{"id":199544,"date":"2021-08-25T02:03:38","date_gmt":"2021-08-25T00:03:38","guid":{"rendered":"https:\/\/www.myza.co.za\/kenyan-judges-stop-presidents-reforms-as-attempt-to-dismember-the-constitution\/"},"modified":"2021-08-25T02:03:38","modified_gmt":"2021-08-25T00:03:38","slug":"kenyan-judges-stop-presidents-reforms-as-attempt-to-dismember-the-constitution","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/kenyan-judges-stop-presidents-reforms-as-attempt-to-dismember-the-constitution\/","title":{"rendered":"Kenyan judges stop president’s reforms as attempt to ‘dismember’ the constitution"},"content":{"rendered":"
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The Court of Appeal of Kenya has upheld<\/a> the High Court\u2019s ruling<\/a> that attempts to overhaul the country\u2019s constitution<\/a> violated its basic structures.<\/p>\n

The mega-constitutional amendment bill<\/a> proposed amending virtually every major part of Kenya\u2019s constitution. It ran to 45 pages, contained 74 amendment articles, and included two schedules appended to the main text.<\/p>\n

The Constitution Amendment Bill 2020 emerged from a political initiative launched by Uhuru Kenyatta and his political rival Raila Odinga, the leading contenders for the presidency in 2017. The poll was marred<\/a> by serious human rights violations, including unlawful killings and beatings by police. The initiative \u2013 called the Building Bridges Initiative<\/a> \u2013 was touted as a means to improve governance and prevent future post-election violence.<\/p>\n

The dozens of amendments would have effectively left none of the existing constitution unchanged \u2013 either expressly or by implication. Among its most controversial amendments were proposals that would have undermined the separation of powers among the executive, parliament and the judiciary. <\/p>\n

The Court of Appeal accordingly concluded that the bill amounted to a dismemberment of the Kenyan constitution. Among the seven judges, four referred to the concept of \u201cconstitutional dismemberment\u201d in arriving at their collective conclusion<\/a> that the constitutional bill exceeded the authority of amending actors<\/a>.<\/p>\n

Justice Daniel Musinga, president of the Court of Appeal, observed that <\/p>\n

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any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment. It amounts to the dismemberment of the constitution.<\/p>\n<\/blockquote>\n

For her part Justice Hannah M. Okwengu seized on the <\/p>\n

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distinction between amendment and dismemberment or change and remaking of a constitution.<\/p>\n<\/blockquote>\n

Justice Patrick O. Kiage described the Building Bridges Initiative as <\/p>\n

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effectively dismembering the constitution, blasting so huge a hole in it as to pulverise, and essentially create a new constitutional order.<\/p>\n<\/blockquote>\n

And Justice S. Gatembu Kairu stressed that the initiative was possible \u201cprovided the amendments proposed do not amount to dismemberment.\u201d<\/p>\n

What are the conceptual foundations of constitutional dismemberment<\/a> in the context of this historic judgment?<\/p>\n

Constitutional amendment versus dismemberment<\/h2>\n

A constitutional amendment<\/a>, properly defined, is a constitutionally continuous change to higher law. It is a change whose content and form are consistent with the existing design, framework and fundamental presuppositions of the constitution. <\/p>\n

A constitutional amendment entails unbroken unity with the constitution being amended. It therefore continues the constitution-making project in line with the existing design of the constitution. <\/p>\n

An amendment may:<\/p>\n