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(D)Evolved Healthcare: Makueni’s Trailblazing Experiment in Providing Universal Health Coverage

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Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it.

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(D)Evolved Healthcare: Makueni’s Trailblazing Experiment in Providing Universal Health Coverage
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Universal health coverage is by many measures considered to be the Holy Grail of delivering quality healthcare. In fact, achieving universal health coverage by 2030 – ensuring that all people have access to the health services they need without the risk of financial hardship – was included as part of the Sustainable Development Goals (SDGs) adopted by the United Nations in 2015. Writing a year later, Marie-Paule Kieny, Assistant Director-General at the World Health Organization (WHO), described it as “the linchpin of the health-related SDGs; the one target that, if achieved, will help deliver all the others by providing both population- and person-centred high-quality services that are free at the point of delivery and designed to meet the realities of different people’s lives.” WHO estimates that about 150 million people around the world suffer financial catastrophe annually from out-of-pocket expenditure on health services, while 100 million people are pushed below the poverty line.

According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country.

In Kenya, though access to quality healthcare is a constitutional right, the scarcity of quality public and private health facilities, as well as the high cost of care even when it is available, means that universal health coverage remains little more than words on paper for much of the population. President Uhuru Kenyatta has made achieving universal health coverage by 2022 a major part of his second term agenda and indicated in his inauguration speech that this would be achieved by expanding coverage under the National Health Insurance Fund (NHIF). The president said that half a century after it was established in 1966, the Fund has only attracted 6.8 million beneficiaries. The World Bank estimates that only a fifth of Kenyans have any sort of medical cover, which means that as many as 35 million Kenyans are vulnerable to the financial devastation occasioned by a medical emergency.

Related stories: Behind the Makueni Healthcare Revolution

When illness eventually strikes, it takes a huge financial toll. According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country. In fact, direct payments by citizens accounted for a third of the country’s total health expenditure in the same year, according to Dr. Izaaq Odongo, the head of the Department of Curative and Rehabilitative Health Services at the Ministry of Health, with the balance being made up by government (36 per cent), donors (20 perc ent) and employers (10 per cent). As a result, many Kenyans are forced to resort to selling off property, relying on networks of relatives and friends, or even making desperate appeals on social media to raise the necessary funds. Hence the large, and seemingly never-ending appeals all Kenyans make when clearing medical bills. Despite this, according World Bank Country Director, Diarietou Gaye, the number of those thrust into poverty by medical expenses is close to one million.

Kenya’s network of public healthcare facilities has traditionally been hierarchically organised into 6 levels, with the lowest unit being community health workers embedded within communities. At level 2, dispensaries and clinics provide the link between community-based healthcare and the formal health system. Together with level 3 facilities – health centres, maternity clinics and nursing homes – these make up the primary healthcare units. Levels 4-6 are sub-county, county and national referral hospitals. It is at the lower levels that the majority of people interact with the healthcare system and it especially at the primary healthcare facilities that national government interventions with regard to cost have been most consequential.

Since independence, Kenya has blown hot and cold on the abolition of user fees and decentralisation, both of which, given the economic circumstances of most Kenyans as well as the devolution introduced by the 2010 constitution, are prerequisites for universal health coverage. In 1965, according to the paper “Reforming health systems: The role of NGOs in decentralization – lessons from Kenya and Ethiopia by Richard G. Wamai of the Harvard School of Public Health, “a free access policy abolished the KSh5 co-payment operative in the colonial healthcare system… [and] proposed expanding coverage through centralizing the delivery responsibilities from the counties and municipalities to the Ministry of Health”. Eighteen years later, the provision of health services was again decentralised as part of the District Focus for Rural Development programme and in December 1989, user fees were reintroduced in an effort to inject money into crumbling health facilities. The “cost-sharing” programme was part of a comprehensive health financing strategy that also included social insurance, efficiency measures and private sector development. The fees would, the argument went, generate additional revenue, incentivise use of low-cost primary healthcare services rather than the more expensive referral facilities and improve targeting of resources by reducing unnecessary demand.

Still, implementation problems led to the suspension of the policy less than a year later though it was gradually reintroduced in 1991. A 1996 study found that despite revenue increases and facilities being allowed to budget for three-quarters of the money they remitted to the districts, this did not necessarily result in improved quality of care because the funds were used to offset a fall in government funding for basic care. As evidence mounted that despite a waiver policy to protect the poor and children under five, user fees were proving to be a significant barrier to access, the government – in what came to be known as the 10/20 policy – again reversed course and in 2004 eliminated all fees in dispensaries and health centres, save for a minimum registration fee of KSh10 and KSh20, respectively. By 2007, it had instituted a maternity waiver allowing for free deliveries in public health facilities and introduced the Health Sector Service Fund (HSSF) to compensate these facilities for lost revenue.

Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals.

However, as a study published in 2015 showed, this was largely ignored by health facilities for whom user fees represented almost all the cash income they used to cover basic operating costs. As a result, most patients ended up being charged for more than the specified amount while very few received waivers. In 2013, the government abolished all user fees in public dispensaries and health centres and allocated KSh 700 million to the HSSF.

The picture was further complicated by the fact that health is one of the services devolved by the 2010 constitution. This means that while the national government is still responsible for policy and managing two Level 5 referral facilities, namely, the Kenyatta National Hospital and the Moi Teaching and Referral Hospital, the bulk of public healthcare in Kenya is delivered in facilities run by county governments. A history of skewed investment that marginalised some counties, as well as the lack of policy coordination between the various counties and between the counties and the national government, have left a rather confused picture of access to healthcare across the country.

There have, however, been some wins. For the first time since independence, residents of historically marginalised counties, such as Lamu and Mandera, now have access to Caesarean section procedures within their county. There have been problems too: from the controversy arising from the national government forcing counties to lease equipment they neither wanted nor had the resources to use, to ambulance purchases that seemed more about burnishing a governors’ image than delivering care to constituents, to the First Lady’s much trumpeted Beyond Zero initiative that today is in shambles, with many of the facilities either abandoned or turning patients away.

The Makueni model

Nonetheless, an ambitious experiment in the provision of universal health coverage is underway in Makueni, a county that borders Kajiado, Machakos, Kitui and Taita-Taveta counties. Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals. It is a model well worth examining if President Kenyatta is serious about expanding access to medical care across the country.

“When we took over in 2013, we realised that 40 per cent of the people of Makueni would sell land and exhaust family income to pay medical bills for relatives,” says Makueni’s Governor, Prof. Kivutha Kibwana. Given that medical services in dispensaries and health centres were already free and paid for by the national government, the county government figured that if it doubled the 100 million that its Level 4 sub-county hospitals were collecting in user fees, it could offer free, across the board healthcare to its residents.

Thus MakueniCare, as the county government has labelled it, was conceived. It piggybacks on the national government’s free primary healthcare policy and the national coverage provided by NHIF to plug the gap in between with the aim of providing seamless cover across all public health services.

Thus, for an annual subscription of KSh500 per household, which covers parents and all their children under the age of 18 years (or up to 24 years in case of students), Makueni residents can access free primary healthcare at dispensaries and health centres courtesy of the national government, free treatment, including inpatient care and ambulatory services, at the 13 level 4 hospitals within the county paid for by the county government, and, if they’re subscribed to NHIF, free care at referral facilities outside the county. The Level 4 hospitals provide free care and bill the county government, which also supplies them as well as the primary healthcare facilities with drugs, equipment and medical staff.

LISTENBehind the Makueni Healthcare Revolution

However, universal health coverage is more than eliminating out-of-pocket expenditure; it is also about ensuring access to healthcare. According to Dr. Cyrus Matheka, the head of the county’s Health Promotion Services, MakueniCare took two years to plan and was preceded and piloted by a programme offering free care to those over the age of 65 without a requirement for registration. Within that time, the county government invested in expanding facilities, from dispensaries and health centres to sub-county hospitals, and has continued to do so. In under five years, it has more than doubled the number of health facilities built by the colonial and national governments over the last 50 years. Apart from an additional 113 dispensaries and health centers, the county now boasts 13 Level 4 hospitals and has employed 160 doctors, compared to just 38 doctors and 3 hospitals in 2013. At KSh2.3 billion, health is the county’s single largest budget item.

All this means that the county can offer a wide array of free services to residents, from hospital admission, surgical procedures, X-ray imaging, laboratory testing, to dental and counselling services. Even in death, patients benefit from 10 days of free mortuary services. However, the cover does not apply to specialised care and equipment that are not available at the hospitals, including dialysis for patients suffering from kidney failure, intensive care units, implants, as well as auxiliary devices, such as wheelchairs.

Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources.

Dr. Andrew Mutava Mulwa, the County Minister of Health, estimates that MakueniCare covers at least 93 per cent of the county’s healthcare needs. He says it is built on a platform of ensuring adequate provision of primary care by increasing facilities, improving services and ensuring that medicines are available. “Someone who is sorted at the dispensary will not find their way to the hospital,” he says, adding that only 35 per cent of patients in Makueni need to seek care in the secondary institutions covered by MakueniCare or in tertiary referral facilities outside the county.

Challenges

However, the programme has had its share of challenges. The first, rather surprisingly, was low uptake. In March last year, when The Elephant visited Makueni, less than 10,000 households had signed up for the programme out of a potential 200,000. The scheme had a mere 30,000 beneficiaries. Part of the reason for this was the decisions taken to make the coverage voluntary, to register subscribers at county hospitals when they sought care and to make the cover active immediately upon registration and payment. Initially there did not seem to be much of a public campaign to get residents to register: there were no posters announcing the programme in all the hospitals The Elephant visited and, despite officials claiming to advertise on vernacular radio, most residents we spoke to had not heard about MakueniCare.

Julia Musau of Kaselia village, who we met at the Tawa Sub-County Hospital, is a typical case. She had been unaware of the scheme until a month prior to our visit. She found out about it after she took a patient to the Makueni General Hospital in Wote, and had difficulty settling the bill. It was another woman whose child had been admitted there who told her about MakueniCare. That was when she enrolled her family immediately.

However, even those who know about it opt to wait till they or their dependents get ill to register since there is no penalty as the cover is activated immediately and registration is done at the hospitals, anyway. This made registration vulnerable to industrial action by medical personnel. For example, during the nationwide strikes, first by doctors and then nurses, fewer people went to the hospitals as there was little expectation of receiving care. In any case, According to Dr. Matheka, less than 5 per cent of the county’s population seeks medical care at any one time, and many of these are over the age of 65, a group that already enjoys free care. This means registration will inevitably be slow unless there is a serious epidemic.

The Makueni model also faces other challenges. Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources. This brings into question the sustainability of the programme. However, in more recent times, according to Wambua Kawive, a former Makueni County Minister, the county government has ramped up its recruitment efforts and has now launched a mass registration exercise targeting 100,000 registrations by the end of the year.

Another challenge the system needed to cope with was an initial influx of patients into hospitals once the policy was implemented. Tawa Sub-County Hospital Administrator, Justus Kilonzo, told The Elephant that the workload at the hospital had increased, which necessitated the recruitment of more staff. Further, there has been an influx of people from neighbouring counties who sought to take advantage of the system. Geoffrey Kirui, the Health Administrative Officer at Makindu Hospital next to the busy Nairobi-Mombasa highway, spoke about having to filter out patients from other counties, especially Taita Taveta, Kajiado and Kitui. Still, trying to determine someone’s place of residence using identification cards, birth certificates and a ward administrator’s or chief’s letter is an inexact science and one gets the sense that this too was not well thought through.

MakueniCare also faces a hazard where, having paid the subscription, patients will head to the hospital for even minor complaints that can be addressed at lower levels, adding stresses to the system.   They may also engage in risky behaviour knowing that there is the safety net of free care. Such behaviour may be inadvertently complemented by a shift in focus from preventative to curative care by hospitals seeking to generate more revenue and county officials seeking to make political hay from the scheme.

The latter is particularly important. It is crucial to note that MakueniCare is undergirded by an administrative structure that was created to deliver a different type of healthcare where users contributed directly. Suddenly eliminating such fees can have unintended deleterious effects on both the facilities and their ability to deliver quality services. One study on the effect of the removal of user fees found that although the revenue generated was generally low, it served to ensure that facilities met the costs of services and salaries for support staff not directly funded through the government’s budget.

There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels.

In Makueni, a doctor-turned-administrator who did not want to be named told The Elephant that MakueniCare had created a mismatch of skills, with doctors having to do administrative tasks rather than attend to patients. When MakueniCare was first proposed, the doctor told us, there was much resistance from hospitals, which were concerned about the lack of a clear system as well as lack of necessary training and preparation. “Why the rush to launch in October 2016?” asked the doctor, concluding that the timing had largely been influenced by the interests of county politicians vying in the August general election.

MakueniCare essentially transfers control over funds and decision-making away from hospitals to bureaucrats at county headquarters in Wote town. Hospitals not only have to worry about delays in receiving reimbursements for resources spent in providing care – which can happen if, for example, the national government delays disbursements to the county governments – but also about losing their largely autonomous decision-making power on the equipment they need to procure and the staff they need to recruit. Similarly, where and when new facilities are built may reflect more the political priorities of those running the county government rather than the genuine health needs of the populace. Lastly, as with all government-driven procurement decisions, the spectre of corruption is never far away.

There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels. Ilatu dispensary, which was built by the Kenya Pipeline Company and opened in March 2014, may be a case in point. In September 2015, the facility was handed over to the county government that provided staff and equipment. Adjacent to a settlement scheme, it is the busiest facility in Kibwezi West and offers outpatient, maternal and child health, family planning as well as HIV testing and counselling services. The staff of two nurses and one laboratory technologist attend to between 70 and 100 patients every day. The county government is upgrading it to a health centre and building a 40-bed inpatient facility.

Jacinta Mbula is the nurse in-charge. She says staffing and resources are big challenges. When The Elephant visited the facility, her fellow nurse was on maternity leave and she was running the facility on her own. She said that there is only enough accommodation for one nurse to stay at the facility and take care of overnight maternity cases, and that nurse still has to report to work the next day. Although they receive adequate supplies of essential medicines from the county government, they do sometimes run out of non-essential drugs.

Further, she only gets KSh60,000 – “peanuts” – every quarter from the county government to pay casual labourers and purchase essential supplies. She currently employs one casual worker and one watchman but says she actually needs – but cannot afford – two casuals and a groundsman to manage the 10-acre facility. And because it was not built by the national government, the dispensary is not entitled to access the HSSF, despite its workload, though other less busy facilities do. Ilatu does, however receive, as all facilities do, reimbursement from the national government for maternal deliveries –KSh2,500 each.

Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment.

So as the county keeps building more dispensaries and health centres, questions must be asked about whether underfunded facilities can truly serve as the bedrock for universal health coverage even though access has been improved. Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment. Further, especially as the county expands the number of Level 4 hospitals, one must wonder whether this is being done at the expense of funding primary healthcare.

Makueni officials say some of the potential pitfalls are ameliorated by enhancing public participation. Governor Kibwana says local committees of citizens participate in co-supervision of projects and must, along with technical people and administrators, give approval. This, Kawive asserts, removes politics from the equation and makes bureaucrats and hospital administrators directly accountable to citizens. While it is definitely a good idea to involve local communities, true accountability must be accompanied by real access to information as well as consequences for those who are implicated in wrongdoing.

Though MakueniCare faces its share of challenges, everyone The Elephant spoke with in Makueni who was aware of the programme was full of praise for its ambition, including those who were critical of its implementation. The fact is, as Kenya ponders the way to achieve universal health coverage, the country would do well to pay attention to the lessons from Makueni. The expansion of NHIF cover by itself will not suffice; the national government must work with county governments to outline a plan that creates a seamless spectrum of cover at every level of care and provides the necessary resources at the appropriate time.

Further, there should be horizontal cooperation among counties in providing healthcare and any plan must strive for equity but without punishing the counties that have taken serious strides. Criteria for eligibility for county programmes should be clearly spelt out and counties should be encouraged to collaborate in designing their schemes within the framework of the national plan.

Thirdly, the system should primarily invest in and direct resources towards building the capacities of the public health sector, not in creating opportunities to generate private profits. It should embrace a rights-based approach that seeks to deal with health as a human right rather than an industry. That shifts the focus away from the needs of “investors” to those of citizens. As Ann Wanyoike notes, “an expanded role for the private sector became a health sector reform theme of the 1990s” but this resulted in “a dichotomous health structure that was characterised by the rich opting for high-cost private healthcare providers, with a majority of the populace who had no such means relying on the publicly run health institutions”. This means that those who can contribute the most to a national universal health coverage scheme have little incentive to do so, especially if such contributions are voluntary. More on that later.

In addition, it does no good to simply superimpose universal health coverage on a system designed for hospitals to generate revenue. The latter must be fundamentally retooled to suit the former and this will take both time and resources.

Fourth, the plan must prioritise prevention and care at the lower levels. In 2013, according to the Kenya Service Availability and Readiness Assessment Mapping report, less than 6 out of 10 health facilities in the country have the capacity to provide the Kenya Essential Package for Health (KEPH) – a standardised comprehensive package of health services – and less than half have the basic amenities to provide healthcare services. And while two-thirds have half the basic equipment required, 59 per cent do not have essential medicines. Only 2 per cent of facilities are providing all KEPH services required to eliminate communicable diseases. Providing universal healthcare on such a foundation would be building on sand.

Universal healthcare requires a substantial increase in the resources both levels of government commit to health. The point is not that both levels of government should spend more on health at the expense of other social services; rather they should increase spending on the full range of human rights and social determinants of health. For example, Kenya’s Health Policy identifies reducing the burden of violence and injuries as one of the top objectives and notes that this will require addressing causes. Given that road crashes account for between 45 and 60 per cent of all admissions to surgical wards, comprehensively addressing the problems on our roads would free up considerable resources in the health sector.

According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.

How the money that is allocated to the health sector and how it is spent should also change. According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.

In addition, the country spends nearly four times as much on curative care as it does on disease prevention and “we devote a higher share of our health shillings (20 per cent) on governance, health system and financing administration; in other words, paying people in the ministries of health who actually do not see any patients rather than spending money on preventing diseases or promoting health.” Further, although most Kenyans live in rural areas, government health expenditure has in the past tended to favour urban areas. Given the country’s limited resources, more prudence will need to be exercised if universal access to care is to be guaranteed to all.

Along the same lines, there should be an emphasis on getting Kenyans to pay into the system when they are healthy and not to wait till they get sick to get the cover. This also means making it easier for people to register and pay. For example, one can currently download a registration from the NHIF website but one then has to deliver it physically to their offices. There appears to be no way to pay via mobile money or credit/debit card. With nearly all Kenyans able to access the internet though their mobile phones, allowing online registrations and payments would be an easy way to bring in more registrations.

Further, whether the scheme should be voluntary or compulsory is a matter for serious debate. While Makueni’s system is completely voluntary, the NHIF is compulsory only for those in formal employment. Yet the WHO’s 2010 World Health Report titled “The Path to Universal Coverage” says that “there is strong evidence that raising funds through compulsory prepayment provides the most efficient and equitable path towards universal coverage. In the countries that have come closest to achieving universal health coverage, prepayment is the norm, organised though general taxation and/or compulsory contributions to health insurance.”

Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it.

There is also the question of whether, like in Makueni, everyone pays the same amount regardless of income, and whether wealthier people are asked to pay a little bit more in order to lighten the load on the poor. As the WHO notes, “financial risk protection is determined by how funds are raised and whether and how they are pooled to spread risks across population groups” and “rais[ing] funds equitably … usually implies a degree of progressivity (where the rich contribute a higher proportion of their income than the poor)”. The NHIF, rather strangely, only has a graduated scale for contributions from those in formal employment; others who join pay a flat monthly fee regardless of income. This is curious for a country where, according to the United Nations’ Economic Commission for Africa, only a quarter of workers are in the formal sector.

Fifth, accountability must permeate the entire system. Implementation of the scheme should not become, as we have seen with the free primary education reintroduced in 2003 and the Standard Gauge Railway, hostage to political priorities. Kenyans must accept that if it is to be done well, it will not be done overnight. Public participation at every stage should be encouraged and resources, especially human resources, should be utilised in the most appropriate and effective manner. Effective public participation as well as transparency will be indispensable if the country is to avoid universal health coverage becoming another avenue for looting by the state.

While universal health coverage focuses on reducing the financial burdens of patients, more will be required if access to the healthcare system is to be expanded. As the World Health Report notes, “eliminating direct payments will not necessarily guarantee financial access to health services, while eliminating direct payments only in government facilities may do little to improve access or reduce financial catastrophe in some countries. Transport and accommodation costs also prevent poor people using services, as do non-financial barriers, such as restrictions on women travelling alone, the stigma attached to some medical conditions and language barriers.”

Finally, Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it. All that is needed is a belief that Kenya should be run for the benefit of all Kenyans and that Kenyans are just as capable as any other people of imagining and creating better worlds and better futures. This may be the greatest lesson we can learn from Makueni County.

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Mr. Gathara is a social and political commentator and cartoonist based in Nairobi.

Politics

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

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

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

Phase OneThe Respondent’s Arguments

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

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

Phase Two: The Judges’ Questions

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

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

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

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

Discursion: Thinking through Lenaola J’s Question

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

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

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

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

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

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

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

First Phase

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

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

Second Phase

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

The Basic Structure

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

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

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

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

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

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

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

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

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

The Popular Initiative

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

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

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

The IEBC and the Quorum

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

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

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

Conclusion

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

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

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