‘Contemporary Developments’ Webinar Series The Judicial Review of Constitutional Amendments: Implications for Constitution Making

On 4 April 2022, International IDEA and the African Network of Constitutional #Lawyers convened a webinar on the Judicial Review of Constitutional Amendments: Implications for Constitution-Making. The event followed the delivery of a prominent decision of the Kenyan Supreme Court invalidating on procedural grounds, including failure to engage in genuine public consultation, constitutional amendments rooted in a political ‘Handshake’ between President Uhuru Kenyatta and one time contender and presidential-candidate Raila Odinga. The Supreme Court nevertheless annulled the finding of the High Court and Court of Appeal that established the basic structure doctrine as a substantive limitation on the power of constitutional amendment.

Beyond the profoundness of the decision, courts in various African countries (and around the world) as well as the African Court on Human and Peoples’ Rights have claimed the authority to review constitutional amendments.

Accordingly, the Webinar sought to explore the decision and the concepts and doctrines underlying the debates in #Kenya and beyond. Notably, the judicial assertions of power to review amendments raises key issues around the constitutional design of amendment rules and potential regulation of the nature, form and procedure of the judicial power.

Following welcoming introductions from International IDEA and the ANCL, Sumit Bisarya - Head, Constitution Building Programme - International IDEA, moderated the webinar, and the panellists covered different but interrelated aspects:

o The Kenyan Supreme Court on the Basic Structure Doctrine • Migai Akech, Professor of Public Law, University of Nairobi, Kenya

o Judicial review of Constitutional Amendments in Africa • Charles Fombad, Professor of Law and Director, Institute for International and Comparative Law in Africa (ICLA), Faculty of Law, University of Pretoria

o Review of Amendments by African Supranational Tribunals • Adem K Abebe, Constitution Building Programme, International IDEA

o Implications for Constitution Makers Advisors and Advocates • Christina Murray, United Nations Senior Mediation Advisor on Constitution Building, Department of Political and Peacebuilding Affairs

The webinar generated lively conceptual and practical discussions around the legitimacy and effectiveness of the judicial role in reviewing constitutional amendments, and the implications for constitutional design. The insights will inform knowledge products, similar subsequent events, as well as direct support for #constitution building processes.