Seychelles’ Kesavananda Moment? Making Sense of the Tenth Amendment Case

Seán Rainford

Lecturer in Law, University of Seychelles

On 28 July 2026, Seychelles’ Constitutional Court overturned the 10th Amendment to the country’s Constitution. This was the first time a Seychellois court declared a constitutional amendment unconstitutional and only the second time it struck down an enacted law since the Constitution was adopted in 1993. Passed in 2022, the 10th Amendment allows the Seychelles Defence Forces to engage in law enforcement alongside the police outside a state of emergency. Though championed by former President Wavel Ramkalawan as necessary for combatting drug trafficking in the small island republic, the amendment provoked significant backlash from Seychelles’ ‘fourth branch’ institutions like the Ombudsman and Human Rights Commission. In a young democracy where coups, attempted coups, and authoritarian rule are still in living memory, blurring the lines between the police and the military seemed like a dangerous step backward.

Following a drawn-out judicial challenge by the Human Rights Commission, the Ombudsman, and the Bar Association, the Constitutional Court declared the 10th Amendment unconstitutional on two grounds: 1) substantively, that the amendment violated Article 1 (‘Seychelles is a sovereign democratic Republic’), and 2) procedurally, that the President was required to refer the amendment bill to the Constitutional Court. Given the recent expansion in judicial control over constitutional amendments around the world, this case from a legally unique micro-jurisdiction is worth considering. In this post, I address the Court’s arguments in turn, as well as an alternative route it could have taken grounded in the Constitution’s (unused) referendum mechanism.

Substantive unconstitutionality

Under Article 91 of Seychelles’ Constitution, most provisions of the Constitution can be amended by a two-thirds majority in the National Assembly. However, Article 91(1) entrenches Chapter I (fundamental features), Chapter III (the Charter of Rights), Articles 110 and 111 (dissolving the National Assembly), and Article 91 itself by requiring an additional hurdle: approval by at least 60% of the people in a referendum. Article 91 does not expressly declare any of the Constitution’s content as unamendable.

When the 10th Amendment case was first heard by the Constitutional Court, the respondents objected that the judiciary had no power to review constitutional amendments. The Court was quick to put this argument to bed in a preliminary ruling last December, insisting on its ability to review amendments for compatibility with what it called the ‘basic democratic structure’ – invoking (among other authorities) the Indian Supreme Court’s Kesavananda Bharati judgment of 1973, which famously established the basic structure doctrine. The Seychellois Court felt that removing amendments from its review power would open the door to ‘legislative tyranny’.

It was thus unsurprising that, in its July judgment, the Court held the 10th Amendment substantively unconstitutional under Article 1 (‘Seychelles is a sovereign democratic Republic’). The Court doubted ‘whether a law amending a provision of the Constitution by giving police powers to the Defence Forces could ever be consistent with the underlying or expressed provisions of the Constitution’ and that blurring the roles and powers of the Defence Forces and the Seychelles Police ‘is not necessary nor desirable in a democratic society’. Of relevance here is that Article 49 defines ‘democratic society’ to encompass the principles that Seychelles’ Constitution of 1993 was designed to secure after 16 years of one-party rule, including multi-party pluralism, protection of fundamental rights, and the separation of powers. 

However, given the significance of this part of the judgment – unconstitutional constitutional amendments are, after all, a big deal, regardless of one’s view of them – it is disappointing that the Court’s reasoning for this was so short, coming to less than two pages. Though Seychellois courts have used the phrase ‘basic structure’ before, and even suggested that the scope of amendability is limited, this ruling is still a huge departure by the judiciary, for it introduces and applies an unamendability doctrine. It is, in this sense, Seychelles’ Kesavananda moment.

A presidential duty to refer a bill

Because of the 10th Amendment’s substantive unconstitutionality, the Court held that the amendment was also procedurally unconstitutional. This was because the President did not refer the amendment bill to the Constitutional Court. Due to the objections raised by civil society groups, the Court believed that a reasonable person would question the amendment’s constitutionality. Article 87(1) outlines how a President can refer a bill to the Court:

Where the President is of the opinion that a Bill presented for assent infringes or may infringe this Constitution, the President shall not assent to the Bill and, as soon as is practicable […] refer the Bill to the Constitutional Court for a decision in this respect. [emphasis added]

Because a reasonable person would doubt the bill’s constitutionality, the Court held that it was reasonable to presume that the President formed this opinion too. Therefore, the President could not assent to the bill and was obligated to refer it to the Court. A rationality test now seems to apply: if a reasonable person would suspect that a bill is unconstitutional, the President is obligated to refer it to the Court, and if they do not, it can be struck down by the courts later.

Where it exists elsewhere, a president’s power to refer bills for judicial review is generally seen as a discretion rather than a duty, but Article 87 gives grounds for the Court’s interpretation: if the President thinks the bill ‘may infringe’ the Constitution, they ‘shall … refer’ it to the Court. (Last year, a South African provincial court similarly held that the South African President’s decision to assent to a bill was justiciable.) However, in a presidential system like Seychelles, where the President is almost always the political force behind a proposed law, this raises questions. According to Seychelles’ Constitutional Court, former President Ramkalawan had a duty to refer the amendment for judicial review, despite the fact that he was presumably ‘of the opinion’ that it was a necessary addition to the Constitution. Should the President now refer all bills to the Constitutional Court just to be constitutionally safe? The ramifications of this aspect of the case on future constitutional litigation may be extensive.

Referendum alternative missed

During the case, the Human Rights Commission argued that a referendum was necessary to enact the 10th Amendment because it affected entrenched provisions (namely Chapters I and III). The Court rejected this, holding that because Article 163 is not itself an entrenched provision, a referendum was not necessary. But there is an obvious logical problem with this: the Court’s decision was that the 10th Amendment was unconstitutional because it violated Article 1, which is entrenched because it is found in Chapter I; since the amendment violates Article 1, this should mean that a referendum is necessary. Instead of the Court importing basic structure logic, a more faithful reading of Article 91 would have held the amendment procedurally unconstitutional for not holding a referendum to pass it.

Had the Court gone down this alternative, referendum-based route, it would have forced the political branches to put this amendment to the people if they wanted to enact it constitutionally. Such a route would have brought Seychellois jurisprudence towards the wider trend of African constitutionalism in controlling amendments, emphasising heightened procedural hurdles for achieving transformative amendments. These include holding referendums, achieving consensus among political parties, or greater public participation, rather than relying on unamendable basic-structure barriers. Last year, Zambia’s Constitutional Court overturned a constitutional amendment because it did not involve enough public consultation. In its BBI judgment, Kenya’s Supreme Court held that a constitution which already has tiered entrenchment (like Kenya or Seychelles) cannot accommodate a basic structure doctrine – for it already sets out which parts of its structure are more basic/fundamental than others and how they can be changed.

Had the Court held that a referendum was required in this case, it may have opened the door to many future constitutional amendments requiring referendums: specifically, any amendment that materially affected the principles found in the entrenched provisions. Perhaps this would be judicial overreach, but it would have been less of an overreach than the outcome of this case: it’s one thing to say that a more difficult procedure is required to amend provision x, y, or z; it’s another thing to say that provision x, y, or z can never be amended.

A referendum requirement would have been better grounded in the text of Article 91 by ensuring that any amendment affecting entrenched provisions required the more demanding procedure. It could have created an effective judicial constraint on the Assembly’s amending power based on procedural rather than basic structure considerations. It would also have given the people of Seychelles, rather than politicians or judges, the final say over constitutional change, allowing them to act as an independent veto point. When we consider Joelle Barnes’ observation in this blog earlier this year that ‘Seychelles hasn’t yet achieved the separation of powers its Constitution envisages’, we can see what a missed opportunity this case was.

The positives

Despite the problems outlined above, we should not ignore the positives of this case. Firstly, no one should lament the death of the 10th Amendment, rightly described by the Truth, Reconciliation, and National Unity Commission as a regression in Seychelles’ constitutional journey since 1993. Secondly, because the judiciary now has the final say over constitutional amendments, and because a President’s failure to refer an amendment bill to the Constitutional Court could later render it unconstitutional, politicians are likely to think twice before attempting to amend the Constitution again in the near future. In a system which places extensive political power in the hands of the executive, this may not be a bad thing.

Thirdly, the fact that bodies like the Human Rights Commission and the Ombudsman brought this case corroborates Barnes’ observation that Seychelles’ fourth branch institutions are likely to play a primary role in defending Seychellois constitutional democracy. However, the Court’s judgment means that another safeguard in this category – the people acting through referendum – will not take the place it ought to at that most critical juncture of a constitution’s life or death: constitutional amendments.

Many will celebrate the arrival of the basic structure doctrine to Seychelles as another tool in the judiciary’s arsenal. However, Seychelles’ Constitution already defines its basic structure in Article 91, with the referendum process as its ultimate protection. The Court could have chosen to develop this indigenous protection’s full potential, but this route was sadly not taken.

Seán Rainford is a lecturer in law at the University of Seychelles. He is grateful to Mr Conrad Lablache, an attorney for the petitioners in this case, for his assistance.

Suggested citation: Seán Rainford, ‘Seychelles’ Kesavananda Moment? Making Sense of the Tenth Amendment Case’ IACL-AIDC Blog (3 November 2026), https://blog-iacl-aidc.org/2026-posts/2026/11/3/seychelles-kesavananda-moment-making-sense-of-the-tenth-amendment-case