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Kikuyus Will Wear Kaptula and Other Short(s) Stories

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On September 1, 2017, the day the Supreme Court of Kenya nullified the 8 August elections, I was riding in a city-bound minibus matatu on Nairobi’s Waiyaki Way. I sat in front with the driver. The passenger seated next to me must have received a text message on his mobile phone because he began howling at the driver to tune in to the radio. The matatu was blasting hip-hop reggae at the time. It was a few minutes after 11.00am. What followed can only be best captured by a tragic-comedy playwright.

“The general election of August 2017 was not conducted in accordance with the constitution and the applicable law, rendering the declared results invalid, null and void. A declaration is hereby issued that the third respondent was not validly elected and declared as the president-elect and that the declaration is null and void,” pronounced Chief Justice David Maraga on Citizen Radio.

My fellow passenger, on hearing the words “invalid, null and void”, wailed loudly in agony, like someone who had been pricked by some sharp object, and called to his God – “Ngai” – so loudly that the driver was startled.

“Now see what these western people have done to us (one riu uria andu a ruguru matwika),” he harangued in the Kikuyu language. Shattered and stuttering, he spoke in staccato, unable to string his words together coherently. When his phone rang, he answered, “I am not in a frame of mind to talk right now……”

What followed was the incoherent muttering of someone possessed with schizophrenia. He cursed Maraga. He cursed the Kisii people collectively and insinuated how Maraga and his Kisii community were foolish and idiots. As if momentarily posing for introspection, he blamed the Jubilee Party political barons for allowing a non-Kikuyu to ascend to the Chief Justice’s position.

See what they have done to us

“Now see what these western people have done to us” (one riu uria andu a ruguru matwika), he harangued in the Kikuyu language. Shattered and stuttering, he spoke in staccato, unable to string his words together coherently. When his phone rang, he answered, “I am not in a frame of mind to talk right now……”

Since then, that matatu incident has variously manifested and replicated itself in different settings among the Kikuyus – individually and collectively. It is as if the Supreme Court ruling damaged their ethnic group’s psyche, causing a schizophrenic attack that cannot be explained rationally.

Days later, a friend confessed to me: “So this is how these people felt in 2013, when the Supreme Court ruled in our (Jubilee’s) favour?” It was a rhetorical question. “I was so angry, so affected on the day Maraga said Uhuru had not won, it looked like my world had gone on a tailspin.” Emotional and irrational, this friend even admitted to me that if he had his way, he would kill the Chief Justice.

“For how long will Raila disturb our peace?” is a refrain that has been gaining momentum in Kikuyu gatherings – in homesteads, churches, social functions and some select exclusive clubs in Nairobi – since the Supreme Court ruling.

The first ever Presidential Election Petition case No. 5 was taken to the inaugural Supreme Court of Kenya in March 2013 by the Coalition for Reform and Democracy (CORD), the opposition coalition led by Raila Amolo Odinga. It sought to overturn the election victory of the Jubilee coalition led by Uhuru Muigai Kenyatta, who today is the fourth president of Kenya.

The Supreme Court judges, led then by the president of the court, Chief Justice Willy Mutunga, in arriving at their verdict, said: “In summary, the evidence in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public.”

That Supreme Court judgment, read by Mutunga in under ten minutes (Kenyans, who had been waiting for days with bated breath for the judgment, were asked to read the entire judgement online) cast a shadow of devastation and disquiet among the opposition’s core supporters. Yet they took it in their stride, even as they were chided by the Jubilee coalition brigade to “accept and move one”. As much as they were hurt, they did not go into a frenzy of “political madness”, threatening to kill Chief Justice Willy Mutunga, and condemning and deriding his Kamba ethnic community.

Since September 1, 2017, I have numerously and repeatedly heard presumably reasonable and well brought-up Kikuyus propounding sickening theories about how some communities “need to be taught a lesson”, how David Maraga should not presume he is so important as to think “he cannot be taken out”. Such careless talk has been taking place among Kikuyu folks in social functions and places, including birthday parties, funeral services and restaurants.

To the consternation of even the most hardcore Kikuyus, the man claimed that if Raila ever became president, all Kikuyu men would be forced to wear kaptula – colonial-type khaki shorts that used to be worn by the regular police until early 1970s and which today are still worn by prisoners.

Maraga has been denounced and renounced in equal measure. The Kisii people – including all the communities that live in the western sphere of Kenya, mainly the Luos and Luhyas – have been collectively lampooned and considered to be “not too clever people” (ti andu oge). Ultra-Kikuyu sub-nationalists have been advocating for the murder of the Chief Justice and the leader of the opposition, Raila Odinga, as the “final solution” to this unceasing menace.

“For how long will Raila disturb our peace?” is a refrain that has been gaining momentum in Kikuyu gatherings – in homesteads, churches, social functions and some select exclusive clubs in Nairobi – since the Supreme Court ruling.

Fuelled by the MP for Gatundu South, Moses Kuria (jamba ya ruriri, or the brave warrior of the Kikuyu nation), who is on record for publicly and unapologetically advocating for the assassination of Raila, the Kikuyu people are now being primed, after being conditioned and socialised over time, that Raila encapsulates all their political problems, and that they would be better off and safer if he were to be taken out.

Let me illustrate this schizophrenic delusion that seems to have attacked a section of the Kikuyu community with a few anecdotes. Three weeks ago, I attended a birthday party in one of the gated, leafy and posh suburbs of Nairobi. After the people had settled down to whet their appetite, and later in the evening as they engaged in social drinking, the conversation naturally and ordinarily turned to politics.

As the conversation gathered more heat (as opposed to more light), one of the guests propounded a theory on why Kenyans (many Kikuyus conflate Kikuyu sub-nationalism with national patriotism and vice versa) should never vote for Raila Odinga. To the consternation of even the most hardcore Kikuyus, the man claimed that if Raila ever became president, all Kikuyu men would be forced to wear kaptula – colonial-type khaki shorts that used to be worn by the regular police until early 1970s and which today are still worn by prisoners. As ridiculous as his pronouncements were, he defended them fervently and vigorously. It was blatantly clear he was not bluffing.

“But as a Kikuyu I cannot vote for that Luo. As Kikuyus, we are called to vote for one of our own. It doesn’t matter if he is a drunkard, a thief or just plain inept. He is ours. That is who God has given us.”

Taken to task to explain where his weird theory emanated from, he reminded all and sundry that sometime in 2003, Raila had purportedly said that if he ever become the president, Kikuyu men would be hauled to Kamiti Prison. His interpretation of Raila’s warning (which yet to be proven): All Kikuyu men will be wearing shorts as long as Raila is the head of state.

This loose, flippant talk might have been treated as a sick joke, one which would have elicited awkward laughter, but it wasn’t. It was taken seriously by the crowd. The tragedy was that the middle-aged man spreading this falsehood was once the finance director of a blue chip company.

Ordained by God

Days after the Supreme Court overturned Uhuru’s win, my close friend’s mother – a respected leader of the Mothers’ Union of the Anglican Church of the Mt. Kenya region – called him and told him that she had an urgent thing she wanted to discuss with him. When they met, the mother went straight to the point: “John you must sack that housegirl of yours from western Kenya (the housegirl is from Kakamega County). You cannot continue keeping her. Do you know these people well? I will get you a housegirl from Murang’a.”

“Were it not for the fact that she is my beloved mother”, John told me afterwards, “I would have tongue-lashed her.” He told me that his mother had told him that “since these western people have no respect for us (how could they have overruled our win?) we should not have mercy on them.” His mother, a born-again Christian and well-educated in Kenya and the USA, did not find any contradiction in her counsel to her son, and if she did, she was not going to lose sleep over it.

Yet, it is my lawyer friend Nguru who encapsulates the irrational mood of the Kikuyu people that has pervaded their space post-September 1, 2017. “Yes the government of Uhuru and William Ruto has been corrupt, incompetent and messed up,” he told me two weeks after the Supreme Court ruling. “But as a Kikuyu I cannot vote for that Luo. As Kikuyus, we are called to vote for one of our own. It doesn’t matter if he is a drunkard, a thief or just plain inept. He is ours. That is who God has given us.”

A litigation lawyer of long standing, he argued that “where we have reached now, it matters not whether Uhuru won or lost, whether the Supreme Court’s decision is right or wrong. We must defend uthamaki (kingly leadership ship) by all means and by any means necessary. We must cast our lot with one of our own – and that is not a point for discussion or rationalisation.”

It was lunchtime and as a strict Catholic, he was headed to the Holy Family Cathedral in central Nairobi for the lunch-hour intercessional prayer to the Holy Mary Mother of God.

“The Kikuyu people are living in post-truth times,” says a Kikuyu elder associated with the Kenya Church group – an amorphous grouping of evangelical Christians that came together in the late 1990s. “Kikuyu professionals do not want to deal with justice issues, it is unpalatable” said the elder who did not want his name disclosed. “It is the elephant in the living room.”

To demand and sue for justice is to agitate for chaos, is to upset the status quo; justice has been criminalised to mean “destruction of property”.

As tragic as it is, said the elder, it is the church that has been fanning this fight against pursuing justice and truth. “Justice and truth have a way of being disruptive,” he said. “And the Kikuyu business and political elites have sworn that they must hold onto state power come what may.” The professional leadership coach and speaker told me that many Kikuyu evangelical pastors have aligned themselves to the Jubilee coalition and have been bribed to propagate pro-Jubilee messages of peace and stability. Anything outside of that boxed message is anathema to the preservation of Jubilee’s agenda of hoarding power. To demand and sue for justice is to agitate for chaos, is to upset the status quo; justice has been criminalised to mean “destruction of property”.

“The Kikuyu evangelical/Pentecostal pastors and new churches’ proprietors are involved in religious enterprise. They are in it for self-aggrandisement but also with a specific agenda: push Jubilee Coalition’s message of preaching that the president of the country is God ordained.”

A week after the Supreme Court’s unprecedented decision, pastor wa Ngunjiri, who preaches on Sunday mornings at Kameme FM, a Kikuyu vernacular station, took the trouble to explain in biblical terms why President Uhuru Kenyatta was cantankerous and furious in the afternoon of September 1, 2017. “When the ruler of the nation is agitated and seemingly untoward in his behaviour, there is a powerful message that God is relaying to the nation,” said the lady pastor, whose three-hour programme is listened to religiously by hoards of Kikuyus.

“God is asking us Kenyans to rally around the ruler, because it is not every day that a ruler is annoyed and unsettled,” cried the pastor on the airwaves. “The almighty God has already ordained a leader for us and that leader is Uhuru Muigai wa Kenyatta. It is the duty and obligation of every Kikuyu voter to come out and cast his or her vote for him, because we Kikuyus believe in and serve a living God.”

The mainstream established churches are no better, said my Kikuyu elder friend. The National Council of Churches of Kenya (NCCK) used to be a powerful Christian platform that kept former President Daniel arap Moi in check in the 1990s as the country grappled with a decade of reestablishing multiparty politics. “But today, it is a pale shadow of its former self.”

NCCK is mainly composed of five denominations – the Anglicans, the Methodists, the Presbyterian Church of East Africa (PCEA), Quakers (otherwise known as the Friends Church) and the Salvation Army. When the Secretary-General is speaking, he is presumably speaking on behalf of the five churches, a consensus that is normally agreed upon in its General Assembly.

“Yet, from a cursory glance of the press conferences that NCCK has held in the recent past, it is evident that Peter Karanja, an Anglican, is not really speaking on behalf of the five churches,” said my friend. “I can tell you without a doubt, the Quakers, the Salvation Army and a section of the Anglican church have been suing for justice and truth, and this is what leaders within NCCK have been fighting for every time the Christian body seeks to talk truth to power.”

But the PCEA, Methodist and another section of the Anglican church will hear none of that message. “Peter Karanja has been put on a tight leash – he can only speak of maintaining peace and the need for NCCK to respect the laws of the land and the government of the day. If he ever attempts to go outside of that script, he will be kicked out by the more powerful Kikuyu wing of the Protestant church body.”

The church in Kenya has never pretended that it is not ethnically aligned in its mission and vision. The PCEA and Methodist churches are regarded as Kikuyu and Meru churches. And rightly so, because a majority of its adherents and top leadership are Kikuyu and Meru.

The PCEA leadership openly threw its weight behind the President Mwai Kibaki government (2003–2012) and during the 2007-2008 post-election violence; some of its top leadership was allegedly even adversely mentioned as having abetted “retaliation violence” in sections of the expansive Rift Valley region. Although the Methodist church is not as “loud” as the PCEA, it also backed to the hilt the government of Kibaki, as it is currently backing the Uhuru-led Jubilee coalition government.

A PCEA church elder who attends the church’s Kirk Session in Kajiado County unabashedly said to me, “When it comes to supporting Uhuru, it is not about Christianity but about our political survival: we swore under oath to protect subsequent Kikuyu leadership after Mzee Kenyatta exited the scene.”

The Anglican church, on the hand, is a melting crucible of followers scattered across the country, much like the Catholic church. Hence, while the PCEA and Methodist churches are mainly concentrated in the Mount Kenya region and in the Rift Valley Kikuyu diaspora, Quakers and Salvation Army followers are mainly found in the western part of Kenya, specifically among the Luhya people of Bungoma, Kakamega and Vihiga counties. It therefore goes without saying that some leaders within the NCCK fraternity have been pushing for justice and truth for the simple reason that they hail from opposition areas that have been voting for Raila Odinga since 2007.

The financially and numerically powerful and stronger Kikuyu wing of the NCCK has not made the work of the religious organisation any easier. It has been unrelenting in its dogged determination to marshall support for the Jubilee coalition. A PCEA church elder who attends the church’s Kirk Session in Kajiado County unabashedly said to me, “When it comes to supporting Uhuru, it is not about Christianity but about our political survival: we swore under oath to protect subsequent Kikuyu leadership after Mzee Kenyatta exited the scene.”

Siege mentality

Obsessed with retaining state power at all and any cost, Kikuyu political barons have been bombarding the Kikuyu rank and file with messages of imminent annihilation if they do not band together to rescue the Uhuru presidency. The net result of this brainwashing is that it no longer matters how Uhuru wins the election – so long as he makes it to the helm. The peasant and urban poor Kikuyu are daily being socialised to look inward and to internalise ethno-centric values that inadvertently create a siege mentality. This mentality is then exploited by the political barons who can effectively use it to prey on their own people.

“The Kikuyu siege mentality, which is deliberately being created within their psyche, is preventing them from understanding the rest of the country’s anger about political injustices,” says Eric Wafukho, a leadership and management consultant. “So, with this apparent shielding of the average Kikuyu from the real political and societal problems ailing the country, the ordinary Kikuyu is made to live in a make-believe world, a world he thinks he controls, knows and understands.”

This statement rang true when my friend from Kangemi – a sprawling slum seven kilometres west of Nairobi city centre, who I had interviewed a month before the August 8 general elections, called me, a couple of days after Supreme Court ruling.

“We cannot allow these people to lord it over us and it does not matter that they now have enlisted the help of the Supreme Court – we will defend our leader by whatever means, because that is the only way we can ensure our survival,” said Thiong’o. “Uhuru has many faults and weaknesses, but we must overlook these shortcomings if we are to survive and are not finished by these western people.” To anchor his argument, he quoted a Kikuyu proverb: Iri Gikuyu, itire ukavi, which loosely translates to “As long as leadership is in Gikuyu hands, that is all that matters.”

The Kikuyu “business community” that was unleashed a few weeks ago in the Nairobi city centre and that was captured sporting dreadlocks are Mungiki members from Kayole – a densely and expansively populated ghetto located in the southeast of Nairobi.

I asked Thiong’o what he thought of the “Kikuyu business community” rolling into the central business district to ostensibly defend “Kikuyu property”. His answer was curt and to the point: “That is the way to go. We Kikuyus must defend our property.” Although my friend is nowhere near belonging to the Kikuyu propertied class, he, like many of the Kikuyu ghetto dwellers, have been unwittingly recruited to defend and fight for the class interests of his Kikuyu ethnic elites.

The Kikuyu business community is an euphemism for the notorious Mungiki youth group that cannibalised and preyed on its very own people in the late 1990s and the early part of the 2000s. When the youth group, which in the Kikuyu language means a multitude, descended from its base in the Kikuyu diaspora of the Rift Valley to seek refuge in Nairobi, it settled in the city’s slums, including Kangemi.

I can vividly recall Thiong’o being so terrified of his very own dreadlocked “brothers” who would show up at his house in the evenings to demand “protection” and “security” money. When the former internal security minister John Michuki cracked the whip on the group, he hailed Michuki as godsend. That was a decade or so ago. Today he does not find it a contradiction that the same group that used to send cold shivers down his spine is being resuscitated to surreptitiously defend a predatory Kikuyu elite leadership.

The Kikuyu “business community” that was unleashed a few weeks ago in the Nairobi city centre and that was captured sporting dreadlocks are Mungiki members from Kayole – a densely and expansively populated ghetto located in the southeast of Nairobi. Many of the privileged Mungiki members run the minibus matatus known as Forward Sacco matatus. Their adherents are transported into the city conurbation by these matatus with the sole mission of countering NASA youth mass action demonstrators. Hired expressly by the Jubilee coalition mandarins (this docket is being handled by Moses Kuria), they have been telling all who care to listen: “We the Kikuyus will rule this country, whether you like it or not.”

Enter the Kalenjin

As the Kikuyus are rolled out in the streets of Nairobi and Kiambu counties to defend their stake in the Jubilee coalition government, the Kalenjins have been waging their battle on a different and separate plane. Impeccable sources within Deputy President William Ruto’s camp believe that they are the people in control of the government, “more so now after the temporary Supreme Court setback,” said a Ruto confidante, who has worked in the deputy president’s office since 2013.

The claim that the Deputy President is actually the one running the Jubilee government is one I have heard since Uhuru and Ruto joined hands and formed a coalition government in 2013. As early as mid-2014, core staff in his office believed that Ruto was in control and has been running the show ever since.

The sharpest NASA critics that have been unleashed by Jubilee, particularly after the Supreme Court’s verdict, have been the Senator for Elgeyo Marakwet, Kipchumba Murkomen and the MP for Garissa, Aden Duale. It is not by coincidence that the two are some of Deputy President Ruto’s closest and most loyal foot soldiers. “That tells you just how many stakes Ruto has in the Jubilee Party and the government.”

The claim that the Deputy President is actually the one running the Jubilee government is one I have heard since Uhuru and Ruto joined hands and formed a coalition government in 2013. As early as mid-2014, core staff in his office believed that Ruto was in control and has been running the show ever since.

After the Supreme Court’s ruling, the Kalenjin elite close to the powers-that-be have become even more fundamentally wedded to the belief that without Ruto, Uhuru is a sleeping duck. Among themselves, the Kalenjin elite, in their city hideouts, gossip about Uhuru and his rumoured drinking binges. Ruto, the Kalenjins point out, is a masterful tactician who is just waiting for the appropriate time to unleash his full potential.

A recent incident the Kalenjin elite like reminiscing about is the Mark Too funeral. Too was former President Moi’s trusted acolyte. When he died in December, 2016, many of the who’s who among the Kalenjin business and political class attended his burial on January 10, 2017.

My Kalenjin friends were later to tell me that Ruto, who attended the funeral with President Uhuru, belittled President Uhuru in the Nandi dialect. He ostensibly told the gathered crowd that he was the one in charge of the government and that the Kalenjin nation should stay firmly behind him. The talk of Ruto being in charge has been recurrent among the Kalenjin elite circles for a while now, so much so that they consider Ruto as the de facto president.

To many Kalenjins, the 2017 presidency is a forgone conclusion. “We are already looking ahead to 2022 and nothing will stop us.” Once Uhuru Kenyatta settles down for his final term, Ruto will supposedly roll out his best laid plans, not once, but numerous times, my Kalenjin friends tell me. Ruto, they say, has never deluded himself that the Kikuyus love him. “If the Kikuyus think they can outsmart our man, they are in for a rude shock. We will show them why we have been running the government even when their man has been at State House.”

Extremist Kalenjins like to think that Ruto will rule for 20 years – four years shy of President Moi’s rule, which lasted from 1978 till 2002. “Ruto will have ruled ten years of President Uhuru’s term (2013–2022) and then commence to rule his own two terms (2022–2032). Together with Moi, they will have ruled Kenya the longest time – individually and collectively.” This would be a political record that they are absolutely convinced will never be repeated.

Invariably, for the majority of the Kalenjin people, “the Supreme Court ruling is just a small irritating hiccup that once it is dealt with – and we are confident Ruto is going to fix the mess – Kenyans will have to contend with a long Kalenjin reign.”

By Dauti Kahura
Mr Kahura is a freelance journalist based in Nairobi, Kenya

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Politics

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

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

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

Phase OneThe Respondent’s Arguments

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

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

Phase Two: The Judges’ Questions

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

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

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

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

Discursion: Thinking through Lenaola J’s Question

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

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

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

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

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

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

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

First Phase

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

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

Second Phase

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

The Basic Structure

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

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

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

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

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

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

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

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

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

The Popular Initiative

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

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

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

The IEBC and the Quorum

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

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

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

Conclusion

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

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

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