (5) and (7) of the Constitution, the County Assemblies and Parliament have the power to alter and or improve the contents of the Constitutional Amendment Bill so as to incorporate divergent views raised through public participation;
i. Whether Article 257(10) requires all the specific proposed amendments to the Constitution to be submitted as separate and distinct referendum questions to the people in the referendum ballot paper;
j. Whether the constitutional edict does empower the National Executive or any State organ, as opposed to Parliament, to pursue or initiate any amendment to the Constitution without petitioning Parliament;
k. Whether in a popular initiative to amend the Constitution, the National Executive may use public resources, including deploying public and State officers to either collect signatures or popularize any intended amendments to the Constitution;
l. Whether the intended constitutional amendment processes are in conformity with the National Values in Article 10 of the Constitution;
m. Whether the Second Schedule to the Constitutional Amendment Bill in so far as it purports to set seventy as the number of constituencies; predetermine the allocation of the said constituencies; and direct the Commission in so far as the function of constituency delimitation is concerned, is unconstitutional and/or illegal and/or irregular;
n. Whether the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report is an unlawful entity under the Laws of Kenya and whether it has locus standi in promoting constitutional changes pursuant to Article 257 of the Constitution;
o. Whether the current Parliament has been declared unconstitutional by the Chief Justice and whether it can it can consider the Constitutional Amendment Bill if approved by the County Assemblies;
p. Whether the Commission is legally constituted to carry out the referendum;
q. Whether there has been public participation in the constitutional amendment process.
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