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THE DEBACLE OF 2007: How Kenyan Politics Was Frozen and an Election Stolen with US Connivance

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About 10 years ago, I was preparing to move with my family to Nairobi from the United States just as Kenya was well into the 2007 election campaign. Although I was taking up a temporary job in “democracy assistance” as the resident director for East Africa of the non-governmental International Republican Institute, I was told to expect limited duties specific to the upcoming election.

My job was to step in to manage the office and supervise a small set of ongoing programmes, primarily one involving the training of women and youth in skills to run for office. We were also wrapping up a programme for the State Department training Muslim women regionally for increased political participation and had an agreement with the United States Agency for International Development (USAid) to conduct polling that had started with an exit poll for the 2005 referendum. We had done a survey that spring and would finish the programme with a survey early that fall, before the presidential race went into the home stretch.

I was on six months’ “public service leave” from my job in the States as a lawyer for a Fortune 50 American defence contractor and had previously been a volunteer trainer for IRI in Mongolia late in the Clinton administration and an election observer in Kyrgyzstan in 2005. 

HITTING THE GROUND

My first week in Nairobi, I accompanied the consultant I was replacing to meet most of the presidential candidates to privately brief them on the results of our most recent opinion survey, our next to last in the programme. We also called on US ambassador Michael Ranneberger, who expressed his desire to have IRI observe the upcoming election, which my predecessor had been telling me Ranneberger wanted. Any plans for such an observation mission had been disclaimed in Washington the week before, and I had trouble getting anyone back in the home office to take the idea seriously, as they confirmed with USAid that an observation mission was not in the works.

The paperwork with USAid for our public opinion and exit poll programme from 2005 unsurprisingly expressed the agency’s concern about the negative trends that had materialised from the seemingly promising democratic breakthrough in the 2002 vote

In preparing for my democracy assistance posting, I had naturally read up on the stillbirth of the promised constitutional reform in the failed “Wako Draft” constitution following the 2002 “Rainbow Coalition” leading to the rise of the Orange Democratic Movement and Kibaki’s purge of his erstwhile anti-Moi allies of the 2002 opposition. I also read up on the recent scandals. Of particular concern, of course, were the Anglo Leasing scams involving corruption in important national security acquisitions revealed by John Githongo who was subsequently blocked from carrying forward as “Anti-Corruption Czar” in the Kibaki administration and went into exile in London. Then there was the 2006 raid, only a year old then, on the Standard newspaper and the KTN television studios, which evoked the “bad old days” of single-party rule and a tightly controlled press and drew condemnation from the diplomatic community, including the US ambassador at the time, Mark Bellamy. The related “Armenian Brothers” circus made Kenya’s security operations look profoundly compromised by criminals. The paperwork with USAid for our public opinion and exit poll programme from 2005 unsurprisingly expressed the agency’s concern about the negative trends that had materialised from the seemingly promising democratic breakthrough in the 2002 vote in which opposition politicians united to support Kibaki against Moi’s choice of his predecessor Kenyatta’s unheralded son Uhuru.

THE AMBASSADOR WAS SURPRISINGLY UPBEAT

Given this background, I was surprised to find Ranneberger seemingly quite upbeat about the state of things under Kibaki as the campaign started to jell for the upcoming election. He made it clear that he wanted IRI to conduct a blue ribbon election observation mission to feature an “African success story.”

My first public event at the embassy residence in the posh Muthaiga neighbourhood was the US Independence Day celebration. The guests of honour were internal security minister John Michuki, representing President Kibaki, and Uhuru Kenyatta, as “the leader of the official opposition.” Michuki featured in my mind for taking credit for the infamous Standard raid on behalf of Kibaki, saying to the media house, “If you rattle a snake, you should expect to be bitten.” “Retired” president Moi, although not in the official receiving line, planted himself front and centre to prominently greet guests. Michuki spoke about his recent “security co-operation” visit to the United States. Vice president Moody Awori was also introduced, but Michuki rather than Awori represented Kibaki.

So the diplomatic tenor had changed for some reason, at least in the approach of the ambassador, who had arrived in mid-2006, although I was perhaps slower than I should have been in fully appreciating the difficulties this would entail for me as an NGO worker engaged in democracy assistance, especially faced with an assertive ambassador who did not formally control our USAid agreement out of Washington, which at the time still involved only the polling and was scheduled to wrap up with a survey in September. 

PROCEEDING TOWARDS DISASTER

In August, our office had a distinguished visitor from our board of directors, the late ambassador Richard Williamson, an especially well liked senior figure within IRI. “Rich” took the occasion to visit our Kenya programme while waiting in Nairobi for his visa to Khartoum to travel on to Juba in Southern Sudan. President Bush was to announce his appointment soon as his new Special Envoy to Sudan and we used the time to take him to meet Raila and Kalonzo as the ODM and ODM-K leaders along with a minister or two, and called on ambassador Ranneberger. Ranneberger again said that he wanted IRI to observe the election. Based on this, Rich was persuaded that we would be doing an observation and afterwards we proceeded to discuss who should be recruited as lead delegate. Rich and my boss who had come out from Washington with him arrived at the idea of Lloyd Pierson, a former IRI Africa director who had been the immediate past USAid assistant administrator for Africa. When I pointed out that I recalled seeing a favourable quote by Pierson in one of Raila’s campaign brochures, that idea was nixed. Neither of them had other specific suggestions at the time.

By October the surveys were showing what I sensed to be the conditions ‘on the ground’ — the opposition under the Orange Democratic Movement had put together in its six-member Pentagon’ a broad enough multi-ethnic coalition, building upon the momentum from the unrequited reformist sentiments from 2002, to have a plurality in a divided electorate

Following up afterwards with the USAid Mission, they now said they would “move heaven and earth” to meet the ambassador’s wish to fund an election observation mission. Likewise, USAid wanted to extend our polling programme — which started with the exit poll for the 2005 Constitutional Referendum — with an exit poll for the 2007 election. Although I knew that the ambassador was expressing confidence in “an African success story,” expecting a “free and fair” election, and expecting Kibaki to win, USAid told me that the intent of the exit poll, as with the one we had done in 2002, and on this contract in 2005, was among other things to deter election fraud and this was confirmed in our amended agreement.

To cut a long story short, by October the surveys were showing what I sensed to be the conditions “on the ground” — the opposition under the Orange Democratic Movement in the form now of the ODM Party had put together in its six-member “Pentagon” a broad enough multi-ethnic coalition, building upon the momentum from the unrequited reformist sentiments from 2002 and the successful blocking of the insufficient Wako Draft, to have a plurality in a divided electorate. Kibaki was very slow to assent to the start of his re-election campaign and conveyed a vibe that it was beneath him to do such “retail politics.” Formally, Kibaki was the Member of Parliament for Othaya from the Democratic Party, his vehicle since Moi gave in to pressure from activists and politicians like Odinga to allow non-Kanu parties in 1992. Kibaki had not seemed to want to run as a DP candidate, nor was he willing ultimately to join NARC-Kenya, whose leaders considered themselves the rightful heirs to the 2002 NARC vehicle. The NARC party papers themselves were controlled by Charity Ngilu, a 1997 presidential candidate herself who departed to become the sixth member of the ODM Pentagon. Eventually, Kibaki gave the nod to a new hybrid formation as a re-election vehicle, the Party of National Unity, PNU, both a party through which Kibaki sought re-election to the Othaya seat, and a coalition of various parties associated with politicians in ethnic groups — in other words, a gambit to match up and compete with the regional/ethnic Pentagon.

According to a report published by the US Congressional Research Service in February 2008, during the post-election crisis, by the early fall of 2007, Kibaki’s key aides were admitting to their analyst that Kibaki was not going to win the vote. This was supported by the surveys showing a persistent opposition lead. Unlike today, the election then retained the “first past the post” system that had allowed Moi to claim re-election with 40% or less of the vote, officially, in 1992 and 1997. Odinga was consistently polling well shy of a majority but ahead of Moi’s 1992 and 1997 numbers, with Kibaki trailing by a few points. As the election date closed in, the race tightened a bit, but the scenario did not reverse, and then ODM opened up a bit more of a lead. Although at the last minute the Gallup organisation of the US came in and did a late poll showing Kibaki trailing by only two points in the national vote – this was trumpeted by Ranneberger as showing the race as “too close to call” – the firms regularly polling the race continued to show Kibaki trailing beyond the margin of error. This included both the reputable Steadman and Strategic pollsters that had had a long relationship with the USAid IRI programme dating back to its inception in the 1990s, including the exit polls from 2002, 2005 and again for 2007.

According to a report published by the US Congressional Research Service in February 2008, during the post-election crisis, by the early fall of 2007, Kibaki’s key aides were admitting to their analyst that Kibaki was not going to win the vote

POLL OBSERVATION ON A SHOESTRING

When we got the agreement from USAid for the election observation, funded at a shoestring amount at the end of the fiscal year, USAid had included descriptions by prior job description of various individuals that the ambassador had mentioned previously that he wanted to have invited. These IRI ignored in preparing for our independent observation as an NGO subject to an international code of conduct for independent election observation. As USAid’s right to “substantial participation” in return for their funding, the agreement stipulated its approval of IRI’s “lead delegate/s,” and it repeated the ambassador’s desire for former assistant secretaries of state Chester Crocker and Connie Newman. Ranneberger had worked under Crocker on Angola issues during the Cold War and Newman had served briefly in that role in the first George W. Bush administration, during which time Ranneberger had been her deputy. IRI disagreed with USAid’s right to approval of this appointment as a violation of our independence but did invite Crocker and Newman. Crocker was unavailable but Newman, also an IRI board member, accepted. IRI also invited former ambassadors to Kenya Johnnie Carson and Mark Bellamy. Ranneberger in a call to me well ahead of the election had said that Carson “would not be a good idea,” and that Bellamy should not be included as he was “considered to be anti-government.”

Carson, who was at the time serving as the Africa director for the Office of the Director of National Intelligence had to decline, whereas Bellamy was scheduled to participate. On Thursday, December13, 2007, two weeks before the election, I got a call from USAid and was asked to fax our final delegation list — due to be released from IRI in Washington that day – to a number for the ambassador. After sending the fax, I was driving to lunch with my wife and a friend, the spouse of another US NGO worker who had been a Carter Centre election observer in another recent African election and had volunteered to help. I received a call from the ambassador who loudly chewed me out to the point that I had to pull over and step out on the roadside. Ranneberger was incensed that we had Bellamy on the list, and said that he was “laying down a marker” that this was not to happen. He said he did not want to hear that it was a decision from my Washington office as he was holding me “personally responsible as the person on the ground.” If we did not drop Bellamy he would pull the funding for the observation mission, adding that I should not doubt that he could do this.

Arriving in Dagoretti for lunch, I phoned Washington and my USAid contact in Nairobi. Long story short, IRI’s president at the time, who had been assistant secretary of state for democracy, human rights and labour himself during the first G.W. Bush Administration, called then assistant secretary of state Jendayi Frazer to tell her, as he reported, “to get her ambassador under control,” then, on arriving in Thailand for Christmas and Burma meetings, called Ranneberger directly. As a result, I was told to expect that Ranneberger would ask to meet me, and that Bellamy was reluctantly dropped (with a cover story that IRI was not able to secure his plane ticket) but that I was to accept “no more BS” from the ambassador.

The next day, as I was leaving the polling firm, I got a call asking me to come meet the ambassador at his residence the next afternoon. So on Saturday afternoon, December 15, 2007, I drove to the embassy residence in Muthaiga. As it turned out, the purpose of the meeting was more substantive than just smoothing things over after the arm-twisting on Bellamy. I will explain a couple of salient points from this meeting that remain to me significant in trying to learn what happened with the election 12 days later.

I received a call from the ambassador who loudly chewed me out to the point that I had to pull over and step out on the roadside. Ranneberger was incensed that we had Bellamy on the observer mission list, and said that he was “laying down a marker” that this was not to happen. He said he did not want to hear that it was a decision from my Washington office

To start, Ranneberger elaborated on the importance of removing Bellamy from the delegation because of the notion that he was perceived as “anti-government,” obviously meaning anti the Kibaki administration. When Ranneberger had originally raised this objection as Bellamy earlier in the month, I had asked for input from our Kenyan programme staff who reported that this did not seem to be Bellamy’s general reputation in Kenya and IRI staff had checked this with State Department contacts in Washington and found no support for that view there either.

Ranneberger did let me know that he knew what Bellamy had been told about why he had been dropped from the delegation. In other words, he was letting me know, without taking responsibility for the situation himself, that he knew that “we” at IRI had lied to Bellamy. IRI was in a difficult situation not of our making on Bellamy; would we cancel the election observation (as the only international NGO scheduled to observe, this would raise lots of questions we could not answer) or let the ambassador interfere with our delegation? Regardless, once the directive from the top was given to lie to Bellamy about why he was off the list, IRI no longer had completely clean hands.

Another thing in particular stands out now from that meeting in light of what I later learned through Freedom of Information Act requests to the State Department after I returned to the US.

The ambassador told me that Saturday that “people are saying” that Raila Odinga, ahead in the polls for president as the vote was nearing, could lose his own Langata parliamentary constituency (which under the existing system would disqualify him from becoming president even if he got the most votes nationally). This was “out of the blue” for me because I certainly was not aware of anyone who thought that. Odinga’s PNU opponent Stanley Livando had made a big splash and spent substantial money when he first announced his candidacy, but he had not seemed to get obvious traction in the race. Naturally, I wondered who the “people” Ranneberger was referring to were. Ranneberger said that a Raila loss in Langata would be “explosive” and that he wanted to take Ms Newman with him to observe voting there on election day.

Ranneberger also went on to say that he wanted to take Ms Newman separately to meet with Kibaki’s State House advisor Stanley Murage on the day before the election, with no explanation offered as to why. I reported all this by e-mail to Washington.

Ranneberger in Nairobi made no disclosure of what he had witnessed but encouraged Kenyans to accept the results announced by the ECK that Sunday and formal congratulations were issued from a State Department spokesman back in the US

Alarm bells went off at IRI’s Washington headquarters when they received my e-mail. I noted Murage’s reputation as “Kibaki’s Karl Rove” (he was also referred to by a former diplomat as “Kibaki’s bagman”). After people were back in the office that Monday, I was called by the top executives present in Washington (in the absence of the then-president in Thailand) in the wee hours of the morning my time. I was instructed that it was imperative that the private meeting with Murage – “absolutely improper” – not take place. Connie was to stay with the rest of the delegation and not go off separately with the ambassador on election day or otherwise. I was given the option to “pull the plug” on the observation mission based on the concerns about Ranneberger’s approach. The ambassador, rather than either IRI or USAid, had initiated the observation mission in the first place, and IRI was heavily occupied with other, larger observations. Nonetheless, based on assurances that Ms Newman would be fully “on board” in our agreement, that she would steer clear of separate interaction with the ambassador and that the Murage meeting would not happen, and my belief that it would be an “incident” in its own right to cancel the observation, we agreed to go forward with precautions.

A SEPARATE LAST-MINUTE POLL OF THE LANGATA PARLIAMENTARY RACE

I got the idea of commissioning a separate last-minute poll of the Langata parliamentary race. I thought that the notion that Livondo would beat Odinga in Langata seemed farfetched, but objective data from before the vote could prove important. I also made sure that we scheduled an “oversample” for Langata for the national exit poll so that we would have a statistically valid measure of the actual election day results in the parliamentary race.

On to the Freedom of Information releases: On Tuesday, December 18, a Ranneberger cable went to the Secretary of State entitled “Kenya Elections: State of Play on Election.” This cable says nothing about the “explosive” Langata parliamentary race issue that Ranneberger had raised with me on Saturday, three days earlier. It concludes: “Given the closeness of the election contest, the perceived legitimacy of the election outcome could determine whether the losing side accepts the results with minimal disturbances. Our staff’s commendable response to the call for volunteers over the Christmas holiday allows us to deploy teams to all sections of the country, providing a representative view of the vote as a whole. In addition, our decision to host the joint observation control room will provide much greater access to real-time information; allowing a more comprehensive analysis of the election process.”

Next, we have a cable from Christmas Eve, December 24, three days before the election. First thing that morning, the IRI observation delegates were briefed on the election by a top Ranneberger aide. I told him then that we had commissioned the separate Langata poll. He said that the ambassador would be very interested, and I agreed to bring results with me to the embassy residence that evening when the ambassador hosted a reception for the delegation. The results showed Odinga winning by more than two-to-one.

In this cable from the day he learned about our Langata poll, unlike the one on December 18, Ranneberger added a discussion of the Langata race:

“11. We have credible reports that some within the Kibaki camp could be trying to orchestrate a defeat of Odinga in his constituency of Langata, which includes the huge slum of Kibera. This could involve some combination of causing disorder in order to disenfranchise some of his supporters and/or bringing in double-registered Kikuyu supporters of the PNU’s candidate from outside. To be elected president, a candidate must fulfil three conditions: Have a plurality of the popular vote; have at least 25% in 5 of the 8 provinces; and be an elected Member of Parliament. Thus, defeat of Odinga in his constituency is a tempting silver bullet. The ambassador, as well as the UK and German ambassadors, will observe in the Langata constituency. If Odinga were to lose Langata, Kibaki would become president if he has the next highest vote total and 25% in 5 provinces (both candidates will likely meet the 25% rule).

12. The outside chance that widespread fraud in the election process could force us to call into question the result would be enormously damaging to US interests. We hold Kenya up as a democratic model not only for the continent, but for the developing world, and we have a vast partnership with this country on key issues ranging from efforts against HIV/Aids, to collaboration on Somalia and Sudan, to priority anti-terrorism activities.

. . .

14. As long as the electoral process is credible, the US-Kenya partnership will continue to grow and serve mutual interests regardless of who is elected. While Kibaki has a proven track record with us, Odinga is also a friend of the US . . .

15. It is likely that the winner will schedule a quick inauguration (consistent with past practice) to bless the result and, potentially, to forestall any serious challenge to the results. There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable. The courts are both inefficient and corrupt. Pronouncements by the Chairman of the Electoral Commission and observers, particularly from the US, will therefore have be [sic] crucial in helping shape the judgement of the Kenyan people. With an 87% approval rating in Kenya, our statements are closely watched and respected. I feel that we are well-prepared to meet this large responsibility and, in the process, to advance US interests.” END

None of this material about a possible scheme to steal the election in Langata — or the notion that being “forced” to question the election result would be “enormously damaging to US interests” was mentioned in the briefing to the observation delegation or to me that Christmas Eve. Weeks after the election, the Standard newspaper ran a piece reporting that the original plan of the Kibaki camp had been to rig the Langata parliamentary race, but at the last minute a switch was made to change the votes at the central tally, supposedly on the basis of the strength of early returns for Odinga in Western and Rift Valley Provinces.

Ultimately, the election resulted in disaster, with at least 1,200 killed and half a million displaced in post-election violence after open rigging.

The Electoral Commission of Kenya had voted earlier in December, according to the subsequent report of the Kreigler Commission, not to use laptop computers that had been purchased as a key feature of the USAid-funded election assistance effort through the International Foundation for Electoral Systems. This decision was never explained and without the computers there was no way to quickly get verifiable results from the voting stations quickly to Nairobi.

The reality of the process was explained to me by a Member of Parliament during the post-election violence (PEV). He said that weeks before the election, when Kibaki had broken the crucial precedent first negotiated between the opposition and Moi back in 1997 to split the authority to appoint members of the Electoral Commission and unilaterally stacked the Commission with 19 of his own choices in the 21 spots, the political players recognised that the process was going to be a no-holds-barred scramble for power and all bets were off on rules.

Also that January, during the PEV, a third-country diplomat explained to me privately that his country had learned that ECK returning officers in key locations had been paid “life changing” amounts of money to turn off their cellphones and drop out of contract with Nairobi so that the vote totals under their jurisdiction could be “marked up” in Nairobi to increase the president’s votes for re-election (consistent with what Ranneberger described in his then-classified January 2, 2008 cable as discussed below). This diplomat explained that his country had discovered the bribery too late, supposedly, to do anything about it. One possible reason for the alleged bribery to be discovered so late would be that the scheme to mark up the central tallies was a last minute substitute for the “credibly reported” Langata scheme Ranneberger mentioned in his Washington cable of December 24 and his meeting with me on December 15.

I expected that the president’s men would learn that IRI had also undertaken the special poll of the Langata Constituency. After the stacking of the ECK, another fateful turning point seems to me to have been the deployment by the president’s re-election team of the Administration Police in the days before the vote. This was something we all witnessed on live television thanks to broadcast reporting from KTN, but which the government denied. The ambassador’s aide confirmed to our observation delegation that this deployment was in fact a use of government security resources for the president’s re-election. Two of the deployed AP officers were killed by mobs and it seems that the atmosphere of a physical power struggle rather than a contest of democratic persuasion ratcheted up that much more at that point.

The fact is that I never have been able to identify a time when Kibaki actually said in public during my time “on the ground” that he was actually willing to entertain losing the election and giving up office in favour of the opposition. Eventually, shortly before the vote, his foreign minister, Moses Wetangula (now in the opposition) said that such a willingness was there, but he seemed to be conspicuously speaking to foreign diplomats rather than to ordinary Kenyans. To this day, no incumbent president in Kenya has ever been found by election officials to have lost a re-election bid.

DONOR VS. DONOR: THE UNITED STATES AND THE EUROPEANS SPLIT

On Wednesday, January 2, 2008, Ranneberger cabled Washington about witnessing with the head of the EU Election Observation Mission, Alexander Graf Lambsdorf, the changing of the vote tallies at the ECK headquarters over the weekend before, leading to the announcement of a Kibaki win on the evening of Sunday, December 30, 2007. The cable, which was declassified and released to me in redacted form through the Freedom of Information Act, reports “[M]uch can happen between the casting of votes and the final tabulation of ballots, and it did.”

The ECK’s partial review of the irregularities was also of questionable credibility, given that all of the commission members were appointed by the Kibaki government, and a number of them were suspected of being clearly biased and/or involved in doctoring at ECK headquarters. The Chairman of the ECK, Samuel Kivuitu, who was widely respected, was surrounded by staff of uncertain reliability and competence. It is worth noting that parliamentary results were not disputed because they were tabulated and announced at constituency tabulation centres, thus allowing no interference at ECK headquarters.

Presidential results by polling station never were published. The suppressed media reporting of the election results that disappeared with Michuki’s broadcast ban did not resurface except for the admission by the owner of the Citizen network in parliament in December 2016 that the numbers had indicated an Odinga win

Kivuitu had only limited authority as head of the ECK. The ECK worked on a majority vote system. It is also important to note that the ECK was required by law to announce the results as received from the tabulation centres. Some obvious irregularities like reporting unrealistically high turnout or clearly altered results could be rejected. There was, however, only a rejection of the results in one constituency in which violence resulted in destroyed ballots. Other alleged irregularities, such as announcing results that ECK personnel personally inflated, should have been, could have been, but were not corrected. At one point Kivuitu told me that his concerns about the tabulation process were serious enough that “if it were up to me, I would not announce the results.” In the end, he participated with other commissioners in an announcement late on December 30.

My team and I, as well as the head of the EU observer mission, were at the ECK vote tabulation centre throughout the tabulation process, and aggressively intervened with Kivuitu and other commissioners and staff to work for transparency. Our judgement is that the tabulation process was seriously flawed but, without having direct access to polling station numbers and doing a polling-station based recount, it is impossible to determine which candidate actually received the most votes. We had consistently predicted a close election. There were accusations of serious irregularities with respect to about 20% of the 210 constituencies. Some ECK insiders have alleged that the purpose of the delay in announcing the results in some of the constituencies was to determine the true count and then rejig it in such a manner as to make up for gaps in the votes for Kibaki.

Announced results differed from results initially received by ECK from the tally centres. We have seen documents that illustrate this. In a close election, with Kibaki winning by about 230,000 votes, such irregularities may have been enough to make a difference.

Nonetheless, Ranneberger in Nairobi made no disclosure of what he had witnessed but encouraged Kenyans to accept the results announced by the ECK that Sunday and formal congratulations were issued from a State Department spokesman back in the US. Live broadcasting was shut down by order of Michuki. Eventually, I received on appeal of a FOI Act request originally from 2009 a copy of a document prepared by the State Department in Washington as “talking points” for the media on election day itself that “spins” an acceptance of an announcement of a Kibaki win with opposition objections.

European foreign ministries and diplomats in the meantime criticised what was obviously a highly irregular process with the suspect tallies and the hurried, secretive swearing-in of Kibaki. On Monday, the State Department changed position through its main spokesman in Washington, saying that “we are not congratulating anyone.” On Tuesday, New Year’s Day, the EU observation mission held a press conference and released its preliminary report, making clear that the election process had fallen “far short of key regional and international standards for democratic elections. Most significantly, they were marred by the lack of transparency in processing and tabulating presidential results, which raises concern about the accuracy of the final result in this election.” The EU observers and other Europeans called for remedial measures, including an immediate independent investigation and audit, with all results openly published. Ranneberger, however, instead of supporting the European calls for remedial action, was immediately promoting “power sharing” for Odinga with Kibaki instead.

The EU seemed to switch positions and come around to support the State Department’s posture, abandoning remediation in favour of “power sharing.” In that time of heightened sensitivity, trying to decipher what was happening, I tied this contemporaneously to reports that secretary of state Condoleezza Rice called EU head diplomat Javier Solano on Thursday, January 3. My 2009 FOI Act request for documents related to that call identified that there was such a document but it was classified and remained too sensitive to release in any form at all. I appealed to no avail, and then last year submitted a request for Mandatory Declassification Review, which was also denied on the same grounds. My latest appeal of that decision has been pending for a few months now.

Many years later, a former senior diplomat was willing to tell me that the US policy was not to assist Kibaki over Raila, and that the US expected consistent relations going forward either way — which fits with the pre-election Nairobi to Washington cables I had got from FOI — but that the policy was to support whatever the ECK announced. A blunter take on what Ranneberger claimed in his cable of December 18, that it would somehow damage US interests if we were “forced” to question the ECK’s results. Assuming it to be true that the State Department was going to back whatever the ECK announced regardless, it was unlucky for me that no one told me about this before the election, as I surely would have taken the opportunity to cancel the IRI election observation mission since the State Department was not supporting the democracy assistance purposes of our agreement with USAid in working for free elections and observing independently in order to, among other things, oppose fraud.

EXIT POLL TOO HOT A POTATO

This policy would also suggest a reason that the exit poll that we conducted for USAid, which indicated a win for Odinga rather than Kibaki, was such a “hot potato” that it was held without public comment by IRI until a statement of January 15, responding to leaks of the results, that the poll was “likely invalid”, then on February 7, after it became a topic of inquiry in a US Senate hearing, definitely “invalid,” then released as valid in August, the day before the experts from the University of California, San Diego who had been heavily involved in the poll design and execution were to testify about it to the Kreigler Commission, having released it themselves in July after a six-month embargo imposed in their consulting contract with IRI.

Ranneberger insisted, though USAid, over my objection, on getting preliminary results of the exit poll on the afternoon of the voting before the polls closed, but clearly did not want the results released to the public as the other exit polls for USAid had been. Ranneberger answered questions from Kenyans and others in an online State Department Q&A on March 12, 2008 while the exit poll was still officially “invalid” and claimed that the poll had just been a “capacity building programme” and never intended to be released.

The USAid contract documents, which I of course had myself and of which I also obtained copies of through FOIA, show the contrary, and I also got a copy of the plan for public release by IRI of the first poll under that agreement, the exit poll from the 2005 Wako Draft referendum. If the State Department policy was to affirm whatever the ECK decided, the exit poll with a contradictory result was decidedly inconvenient.

I did not get anything about this from my FOIA requests, but in the fall of 2010, Daily Nation ran a story reporting that Wikileaks had published documents indicating that three members of the ECK itself had been slapped with “visa bans” by the United States in February 2008 on the basis of evidence that they had accepted bribes. Although Ranneberger had tweeted that former Attorney General Wako was subject to a visa ban at some point, nothing has ever been said publicly by the State Department to my knowledge about the ECK bribery issue.

At the end of the day, Kibaki stayed in office throughout for his second full term. On February 28, he signed his deal with Odinga for “power sharing,” against the active resistance of many on his side. From his unilateral Cabinet appointments of January 8, Kalonzo Musyoka stayed on as vice president and Uhuru Kenyatta was promoted to deputy prime minister from local government minister when the Cabinet was expanded to include various opposition figures in the “Government of National Unity,” including Odinga as prime minister and his running mate Musalia Mudavadi as the other deputy prime minister. Of the two lions who faced off at the Kenyatta International Conference Centre as the drama over the late and missing election returns played out, Martha Karua stayed on for a time as justice minister before resigning, and agriculture minister William Ruto realigned politically after he came under fire over corruption allegations, as well as the ICC charges for the PEV that also stuck to Kenyatta.

THE POLITICIANS FORGIVE THEMSELVES

Collectively, Kenya’s leading politicians agreed to forgive themselves for the election fraud, and for the post-election murder and mayhem. The Kreigler Commission made recommendations for the future, but stayed off the crucial machinations at the ECK. Presidential results by polling station never were published. The suppressed media reporting of the election results that disappeared with Michuki’s broadcast ban did not resurface except for the admission of the owner of the Citizen network in parliament in December 2016 that the numbers had indicated an Odinga win. With much shuttle diplomacy and artful stonewalling of requests for phone, banking and property records — along with a lot of extraordinary misfortune and changes of heart by witnesses, the ICC was thwarted and no local tribunal ever convened to address the violence.

Early during my time in Kenya, Moi and Kibaki made up after their 2002 rift, with Kibaki appointing Moi as his envoy for the Sudan/Southern Sudan negotiations and Moi endorsing Kibaki’s re-election. For 2013, Kibaki completed what had been Moi’s original intention of handing off to Uhuru Kenyatta from 2002, with Ruto back in the fold after his brief time in opposition in 2007-08. Again, in 2013, USAid financed a results transmission system for the electoral commission through IFES. The procurement was botched and the system was not workable, but rather than being shelved from the outset it was set up and used initially to show up on a big screen at Bomas of Kenya some partial results indicating a large lead for Kenyatta before being shut down.

Weeks after the election, the Standard newspaper ran a piece reporting that the original plan of the Kibaki camp had been to rig the Langata parliamentary race, but at the last minute a switch was made to change the votes at the central tally

Without knowing the background of the botched procurement, “experts” told the media this slice of results indicated a “commanding lead” for the Uhuruto ticket from the onset.

The local civil society think tank AfriCOG (disclosure: I consulted briefly with AfriCOG on “observing the election observers”) petitioned the High Court to enjoin the electoral commission from announcing “final” results with the results transmission system shut down but was turned down on jurisdictional grounds, even though the High Court found the petition to raise significant questions. In the absence of the legally prescribed system to transmit the results to Nairobi, there was once again physical drama at the central headquarters, with observers excluded and no backup system in place to obtain verified results from each polling station — the only location where the paper ballots are counted.

Once again, observers were excluded as noted in the final reports of the Carter Centre and Election Observation Group (ELOG) funded by the donors as international and domestic observations respectively. The electoral commission announced final results six days after the vote, with a day to spare on the deadline, even without all the polling station results. Coincidentally, I am sure, the Uhuruto ticket was determined to have .07% more votes than needed to avoid a runoff. The Supreme Court held a truncated hearing quickly following the election, consolidating the challenges to the electoral commission by AfriCOG and by the opposition. The court excluded much of the evidence submitted by the opposition and ignored much of that submitted by AfriCOG; it ordered a recount of votes from a sampling of boxes, but then went ahead and ruled, declining to upset the announced commission verdict without the limited recount being completed and in spite of the fact that significant discrepancies materialised.

Significantly, the Supreme Court found that the botched procurements of key technology, the results transmission system and voter registration and identification systems, smacked of fraud and ordered that they be investigated on that basis. A mere ruling by the Supreme Court was not enough to actually prompt any such investigation in Kenya, unfortunately. Months went by without publication of alleged election results and the electoral commission even refused to testify to parliament. What was eventually published later was incomplete. The electoral commission members were eventually swapped out once again, early this year, after the opposition was willing to expend a small number of lives to protest the inaction of the incumbent government in regard to issues that now included convictions in the UK for bribes paid to Kenyan election and education officials in the scandal known as “Chickengate.” Like the old ECK, the members of the commission were bought out rather than fired, and of course there has been impunity for the bribery even though it was proven in court in the UK.

HERE WE GO AGAIN

So here we are again, in 2017, and I am waiting for answers to my questions as to who is paying for the acquisition of this year’s version of the results transmission system, the so-called Kenya Integrated Election Management System, or KIEMS. I hope it is straightforward and transparent and handles the simple task of sending the results of the vote counting at the polling stations to Nairobi this time.

As an American, it is none of my business whom Kenyans vote for, but with all the investment of Kenyan blood, sweat and tears, and American and other donor funds, I will be disquieted until Kenyans are able to count on knowing how they have voted and be in a position to move their frozen politics forward with the kind of hope that existed before the debacle of 2007.

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Mr Flottman is a lawyer in the United States where he works in corporate practice on government contracts.

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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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