Group 8 members

BLAW/2024/73316 - JOY WAIRIMU

BLAW/2024/73303 - JADE KARIUKI

BLAW/2024/54944 - ANGELA NJOKI

BLAW/2024/59467 - SARAPHINA KARAMBU

BLAW/2024/56665 - JUDITH ROSELYNN CHEROTICH

BLAW/2024/55522 - MICHAEL BOAZ

BLAW/2024/54725 - NICK KARANI

IN THE HIGH COURT OF KENYA

CASE NO. 789 OF 2024

BETWEEN:

[GROUP EIGHT] PETITIONER

AND

[GROUP SEVEN] RESPONDENT

SUBMISSION ON BEHALF OF THE PETITIONER

INTRODUCTION

1. This submission concerns the central argument that a constitution, the supreme law of the land, can
itself be declared unconstitutional. In this case, we submit that certain provisions of the Country's
Constitution should be subject to judicial scrutiny and may be declared invalid or unconstitutional, even
if they form part of the foundational framework of the legal system.

2. We acknowledge the fundamental principle that a constitution is the highest law of the land. However,
this submission contends that a constitution is not immune from scrutiny under the standards of justice,
equity, and human rights, which must guide any legal system, regardless of the constitutional framework.

STATEMENT OF FACTS

1. Group 8 are an entity who has filed this petition seeking the declaration that certain provisions of the
Country's Constitution are unconstitutional. The Petitioner argues that these provisions could violate
fundamental rights and principles enshrined in both the Constitution itself and in international human
rights law.

2. The contested provisions of the Constitution, particularly Article 255-257, grant specific powers that
may seem unconstitutional here are more examples on that ;

Amendments to the Constitution (Article 255-257)

The Constitution allows for amendments, but any amendments that violate its basic structure or
fundamental principles (such as the supremacy of the Constitution, the system of devolution, and the Bill
of Rights) may be considered unconstitutional. The Basic Structure Doctrine could apply in future cases if
courts find that certain amendments fundamentally alter the nature of the Constitution.
For example, the Building Bridges Initiative (BBI), a proposed amendment to the Constitution in 2020,
was challenged in court. The High Court ruled that the process was unconstitutional, emphasizing that
the president could not initiate constitutional Excessive Use of State Power

a. Provisions that give the executive or other state organs excessive power without sufficient checks
and balances could be seen as unconstitutional. For example: Presidential powers (Article 131), if
interpreted in a way that undermines the balance of power, could raise constitutional concerns.

b. Appointment powers (Article 166) that are inconsistent with the principles of inclusivity and
accountability could be challenged.

Devolution (Chapter 11)

The Constitution establishes a system of devolution aimed at distributing power across national and
county governments. Provisions that undermine the principle of devolution or the independence of
counties could be deemed unconstitutional, particularly if they concentrate power unduly in the national
government. Issues such as:

a. Control over county revenue (Article 225)

b. Interference with the functions of county governments (Article 6)

Unjustifiable Limitation of Rights

While the Constitution allows for limitations on certain rights, these limitations must be reasonable and
justifiable in a democratic society (Article 24). Any law that unjustifiably limits rights or freedoms could
be declared unconstitutional.

Equality and Non-Discrimination Provisions

Any provision that is discriminatory or violates the equality of all Kenyans (Article 27) could be
challenged on constitutional grounds. Discrimination based on factors like gender, ethnicity, religion, or
other characteristics would likely be considered unconstitutional.

Notable Court Decisions:

The BBI Case (2021): The High Court ruled that the president cannot initiate amendments to the
Constitution through a popular initiative (the Building Bridges Initiative). The ruling emphasized that only
Parliament could initiate such amendments, and it raised questions about the scope of presidential
powers under the Constitution.

The Nairobi Women's Hospital Case: In this case, the court found certain provisions of the Employment
Act that were discriminatory against women in terms of employment benefits and rights to be
unconstitutional.

3. The Petitioner submits that these provisions fail to align with the constitutional guarantees of
[equality, non-discrimination, freedom of expression, etc.], and further conflict with the principles of
justice and fairness as established by both national and international law.
4. The Petitioner has approached this Court, invoking the right to access justice, which guarantees the
protection of fundamental rights, and seeking to remedy the harm caused by these unconstitutional
provisions.

5. The Respondents argue that the provisions of the Constitution in question are valid and fall within the
bounds of constitutional law. They contend that the Constitution, as a foundational legal instrument,
cannot be subject to judicial scrutiny in the manner proposed by the Petitioner.

6. This Court is now tasked with determining whether the challenged provisions of the Constitution
should be declared unconstitutional, in whole or in part, based on the principles of justice, equality, and
fundamental rights.

LEGAL FRAMEWORK

7. The legal framework for this submission is grounded in several constitutional and international legal
principles, as outlined below;

A. Constitutional Supremacy and Judicial Review**

8. Article 2 of the Constitution asserts that the Constitution is the supreme law of the land. It further
stipulates that any law or act inconsistent with the Constitution shall be invalid. While this establishes
constitutional supremacy, the article does not preclude judicial review of constitutional provisions
themselves.

While Article 2 ensures that all laws must align with the Constitution, it does not preclude judicial review
of constitutional provisions themselves. The Judiciary, particularly the High Court and Supreme Court,
has the authority to interpret the Constitution and declare any law or provision unconstitutional if it
conflicts with the Constitution. This underscores the importance of judicial oversight and the separation
of powers, ensuring that even the Constitution is subject to interpretation and review by the courts.

9. Judicial review is a fundamental aspect of constitutional law. Marbury v. Madison, 5 U.S. (1 Cranch)
137 (1803), established the principle that courts have the authority to review the constitutionality of
laws and governmental actions. The power of judicial review extends to constitutional provisions,
especially where those provisions may conflict with higher principles of justice and human rights.
10. The Court’s duty is to ensure that the Constitution is interpreted in a way that protects the
fundamental rights of individuals. If provisions within the Constitution violate the principles of justice or
human dignity, this Court is empowered to strike them down.

B. The Role of the Constitution in Protecting Human Rights

11. Article 27 of the Constitution guarantees the protection of fundamental rights such as the right to
equality, non-discrimination, and freedom from inhuman or degrading treatment. These rights are
inextricably tied to the core values of the legal system and the spirit of the Constitution itself.

12. International Law and Human Rights Framework: The Constitution must be read in harmony with
international human rights instruments that the country has ratified, including the Universal Declaration
of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), and the African
Charter on Human and Peoples' Rights (ACHPR). These treaties provide binding obligations that
countries must adhere to, and their provisions may guide judicial interpretation of domestic
constitutional law.

13. The Vienna Convention on the Law of Treaties (1969) provides that international treaties, once
ratified, form part of the domestic legal order. Article 27 of the Vienna Convention further establishes
that "a party may not invoke the provisions of its internal law as justification for its failure to perform a
treaty."

14. In the present case, the provisions in the Constitution that are being challenged are alleged to
conflict with the country's obligations under these international instruments, particularly concerning the
protection of rights such as equality, dignity, and non-discrimination.

C. The Right to Judicial Review of Unconstitutional Provisions

15. Article 165 of the Constitution allows for the judicial review of laws and actions by public authorities
to ensure they comply with constitutional principles. This provision empowers the judiciary to strike
down laws and provisions that violate the Constitution or fail to uphold the rights of the citizens.The
principle of judicial review ensures that public authorities and laws remain accountable to the
Constitution, particularly in upholding the rights of citizens and maintaining the separation of powers.

16. This principle is grounded in case law, such as Minister of Home Affairs v. Fourie, 2006 (1) SA 524
(CC), where the Constitutional Court of South Africa held that any law, including constitutional
provisions, must comply with the principles of equality and human dignity. The Court emphasized that
constitutional provisions could be invalidated if they perpetuate inequality or injustice.
17. Similarly, in Brown v. Board of Education, 347 U.S. 483 (1954), the U.S. Supreme Court held that
constitutional provisions that institutionalize racial segregation were unconstitutional, even though they
were derived from longstanding interpretations of the Constitution. This principle is equally applicable in
our case, where provisions that perpetuate systemic inequality or oppression should be subject to
judicial scrutiny and invalidation.

ARGUMENTS

1. The Doctrine of Constitutional Supremacy Does Not Preclude Judicial Review

1. The doctrine of constitutional supremacy, as enshrined in article 2, establishes that the constitution is
the supreme law. However, this principle does not imply that the constitution itself is beyond review or
that provisions within it cannot be subjected to the judicial scrutiny of constitutionality.

2. The power of judicial review, as established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
affirms that courts have the authority to review the constitutionality of laws and even constitutional
provisions. The principle that the judiciary holds the power to strike down unconstitutional laws stems
from the duty of courts to uphold justice, which is consistent with international norms and human rights
standards.

3. Article 2 of the Constitution, while providing for the supremacy of the constitution, does not foreclose
the possibility of judicial review in cases where provisions of the constitution conflict with higher
principles of justice and rights as understood under international law and natural justice.

2. A Constitution May Be Inherently Flawed or Incompatible with Contemporary Values

6. While a constitution is a foundational legal instrument, it may, over time, become incompatible with
the evolving values of the society it governs. Societies progress, and what may have been constitutional
in one era may no longer serve the best interests of the people or the protection of their rights.

7. In the case of Brown v. Board of Education, 347 U.S. 483 (1954), the U.S. Supreme Court famously held
that the constitutional principle of "separate but equal" was inherently unconstitutional, even though it
was based on long-standing constitutional interpretations. Similarly, provisions in the [Country's
Constitution] that conflict with modern human rights standards or principles of equality and fairness may
be subject to challenge.

8. The constitution must be interpreted in light of the evolving understanding of human rights. For
instance, the principles of equality, non-discrimination, and respect for individual freedoms under
international conventions like the Universal Declaration of Human Rights (UDHR), 1948, may necessitate
the reinterpretation of constitutional provisions that otherwise perpetuate inequality or injustice.
3. The Constitution Cannot Be an Instrument of Injustice or Oppression
9. A constitution must be a living document that protects the rights of all citizens. When a constitutional
provision creates or perpetuates systemic inequality or violates the fundamental principles of justice,
courts have the duty to invalidate such provisions.

10. It is important to emphasize that the constitution is not infallible. If a provision of the constitution
permits or enforces injustice, oppression, or the denial of fundamental rights, the judiciary, as an
independent body, is empowered to declare that provision unconstitutional.

11. This notion is reflected in the South African Constitutional Court's decision in Minister of Home
Affairs v. Fourie, 2006 (1) SA 524 (CC), where the Court held that laws that violate the dignity and
equality of individuals are subject to constitutional review, irrespective of their origin in the constitution
itself. Similarly, in our jurisdiction, the judiciary must be empowered to protect the rights of individuals
against unconstitutional provisions.

4. The Role of International Law and Human Rights Standards

12. The constitution must be read in harmony with international law, especially in matters concerning
human rights. Article 2[5] and 2[6] of our Constitution, which requires respect for international treaties
and obligations, affirms the role of international human rights law as an interpretative guide.

13. The jurisprudence of international human rights courts, including the European Court of Human
Rights (ECHR) and the African Court on Human and Peoples' Rights (ACHPR), has established that no
legal system is immune from scrutiny when it comes to human rights protections. The concept of
“constitutional invalidity” should apply even at the constitutional level when provisions violate
universally recognized human rights.

14. For example, International Covenant on Civil and Political Rights (ICCPR), Article 2, mandates that
states must ensure the rights recognized in the covenant to all individuals within their jurisdiction.
Provisions of a constitution that fail to adhere to these obligations could be subject to judicial challenge
as unconstitutional.
CONCLUSION

15. In conclusion, while the constitution is the supreme law of the land, it is not immune from judicial
review. Provisions within the constitution that contravene fundamental human rights, principles of
justice, and the evolving standards of fairness should not be upheld as constitutional.

16. The judiciary, under the principle of constitutional supremacy, must retain the authority to declare
constitutional provisions unconstitutional if they conflict with the rights and freedoms guaranteed by the
constitution itself or by international human rights standards.

17. We respectfully submit that the Court, under the stewardship of Your Honor, Justice Michael Kariuki,
should examine the contested provisions in light of these broader constitutional and human rights
considerations and declare them unconstitutional if found to contravene these essential principles.

Dated at Nairobi this 7th day of November 2024.

GROUP 8 STUDENTS

MKU LAW CAMPUS PARKLANDS

P.O. Box 13495-00100, GPO Nairobi, Kenya