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FIGHTING THE GOOD FIGHT: Nonviolent Options and Just Peace

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(Keynote Address delivered to the University of San Diego Conference: The Catholic Church Moves Towards Nonviolence? Just Peace Just War in Dialogue on October 6, 2107)

Thank you. I’m honored to be amongst so many great scholars, theologians (including Cardinal Turkson and Bishop McElroy) activists, peacebuilders, policymakers and military officers. Thank you to University of San Diego, the Kroc Institute for Peace and Justice, and the Harpst Center for Catholic Thought and Culture for organizing this conference on Just War Just Peace in Dialogue – I can’t think of a better topic for a civil-military conversation. I would like to applaud the members the Catholic Nonviolence Initiative – there are many in this room – for helping to bolster the Church’s thought leadership and practical investment in alternatives to war and violence. Special thanks to Cardinal Turkson for presiding over last April’s Rome conference on Nonviolence and Just Peace, and for being such a tireless proponent of human rights, dignity, and a world without violence.

Tonight I will focus on the power and potential of nonviolent options to prevent, mitigate, and transform violent conflict and advance sustainable peace. I will offer evidence backing the efficacy of these nonviolent options and offer some practical ways the Catholic Church, along with its governmental, military, inter-faith, and non-governmental allies, can strengthen them.

But first, let me share a couple of stories about what brought me to this work and has kept me inspired and hopeful ever since.

Pope John VI famously said, “If you want peace, work for justice.”

I grew up in southern Vermont and my family often attended mass at the Weston Priory, where a hearty group of Benedictine monks live, farm, sing and celebrate the Gospel. Masses take place in a barn overlooking the Green Mountains. The monks welcome everyone – from all faiths, religions, and walks of life – to join in the celebration. The Priory has a great gift shop. After mass I would make a beeline for the books section, which is where I began to collect biographies of Mahatma Gandhi and Dorothy Day, along with books about nonviolent resistance and radical peacemaking. These books introduced me to Oscar Romero, Dolores Huerta, and the Catholic Workers, who became my s/heroes. Somehow my Mom always ended up paying for the books.

Pope John VI famously said, “If you want peace, work for justice.”

After high school I was involved in grassroots restorative justice work. I lived and worked at the Rutland Dismas House, a transitional home for former prisoners and college students. The Dismas motto, “reconciling former prisoners with society and society with former prisoners”, is animated by a community support structure for those transitioning from prison. I observed how members of the community – including those who had initially opposed Dismas House being in their back yard – mobilized to provide home-cooked meals to the residents, offered them jobs, and gave them support. Dismas House has been highly successful: my Dad tells me that the recidivism rate for its residents is about 15 percent, compared to 70 percent nationally – and at less than a third of the cost of incarceration.

Later I had my first rendezvous with the Jesuits at Boston College, where “service to others” is a campus creed. I studied political science and lived in France and Germany while researching European integration, one of the world’s greatest peacebuilding projects. After starting grad school at the Fletcher School of Law and Diplomacy, I attended a Boston film screening of A Force More Powerful, a documentary film about six highly consequential nonviolent struggles. The film highlighted how unarmed civilians stared down the British empire in India, confronted Nazis in Denmark, fought apartheid in South Africa, removed dictators in Chile and Poland, and dismantled Jim Crow in the US using strikes, boycotts, demonstrations, sit-ins, and other forms of nonviolent direct action.

The film was inspiring. I decided to focus my PhD research on the strategic dimensions of nonviolent resistance in self-determination movements. The International Security Studies departments at Fletcher and the Harvard Belfer Center were my strongest backers. Meanwhile, West Point and the Army, Navy, and Air Force war colleges invited me to come talk about civil resistance as a form of nonviolent power and a functional alternative to violence. I attended the Summer Workshop on the Analysis of Military Operations and Strategies (aka “war camp”) and was that “interesting” person talking about people power.

In 2006 while working at the International Center on Nonviolent Conflict, I met Erica Chenoweth – a fellow political scientist and quantitative guru – at a conference in Colorado. She was skeptical about the effectiveness of nonviolent resistance. So were a lot of people, who insisted that nonviolent resistance could “work” but only under certain favorable conditions. In tough contexts, like violent dictatorships, the prevailing wisdom was that violence stood a better chance. Erica and I decided to test these assumptions, by systematically comparing the effectiveness of violent and nonviolent resistance. For the next couple of years we collected data on all known major violent and nonviolent campaigns from 1900-2006. These were campaigns challenging incumbent regimes and vying for territorial self-determination.

During this book-writing time I was in Kabul, Afghanistan with the State Department, at the peak period of insurgency. Occasionally, on nights and Sundays while chapter editing in my hootch, a “duck and cover” siren, signaling incoming rockets or mortar, would interrupt the effort.

After collecting data on 323 major violent and nonviolent campaigns, each with at least 1000 observed participants, we arrived at a surprising conclusion. The nonviolent campaigns were twice as successful as armed insurgencies. They achieved their goals 53% of the time compared to 26% for violent campaigns, a percentage that has remained basically the same through 2015. (“Success” was defined as removal of the incumbent regime or territorial independence.) While there has been a slight dip in the overall effectiveness of nonviolent campaigns recently, violent insurgencies have become even less effective.

Why has civil resistance so dramatically out-performed armed struggle? We found that the most important variable determining the outcome was the size and diversity of participation. Nonviolent campaigns attract on average 11 times the level of participants as the average violent campaign. The moral, physical, informational, and commitment barriers to participation are much lower for nonviolent resistance compared to armed struggle. Whereas armed insurgencies often rely on a relatively small group of young, able-bodied men, nonviolent campaigns attract women and men, youth and elderly, able-bodied and disabled, rich and poor.

She was skeptical about the effectiveness of nonviolent resistance. So were a lot of people, who insisted that nonviolent resistance could “work” but only under certain favorable conditions. In tough contexts, like violent dictatorships, the prevailing wisdom was that violence stood a better chance.

One reason is that the number and range of tactics available to nonviolent resistors is huge. Gene Sharp catalogued 198 methods of nonviolent action in 1973. That number has vastly expanded as the creative limits of the imagination have expanded. Power is fluid and ultimately flows from the consent and cooperation of ordinary people. When large and diverse groups of people remove their consent and cooperation from an oppressive regime or system of power using tactics like boycotts, strikes, and civil disobedience, no ruler, no matter how brutal, can stay in power. Members of security forces (army and police) are also significantly more likely to defect, or to disobey regime orders to use repression, when confronted with large numbers of nonviolent resistors, compared to armed insurgents. When security forces defect, as they did in the Philippines, Serbia, Ukraine, and Tunisia, this is often a decisive variable.

We found that the chances of success are higher when groups maintain nonviolent discipline in the face of repression, when they creatively alternate between methods of concentration (like sit-ins and demonstrations) and methods of dispersion (like consumer boycotts and stayaways) and when they invest in decentralized leadership.

Nonviolent campaigns also contribute to more democratic and peaceful societies. Less than 4 percent of armed rebel victories result in a country becoming democratic within five years. A Congolese bishop reinforced that point to me recently. He counted off the number of insurgent leaders in his country and across the continent who had led successful armed struggles, then became even more tyrannical than their predecessors. On the other hand, the skills associated with nonviolent organizing, negotiating differences, building coalitions, and collective action reinforce democratic norms and behaviors. And they tend to produce more peaceful societies.

Nonviolent civil resistance, then, is a functional alternative to violence with both short and longer-term positive effects. It is a particularly powerful nonviolent channel for marginalized or oppressed people to challenge systems of power – whether they are exploitative corporations, dictatorships, or institutionalized racism – and build more inclusive, just societies.

Pope Francis, in his 2017 World Day of Peace address, a monumental document, noted that “momentous change in the lives of people, nations and states had come about ‘by means of peaceful protest, using only the weapons of truth and justice.”

The Church has played a pivotal role in some of the most significant nonviolent struggles in history. Many will recall the iconic image of the Filipino religious sisters, confronting military forces and a kleptocratic Marcos dictatorship in prayerful resistance during the 1986 “people power” revolution. Across the Philippines priests and nuns, in partnership with the International Fellowship of Reconciliation, trained their communities in nonviolence and nonviolent action. Cardinal Jamie Sin attended one of these workshops. He later joined the Catholic Bishops’ Conference of the Philippines in calling for a “nonviolent struggle for justice”, using Radio Veritas to amplify the message. This preparation, combined with an election-monitoring mission led by local religious leaders, paved the way to Marcos’ nonviolent ouster. Today, Filipino religious leaders, facing another violent dictator, are once again engaged in nonviolent activism.

The nonviolent campaigns were twice as successful as armed insurgencies. They achieved their goals 53% of the time compared to 26% for violent campaigns, a percentage that has remained basically the same through 2015.

During the Polish Solidarity movement in the 1980s, Pope John Paul II, with local priests and nuns, famously stood shoulder-to-shoulder with the worker-led movement that challenged Communist tyranny with nonviolent resistance. Archbishop Oscar Romero of El Salvador was martyred for showing solidarity with campesinos and other victims of junta brutality. In the US, 4 feisty religious women have taken to the buses and streets to give voice to the poor and undocumented; they have animated Laudato Si through direct action to protect the environment.

I am often asked: what about cases of genocide, ethnic cleansing, or violent extremism? What about protecting innocent people? What are the nonviolent options in these cases?

First, I don’t come at this topic from a pacifist perspective. I’m the first to admit that nonviolent action has not always worked. At the same time, there is little evidence to suggest that armed resistance would have done any better in places where nonviolent resistance failed. Military interventions on humanitarian grounds, as in cases like Rwanda or the protection of Yazidis in Iraq, may save lives in certain cases. But, practically speaking, mustering the political will to support military intervention on Responsibility to Protect (R2P) grounds has become so difficult that it is strategically imperative to develop alternatives.

The second point is that most mass atrocities historically have occurred in the context of armed struggles and civil wars. Very rarely are large numbers of unarmed civilians killed while engaged in mass nonviolent campaigns. New research by Erica Chenoweth and Evan Perkoski found that nonviolent resistance can even decrease the likelihood of mass atrocities. Not surprisingly, armed movements with foreign support are much more likely to elicit mass killings.

It is also worth mentioning that while the WWII ultimately brought the end to the Nazi regime, civil resistance and nonviolent noncooperation saved thousands of lives. Jacques Semelin, in his book, Unarmed Against Hitler, chronicles a number of these examples, including the case of German Aryan women who protected their Jewish husbands from concentration camps through sustained protests outside the SS headquarters in Berlin.

Power is fluid and ultimately flows from the consent and cooperation of ordinary people. When large and diverse groups of people remove their consent and cooperation from an oppressive regime or system of power using tactics like boycotts, strikes, and civil disobedience, no ruler, no matter how brutal, can stay in power.

Nonviolent protests and other forms of collective action have won tactical concessions from extremist groups like ISIS in Iraq and Syria and al Shabaab in East Africa. For example, women’s led protests outside an ISIS headquarters in Raqqa, Syria, led to the release of political activists in 2014. Two years ago in northeastern Kenya, fighters from the al-Shabaab terrorist group ambushed a bus filled with women. The fighters demanded that the Muslim and Christian women separate, a tactic they’d used in the past before slaughtering the Christians. The Muslim women refused to separate, and shielded the Christian women. They said: “You will kill us all or leave us alone.” Their collective stubbornness worked – the al Shabaab fighters left without anyone on the bus being killed.

Oliver Kaplan recently released a book, Resisting War: How Civilians Protect Themselves, which analyzes how unarmed civilians have influenced the behaviors of state and non-state armed groups in civil war contexts. He examines cases in Colombia, with extensions to Afghanistan, Pakistan, Syria, and the Philippines. The study shows how unarmed civilians self-organized and created autonomous, resilient institutions. They carved out peace zones, prevented extra-judicial killings, and deterred violence targeting civilians.

These findings have important implications for the Church and other external actors seeking to prevent mass atrocities. They suggest that supporting local self-organizing and collective action in the midst of violent conflict can help save lives.

There are other ways to deter violence and human rights abuses in conflict zones. Unarmed civilian protection, which is the use of unarmed civilians to do ‘peacekeeping’, has had 5 demonstrable successes. Nonviolent Peaceforce, Christian Peacemakers Teams, Peace Brigades International and Operation Dove have led civilian peacekeeping missions in South Sudan, Sri Lanka, Colombia, Guatemala, the Philippines, Indonesia, Israel-Palestine, and elsewhere. Evaluations of unarmed civilian protection reveal that this activity has saved lives, changed the behavior of armed groups, and made local peace and human rights work more possible.

The UN High Level Independent Panel on UN Peace Operations stated: “unarmed strategies must be at the forefront of UN efforts to protect civilians.” Strategically it makes sense for major military powers, including the United States, to invest in UCP programs as an effective and less costly form of peacekeeping.

Of course, it goes without saying that if you want to prevent mass atrocities, you prevent war. Prevention demands investment, and right now the levels of US and global investment in violence prevention are infinitesimally small compared to the sums dedicated to war fighting. Practically, prevention means supporting inclusive and participatory economic and political processes (recall that institutionalized discrimination against Iraqi Sunnis contributed to the rise and spread of ISIS). It means fostering dialogue and trust between communities and police (justice and security dialogues have done just that in Nepal and Burkina Faso). It means using diplomatic, military, and trade levers to challenge crackdowns on civic space and human rights violations (security force abuses in northern Nigeria fueled the rise of Boko Haram).

Nonviolent campaigns also contribute to more democratic and peaceful societies. Less than 4% of armed rebel victories result in a country becoming democratic within five years.

In the area of violence prevention, our U.S. military colleagues can make particularly valuable contributions. When military leaders, who have been strong proponents of the work of the United States Institute of Peace (USIP), demand greater investment in non-military solutions, when they point out the gross under-resourcing of diplomacy and development – when compared to military hardware and train-and-equip programs – it makes a difference. Military advocacy on Capitol Hill and in the private sector for massively increased investment in violence prevention and peacebuilding is a concrete way to advance just peace around the world.

Relatedly, enlightened military leadership understands that corrupt, undisciplined, rights-violating security forces are unreliable partners. Their practices fuel insurgencies and violent extremism. There is a smart guide written by Admiral Dennis Blair, called Military Engagement: How Armed Forces Can Support Democratic Transitions Worldwide. It instructs on how military relationships and security partnerships can incentivize democratic norms and behaviors and deter security force crackdowns on peaceful opposition. I hope that this guide might one day be fully integrated in military education and training in the US and around the world.

So far I’ve focused a great deal on civil resistance and nonviolent collective action. But we know that this is one set of tools in a much broader nonviolent arsenal. Transforming violent conflict and dissolving its root causes requires a combination of people power and peacebuilding. That means linking nonviolent resistance, which intentionally escalates conflict, and traditional peacebuilding tools like negotiation, dialogue, and mediation, which de-escalate it.

The theory here is that in conflicts marked by great power asymmetries, where groups are intentionally marginalized or excluded from political processes, power needs to shift and an unjust status quo disrupted before conflict resolution become possible. In other words, nonviolent action is often necessary to “ripen” the situation for resolution. As Martin Luther King, Jr. so eloquently wrote in his Letter from a Birmingham Jail in 1963:

“You may well ask: “Why direct action? Why sit-ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks to so dramatize the issue that it can no longer be ignored.”

The Polish Solidarity movement combined Gdansk shipyard strikes with formal roundtable negotiations. The Liberian civil war came to end because the government and rebels were pressured – in part by a women’s-led sex strike – to reach a settlement. The Comprehensive Peace Agreement in Nepal was reached when popular nonviolent resistance shifted the power dynamics and incentivized meaningful peace talks. Veronique Dudouet highlights these and other examples in an excellent report, “Powering to Peace: Integrated Civil Resistance and Peacebuilding Strategies”. Anthony Wanis-St. John and Noah Rosen focus on the importance of negotiation in nonviolent resistance in a recently published USIP Peaceworks report.

I am often asked: what about cases of genocide, ethnic cleansing, or violent extremism? What about protecting innocent people? What are the nonviolent options in these cases?

Using and sequencing these dialogical and direct action techniques is both an art and a science. USIP is currently developing a practical guide, called “Synergizing Nonviolent Action and Peacebuilding” (SNAP), which is intended to inform field-based trainings on how, practically, these nonviolent approaches can be used together. We hope that this action guide might be helpful for organizations like Pax Christi, Mercy Corps, Caritas International, Catholic Relief Services, and members of the Alliance for Peacebuilding whose work is grounded in conflict affected communities.

So we know that nonviolent resistance is important in negotiating a sustainable and just peace. This aligns with the fact that, historically, the most durable peace processes and national dialogues have been inclusive and participatory. Desiree Nilsson’s study of all peace agreements reached in the post-Cold War period found that the involvement of civil society reduced the risk of failure by 64%. Peace accords that include civil society actors – including religious groups, women’s groups, and human rights organizations – are more likely to see peace prevail. The Colombia peace process, which culminated in a landmark peace accord last year, featured the active involvement of victim’s groups, women’s groups, and other civic actors. Other research has found that the presence of skilled negotiators and facilitators at the local level contributed to the success of national dialogue processes. Training mattered.

Women’s participation merits special focus. Multiple studies have found that women’s inclusion in peace processes correlates significantly with their success – Northern Ireland and Liberia are classic examples. Women bring unique identities, perspectives, and a sense of urgency to peace processes. While women often need to fight for a place at the table, it stands to reason that unlocking the leadership potential of women at all levels of an organization or institution, including the Catholic Church, would strengthen its ability to forge peace.

Another nonviolent tool, mediation, has helped resolve some of the most intractable violent conflicts, including the civil wars in El Salvador, Guatemala, Mozambique, Northern Ireland, and Colombia. The Catholic Church, often in partnership with other faith groups, has often been a key mediator. We know the critical role that the Vatican and Pope Francis played in mediating an end to Colombia’s civil war. The Catholic Lay Community of Sant’Egidio played a vital role in ending the devastating Mozambique civil war (1975-1990). Sant’Egidio, a Rome-based organization with some serious mediation skills and a biblical commitment to service, compassion, and peace, developed strong relationships with the two conflict parties, the ruling Frelimo party and 7 RENAMO rebels. It brought them together in Rome for meetings over 2 years that culminated in the signing of the Rome General Peace Accords in 1992.

In northern Uganda, which has endured nearly 3 decades of civil war between the government and the rebel Lord’s Resistance Army (LRA), Archbishop John Baptist Odama of Gulu and his Acholi Religious Leaders’ Peace initiative, an inter-faith conflict transformation organization, has won the trust of all sides, allowing him to carve out spaces for peace. Odama, who I was honored to meet in Rome, has facilitated years of dialogue between government and LRA forces. He famously says, “As long as there is an opportunity for peace talks, I shall pursue it.” While a comprehensive peace settlement in Uganda remains elusive, and the government is currently cracking down hard against nonviolent civic groups, perhaps one day, religiously mediated dialogue combined with citizen-led collective action will achieve a breakthrough.

Transforming violent conflict and dissolving its root causes requires a combination of people power and peacebuilding. That means linking nonviolent resistance, which intentionally escalates conflict, and traditional peacebuilding tools like negotiation, dialogue, and mediation, which de-escalate it.

Similarly, in South Sudan, where post-independence civil war and dictatorship have created a terrible humanitarian crisis, the inter-denominational South Sudan Council of Churches, one of the strongest civil society groups in the young country, has issued an Action Plan for Peace (APP) focused on dialogue and reconciliation. There is also a budding youth-led nonviolent movement in the country, called Ana Taban (“I am tired”) that is using the arts to build bridges, call out abuses on all sides, and mobilize people for peace. Hopefully the wisdom of the elders and youth energy will creatively combine to bring sustained peace to South Sudan.

A core tenet of just peacemaking is addressing and overcoming legacies of gross human rights violations and other historical injustices. Faith groups have historically contributed in significant ways to transitional justice and reconciliation. There are multiple models of truth-telling and reconciliation. In Guatemala, the Catholic Church, under the leadership of Bishop Juan Gerardi, helped initiate, organize, and execute the successful national truth commission, the Recovery of Historical Memory Project, in the mid-1990s. In Chile, the Catholic Church advocated for the country’s Commission on Truth and Reconciliation following Pinochet’s removal from power in 1990 – a core component of that country’s transition to democracy. The Chilean commission helped inspire the South African Truth and Reconciliation Commission shepherded by Archbishop Tutu.

Getting Practical

The effectiveness of all these nonviolent techniques – including civil resistance, dialogue, mediation, negotiation, unarmed civilian protection, trauma healing, and transitional justice – are grounded in the skills and legitimacy of those using them. An important role the Church (and all of us) can play in advancing just peace globally is building strategic and tactical bridges between the techniques of grassroots nonviolent action and peacebuilding and investing in them.

Practically, this can be done via education and training, through the diplomatic and policy influencing arms of the Church, through inter-religious initiatives and through field-based programming with conflict-affected communities.

  • Catholic universities around the world can educate and train youth and communities in the full menu of nonviolent options and their practical, strategic applications; they can support cutting-edge research on conflict analysis and just peace approaches.
  • Catholic leadership from the parish level on up can help integrate just peace and conflict transformation teachings into religious trainings, lay formation, homilies and sermons.
  • They can draw on research, films, and training materials on nonviolent action (many translated into dozens of languages) developed by USIP, the International Center on Nonviolent Conflict, Pace-e-Bene, Rhize, and other organizations.
  • The Pontifical Council on Inter-religious Dialogue can continue to promote just peace approaches that draw on all the religious traditions.
  • Church leaders can communicate with government officials and security forces to deter violent crackdowns against peaceful activists.
  • They can take diplomatic action when state/non-state actors are engaged in systematic human rights abuses, high-level corruption and exclusionary policies that fuel violence, and show solidarity with nonviolent activists and peacebuilders on the front lines.
  • The Vatican Secretary of State and Holy See missions in NY and Geneva can use existing initiatives, like the UN Sustaining Peace Resolution and the Sustainable Development Goals, to advance just peace approaches and tools.

Logistically, the Church can also provide safe spaces in places like the DRC, South Sudan, Venezuela, and Cambodia, where activists and peacebuilders can meet, strategize, and plan actions. It can offer small resources and transportation support for those forced to operate in restrictive environments, often with little or no money. It can work with Catholic and other private foundations to support grant-giving that aligns with just peace objectives.

I mentioned the military’s role in advocating for greater investment in nonviolent alternatives and peacebuilding. The Church could work with the military to support unarmed peacekeeping pilot initiatives in places like Syria and South Sudan. And encourage it to use military-to-military levers (training, funding, education) to strengthen governance in partner defense institutions, and deter repression and human rights abuses.

Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks to so dramatize the issue that it can no longer be ignored.

At least one national government, Lithuania, has made civilian-based defense, which involves the use of mass civil resistance and noncooperation to deter and repel foreign attacks, a core component of its national defense strategy. Building up the nonviolent resistance and peacebuilding skills and capacities of citizens, in schools and communities, is a great investment in national and international security. Of course, a papal encyclical on nonviolent action and just peace would help focus Church energy and resources on all of these options. Perhaps one day.

I have a special place in my heart for nonviolent organizers and the work they do – Dorothy Day is atop the list. Let me end with her pragmatically hopeful words:

“People say, what is the sense of our small effort? They cannot see that we must lay one brick at a time, take one step at a time. A pebble cast into a pond causes ripples that spread in all directions. Each one of our thoughts, words and deeds is like that. No one has a right to sit down and feel hopeless. There is too much work to do.”

May this conference create ripples that spread in all directions and inform how we all, individually and collectively, civilian and military, doctrinally and practically, can bolster nonviolent options to advance a more just and peaceful world. Thank you.

By Maria J. Stephan
Maria J. Stephan directs the Program on Nonviolent Action at the U.S. Institute of Peace, which focuses on applied research, training and education and informing policies and practice related to civil resistance, nonviolent action and their roles in transforming violent conflict and advancing just peace. Her Twitter is @MariaJStephan

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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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