The High Court has issued conservatory orders stopping Parliament from proceeding with the ongoing process to amend the Constitution, pending the determination of a petition filed by Katiba Institute and its civil society partners.

In its ruling, the court observed that the risks identified in the impugned Bill were not idle arguments but raised weighty constitutional questions warranting judicial consideration. The judges further held that the doctrine of ripeness could not apply in this case, affirming that the court has jurisdiction to hear and determine the dispute.

The matter has been referred to the Chief Justice to appoint an even number of judges to hear and determine the petition.

Meanwhile, the court directed that the Bill should not be forwarded to the President for assent, and if assented to, it shall not take effect until the case is concluded.

“Suspending what is reasonable serves the public better than proceeding with a doubtful process which could lead to problematic constitutional amendment,” Justice Lawrence Mugambi ruled 

At the heart of the petition, Katiba Institute raises two key arguments. First, it contends that the entire Bill is constitutionally superfluous, noting that the funds it seeks to create are inconsistent with the letter and spirit of the Constitution. 

The petitioners argue that the Bill, together with its scheduled public participation, is unnecessary and violates the constitutional principles of prudence and responsibility in public spending.

Secondly, they argue that the Bill contains provisions requiring approval through a referendum. 

They fault Parliament for failing, for more than 14 years, to enact a referendum law as mandated by the Constitution, insisting that such legislation must be in place before any constitutional amendment process can proceed.

The case will now be heard by a bench to be appointed by the Chief Justice, with its outcome expected to significantly shape the trajectory of the ongoing push to amend the Constitution.