A petition was filed in the High Court seeking to block the enactment of the Constitution of Kenya (Amendment) Bill, 2025, on grounds that it fundamentally alters the country’s governance structure and must be subjected to a referendum.
In the petition filed by lawyer Paul Mwangi, the court is being asked to determine whether key provisions of the Bill touch on matters that fall under Article 255(1) of the Constitution, provisions which would constitutionally require public approval through a national referendum.
The contested Bill, co-sponsored by MPs Otiende Amollo (Rarieda) and Samuel Chepkonga (Ainabkoi), proposes several changes to governance and public finance structures, including the creation of new Articles 204A and 204C.
According to Mwangi, Article 204A redefines the constituency not just as a unit of electoral representation but as a unit of governance, effectively re-purposing it as a structure of the national executive.
This, he argues, undermines the devolved system of government and offends the sovereignty of the people as outlined in Article 1 of the Constitution.
Further, Article 204C of the Bill proposes the creation of a National Government Affirmative Action Fund, which Mwangi says amounts to a pre-budget allocation of public finances at the constituency level, even before the national division of revenue is conducted.
He contends that this infringes on Article 203(1)(c) and grants Parliament power to commit the Executive to expenditure without regard to the priorities of alternating administrations violating the doctrine of separation of powers.
Mwangi argues that while Articles 256 and 257 provide for parliamentary and popular initiatives to amend the Constitution, Article 255(1) lists certain protected matters such as the sovereignty of the people that require approval through a referendum.
“The decision on whether a proposed amendment relates to Article 255(1) is an objective one and should be determined by the High Court,” Mwangi says.
He accuses the Bill’s sponsors of failing to disclose whether the proposed amendments fall under Article 255, thereby denying Parliament and the public a chance to engage in an informed constitutional debate.
Mwangi also urges the court to take judicial notice of the long-standing constitutional debate around the role of the constituency in executive functions, arguing that this issue has been the subject of numerous past legal petitions.
The petitioner argues that the Bill has already passed the National Assembly with the required two-thirds majority and is currently before the Senate.
Mwangi is seeking declarations that the proposed amendments fall under Article 255(1) and therefore cannot become law without a referendum.
“A declaration that the creation of a new Article 204A by Clause 2 of The Constitution of Kenya (Amendment) Bill, 2025 relates to a matter specified in Article 255 (1) of the Constitution of Kenya and in particular the sovereignty of the people under Article 255 (1) (c),” read the court documents.
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