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National Insecurity: Kenya’s Forever War on Terror

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In many ways, the conditions that allowed an Al Qaeda sleeper cell to destroy the US Embassy in 1998 have become even more favourable for Al Qaeda, Al Shabaab, ISIS, narcotics traffickers, poachers and international fraudsters.

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Remembering Kolbiyow
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Another Beginning?

In May 2017, delegations from a wide and diverse array of international stakeholders with interests in Somalia gathered in London to attend a high-level multilateral conference, the third major conference to be held on Somalia since 2012. Hosted by the British Government in conjunction with the United Nations Secretary-General, more than forty organisations and nations ultimately met to outline the relationship between the international community and the Federal Government of Somalia (FGS) over the next four years.

To this end, the conference participants unveiled a New Partnership for Somalia (NPS) and a Security Pact (SP) whose objectives -the continuing pursuit of a stable and secure Somalia- did not really differ from the outcomes of the two previous high-level conferences. Indeed, they were very much in accordance with all such gatherings held since the overthrow of Siad Barre in 1991. From the points of view of the conference organisers, international and local media and the newly elected FGS President Mohamed Abdullahi “Farmajo” Mohamed, the conference was deemed a success, attracting as it did pledges of additional financial assistance, training and material support, as well as deadlines for achieving the full realisation of national security architecture within a federalised governance structure.

For Kenyans, however, news coming out of the actual conference, as well as in the days preceding and after the event, was much less positive and considerably more ominous. The Head of State, President Uhuru Kenyatta, facing a tough campaign for re-election in August 2017, seemed to commit the Kenya Defence Force (KDF) to remaining in Somalia until the objectives of Operation Linda Nchi, the invasion of Somalia launched in October 2011, and which had since been folded into the African Union Mission in Somalia (AMISOM), had been achieved. Mr. Kenyatta was quoted as saying that “Our ultimate objective is to ensure the country’s (i.e. Somalia’s?) security is guaranteed. We cannot exit without accomplishing our goal of bringing stability and have a secure nation.” President Kenyatta was reported as asking the international community to significantly enhance its support to AMISOM; alternatively it was suggested that the UN take on much more of the funding responsibility for AMISOM. It was unclear whether KDF assigned to AMISOM would be withdrawn along with other troop- contributing nations’ military and police units as of 2020, as previously announced by the African Union; President Kenyatta was reported as stating that greater UN support would accelerate the planned draw down of AMISOM soldiers.

Back home neither the Kenyan media nor any of the opposition leaders took much notice of the president’s declarations that the KDF would stay in Somalia to pacify and stabilise Somalia; editors were happy to express patriotic sentiments supporting continued KDF presence because, as the Sunday Standard stated, “Al Shabaab strikes when we relax and retreats when we advance, the idea being to wear down the KDF to desperation and withdrawal. This is why President Uhuru Kenyatta has made it clear that the army is in Somalia for the long haul. Withdrawal would mean loss of national face and a propaganda coup for the Al Shabaab.” And that was that as everyone turned all their attention to politics and the price of ugali.

Operation Linda Nchi

On Sunday, 16 October 2011, a column of approximately 1,800 Kenya Army troops crossed into Somalia from their bases in Mandera, Wajir and Garissa. Although supported – when weather permitted – by helicopter gunships and Kenya Air Force F-5s, this was essentially a conventional motorised assault against Al Shabaab terrorists. During the five weeks prior to the cross-border assault, suspected Al Shabaab militants had allegedly attacked Western tourists in Lamu and had also abducted two Spanish Médecins Sans Frontières volunteers from the vicinity of the Dadaab refugee camps. Throughout 2011, there had also been an upsurge in-fighting inside Somalia between AMISOM, Somali government forces and the Al Qaeda affiliated Al Shabaab militia. The latter had been pushed out of the Somali capital, Mogadishu, and was relinquishing control over towns in central Somalia where much of the population was experiencing serious famine. Further south, Al Shabaab had retained control of Kismayu with its strategic functioning port facilities and, in the areas adjacent to the Kenya border, held increasing sway over the population.

Although I initially viewed Operation Linda Nchi as a legally permissible punitive strike against Al Shabaab’s cross-border incursions, the longevity and development of the operation, as well as evidence that Al Shabaab terrorists were not involved in attacks on tourists in Lamu or in the kidnapping of the two Spanish MSF employees in Dadaab, caused my views to shift to more prosaic and indefensible reasons.

This cross-border incursion had limited objectives and the columns’ various combat elements – armoured fighting vehicles, towed artillery, troop transports, donated American Humvees, lorries, British supplied tanks, Land Rovers – were not accompanied by ambulances, fuel trucks, combat support engineers, water bowsers, mobile kitchens, specialised command-and-control armour-proofed vehicles or heavier artillery pieces. The numbers of troops initially committed and the configuration of the attack column gave no indication that the KDF had planned a campaign to last beyond Christmas 2011.

The very limited objectives of Operation Linda Nchi included recovery of those kidnapped ostensibly by Al Shabaab terrorists, pushing the group’s units away from the international border and retaliating for previous terrorist attacks against targets within Kenya, however infrequent and sporadic they may have been; in fact Kenya had largely escaped the sort of Al Shabaab terrorism unleashed against civilians in Uganda in 2010, which had troops actively engaged in combat with Al Shabaab on behalf of the Mogadishu authorities.

Within two weeks of the Kenyan troops crossing into Somalia, Al Shabaab launched a still ongoing, albeit intermittent, campaign of terrorist attacks on mainly civilian targets in and around Nairobi and Mombasa, as well as throughout the counties of the former North Eastern, Eastern and Coast Provinces. Al Shabaab also increased recruitment within Kenya and a local branch developed, seemingly focused on exploiting domestic alienation and historical anti-government grievances among Muslim communities who viewed themselves as being largely marginalised and discriminated against by successive post-independence governments. Attacks against soft targets inside Kenya have waxed and waned. Though Nairobi has been spared similar attacks to that on the Westgate Mall in 2013, which killed at least 68 people, Al Shabaab has since 2012 massacred students, civil servants and workers across Mandera, Wajir, Garissa and Lamu counties. Continuing assassinations of chiefs and subchiefs, as well as occasional successful attacks on isolated police posts and ambushes within Kenya of KDF convoys and police patrols, are clear evidence that Al Shabaab’s somewhat minimal presence in 2010 inside the four counties bordering Somalia has developed into a self-sustaining domestic insurgency.

The situation in Mombasa has also become increasingly confused since 2011, mainly because of heavy-handed government repression and extrajudicial executions targeting radical Imams and alleged Jihadist recruits, apparently with the tacit support of foreign intelligence agencies.

Operation Linda Nchi – A Confluence of Interests?

During the thirty-six years since I first arrived in Kenya, the security relationship between Washington and Nairobi has undergone substantial changes in scope, in activities undertaken and in financial support given, as well as in the expectations and motivations of all participants and stakeholders. Between independence in 1963 and the fall of the Berlin Wall in 1989, Kenya had been a reliable, albeit not terribly strategically important, ally of the West against the spread of communism, whether in East Africa or throughout the Greater Horn of Africa region. All Kenya had the port of Mombasa and its relatively stable and peaceful political environment in which a host of service industries (i.e. finances, logistics, education, communications, light manufacturing built on import substitution, and export-oriented agricultural enterprises) seemed to operate reliably and efficiently, especially when compared to the rest of the region. Kenya had also attracted the only UN Headquarters located in Africa, numerous foreign correspondents and both major and minor international media institutions. During the late 1970s and throughout the 1980s, international NGOs and development agencies established regional offices and substantially increased the inflow of donor dollars, whether for project support or simply to conduct daily operations. The country also experienced a genuine tourism boom which benefited from – by African standards – her superior infrastructure (i.e. all-weather roads, international and domestic air connections, seaport, etc.) and a well-developed hospitality industry. Despite her one-party government, price and exchange controls, and a growing movement advocating greater democracy, increased economic opportunities and an end to rising levels of government corruption, Kenya was a haven of stability and pragmatic African nationalism.

None of the foregoing should be dismissed as a somewhat irrelevant backstory. The same factors that made Kenya a moderately useful ally during the Cold War can still be found today. Kenya remains an essential hub for major humanitarian and relief operations in the Horn of Africa, South Sudan, the eastern part of the Democratic Republic of the Congo (DRC)and Burundi, and is a vital component in international antipiracy operations. She has become increasingly important to the conduct of US counterterrorism operations focusing on the Al Qaeda leadership co-located with Al Shabaab elements within Somalia and elsewhere in the region.

Although I initially viewed Operation Linda Nchi as a legally permissible punitive strike against Al Shabaab’s cross-border incursions, the longevity and development of the operation, as well as evidence that Al Shabaab terrorists were not involved in attacks on tourists in Lamu or in the kidnapping of the two Spanish MSF employees in Dadaab, caused my views to shift to more prosaic and indefensible reasons.

The launch of Operation Linda Nchi substantially altered the relationship between the Kenyan and US governments.

Just as Operation Linda Nchi effectively constituted a “declaration of war” on Al Shabaab and other radical Islamic terrorists – and changed Kenya forever – the successful Al Qaeda attacks in September, 2001, on the World Trade Centre and the Pentagon transformed how the US government perceived global threats to homeland security; much of the language used to describe the global danger to America of radical Islamic Jihadist terrorism is eerily reminiscent of the views of threats posed by international communism in the aftermath of the Second World War. The “enemy” then was exemplified by the Soviet Union and mainland China, as well as such bit players as Cuba, Vietnam (North until 1975) and North Korea. Because all of these enemies were essentially state actors, American responses could be characterised as merely adaptations of traditional statecraft (e.g. diplomatic, political, military, economic, etc) somewhat modified to fit post-war United Nations conventions.

Since 9/11 traditional statecraft, whether modified or adapted, has been pretty much thrown out the window, the “enemy” in our Global War on Terror seems mainly comprised of non-state actors fighting to impose their ideology of radical Islam wherever an opportunity arises. Although violent Jihadists may be sponsored or supported by established nations and may even seek to overthrow existing governments (e.g. Mali, Somalia, Islamic State in Iraq and Syria, Afghanistan), the received wisdom and emerging doctrine within ascendant Western security establishments views the current conflict as being both global and forever. This has led to new ways of assessing “victories” and conducting operations whose effect on US-Kenya bilateral relations may not be obvious but is nonetheless pervasive and with consequences that are unintended and little commented on.

Despite occasional statements paying lip service to promoting good governance, countering insurgency (i.e. hearts and minds activities, developing partners’ security capacities, etc.) and promoting a human rights agenda, short-term success is measured by the elimination of “wanted” Al Qaeda/Al Shabaab terrorists with little or no loss of American lives; financial considerations are secondary. In addition, since the invasion of Iraq in 2003 “nation building”, as a modern term for either small wars or counter insurgency campaigning, has fallen completely off the charts used by American and nearly all Western leaders. For example, in Somalia the US is following a policy of stabilisation which is inherently short term in nature and which has no overall strategic objectives.

In this scenario, Kenya, as a stable geographical entity with a friendly government, has assumed much greater importance than at any time in its nearly 40 years of military cooperation with Washington. In fact the nature of America’s “Forever War” since 9/11 gives the Kenyan government much greater influence in its relationship with Washington than was ever the case even at the height of the Cold War when American efforts in Africa concentrated on suppressing threats posed by the Soviet Union, Cuba or East Germany and such proxies as Libya and Ethiopia.

Another thing that is seldom appreciated is how many “survivors of terrorism” are driving America’s post 9/11 security agenda. For example, the present US Ambassador to Kenya, Robert Godec, survived the Al Qaeda bombing of the US embassy in Nairobi on 7 August 1998 and his career assignments since then have involved various aspects of the US government’s Global War on Terrorism. His immediate predecessor, Scott Gration, was on duty at the Pentagon on 9/11 when hijacked aircraft slammed into the building; he was also a senior officer who witnessed the terror bombing in the early 1990s of the Khobar Barracks used by US Air Force personnel in Saudi Arabia.

Further, I believe an appreciation of the connections and links between the individuals running the US security agenda in the Horn are critical to any assessment of the US government’s assistance to Kenyan security agencies. When Operation Linda Nchi was launched, Ambassador Scott Gration, a retired Major General in the US Air Force, was the US Ambassador to Kenya; he had previously served as the Obama administration’s representative in Juba, South Sudan. Ambassador Gration had grown up in Kenya and, as a US Air Force Major, had from 1983 to 1984, worked closely with Julius Karangi, then a Kenya Air Force Major, when the US government supplied Kenya with F-5 jets and instructors. Major Karangi, who was then in charge of US-Kenya military assistance programs, had risen to the Chief of Defence Forces when Operation Linda Nchi was launched.

US training and logistics assistance to Kenya increased substantially during 2012, although Gration resigned on 21 June 2012. Gration remains active in business and missionary circles in Kenya. General Karangi retired from KDF in 2015 but remains highly influential inside the government and its security architecture, as well as in business circles.

The political class in Kenya is oblivious of the existential security threats confronting Kenya; there is an ingrained belief in the nation’s exceptionalism and resilience based on little more than hope and an unwillingness by the media, government, civil society and the private sector to demand accountability from their friends, relatives and colleagues occupying senior positions of power, influence and responsibility when things go wrong.

Although Scott Gration served as Senator Obama’s military aide during the latter’s visit to Nairobi in 2006 and was one of the first generals to support Obama for president in 2008, he has close ties to Dr. Jendayi Frazer, a former Republican Assistant Secretary of State for African Affairs serving through January 2009; Dr. Frazer has been associated since 1990 with the Kenyatta family and does business in East Africa – especially in Rwanda – and is a strong proponent of fighting Islamic Jihadist terrorism, especially in East Africa. During her tenure as Assistant Secretary of State, the Kenyan government allowed the recruitment of ethnic Somali Kenya citizens and Somali refugees from Dadaab who were trained in Manyani by retired US personnel and serving Kenya Army officers and then sent in Somalia National Army uniforms to fight Al Shabaab; this project was eventually abandoned and by August 2011 some wounded survivors made their way to Mandera. This entire operation remains shrouded in secrecy but seems to have fallen apart when funds for salaries and logistics were stolen, with the fighters in Somalia being literally abandoned and left to their own devices; an unknown number of these trained soldiers were alleged to have defected to Al Shabaab. The financing of these sorts of shadowy military operations, which date back in concept to the late 1940s, has always been “off the books” and not subject to normal financial and performance audits.

While researching KDF “Order of Battle” reports compiled by various professional risk analysts, I noticed that there are 100-110 T-72 Main Battle Tanks (MBTs) still listed in Kenya Army inventories; the KDF has never purchased or deployed the Soviet era tanks although the Sudan People’s Liberation Army (SPLA) Juba government took possession of such equipment when Scott Gration was the US government representative. Somali pirates had inadvertently captured a vessel carrying 33 T-72s, which was rapidly freed and made its way to Kenya where its cargo was offloaded in Mombasa from where the tanks, ammunition, spare parts and accessories were transported by rail and road to South Sudan; the Kenyan military would have been the only Kenyan government agency with the necessary means and capabilities to ensure safety and security of this and previous transfers of heavy war materials and weapons to the SPLA in Juba even before South Sudan formally achieved independence. (Whether the Auditor General has ever queried how over a hundred MBTs were added to the KDF assets register and whether this procurement, including payment to the supplier, was properly documented remains unknown.)

The launch of Operation Linda Nchi substantially altered the relationship between the Kenyan and US governments. Washington had not been formally advised about the incursion and the seemingly open-ended nature of this punitive expedition -which had failed by Jamhuri Day, 2011, to accomplish any of its limited objectives- presented the Obama administration with an unforeseen dilemma as it opened up another front in the US Global War on Terrorism. Kenya increased its forces inside Somalia to 4, 660 and announced that the main objective of the campaign was to seize the port of Kismayu after clearing Al Shabaab forces from an expansive zone –Gedo/Juba – adjacent to the international border. In addition, the government negotiated the permanent inclusion of some 3,600 KDF troops into AMISOM; this “rehatting” was essential if Kenya were not to be bankrupted by its invasion of Somalia.

An additional consequence of Operation Linda Nchi was a nearly immediate upsurge in Al Shabaab terrorism, not only in the four frontline counties along the Somali border but increasingly directed against civilian targets in and around Nairobi as well as in Mombasa. the Kenyan security forces’ weaknesses and vulnerabilities became obvious, which prompted more financial assistance from the United States and its Western allies to Counter Violent Extremism/Counter Jihadist Terrorism.

Similarly, well-documented governance issues and failures of the Kenyan government to manage basic administrative functions normally associated with a modern nation state – and essential for any success to be achieved in countering insurgency or fighting terrorism – have merely attracted more money for more quick fixes, community-based development solutions as well as increased joint training opportunities for selected KDF elements and, occasionally, counterparts from the United States (e.g. Massachusetts Air National Guard – September 2016). There are also ongoing deployments of US Special Forces personnel to “train, advise and assist” their KDF Special Forcescounterparts; the only time such activities come to light is when a US service member dies while temporarily deployed to Kenya and a notice briefly appears in some home town media outlet. Correspondent Margot Kiser has also reported in the Daily Beast about US soldiers in the Boni Forest / Lamu area.

On the Kenyan side of the bilateral relationship, there is a permanent, long-standing community of diverse political, social, economic and commercial interests, all of which derive benefits from continuing participation of the Kenyan government in America’s Forever War as it plays out in the Greater Horn of Africa. As will be explained in greater detail, regardless of the initial factors that motivated Operation Linda Nchi, there is no longer any reason to believe that the Kenyan government’s actions since 2011 have anything to do with strengthening Kenya’s national security within the context of the 2010 Constitution and in accordance with legitimate and acceptable national interests. The political class in Kenya is oblivious of the existential security threats confronting Kenya; there is an ingrained belief in the nation’s exceptionalism and resilience based on little more than hope and an unwillingness by the media, government, civil society and the private sector to demand accountability from their friends, relatives and colleagues occupying senior positions of power, influence and responsibility when things go wrong.

In 2014, I wrote about how Kenya had become a nation of “spin” and PR:

“… Kenya has developed into a nation where shameless deception and lying have become standard operating procedure in both public and private sectors; the effects of this Orwellian dystopia we have learned to accept initially means that we fail to identify and fix problems and ultimately suffer increasingly greater financial losses… our economy fails to grow and .. youth radicalization, crime and insecurity increase nationally.”

Although I was referring to the reporting in the media of bank failures, financial fraud and regulatory incompetence, it is true that the spinning of reality and PR whitewashes have replaced news reporting and analyses of all matters security.

With hindsight, Operation Linda Nchi was launched to put Kenya firmly on the side of the US and other western allies in the Global War on Terrorism but with little thought given to the country’s national security needs, capacities and capabilities.

Further, Kenya’s failure to implement anti-money laundering policies and procedures has gone well beyond inhibiting economic growth and facilitating corruption. “Kenya on US blacklist over terrorism laws,” the Daily Nation reported in March 2012. The country had been found to not be lax in enactment of legislation criminalising the financing of terrorism. Nearly eight months later, Kenya remained on watch lists of countries failing to make sufficient progress to curb money laundering and to counter terrorist financing.

An example of how half full – even nearly empty – water glasses can be described as opportunities to turn lemons into lemonade can be found in an article in the Standard on Sunday by Prof. Peter Kagwanja. In the piece, titled “Latest move by USAID a warning to end dependence on aid”, he characterised the recent US suspension of $21 million earmarked for the Ministry of Health (after the Auditor-General found that billions of shillings in the ministry could not be accounted for) as being done on political grounds, ostensibly because corruption is a major campaign plank of the opposition; the suspension, he argued, presented an opportunity for Kenya to wean itself off aid.

However, Prof. Kagwanja finishes up by mentioning the US government’s commitment to spend $30 million on the Independent Electoral and Boundaries Commission (IEBC), implying that such spending constitutes approval rather than acquiescence. He also described the donation to the KDF of eight unarmed light transport helicopters and State Department approval of a controversial and seemingly hugely overpriced $418 million purchase of close air support aircraft, as examples of positive American support for the Kenyan government’s efforts to deal with terrorism and violent extremism.

Prof. Kagwanja is considered an international relations and security affairs expert and has presented his analyses and opinions on governance and security at the Washington DC Africa Center for Strategic Studies – an influential think tank affiliated with the Pentagon. As a senior and respected scholar, his views count and his credibility is seldom questioned by Americans active in the post- 9/11 Forever War on Global Terrorism. Whether US aid to Kenyan security forces is used effectively or KDF procurement decisions contribute to countering terrorism within East Africa is less important to the US officials involved than is protecting the American Homeland against Jihadist terrorism originating overseas. As will be explained, such disconnects between reality and fantasy, as well as different views on objectives to be achieved and relevant timelines, have created a perfect storm for national insecurity in Kenya as well as elsewhere throughout the Greater Horn of Africa.

Kenya’s War on Terror: Scorecard and Evaluation

The KDF Defence White Paper 2017, launched by President Kenyatta on 3 May 2017, emphasises threats to national security posed by neighboring states’ armed forces, as well as the existential threats in the form of radicalised Islamic youth tragically influenced by external Jihadist forces to become terrorists at home and abroad. Local influences and issues that motivate violent extremism, regardless of religion or political affiliation, are glossed over and no mention is made of the sort of counterinsurgency operations conducted by the British colonial authorities in Kenya in the 1950s against Mau Mau freedom fighters –then also referred to as terrorists – who were often executed as criminals when captured rather than treated as enemy combatants. There is no reference at all to counterinsurgency operations that focus on domestically-instigated conflicts.

This White Paper perfectly captures the thinking of the government’s and the country’s political class and corresponds to local interpretations of the place of Kenya in America’s Global War on Terrorism. Al Shabaab is essentially an insurgent group primarily fighting to take power in Somalia. It may have irredentist ambitions to establish a Greater Somalia within the Horn of Africa, and no doubt sees the frontline counties of Kenya adjacent to the international border as well as Tana River County and significant portions of the former Coast Province as being included in its area of operations. From a strategic perspective and remembering its main objectives, it is very likely that US military commanders view all of the Greater Horn of Africa as being one area of operation in the Global War on Terror -whether coordinated by Africom in Germany or US Centcom in Tampa, the enemy is Al Qaeda and its affiliate Al Shabaab, both of which are deemed to pose threats to Americans at home. The one stakeholder that has failed to embrace this expanded geographical combat zone has been Kenya which relies on borders, its role in a globalised war on terror and a notionally separate chain of command in AMISOM, to explain away the lack of progress in defeating Al Shabaab and improving domestic peace and security. It is the only actor seemingly without its own national objective.

A recent Transparency International (TI) report on Nigeria examined the negative effects of massive corruption within military procurement, troop support and administration on the war against Boko Haram. -Nigerian officials are literally stealing their soldiers’ capabilities to defeat Boko Haram! Kenya is now on the cusp of Nigerian-style military procurement corruption.

Conceptually, Operation Linda Nchi was flawed from the very beginning, and not because conventionally trained soldiers cannot defeat guerrillas. There was no reason to believe that Al Shabaab would engage in direct combat with the better armed and equipped Kenya Army professionals. Al Shabaab has historically disengaged on its own terms when in contact with AMISOM forces. And like AMISOM, the motorised road-bound KDF units occupied space without significantly diminishing Al Shabaab’s tactical capabilities.

Even assuming that the strategic objective underlying Operation Linda Nchi was to ultimately establish a permanent presence in support of a client semi-autonomous Jubaland Administration, the inevitable terrorist blowback within Kenya since the end of October 2011 has exposed massive cracks and gaps within Kenya’s entire security architecture, which have yet to be comprehensively considered or resolved despite fairly significant expenditure on new equipment and training by foreign experts of KDF and National Police Service (NPS) units and personnel.

With the assault on the KDF-manned camps in El Adde in January 2016 and Kulbiyow a year later, Al Shabaab has shown it can still mass sufficient numbers of trained fighters to successfully assault fixed defensive positions. Such conventional attacks have revealed shocking tactical deficiencies and lack of war fighting skills among KDF company grade officers and soldiers deployed to AMISOM. This latter revelation was completely unexpected and can be fixed but only if the KDF leadership believes there is a problem. Foreign military personnel generally avoid publicly commenting on these issues although they agree in private and off the record that the security leadership is either in deep denial or is simply not interested. There is no real disagreement about incompetence and poor military skills at all levels of the KDF.

With hindsight, Operation Linda Nchi was launched to put Kenya firmly on the side of the US and other western allies in the Global War on Terrorism but with little thought given to the country’s national security needs, capacities and capabilities. For example, as KDF troop numbers increased to nearly 4,600 and the Kenyan government announced its intention to join AMISOM, the government’s budgetary constraints and unanticipated consequential post- Operation Linda Nchi expenditures security operations nationwide nearly broke the bank; it became clear that much more financial support from friendly allies was required. Although Kismayu was seized at the end of September 2012 and the KDF withdrew some 800 troops, 3,660 remain assigned to AMISOM whose budgetary support (i.e. reimbursement for operational expenses, equipment losses, wear and tear, etc) remains critical to the government’s cash reserves and liquidity.

Further, opportunities for corruption abound whenever military procurement and security sectors’ expenditures take on lives of their own. Kenya is no exception although on a much smaller scale than in Somalia, Yemen, Iraq and Afghanistan. Corruption saps morale and discipline but also keeps conflicts from being concluded. Though the secrecy surrounding security spending makes it difficult to question its effectiveness and accurately track financial flows, it is not an impossible task. However, the media in Kenya has shown little willingness to undertake these sorts of investigations.

That the 7,000 Al Shabaab main force militiamen retain their ability to carry out attacks is not testament to their training or professionalism; Al Shabaab is just not that good. Rather, their continued resilience and successes on the battlefield shows how bad Kenya is at handling existential security threats.

Why Kenya’s War on Terror Failing

In January, much media attention was focused on looming cuts in foreign assistance to African countries announced by the incoming Trump Administration, citing the need to save taxpayers’ money for use at home, as well as corruption, ineffectiveness and the seemingly open-ended nature of US funding for democracy and governance programmes. Notably, Trump was asking why “we” hadn’t defeated Al Shabaab after spending “hundreds of millions” on a wide range of military activities within the Horn of Africa. Divorced from the source and disregarding the so called complexities of the Global War on Terror and the much studied internal dynamics of Somalia, Trump’s question is absolutely valid and worth asking not only in relation to Al Shabaab in Somalia but, more importantly, also in relation to Kenya’s Forever War On Terror. To be precise, how can the abysmal performance of Kenyan security forces in its war against Al Shabaab be explained?

As this article is being written, Al Shabaab militants have ramped up their terror campaign in the counties of Mandera and Garissa; at least fourteen police officers were killed in three roadside explosions this week with many more wounded. In March this year, Al Shabaab announced its intention to disrupt the Kenya General Elections scheduled to be held in August. In fact, since early May attacks on soft targets have occurred with increasing frequency.

Regardless of all the renewed expressions of financial and military assistance coming out of the London Conference, Al Shabaab continues to launch terror attacks in and around Mogadishu with relative impunity. Its forces in southern Somalia move freely, and when Ethiopian forces not assigned to AMISOM withdrew without notice from towns and villages they had occupied, Al Shabaab quickly reasserted control.

In many ways, the conditions that allowed an Al Qaeda sleeper cell to destroy the US Embassy in 1998 have become even more favourable for Al Qaeda, Al Shabaab, ISIS, narcotics traffickers, poachers and international fraudsters.

On 7 August 1998, Al Qaeda terrorists blew up the US Embassy located in Nairobi’s central business district; a simultaneous attack on a similar target in Dar es Salaam was less successful. Investigations into the Nairobi attack showed that an Al Qaeda sleeper cell had entered Kenya in 1993/94, acquired Kenyan IDs and passports, registered companies, opened bank accounts, established families and conducted business at the coast; all their documentation had either been obtained fraudulently or lawfully because of lapses and oversights in enforcing regulations and applicable laws in place 20 years before. In 2002 surviving Al Qaeda terrorists still in place in Kenya were able to successfully detonate a vehicle borne IED in the reception of the Israeli-owned Paradise Hotel on the north coast of Mombasa. Another Al Qaeda team managed to drive next to the runway at Mombasa’s Moi International Airport when an Israeli charter flight was taking off for Tel Aviv with a full load of tourists and fired surface-to-air missiles, smuggled over land from Somalia, at the plane. The missiles failed to hit the 747 but the terrorists also managed to elude capture. In 2010, Al Shabaab successfully detonated explosives in Kampala during which two venues crowded with World Cup spectators were hit. Subsequent investigations showed that much of the Al Shabaab planning, organisation and financing took place in Kenya where alleged terrorists were arrested and renditioned to stand trial in Uganda.

A recent Transparency International (TI) report on Nigeria examined the negative effects of massive corruption within military procurement, troop support and administration on the war against Boko Haram. -Nigerian officials are literally stealing their soldiers’ capabilities to defeat Boko Haram! Kenya is now on the cusp of Nigerian-style military procurement corruption. The acquisition of much needed IOMAX Air Tractor Close Air Support aircraft referred to by Prof. Kagwanja has been delayed – possibly irrevocably – because the original equipment manufacturer contends that the KDF is paying $125 million more than it should and getting them from a US Defence Contractor, L3 Technologies, that has no track record of supplying this sort of aircraft; in effect a “super broker” eating up to $125 million of Kenyan taxpayer money. The allegations are yet to be substantiated, though the US Air Force has been accused of not cooperating with congressional investigations.

As previously mentioned, the US has castigated Kenya for not doing enough to tackle terrorist financing; Kenya remained for another three years on a Financial Action Task Force (FATF) watch list of countries failing to enact legislation to curb money laundering and other assorted financial crimes. The still unresolved scam at the National Youth Service, dating back to early 2016, showed 28 commercial banks failing to report cash transactions in excess of $10,000 to the Central Bank of Kenya’s Financial Reporting Centre, as required by laws designed to curb money laundering.

The administrative chaos and regulatory confusion in Kenya militates against the prevention of the sorts of criminal activity that has brought down Dubai Bank, Imperial Bank, Chase Bank, Tsavo Securities, Discount Securities, Loita Asset Managers, Ngenye Kariuki Stockbrokers, and others. Vast amounts of money have gone missing through clever manipulation of existing laws and regulations, lax and/or complicit GOK regulators, and an overburdened outdated judicial system.

Three years ago, 18 foreign heads of mission, including US Ambassador Godec, jointly issued a letter demanding that the government put its financial house in order by enacting laws and actually implementing its own legislation. However, no timelines were set nor any punitive action described.

In many ways, the conditions that allowed an Al Qaeda sleeper cell to destroy the US Embassy in 1998 have become even more favourable for Al Qaeda, Al Shabaab, ISIS, narcotics traffickers, poachers and international fraudsters. Yet this has seemingly had no effect on how American tax money is spent in Kenya. The only logical explanation is that the consistent and short-term protection of the [American] Homeland is the overarching priority of the US Government; Kenya is a sovereign country and what the natives do with our “training, assistance and advice” is really not something we can or should dictate. In any case the real dilemma is that Kenya – the government, the political class, the private sector and its mainstream media – is its own incubator of national insecurity and the situation can only get worse.

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Andrew Franklin is a former US marine, writer and security consultant based in Nairobi.

Politics

The BBI Case at the Supreme Court of Kenya – Day 3

What is at stake is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change.

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The BBI Case at the Supreme Court of Kenya – Day 3
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As with Day 2, the final day of the proceedings in the BBI Case before the Supreme Court of Kenya can be divided into three phases (watch here). In some ways, it was a microcosm of the entire hearing – and indeed, of the entire BBI case so far: in Phase One, the Respondents finished their arguments. In Phase Two, the bench put a series of questions to the Respondents. In Phase Three, the Appellants made their Rejoinder. This, then, concluded the hearing (read analysis of Day 1 and Day 2 here), and judgment was reserved.

Phase OneThe Respondent’s Arguments

Carolene Kituku advanced detailed submissions on the IEBC/Quorum issue, arguing – in particular – that when a judgment struck down a legal provision as unconstitutional, the default position was that the provisions so struck down were deemed to have been always unconstitutional, right from the moment of their enactment (and not from the date of the judgment). Now if these amended provisions were void ab initio and never came into force, it would follow that the original, pre-amended provisions were never actually replaced, and continued to hold the field in the interim period. Thus, when in the Katiba Insitute case it was held that amended paragraphs 5 and 7 of the Schedule to the IEBC Act were unconstitutional, it would follow that the pre-amended provisions for quorum – which the IEBC was in breach of – would continue to apply during the intervening period – and indeed – as Elisha Ongoya argued later in the day – would be applicable until either the declaration of unconstitutionality was set aside, or another, legally valid amendment, was enacted. Carolene Kituku also advanced submissions on why the popular initiative process failed to pass the threshold of public participation (insufficient time, the draft bill only on the internet, PDFs, and so on).

In his submissions, Elisha Ongoya pointed out that at this stage, the BBI case had received close attention from a dozen judges combined (five at the High Court and seven at the Court of Appeal), and their concurrent findings should, therefore, be treated with a modicum of deference; in particular, and in any event, factual findings (such as insufficient public participation) should not be disturbed. Following up on this argument, Elisha Ongoya argued that the High Court’s determination of the basic structure doctrine – and the four-step-sequential process – was rooted in a detailed analysis of the text, structure, and history of the 2010 Kenyan Constitution. Ongoya argued that the onus was on the Appellants to demonstrate, specifically, which of these considerations was wrong or irrelevant; however, they had not done so, choosing instead to attack the High Court in general terms, for having converted itself into a philosophical tribunal. In particular, on Article 89 (delimitation of constituencies), the High Court produced six specific reasons, none of which had been disturbed by the Appellants. Moving through the abstract and the particular (as he had in the Court of Appeal), he illustrated the very specific political and historical concerns around constituency delimitation that had necessitated the High Court to evolve the basic structure doctrine. He was followed up on this by Evans Ogada, who argued that by prescribing a procedure and a time limit for the IEBC to carve out these new constituencies, the BBI Bill fatally compromised the independence of this fourth-branch institution. The line-up on the Respondents’ side was finally completed by Dr John Khaminwa, who summed up the arguments in favour of the basic structure doctrine.

Phase Two: The Judges’ Questions

In my opinion, the brief half an hour around midday today was perhaps the most important part of the hearing; having heard the judges’ questions to the Appellants the day before, their questions to the Respondents perhaps indicated in the clearest manner what their concerns were, and what the issues were upon which the decision would finally turn.

On the basic structure, Ouku J asked whether the High Court and Court of Appeal had provided sufficient guidance to the citizens of Kenya for determining what the basic structure was; and further, was the four-step-sequential process to be found within the Constitution, or coming from outside. Wanjala J asked about the distinction between “amendment” and “alteration”: what meaning was to be given to the “disappearance” of the word “alteration” from the constitution-making process, and how might that word be revived, constitutionally. He also asked about the where the juridical form of the constituent power was located. Koome CJ wondered if Kesavananda Bharati had attained the standard of a municipal decision that could be taken to lay down “a general principle of international law” – and whether, indeed, it had informed the framing of Kenya’s own Constitution, in particular Articles 255 – 257. Sticking with the theme, Lenaola J asked where in Kesavananda Bharati it was said that the Indian Constitution has any “eternity clauses”. He then asked what – in my view – was the most important question of the hearing (I will examine the reasons for this below): given that Article 255(1) specified which entrenched matters had to go to a referendum for amendment Article 257(1), what were those matters outside Article 255(1) that might need to go to the primary constituent power for amendment?

On the IEBC and quorum, Ouku J asked what would happen to those acts that the IEBC had done while it was improperly constituted. Njoki J asked if the quorum requirements could be read into the Constitution – and if not, why did the Constitution provide a “minimum” and a “maximum” number for the composition of commissions. Wanjala J wanted to know what would happen if Parliament made a law for a three-member commission, and fixed quorum on that basis. Similarly, Lenaola J asked what the meaning was of Article 250(1) setting the minimum number at three (as no constitutional provision ought to be considered superfluous), and what – if any – acts the Commission could undertake with three members.

On public participation, Njoki J asked what specific steps the IEBC could have taken to reach ordinary Kenyans. And Koome CJ expressed a concern similar to the one she had expressed during Appellants’ arguments: was there something in the Constitution that could be used to determine the standards for public participation, even in the absence of express statutory framework?

Discursion: Thinking through Lenaola J’s Question

Before continuing with this post, I want to briefly think through Lenaola J’s question, as I believe it is fundamental to the case. The point is basically this: as the Appellants argued repeatedly, the Kenyan Constitution has a two-track process for amendment. The regular Parliamentary route on the one hand (Article 256), and then, for the ten entrenched subjects under Article 255(1), the public participation + referendum route under Article 257. Appellants argued that this two-track process was doing the same work that the basic structure doctrine was otherwise meant to do: it was identifying the basic features of the Kenyan Constitution, and then prescribing a more onerous, people-involved way of amending them, which approximated the primary constituent power.

This being the case, the obvious challenge for the basic structure doctrine is this: if you say that the basic structure of the Kenyan Constitution is the ten subjects under Article 255(1) (the supremacy of the Constitution, the territory of Kenya, the sovereignty of the People, etc.), then an immediate problem arises – given that there is a specific and express way to amend these subjects (Article 257), how then can the four-step process be simply superimposed upon this scheme? If, on the other hand, you say that the basic structure of the Kenyan Constitution is not in these ten subjects, then a whole host of other problems arise. What, for example, is even more fundamental or basic than sovereignty, or the bill of rights, or constitutional supremacy, that would need an even higher threshold of amendment than what is set out in Article 257? And how would you identify what those even more fundamental themes are?

So how does one answer Lenaola J’s question? I think there are two sequential (sorry!) responses. The first is to accept that the basic structure is (largely) located within Article 255(1) of the Kenyan Constitution (as the Court of Appeal, in fact, did) and not outside of it. However, here is the key: not every amendment to an Article 255(1) subject will trigger the basic structure doctrine and the four-step-sequential process. It is important to note here that the OG basic structure case – Kesavananda Bharati – never actually said that you cannot amend the basic structure. What it said – and this is crucial – is that you cannot damage or destroy the basic structure. And the distinction is significant: for example, amendments to Article 16 of the Indian Constitution setting out the modalities for affirmative action have passed the judicial scrutiny, even though they “amend” the Constitution’s equality code, which is unambiguously part of the basic structure.

So, even with respect to the subjects set out under Article 255(1), not every amendment will necessarily trigger basic structure scrutiny. Consider, for example, 255(1)(e) – the Bill of Rights. Article 24 of the Kenyan Constitution sets out the conditions for limiting a particular fundamental right. It follows familiar language – the nature of the right, the purpose of the limitation, etc. Now, suppose you wanted to amend Article 24 and make the language clearer – for example, incorporate into the Article, in express terms, the global proportionality standard that is now followed in many jurisdictions across the world. This would be an amendment to an Article 255(1) subject, and therefore trigger Article 257. However, it would not be damaging or destroying the basic structure in a manner that would trigger the primary constituent power, and the four-step-sequential process. Indeed, you can think of many ways in which the subjects set out under Article 255(1) could be amended (i.e., making language more precise, modifications to standards, adding standards, etc.) that would not trigger what we generally think of as basic structure scrutiny. On the other hand, if you were to repeal Article 24 altogether, and replace it with a provision such as: “All rights in this Part may be limited whenever the government deems fit in the public interest” – now that would be a basic structure violation that would go beyond Article 257 and trigger the four-step-sequential process.

This point is crucial, because it really does go to the heart of the case – the difference between amendment and repeal – and why the existence of the two-track process (as the Appellants argued) does not preclude the operation of the basic structure doctrine. This is because at the end of the day, the two-track process is concerned with amendment – whether of non-entrenched provisions (Article 256 route) or entrenched provisions (Article 255(1) + 257 route). The two-track process does not contemplate wholesale repeal of the Constitution (express or implied). It is for those situations that the primary constituent power and the four-step-sequential process is needed. Thus, there is nothing absurd about saying that one does not need to go looking for the basic structure outside of Article 255(1): the same sub-clauses under Article 255(1) might trigger either Article 257 or the four-step-sequential process, depending upon the nature of the change in the Constitution sought to be effected, and whether it genuinely amounts to an amendment, or whether it is a repeal. In other words, the key is not Article 255(1), but the nature of the change.

My second, brief point is that at the same time, one might hesitate to definitively say that Article 255(1) necessarily exhausts the basic structure. Arguments were made before the High Court and the Court of Appeal, for example, showing how the questions of boundary delimitation – given Kenya’s context and history – needed to be considered as basic structure questions (arguably this would come within sub-clause (g), but bracketing that for the moment). One can also think of a case such as Indira Nehru Gandhi v Raj Narain, for example, where a constitutional amendment that simply precluded a challenge to the Prime Minister’s election was invalidated by the Court. Again, this would arguably fall within 255(1)(d) (the rule of law) and (g) (independent of the judiciary), but it is possible to differ on that. In any event, I do not think too much turns on this point: I think it is also perfectly reasonable to finally and conclusively say as follows:

. . . the basic structure – as the Appellants correctly argue – is found in Article 255(1). But not every amendment to Article 255(1) triggers the application of the basic structure doctrine, the primary constituent power, and the four-step-sequential process. For the primary constituent power to be triggered, the amendment must be of such nature, extent, and consequence, that it amounts to an implied repeal of the Constitution or its basic structure. Thus, if you were to make a venn diagram, there would be a larger circle of amendments to Article 255(1) subjects, and a smaller circle – contained within it – of amendments that triggered the basic structure doctrine.

With respect to the judge’s questions, Nelson Havi argued that both the High Court and the Court of Appeal had correctly stated that to identify the basic structure, you would have to look at the context and history of each provision. For example, in order to understand why the independence of the judiciary was part of the basic structure, you would have to look at how the colonial judiciary was a department of the executive, and how and why it migrated from the State department to independent status. On the four-step process, Havi argued that it was not found within the Constitution, but a means of preventing constitutional death: it was found in the process that made the 2010 Constitution. Indeed, it had to be outside the Constitution because the primary constituent power was, by definition, primordial. On the distinction between “alter” and “amend”, Havi submitted that the reason for the change was precisely the flaws that had been discovered with the Independence Constitution providing for the means of its own “alteration”.

Esther Ang’awa then argued that quorum could not be read into the Constitution, as the Commission had to operate on the basis of both the Constitution and legislation (the two engines). This argument was supplemented by other counsel, who pointed out that “composition” was just for membership, whereas quorum was to transact business – thus, the two concepts remained fundamentally distinct.

On public participation, Carolene Kituku provided various ways in which it could have been secured (e.g., use of other media of communication, such as radio). She also made an interesting burden of proof argument. Flipping the question around – i.e., what evidence was there that public participation was insufficient – she asked, instead, what evidence had been produced by State organs to show that public participation had taken place. I believe that this question is correctly framed: because if public participation is a guaranteed right under the Kenyan Constitution, and if it is easier for the State to prove the affirmative (i.e., that public participation had been carried out), then to me it seems to follow that the initial evidentiary burden lies upon the State: until the State has produced satisfactory evidence that the public participation requirement has been fulfilled, the presumption ought to be that it has not (this flows from the fact that it is a right).

Finally, Topua Lesinko made the point that the judgments of the High Court and the Court of Appeal were different in crucial respects from Kesavananda: to continue with the running theme of the proceedings, while in Kesavananda the Court permanently shut out certain amendments from being made altogether, the High Court and Court of Appeal surrendered them to the primary constituent power without shutting them out. In my view, another way of putting it would be that Kesavananda puts substantive limits on constitutional amendments based on their content, while the High Court and the Court of Appeal placed procedural limits based on deepening public participation, so that the People could adequately determine when the content could be allowed to go through and when not.

Third Phase

The last segment of the hearing saw the rejoinder by the Appellants. I will focus here on the basic structure doctrine, as the rest of the arguments were addressed, but only briefly, and with arguments similar to those that have already been discussed previously.

On the subject of the basic structure, in closing, the Attorney-General’s legal team laid out the core of their case: that the basic structure constituted the foundational provisions of the Constitution. These were entrenched, and were to be found in Article 255(1). At the same time, the basic structure doctrine was an extra-constitutional doctrine that substantively limited the power of amendment. Thus, the Kenyan Constitution had a basic structure, but did not contemplate the basic structure doctrine. The Kenyan Constitution’s basic structure was protected not by the basic structure doctrine, but by the onerous amendment provisions under Articles 255 and 257.

The reason why the basic structure was located in Article 255(1) was to be found in the history of the constitution-making process. The People’s concern during the framing – as captured in the Constitution of Kenya Review Commission report – was how quickly and how fundamentally the Independence Constitution was amended. The CKRC then identified the People’s solution: a distinction between entrenched and non-entrenched provisions, with a stringent procedure being put into place for the amendment of the latter. This would safeguard the core of the Constitution. And that core was what was provided under Article 255(1).

The AG’s team argued that the basic structure doctrine was being deployed to obstruct the sovereign (i.e., the People’s) right to amend the Constitution under Article 257. In this context, there was no real difference between “amendment” and “alteration.” The contextual meaning of the word “amend” simply flowed from the ability of the sovereign to make or unmake anything, and that was the manner in which it was used in Chapter XVI of the Kenyan Constitution.

George Oraro SC then took up the baton. Speaking about the four sequential steps, he argued that what the High Court and Court of Appeal judges were trying to do was to revert to the original ratification procedure as a basis for legitimising the basic structure doctrine. But – according to Oraro SC, as I understood him – this, ultimately, was a futile endeavour: the power of making a Constitution was primordial and belonged to the People. By definition, it could not be regulated by a Court. The People had the right of reserving to themselves how they would use this power (e.g., Article 1(1)) – but even that could not stop them from coming up with a new method of creating or recreating a Constitution.

However, for now, the People had set out the route that they wanted to take, and that route was through Articles 255 and 257. The role of the Court, thus, was to ensure that those strict provisions for exercising the primary constituent power were very strictly followed: for example, sufficient participation, sufficient consultation. In essence, the role of the Court was to ensure that the right of the People to exercise their primary constituent power was protected. Oraro SC closed by stating that ultimately, it was the citizens – who were registered voters – who were holders of the primary constituent power, and it was this primary power that had been textualised under Article 257. This – thus – precluded the application of the basic structure doctrine.

As a closing remark of my own, I believe that this is as clear a statement of the case as it is possible to make. However, I am not entirely convinced that it responds to the core point: namely, that while the People indeed chose to constitutionalise the amendment to entrenched provisions under Article 257, that does not necessarily imply that said power carried with it the power of repeal or abrogation. Oraro SC’s argument assumes a conflation of that distinction, but in my respectful view, does not demonstrate it. It does not respond (in my view) to the independent arguments making that distinction, and showing why the primary constituent power is different from the power of amendment, and why – therefore – it must lie outside the Constitution.

Conclusion

The three days’ hearing before the Supreme Court saw arguments touch upon a wide range of issues crucial to both Kenyan constitutional law, and to comparative constitutional law in general. What is at stake (in my view) is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change. We will now wait to see the final fate of this case.

As Solicitor General Kennedy Ogeto said at the very end of the hearing, the judgment of the Court would be with Kenya for posterity. To that I will only add: it is also the kind of judgment that will echo in the annals of global constitutional law and thought for generations to come.

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The BBI Case at the Supreme Court of Kenya – Day 2

By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion.

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The BBI Case at the Supreme Court of Kenya – Day 2
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Day 2 of the BBI hearing (read analysis of Day 1 here) at the Kenyan Supreme Court (watch here) can be divided into three phrases. In the first phase, counsel supporting the appellants (i.e., broadly, the pro-BBI side) finished their submissions. In the second phase, the bench posed a series of questions to the pro-BBI side. In the third phase, the anti-BBI side (or, the Respondents) commenced its submissions. This typology is slightly reductive: for example, Mr. Isaac Aluochier, who argued in the first session, was against the basic structure doctrine, but was also against the BBI (for other reasons). Mr. Morara Omoke, who argued in the third session, was technically an appellant, as he had filed a cross-appeal on the question of single and multiple referendum questions. However, in the interests of sanity, this typology will have to do for the purposes of this post.

First Phase

The President’s legal team opened Day 2. SC Waveru Gatonye addressed the Court on the issue of Presidential immunity. Like his predecessors the day before, he focused on how the Kenyan Constitution contains inbuilt accountability mechanisms that are consistent with wide-ranging Presidential immunity from civil proceedings during the term of office. For example, wronged parties could sue the Attorney-General, and impeachment proceedings could always be launched. A bar upon suing the President during their term of office, therefore (for things done in the operation of their office) would not lead to impunity. Continuing on the theme of Presidential powers, SC Kimani Kiragu then argued on Presidential involvement in the Popular Initiative under Article 257: he argued that the sovereign People of Kenya had delegated a part of their authority to H.E. the President. Once that had been done, there could be no half-measures: the President must be deemed to possess all sovereign powers that had been delegated – including the power to initiate constitutional reform – unless there was an express limitation in the Constitution. In the context of Article 257, there was no such limitation. Readers will take careful note of this argument; as we shall see, it will become particularly important when contrasted with the Respondents’ submissions on this point.

Mr. Isaac Aluochier took the podium, to argue against both the basic structure doctrine and Presidential immunity. I want to flag one particular argument, as it was made before the Court of Appeal as well: that the basic structure doctrine is precluded by Article 1 of the 2010 Constitution of Kenya, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Mr. Aluochier argued that Article 1 is express authority for the proposition that there can be no “extra-constitutional defence mechanism” for the Constitution, such as the basic structure doctrine. However, as I have tried to show before, this argument proves too much: at all times, the phrase “this Constitution” presumes the existence of the Constitution under advisement, that is, the 2010 Constitution. However, the whole point of the basic structure doctrine is to prevent or regulate amendments that are of such a nature that “this Constitution” will no longer be “this Constitution”, as its fundamental identity has been altered. Thus, if the basic structure doctrine is otherwise correct, Article 1 does not refute it: when you say that sovereign power will be exercised in accordance with this Constitution, it already excludes situations where this Constitution is no longer this Constitution – which is the situation that the basic structure doctrine is meant to cover. To be clear: this is not an affirmative argument in support of the basic structure doctrine. It is, however, a defensive argument that demonstrates that whatever other arguments there might be against the doctrine, Article 1(1) cannot be pressed into service here.

Second Phase

In an interesting turn of events, the bench did not pose any questions to counsel while they were arguing; instead, in the second phase, each of the judges took turns in posing a series of questions. Counsel for the pro-BBI side were then granted three minutes each to respond to the questions most relevant to their brief.

Let us group the questions thematically. On the subject of the basic structure, Lenaola J asked what it meant to say that sovereignty was “extra-constitutional”. Njoki J wanted to know if the four-step sequential process was found anywhere in the Constitution. Smokin Wanjala J asked why the appellants located the Kenyan Constitution’s basic structure within Article 255 – and why believed that the basic structure doctrine was inapplicable in Kenya. On the popular initiative, Lenaola J asked if there was any global precedent for a President – or a President-like figure – being involved in something like a popular initiative. Njoki J asked if the President was authorised to move under a popular initiative in order to fulfil his constitutional functions (readers will note this question, as an interesting answer was provided during Respondents’ submissions). Smokin Wanjala J enquired why it was being argued that the popular initiative kicked in only after the collection of a million signatures – and not before. Koome CJ also asked about the initiation of the popular initiative, and whether the requirement of public participation required a legal framework or rules of procedure, to be instantiated. Finally, on the subject of distinct and separate referendum questions, Ouku J made the important point that while four judges in the Court of Appeal seemed to endorse the “thematic unity” approach to referendum questions (i.e., referendum questions within a single theme could be grouped together, but not from different themes), the final disposition of the Court of Appeal reflected the opposite holding. Lenaola J asked if it was correct to say that the question was not yet ripe, as the IEBC was yet to decide how to frame the referendum questions; and Njoki J wanted to know if – given that there was nothing express in the Constitution – whether the thematic approach implied inserting into the Constitution something that was not there.

Responses to these questions were along familiar and expected lines: counsel reiterated – or further explained – the positions they had taken, including the argument that the basic structure doctrine applies only when there is a parliamentary monopoly over amendments, that the Kenyan Constitution’s basic structure was identified in Article 255 and provision for its amendment set out in Article 257, that Kesavananda Bharati is inapplicable to Kenya, that the scope of public participation is expressly set out in Article 257, and varies with the stage of the popular initiative, that the referendum question issue was unripe. Most of these points were addressed in yesterday’s blog post, and I will not repeat the arguments here.

Let me, however, flag two interesting responses. One response came on the question of global precedent: apparently, in Lichtenstein, the Prince had proposed a series of constitutional changes through a popular initiative (including the power to appoint judges), which were eventually passed by a referendum. Now, it was undoubtedly fascinating to hear – for the first time – some comparative constitutional law from Lichtenstein! I do wonder about the appropriateness of the example, though: a Prince taking control of the judiciary through constitutional amendment doesn’t exactly feel like a particularly inspiring instance of the use of the popular initiative. Out of curiosity, I did some digging after the hearing: it appears that the Venice Commission strongly criticised many of the constitutional reform proposals for their anti-democratic character, for the reason that they would result in excessive centralisation of power with the monarch. If anything, therefore, the Lichtenstein example seems to show that letting a powerful head of State bring about constitutional reform through popular initiative is more a recipe for abuse than anything else!

The second response was on the basic structure. Perhaps for the first time, counsel bit the bullet, and told the Court that if, tomorrow, there was a constitutional amendment seeking to curtail judicial review itself, the Court could participate in the public discussion around it – but would have no power to invoke the basic structure to invalidate the amendment. Putting the point in such stark terms – i.e., telling the Court that it had no legal power to protect even its own existence from constitutional amendment under Article 257 – is undoubtedly a starkly honest – and rather bold! – argumentative technique. It remains to be seen how the Court will respond to the issue being framed in such categorical terms.

Third Phase

The third phase was kicked off by Mr. Morara Omoke’s team, which had filed a cross-appeal on the referendum questions issue, but ultimately launched a full-throated defence of the High Court and Court of Appeal judgments. Counsel responded directly to the Appellants’ Kesavananda point, noting that there was a key distinction between Kesavananda and David NdiiKesavananda expressly “locked out” a set of amendments altogether. The High Court and the Court of Appeal, however, were equally express that in principle, every provisions of the 2010 Kenyan Constitution – including its basic structure – could be amended (as I argued in yesterday’s post, this distinction is crucial, as it – in my view – tracks the contextual differences between the Kenyan and Indian Constitutions). Secondly, counsel argued that the purpose of the four-step sequential process was to deepen public participation in the amendments process. It is important to read the two arguments together. The first argument is an argument demonstrating the need for a different form of the basic structure doctrine in the Kenyan context; and the second argument is an argument demonstrating that the form chosen by the High Court and the Court of Appeal was justified: where the amendment process already provides a role for the People (the two-track process referred to by the Appellants), the basic structure doctrine can only exist to the extent that it deepens that role to a level commensurate with constitutional framing. That, in essence, was what – according to counsel – the High Court and Court of Appeal did, and that was why this particular form of the basic structure doctrine (i.e., the four-step sequential process) was justified in the specific context of Kenya.

Mr. Morara Omoke then advanced a series of arguments supporting the High Court and Court of Appeal: on the issue of IEBC quorum, that Article 250(1) mentioned that the composition of Commissions had to be a minimum of three – but that composition did not equate to quorum. Extending the argument – in terms somewhat similar to the constitutional statute point made in yesterday’s blog post, he took the example of the tax code: if – Mr. Morara Omoke argued – amendments to the tax code were struck down, would it be the case that the Code itself would be treated as repealed, leaving the entire domain unregulated? He argued that that could not be the case – and similarly, the striking down of Sections 5 and 7 of the IEBC Act Schedule could not lead to the conclusion that there was now no statutory regulation governing the functioning of the IEBC.

For the sake of completeness, this argument was carried forward later in the day by Ester Ang’awa, who pointed out that the IEBC was regulated by both the Constitution (Article 250(1)), and by statute (the IEBC Act) – both of which, together, functioned as two wings of a plane, and were necessary for it to continue flying. On the failure of one engine (the statute, parts of which were struck down), the plane could not simply run perpetually just on the other. Readers may here again spot similarities with the constitutional statute argument, without the term expressly being mentioned.

Finally, on the issue of referendum questions, Mr. Morara Omoke noted that he had written to the Court of Appeal after its judgment, requesting clarification on the apparent contradiction between the holdings and the disposition; he had a reply stating that there was no contradiction (pretty impressive due diligence!). Mr. Omoke then made the case in favour of the “thematic unity” approach. The case is, by now, a familiar one: a voter cannot exercise choice in any true sense if she is provided with a grab-bag of seventy-four constitutional amendments – some of which she may support and some of which she may oppose – and then asked to approve or reject all of them in an up-down vote. This is a specific problem when “sweeteners” that have nothing to do with constitutional reform are thrown into the mix with the specific intention of making the reform proposals more palatable.

The Respondents then formally opened proceedings, with Mr. Nelson Havi starting the case. His conceptual and theoretical arguments on the basic structure should – by now – be familiar; one important point to flag is that Mr. Havi affirmed that – by its very nature – primary constituent power must lie outside of the Constitution itself. This is a direct response to the argument – made by George Oraro SC the day before – that the 2010 Constitution had textualised the primary constituent power within Articles 255 and 257. Now, while this is true as a matter of constitutional theory, a more subtle point that the appellants had made remains: which is that the closer the amending process in a Constitution gets to the primary constituent power, the less role there is for judicial intervention through the basic structure doctrine. To this, Mr. Havi replied that the four-step sequential process was what provided the wedge between constitutional amendment and constitutional repeal. The four-step sequential process – which lay outside the Constitution – kicked in only when what was being attempted was constitutional repeal (express, or through necessary implication). Thus, no matter how close an amendment process came to approximating the primary constituent power, when what was being done was not an amendment at all, but a repeal, it became necessary to look outside the Constitution in order to find the power for such an action; because, recall – Mr. Havi argued – that the primary constituent power is the power to framere-frame, or repeal a Constitution, and must therefore lie outside of it.

On the involvement of the President in the popular initiative, Mr. Havi inverted the argument made by the Appellants: he asked, instead, where in the Constitution was the President granted the power to involve himself in the popular initiative process. This emphasises the point that I made in yesterday’s blog post: the popular initiative dispute is, at the end of the day, a dispute about how to interpret a constitutional silence, and will turn upon what the Court thinks is the purpose of Article 257. If the Court thinks that the purpose of Article 257 is to establish bottom-up direct democracy, it will exclude the President; if, however, it does not view Article 257 in that manner, it may not do so.

In the final set of arguments for the day, Elias Mutuma addressed submissions on Presidential involvement in the popular initiative – again, responding specifically to the appellants’ core point that in the absence of any constraining provision, the President should be deemed to have the power as part of the normal exercise of his constitutional rights. While it was true – Mr. Mutuma argued – that the People had delegated sovereign power to the President, it was important to note that what had been delegated was executive, not legislative power; thus, to the extent that the President wanted to legislate (and constitutional reform through the Popular Initiative was a form of legislation), he needed express authorisation under the Constitution. A constitutional silence, thus, would need to be interpreted against the President.

Mr. Mutuma went on to make a fascinating argument about the nature of the popular initiative, and when it could be deemed to commence. Under Article 257 – he noted – the People had to be involved with enacting the constitutional reform in question. This envisaged an active role for the People right from the beginning, and not simply a situation where the People were just given a constitutional reform proposal to endorse or reject. Thus, the mere fact that there was a reform proposal with one million signatures did not ipso facto mean that the requirements of Article 257 had been fulfilled.

I want to pause for a moment and reflect upon the deep roots of this argument in democratic theory. Article 257 of the Kenyan Constitution – as I’ve argued before – is a particularly important provision in how it seeks to infuse direct democracy into the constitutional amendment process. Direct democracy itself, however, can be of two kinds, depending upon whether the citizenry is to be treated as passive consumers of laws, or active participants in their enactment. In the former situation, the political elite continue to devise and frame the laws, with the “direct” role of the People being limited to (mostly) accepting them by acclamation, or (rarely) turning them down. In the latter situation, however, the involvement of the People is deeper, and begins from the moment of the devising of laws. Mr. Mutuma argued that Article 257 envisioned the latter conception of direct democracy, and this would have an impact (a) on the question of when the Popular Initiative could have been deemed to have begun, and (b) on the scope of public participation. Incidentally, it would also have an impact on the question of Presidential involvement: it is far more difficult to justify Presidential involvement if the purpose of Article 257 is to empower an active citizenry to play a front-stage role from the get-go. Top-down, led initiatives are in fundamental conflict with this vision of direct democracy.

Finally, Mr. Mutuma posed a hypothetical: if this was a pre-constitutional moment, and the 2010 Constitution was being submitted for ratification, would the procedure under Article 257 be deemed sufficient? He argued that it would not, and that was why the four-step sequential process – which provided for a deeper and more sustained level of public participation – was justified. Arguments for the day were then concluded by Caroline Jerono, who argued that as all the terms in Article 257 (Bill, Amendment, Suggestion) were in the singular, it was a strong indication in favour of the thematic unity approach to referendum questions.

Conclusion

This brings us to the close of day 2 of the hearings. By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion. Tomorrow should bring the curtains down upon the case, and leave us with a clear sense of the issues on which this case will finally turn.

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The BBI Case at the Supreme Court of Kenya – Day 1: Some Observations

Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it.

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Katiba 2010 and the Power of “We the People”: A New Account From Kenya
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Today, arguments commenced before a seven-judge bench of the Supreme Court of Kenya in Attorney-General v David Ndii and Ors, popularly known as “the BBI Case.” On this blog, I have covered in some detail the progress of this case, including the judgment of the High Court (see here), the oral arguments at the Court of Appeal (see here), and the judgment(s) of the Court of Appeal (Part 1Part 2Part 3Part 4). Because of the issues that it raises – about the limits of the constitutional amending power, public participation in popular initiatives, the conduct of referenda and the framing of referenda questions, the role of fourth branch institutions, and presidential immunity, to name just a few – the BBI Case is not only hugely significant for Kenya and for Kenyan constitutionalism, but also for global and comparative constitutionalism more generally. The three-day argument this week is now the final round, and the Supreme Court’s judgment will be the last chapter of this story.

Oral proceedings before the Kenyan courts are broadcast live, and can be watched all over the world. Over the next three days, therefore, I will post summaries of the day’s arguments in the case, with some analysis (if applicable). A quick disclaimer: I am now formally a part of the proceedings, having submitted an amicus brief to the Supreme Court of Kenya, supporting the correctness of the High Court and Court of Appeal judgments.

The Basic Structure

Recall that the BBI Bill [“the BBI”] is a set of seventy-four proposed amendments to the Kenyan Constitution. Both the High Court (5-0) and the Court of Appeal (6-1) struck down BBI on the ground that it violated the Kenyan Constitution’s basic structure. The High Court held (5-0) – and the Court of Appeal confirmed (4 – 3) – that the basic structure could not be amended through the procedures set out within the Kenyan Constitution itself, under Articles 255 – 257 (“the secondary constituent power”). Rather, the basic structure could only be amended through a process that recreated the conditions under which the Kenyan Constitution of 2010 was framed (“the primary constituent power”). This required a sequential four-step process – civic education, public participation, a Constituent Assembly, and a referendum.

Before the Supreme Court, this finding was under challenge by the Appellants and the supporting Respondents, most of whom argued today. In my opinion, the clearest and most lucid statement of the Appellants’ case can be reconstructed by studying the combined oral arguments of the Solicitor-General and – after him – George Oraro SC. Put simply, the argument is this: the mischief that the High Court and the Court of Appeal were seeking to remedy through the basic structure had already been identified – and then remedied – within the text of the Kenyan Constitution itself, specifically through Article 257 (the popular initiative).

The Solicitor-General noted that the core problem – that is, the problem of “quick and fundamental” amendments to a Constitution effectively eviscerating constitutionalism itself – was specifically recognised during the framing of the 2010 Constitution, and it was solved through the drafting of Articles 255 and 257. Where an amendment to a core feature (i.e., the basic structure, taken in a non-technical sense) was sought to be made, Articles 255 (that listed these core features) and 257 would kick in, which required a detailed process of public participation and – eventually – a referendum. In other words, the Solicitor-General argued that Article 255 and 257 were doing the same work that a basic structure doctrine was otherwise meant to do: that is, protect a Constitution’s core identity from majoritarian abrogation. The Kenyan Constitution did have a basic structure; it was contained in Article 255; and the procedure for its amendment was set out in Article 257.

The theoretical gloss upon this argument was put by George Oraro SC, who argued that what the High Court defined as “primary constituent power” – i.e., the power of creation (or re-creation of a Constitution, as opposed to simple amendment) had been textualised within the Constitution itself, through Articles 255 and 257. Thus, when the Kenyan Constitution stated that for amending certain parts (set out under Article 255), the popular initiative process of public participation and referendum (under Article 257) had to be followed, it was effectively providing an internal, constitutional route for the exercise of primary constituent power. And both the Solicitor-General and Oraro SC noted that with this two-track procedure of amendment, which reflected the exercise of primary constituent power, there was no need of a basic structure doctrine, as the two were effectively meant to do the same thing.

Echoes of this argument were made by various counsel through the day. Counsel for the National Assembly specifically argued, for example, that the basic structure doctrine – as it judicially originated in India – was not meant to be a limitation on constitutional amendments per se, but on parliamentary monopoly over constitutional amendments (an argument repeated by counsel for the Senate as well as counsel for the 74th Respondent). Where Parliamentary monopoly had already been taken away by the constitutional text – and indeed, taken away in favour of direct participation by the people – there could be no place for the basic structure doctrine.

One notes a subtle – but unmistakable – shift in the Appellants’ arguments from the Court of Appeal (and indeed, in response to the Court of Appeal’s judgment(s)). In the Court of Appeal, it was straightforwardly argued that Articles 255 – 257 provided a self-contained code that explicitly contemplated the amendment of every provision of the Constitution; now, it was argued that conceptually, Articles 255 – 257 were encoding primary constituent power (or something like it). This shift is expressed most clearly in Oraro SC’s argument that amendment procedures in a Constitution are best understood upon a spectrum; and – on this spectrum – the closer that an amendment process is to the exercise of primary constituent power in its design, the less scope should there be for judicial intervention via the basic structure doctrine.

I want to use this idea of the spectrum as the springboard for a few brief comments.

I think Oraro SC’s insight that amendment procedures are best understood along a spectrum that goes from Parliamentary monopoly at one end (India) towards primary constituent power on the other, is an important one. However – and this is crucial – in exactly the same way, the basic structure doctrine is also best understood along a spectrum, a spectrum that goes in precisely the opposite direction. The particular form that a basic structure doctrine takes in a particular jurisdiction is directly responsive to where, on the spectrum, that jurisdiction’s amendment procedures lie. So, in a jurisdiction like India, where there exists parliamentary monopoly over the amendment process, the basic structure doctrine takes a thick, substantive form, and is effectively a judicial veto over amendments (because that is the only way to protect constitutional identity from evisceration). On the other hand, in a jurisdiction like Kenya, where the amendment process creates space for the People, the basic structure doctrine takes a thin, procedural form, and the judiciary no longer exercises a veto over amendments. This was the fundamental point that – in my view – the High Court correctly grasped when it crafted a doctrine of the basic structure that was radically different from Kesavananda Bharati, precisely because the Indian and Kenyan Constitutions were at different places along the spectrum.

If we understand this, we are also in a position to re-formulate the argument made by counsel for the Senate and for the National Assembly. Thus, it is perhaps not entirely accurate to argue that the basic structure doctrine is limited to curtailing parliamentary monopoly over amendments. It is more accurate to say that the basic structure doctrine in its thick, substantive, judicial veto form is limited to curtailing parliamentary monopoly over amendments. However, as the judgments of the High Court and the Court of Appeal show, that is not the only basic structure doctrine that is on offer. The basic structure doctrine can take a form that is applicable to a Constitution where the amendment process incorporates elements of participation and democracy. This form will be thinner, it will be procedural, and the judiciary will take a more backstage role – exactly the features of the doctrine that the High Court did evolve (note that – contrary to Oraro SC’s submissions – this is not the first time this has happened. The basic structure doctrine in Bangladesh evolved at a time when the amendment process did provide for a referendum).

The Popular Initiative

The Appellants’ arguments on the popular initiative – and the question of whether the President could be involved in the popular initiative – were more familiar and straightforward. Textually, the Appellants (and their supporting Respondents) argued that there was no express bar upon the President’s involvement in the popular initiative process. Structurally, they argued that much like the President did not lose their other constitutionally guaranteed rights on becoming President (such as the right to vote), there was no justification for denying them the right to political participation through involvement in the popular initiative. Historically, they argued that Article 257 – the popular initiative – was meant to curb Parliamentary monopoly over the amendment process. Purposively, they argued that Article 257 was meant to address situations where a President who had been elected on a platform of constitutional reform was stymied by a hostile or recalcitrant Parliament. On a combination of all these arguments, they therefore submitted that Article 257(1) ought to be interpreted liberally: that is, the words “an amendment to this Constitution may be proposed by popular initiative” should be read to mean “an amendment to this Constitution may be proposed by any person by popular initiative. . .”

Readers will note that these are – more or less – the arguments that were made before the Court of Appeal, and have been discussed in previous posts. As I have argued earlier, the interpretation of Article 257 depends, ultimately, upon the interpretation of a constitutional silence. Article 257 neither permits nor prohibits Presidential involvement in the popular initiative. The question, however, is whether Presidential involvement is consistent with a provision that seeks to encode bottom-up direct democracy as a method of constitutional amendment. In other words – and there is an interesting tension here between the Appellants’ arguments on Presidential involvement on the one hand, and their argument that Article 257 encodes primary constituent power on the other – will the political agency that Article 257 seeks to provide to the People be fatally undermined by allowing the process to be taken over by the State’s most powerful public official? If the answer to that is “yes”, then the structural argument falls away; and as to the historical and purposive arguments, it is equally plausible to argue that a recalcitrant Parliament standing in the way of the President is precisely the point: the very purpose of separation of powers – and of distributing power among different branches of government as opposed to concentrating them in one – is to prevent unilateral decisions, especially on matters as significant as constitutional reforms of basic principles.

It is also perhaps important to flag arguments on the issue of whether different referendum questions could be lumped together into an omnibus bill, whether different questions would have to be put separately to the People (the High Court judgment), or whether the “unity of theme” approach should apply (Court of Appeal judgment). Other than the familiar, Oraro SC made the (I believe) new argument that prescribing how the referendum should be carried out wasn’t a task for the judiciary at all; rather, the issue would have to be governed by rules prescribed by Parliament, and by legislation (in this case, the Elections Act). However, Oraro SC also went on to argue that the Court could step in if the referendum was carried out in contravention of the Constitution. This – in my submission – potentially cuts out the legs from under the argument, because the import of the High Court and Court of Appeal judgments is precisely that a referendum in which disparate issues are shoe-horned into a straight up-down vote is unconstitutional. The before/after distinction, therefore, falls away.

The IEBC and the Quorum

The Independent Electoral and Boundaries Commission addressed submissions at some length on the question of whether or not the IEBC had quorum to carry out the BBI process. As in the Court of Appeal, the argument turned on a technical point about the consequences of a judgment striking down a legal provision, and its operation in rem (i.e., against the world at large). In brief, the IEBC argued that at the time the BBI case was being heard in the High Court and in the Court of Appeal, a prior judgment of the High Court had already struck down Sections 5 and 7 in the Second Schedule of the IEBC Act (which had altered the quorum requirements of the IEBC). The effect of this striking down – the IEBC argued – meant that these amendment provisions were gone altogether, and the previous provisions – which they had replaced – were also gone. Thus, there was no law governing the question of quorum anymore, and the position reverted to the default under the Constitution (see Article 250(1)), which was a quorum of three (this was fulfilled).

While the Court of Appeal judgment(s) addressed this point at some length, I believe one important addition to the discussion is the idea of a constitutional statute. Certain constitutional rights cannot be implemented directly, but need an institutional framework for effective implementation. A classic example is the right to vote, which is meaningless without an independent election commission. A constitutional statute is a statute that creates the institutional framework that is necessary to implement a constitutional right. Now, the crucial point is this: as long as a constitutional statute has not been enacted, the State is arguably in breach of its positive obligation to fulfil constitutional rights; but also, there is no real remedy, as the Court cannot force the State to legislate. However, once a constitutional statute has been enacted, there is arguably a bar on the State from then affirmatively going back to the pre-statute position where the right in question was unprotected (think of it like the principle of non-retrogression): because to do so would be a judicially reviewable breach of the State’s constitutional obligations. To take an example: having passed a voting law and set up an independent election commission, it would then be unconstitutional for the State to repeal the law and erase the Commission altogether (unless it proposed an equally efficacious statutory framework for fulfilling the right to vote).

I think that similar logic applies to the IEBC issue. If the Appellants’ arguments are to be accepted, then the consequence of a judicial striking down of amendments to the IEBC Act is not simply that the amendments are gone, but that the statutory regulation of that sphere (in this case, the quorum requirements for the IEBC to function) is gone altogether, sending us back to a situation where no legislative framework holds the field. For the reasons I have advanced above, I think that a better route is the route taken by the High Court and the Court of Appeal.

Conclusion

Towards the end of the day’s hearing, James Orengo SC noted that once the People had clearly established the route by which they wanted to enact amendments to the Constitution, the Court should be slow to interfere; and doing so might “prompt Kenyans to find other paths to reach their desired goals.” This formulation, in my view, represents the fundamental wedge in this case. Orengo SC’s critique – which he termed as judicial usurpation – would be undoubtedly accurate if the High Court and the Court of Appeal had actually “usurped” the power of amendment – i.e. established a judicial veto over constitutional amendments, based on their substantive content. However, it is questionable whether the High Court and the Court of Appeal did that. Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it. That process was anchored (by both Courts) in the re-creation of the conditions under which the Constitution was enacted: i.e., public participation in a deep sense, going beyond what is provided under Article 257.

It will now be interesting to see how the Respondents argue these points in the coming two days.

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