The first issue had also been discussed by the following higher court judges: in the absence of a law that determined the scope and content of public participation in the section 257 process, the courts were forced to stumble a bit and seek the light, although the judges eventually – citing the constitutional standard of public participation – made findings on this issue in the two senses. Flipped. Assuming that at some point a law is passed that sets out its details, it will be interesting to see how the courts examine its relevance; Such a review must now be measured in terms of whether or not the Statute can serve as a sufficiently strong bulwark against abusive amendments and hyper-changes; Therefore, topics such as time to question invoices, language, accessibility, etc. must be taken into account from this topic. Formally, the Supreme Court rejected “the applicability of the basic structure doctrine” in Kenya by a majority of six to one. However, as I have tried to show, a careful reading of the seven stops gives a more complex picture. Imagine a hypothetical future situation in which a proposed amendment to the Constitution is challenged again before the Supreme Court, on the grounds that it is not an amendment at all, but an implicit repeal or repeal by secret or constitutional dismemberment. When the Supreme Court turns to the Supreme Court, it will say the following: I would now like to consider the views of Justices Lenaola and Ouko. To the credit of both judges, they recognize – and address – the issue of constitutional amendment versus the repeal of the constitution. In Section 1464, Justice Lenaola states: A small but relevant detour – the U.S.
Supreme Court annually grants certiorari for limited cases, each of which must be heard on a constitutional question and each of which is authorized alone on that issue. The question given to the certiorari in Dobbs was to examine the constitutional validity of the Gestational Age Act enacted by the State of Mississippi (“the Act”). The application of the law had been ordered by the District Court and upheld by the Fifth District Court of Appeal. At the time the certiorari was granted, the petitioners were explicitly asked not to demand that Roe be cancelled; A verdict in its favor only required a review of Bright Line`s profitability test. To be clear, the state of Mississippi wanted to clarify whether abortion bans before “viability” are still unconstitutional (see majority opinion @ p. 8). It wasn`t until after the certiorari was granted, which essentially meant that the Supreme Court would hear the case, that the state launched a frontal assault on Roe and his substantial involvement. In three blog posts, I suggest analyzing judgments as follows. In this first post, I will deal with the question of the basic structure. In the second post, I will address the issue of the popular initiative to amend the Kenyan Constitution under Article 257 and some of the remaining points of the judgment(s).
In the last post, I will consider some of the possible implications of the judgment(s) in the future (for example, whether referendum issues must be different and distinct for a constitutional amendment). It is safe to say that, as with the judgments of the other two superior courts, the breadth and novelty of the issues before the Court mean that its judgment will continue to be examined worldwide for a long time to come. Brown v. Board of Education raised Plessy v. Ferguson and rejected the doctrine of “separate but equal,” that is, racial segregation in public education. This Roberts decision, CJ says, cannot be compared to Brown, who was a unanimous and concise decision of the court. This is relevant because a long and fragmented decision like Dobbs exposes the conflict within the court and makes the decision itself vulnerable. Indeed, the conflict is made clearer by Justice Thomas` statement that other rights under the 14th Amendment must be reconsidered — a proclamation from which other members of the majority seek to distance themselves. Brown, on the other hand, has been a resounding rejection of segregation after examining the history of public education since the ratification of the 14th Amendment. The Court declared with one voice that “separate but equal” laws are unconstitutional and have no place in public education, and that the right to a good and equal education is fundamental to a democratic society. Several cases in the run-up to Brown had already challenged separate schools that provided a legal basis for deviating from precedents, contrary to Judge Kavanaugh`s argument that several states had passed laws that violated Roe, that is, created a legal basis to defeat precedents.
We therefore believe that a fund operating outside the limits of the separation of powers and the system of checks and balances would not be restricted in the absence of legislative control and would therefore be vulnerable to abuse. Indeed, a fund that allows legislative staff to exercise executive powers is problematic from a constitutional point of view. In the context of this case, we believe that the constitutional regulation of the separation of powers should be maintained, given its impact on the underlying constitutional values; that is, maintaining accountability and good governance. If we take the opposite approach, as demanded by respondents, even for the best political reasons, these constitutional values and principles will be undermined. (Paragraph 129) It is believed that the separation of powers is an integral part of contemporary democratic constitutionalism. However, mapping the ideal of the separation of powers to the complex reality of the modern administrative state is a difficult task. Imposing separation too rigidly and governance becomes impossible. Leave too much room for maneuver, and you risk drifting towards concentration and centralization of power. How and where to draw the line was a tedious question that constitutional courts around the world had to face.
Thus, in paragraph 1464, Judge Lenaola expressly recognises the distinction between `a complete recast` and `amendment` and also acknowledges that procedure 255-257 concerns only the latter category. In fact, his main point is that the IBC bill was indeed not a “complete overhaul”: at paragraph 1472, he asks, “Why should dismemberment be the focus of attention when the issue before the lower courts was a change?” And more definitively, in paragraph 1473, he cites Richard Albert`s distinction between “change” and “dismemberment” with consent (paragraphs 1474 – 1475); In fact, in the paragraph he quotes, Albert explicitly states that “dismemberment is incompatible with the existing framework of the Constitution because it seeks to achieve a contradictory goal” – lines very similar to Vanyala J`s articulation of constitutional “subversion.” Admittedly, there is a kind of internal tension in Judge Lenaola here: for example, he seems to suggest later that dismemberment necessarily requires the formal promulgation of a new constitution (see paragraph 1485). However, it is important to note that this does not necessarily have to be the case: the structure and identity of a constitution (the language used by Richard Albert, which Justice Lenaola cites with consent) can be “overtaken” by something as technically harmless as changing a single sentence – or even a single word – into a single constitutional provision. For example, a change that moves a political system from a multiparty democracy to a one-party state can be achieved by a single sentence, but it is undoubtedly a constitutional dismemberment; Another historical example is the decision of the Supreme Court of India in the Minerva Mills case, where the constitutional amendment in question essentially did not make the Bill of Rights of the Indian Constitution justiciable as long as the government declared that it pursued a socio-political objective. This objective was achieved by amending part of a sentence of a paragraph of a provision of the Indian Constitution. In my view, the decision of the Supreme Court of Kenya in Institute for Social Accountability vs. The National Assembly is a landmark decision that makes many important contributions to the global debate on constitutional democracy.