As the head of state and government, President Jakaya Mrisho Kikwete, whose tenure lasted from 2005 till 2015, made diplomacy his core business, and travelled abroad frequently to the extent that his record of foreign trips became a reputational liability. As costs went up, the opposition seized the opportunity to criticise his administration for possible wastage. One of those who came forward to defend the trips was the current president, John Pombe Magufuli, who said, “There are those who say you are always travelling, but without those trips we wouldn’t have seen the progress we have made, so we ask you to keep travelling because we need to see more progress.”
Unlike his predecessor, the current president has distinguished himself for his aversion to travelling and mingling in circles of power at the international level. When it comes to diplomacy, he prefers to lead from behind, and lets his deputies represent him and the state. This arrangement, as he has argued in the past, saves money. While this approach is popular at home, the ensuing arms-length relationship with his peers in the region and across the globe has not been without its downside.
In 2018, the European Union (EU) Parliament issued a resolution on Tanzania, condemning it for what it described as a deterioration of human rights, as well as the continuous closure of civic space. This was the first time ever that a foreign legislative body had issued a statement regarding the situation in the country.
Since then, multiple other nations have expressed concerns, including the most recent June 2020 statement by the United States embassy in Dar es Salaam, which was critical of government actions to “stifle democratic norms”. These actions can possibly be interpreted in multiple ways; one way is to read them as a result of feeble diplomatic engagement by the host country. In terms of vision, it is understandable that the government is keen to prioritise autonomy over domestic and foreign policy, but its handling of political rights undermines this objective because it opens the door to criticism.
In 2001, Tanzania adopted a new foreign policy and made a conscious decision to focus on economic diplomacy after many years of practising liberation diplomacy in East, Central and Southern Africa. The decision to turn to economic diplomacy was informed by the assessment that the country, and the world at large, had seen a significant “economic and socio-political shift”, and that there was a need to focus on securing “core” national interests.
In terms of vision, it is understandable that the government is keen to prioritise autonomy over domestic and foreign policy, but its handling of political rights undermines this objective because it opens the door to criticism.
The focus on economic diplomacy fits well with the ambition to industrialise the country, a stated objective of the current administration. The ability to pull in economic opportunities has thus become a key indicator for assessing the performance of diplomats. For President Magufuli, the economy is a priority, even in the face of COVID-19, and he believes that, if managed well, the country could attain superiority in this area, and even become a donor nation in the near future. As such, economic diplomacy has become a primary basis of interaction between the country and other nations.
Within East Africa, relations with Kenya provide a vivid example of the growing emphasis that Tanzania places on terms of trade. Although competition and concerns about trade imbalance have always influenced how nations interact in the region (to the extent that they even led to the collapse of the former East African Community), trade deficit, especially between Kenya and Tanzania, has received heightened attention in the region’s countries since 2015 and caused occasional tensions.
The outbreak of COVID-19 and a variation in response has triggered a friction between Kenya and Tanzania in recent months due to difficulties in agreeing on flow of transit goods and vehicles, but the underlying locus of contestations remains trade opportunities. Commenting on the recent disagreements, Tanzania’s Minister of Foreign Affairs, Palamagamba Kabudi, said that it is common for “peers” to have differences but that does not necessarily mean that they aren’t getting along. What is clear from recent developments is that when it comes to defending its economic interests, the “new” Tanzania is aggressive and uncompromising.
There is a valid concern that the overwhelming emphasis on economic diplomacy – symbolised by the decision to advance long-strained relations with Israel and Morocco without any clear public strategy or commitment to how this approach will help with the resolution of the Palestine and Western Sahara questions – is an indication that the country is dishonourably compromising on important values.
However, it is important to note that an examination of Tanzania’s voting records at the United Nations General Assembly over the last five years (2016- 2020) suggests that the country has remained consistent by voting repeatedly in favour of motions that reject and condemn occupation of the Syrian Golan and construction of settlements in the West Bank, as well as the intention to annex the area. This trend does not necessarily mean that the country’s commitment to the Palestine and Western Sahara questions has not wavered. It, at least, shows that Tanzania remains opposed to the plight of the two communities while not actively working to counter the situation, and that the nation has decided to prioritise its economic interests.
John Pombe Magufuli, the fifth president of Tanzania, was elected in October 2015 on the promise to build a new country (“Tanzania Mpya”), a country modelled on his image as a hardworking, incorruptible and uncompromising man. The circumstance preceding his rise was characterised by a fracturing of the dominant coalition within the ruling party, mainly due to a struggle for power, and allegations of large-scale corruption within its ranks.
As the weakened Chama cha Mapinduzi (CCM) party strived to retain power in the context of an emboldened opposition, it acquiesced to its popular and fairly clean cadre. The implication of this backdrop is that the fifth administration was, quite explicitly, handed a mandate for reform, but not necessarily a space or legitimacy to adjust the nation’s vision. The resolution issued by the European Union, multiple statements made by the United States, and other nations, such as the United Kingdom, in recent years have been triggered by the current government’s attempt to adulterate the nation’s vision.
A key contentious issue about the fifth phase government’s conduct is its overt dislike for political freedoms. President Magufuli and his government view political pluralism as an unnecessary obstacle to his desire to move fast and deliver economic outcomes, and have taken draconian measures, such as banning political rallies and prosecuting opponents, to curtail their operations. This new approach clearly deviates from the path outlined in the country’s Vision 2025, which recognises multiplicity of political actors as a key factor in achieving the objective of a middle-income, semi-industrialised country. Most importantly, it is a trajectory that lacks national consensus, and contradicts basic rights that have been guaranteed by the constitution. Although the repression of political opponents is not a new phenomenon in Tanzania, the outright rejection of political pluralism as a shared value is unique to the fifth phase government, and has become a key fault line that characterises the country’s relationship with the international community.
In his first speech to Parliament and the nation in November 2015, President Magufuli said, “The fifth phase government will put strong emphasis on industrialisation. We do not have any other way if we want to establish a foundation for a sustainable economy, and uplift the lives of our people.” The ambition to industrialise the country (“Tanzania ya Viwanda”) became a clarion call during the fifth phase government’s first three years in office (2016-2018).
Although the repression of political opponents is not a new phenomenon in Tanzania, the outright rejection of political pluralism as a shared value is unique to the fifth phase government, and has become a key fault line that characterises the country’s relationship with the international community.
However, beginning in 2018, Tanzanians started to hear less about industries and more about major infrastructure projects: revival of the national airline, Air Tanzania; construction of a standard gauge railway; expansion of highways; installation of flyovers, rehabilitation of ships and commissioning of new ones; plans for a Liquefied Natural Gas plant; and a crude oil pipeline from Uganda (EACOP). This shift in the public narrative reflects a recalibration of the government’s focus and investments, and indicates that the authorities realised a few years down the line that the country’s infrastructure gap needed to be addressed first, and that it was, strategically speaking, and even sequentially, a logical thing to do. And there is a strong case for investing in infrastructure.
The infrastructure gap
The African Union’s Vision 2063 notes that “the challenge facing Africa is to transform the economy from a resource-dependent one to a dynamic, diversified industrial economy”. However, a key challenge to achieving this objective is a glaring infrastructure gap that afflicts the continent.
A 2012 study by the World Bank described Tanzania’s infrastructure challenges at the time as including inefficiency at the main port of Dar es Salaam, shortage of energy and over-reliance on hydroelectric power, which remains vulnerable to climate change, the need to improve the road and rail networks, and limited distribution of piped water.
There is no doubt that one of the key elements of President Magufuli’s legacy under his vision of a new Tanzania will be a significant improvement in infrastructure. Nevertheless, the opposition has criticised the overwhelming focus on this area on the grounds that it embodies a conceptual and practical failure to prioritise human development. An independent evaluation of the first ten years of implementation of the country’s Development Vision (2025) highlighted the same observation – that investment in large-scale construction, although strategic, does not necessarily have a direct effect on the lives of the poor. It is, therefore, not surprising that the popular discourse in the country is dominated by concerns over difficult living conditions (“vyuma vimekaza”) mostly among low- and middle-income people.
The implementation of multiple and parallel projects has in recent years raised concerns over potential risks of debt distress due to the growing appetite for borrowing. In 2018, the then Comptroller and Auditor General, Professor Mussa Assad, expressed concerns about the rate at which the national debt had grown – from TZS41 trillion in 2015/2016 to TZS46 trillion in 2016/2017, a 12 per cent increase in less than two years after the new administration took over.
Recent reports show that the public debt currently stands at TZS55.4 trillion, while the debt to GDP ratio is around 27 per cent. These figures suggest that public debt has grown by 25 per cent since President Magufuli was elected. Although the government continues to insist that the public debt is sustainable, and a recent assessment by the International Monetary Fund (IMF) has shown that the risk of debt distress remains low, the cost of servicing public debt at its current rate of 11.9 per cent of GDP is quite significant and points to the scale of the sacrifice that the public will have to make for many years after the fifth phase government leaves office.
Reducing aid dependence
Reducing dependence on foreign aid has been a key objective of the fifth phase government. It is based on the rationale (and past experience) that this form of assistance is usually associated with undue influence. The 2020/2021 budget’s projections indicate that the government expects foreign aid and concessional loans to amount to about 8.2 per cent of the budget. At some point in President Kikwete’s tenure, aid and concessional loans were contributing to more than 30 per cent of the government’s budget, and donors, knowing their influence, resorted to withholding budgetary support on multiple occasions in order to push for action against allegations of corruption in government.
The current administration’s popular crusade against corruption is top-down and not wholly objective, but the level of determination and persistence is remarkably high. So, unlike President Kikwete’s regime, the main point of contention between the authorities in Dodoma and the international community, especially Western powers, is not corruption but human rights, particularly the treatment of the media, the political opposition and activists.
While aid from Western countries is associated with “undue” influence, assistance from other significant countries, such as China, is seen as less intrusive. In 2018, President Magufuli called China a true friend, and hailed the absence of conditionalities in their hand-outs. The Chinese Communist Party remains quite close to the ruling Chama cha Mapinduzi, and Chinese ambassadors are usually keen to show it.
It is logical to assume that China and a few other Asian countries, such as India and Japan, must have benefited from the straining of relations with the West, but there is a clear indication that the fifth phase government has generally avoided creating any impression that Tanzania is a “sphere of influence” of any country. For instance, a contract for implementing a major standard gauge railway went to a Turkey-based company, Yapi Merkezi, in 2017. The fate of a well-publicised port project that was supposed to take place in Bagamoyo, which is sixty kilometres from Dar es Salaam, and which had initially been agreed with the Chinese, remains unknown following a disagreement over the terms of the deal.
About a year ago, a foreign aid worker who was at the time working to promote good governance in the country said to me, “When I arrived here [during Kikwete’s tenure], this country was boringly rational and predictable. You knew exactly what to expect. Now I don’t even know if I will still have my visa tomorrow – everything is so unpredictable. And I am hearing similar complaints from every expat.”
It is logical to assume that China and a few other Asian countries, such as India and Japan, must have benefited from the straining of relations with the West, but there is a clear indication that the fifth phase government has generally avoided creating any impression that Tanzania is a “sphere of influence” of any country.
There is a high possibility that the non-profit sector is more resilient, and even used to uncertainty, but it is a different case for the business sector, a key driving force behind the economy that the fifth phase government values so much. Policy unpredictability raises political risk, and thus the cost of doing business. As good news trickles in that the World Bank has categorised Tanzania as a (lower) middle income country five years ahead of schedule, one hopes that this achievement will serve as a catalyst and accelerate the implementation of the blueprint to improve the business environment. Constructive dialogue with the private sector and the international community would be a good starting point.
President Magufuli rose to prominence from his days as the Minister of Public Works largely because of his ability and reputation as an incorruptible doer. His first term in office has proved his record but also laid bare a schism – even outright collision – between his personal vision and the country’s long-codified vision. Unless his second term is dedicated to some restitution, the fifth phase government will leave behind a contested legacy.
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AGRA’s Green Revolution Has Failed, Critics Say
Fifteen years later, and a billion dollars in funding, AGRA’s promise to double productivity and incomes for 30 million smallholder farming households by 2020 while reducing food insecurity by 50 per cent has not been fulfilled.
When the Bill and Melinda Gates Foundation and the Rockefeller Foundation launched the Alliance for a Green Revolution in Africa (AGRA) in 2006, it was billed as a game-changer in addressing the continent’s hunger crisis. Africa would get the sort of productivity revolution that could reduce hunger, improve livelihoods and create jobs. “Sustainable intensification” was the goal – getting more food from the same land, the “green” in the name being in opposition to the “red revolutions” that were sweeping through Asia in the 1960s.
While at the outset this ambitious project appeared to be the sort of aid that could transform Africa’s agricultural sector and feed its growing population, AGRA is now hard-pressed to demonstrate its achievements after 15 years and one billion dollars in funding.
The criticisms against AGRA emanate from diverse quarters and are gaining momentum. The Alliance for Food Sovereignty in Africa (AFSA), the continent’s largest civil society network, comprising 35 groups that involve some 200 million food producers, has embarked on a robust campaign, painting AGRA as a misguided effort that has fallen short in bringing any sort of productivity revolution in its 13 focus countries. Faith leaders in Southern Africa issued their own challenge to the Gates Foundation. Neither has received a reply from AGRA’s major donors, which include the two US foundations and aid agencies from the United States, United Kingdom, Germany and Canada.
Those challenges came to a head on 2 September 2021 at a press conference prior to the opening of AGRA’s annual Green Revolution Forum when civil society leaders called for donors to stop funding AGRA. “What African farmers need is support to find communal solutions that increase climate resilience, rather than top-down profit-driven industrial-scale farming systems,” said Francesca de Gasparis, the executive director of the Southern African Faith Communities’ Environment Institute (SAFCEI).
AFSA released an open letter signed by its 35 member networks and 176 international organizations from 40 countries. “AGRA has unequivocally failed in its mission to increase productivity and incomes and reduce food insecurity, and has in fact harmed broader efforts to support African farmers,” reads the strongly worded letter.
AGRA Vice President for Innovation Aggie Asiimwe Konde disagrees. “We focus on informing farmers, enable access to technology and increase production and income to farmers. We have had a resounding success in that we have seen farmers doubling their income, diversification of crops, and integration into the market.”
Searching for evidence of Green Revolution success
AGRA was founded in 2006 with ambitious goals: To double productivity and incomes for 30 million smallholder farming households by 2020 while reducing food insecurity by 50 per cent. That deadline has now passed, and independent research suggests that AGRA’s rosy promises are far from being realised.
In fact, AGRA is unable to provide evidence of that progress, says Timothy A. Wise, a senior advisor on the Future of Food at the Institute for Agriculture and Trade Policy and senior research fellow at Tufts University’s Global Development and Environment Institute. Wise undertook an impact assessment in 2020 and found no comprehensive evaluations of AGRA’s progress in meeting its goals by AGRA itself or by its major donors. After AGRA refused to accede to his request for data on its beneficiaries, Wise took a broader and more revealing approach.
“I chose to examine data from AGRA’s 13 priority countries to see if there were indications that a productivity revolution was taking place with rising incomes and improved food security. I found little evidence of significant productivity improvements,” notes Wise on his research. As he explained in a recent article for The Conversation, “By any estimate, 30 million smallholder farming households represent a significant majority of farmers in the 13 focus countries. If the alliance had doubled yields and incomes and halved food insecurity for that many farming households, that would indeed have shown up in the data.”
It did not. For a basket of staple crops, Wise found that productivity increased just 18 per cent over 12 years. That is nowhere near the goal of doubling productivity, which would be a 100 per cent increase. More tellingly, it is barely higher than the rate of productivity growth before AGRA was launched.
And neither did incomes nor food security improve significantly. According to the latest United Nations estimates, the number of severely “undernourished” people in AGRA’s 13 focus countries has increased by 30 per cent since 2006, a far cry from AGRA’s promise to cut food insecurity by half.
“After 15 years and one billion dollars in outside funding, AGRA has failed to catalyse a productivity revolution in African agriculture. Farmers’ yields have not grown significantly,” Wise stated at the September 2 press conference. “It is time for donors to listen to African farmers and community leaders.”
Wise pointed out that his critique goes well beyond AGRA, implicating the entire Green Revolution approach to which African governments devote significant resources, including an estimated one billion dollars per year in subsidies for seeds, fertilizers and other inputs. “Our research assessed the progress of the Green Revolution project as a whole. This should indeed have produced measurable results in 15 years given the billions of dollars invested in the project. It has not,” he wrote in The Conversation.
“It is time for donors to listen to African farmers and community leaders.”
African and German civil society organisations produced a report drawing on Wise’s research. Titled False Promises, the report calls on countries to abandon AGRA and its Green Revolution and instead support initiatives that boost small-scale food producers, particularly women and the youth, to develop climate-resilient and environment-friendly farming practices.
A lot of money went into supporting maize production, and total production went up 87 per cent, according to the report. But most of that increase came from farmers increasing the land under maize cultivation, encouraged by the subsidies. Yields increased only 29 per cent over 12 years, but land under maize production went up nearly 50 per cent, hardly a sustainable way of farming.
The bias towards maize at the expense of other equally essential food crops such as millet, which are drought-tolerant and more nutritious, has also been cited as one of the downsides of AGRA’s interventions. Millet production had declined by a quarter, says the report.
Rising hunger across the continent
The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger. According to the UN Food and Agriculture Organization’s annual hunger report published on 12 July 2021, the world experienced an almost unprecedented increase in severe hunger from 2019 to 2020. The agency’s annual estimate of “undernourishment” showed an increase of up to 25 per cent over the 2019 levels, to between 720 and 811 million people.
In sub-Saharan Africa, about 44 million more people faced severe malnutrition in 2020, with 30 per cent of the continent’s population struggling to feed their families. Some 66 per cent of the population faced “moderate or severe food insecurity” in 2020, says the FAO, up from 51 per cent in 2014, an increase of 244 million food-insecure people in just six years.
The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger.
Wise points out that since AGRA was founded in 2006, hunger in Sub-Saharan Africa has not gone down by half but has increased nearly 50 per cent. “The Green Revolution is taking Africa in precisely the wrong direction,” he says.
AGRA has itself faulted Wise’s survey, conducted under the aegis of Tuft University’s Global Development and Environment Institute, saying the research failed to meet “basic academic and professional standards of peer review. . .” Andrew Cox, chief of staff and strategy at AGRA, is quoted terming the research as “not professional and ethical.” But Tufts University administrators have defended Wise’s methods.
AGRA’s Konde said in an interview that the organization was successful. “We targeted 9.5 million farmers and now we have 10 million farmers with minimum technology.” She then went on to fault African governments for not doing their part. “Unfortunately, only Ghana, Rwanda, and Nigeria have implemented the 10 percent of their budget to the agricultural sector as per the 2003 Maputo Declaration. The rest of Africa has only committed 2 percent of their budget to agriculture.”
Konde took issue with the demands of AGRA’s critics. “Taking into account the uncertainties brought about by climate change and the COVID pandemic, it would be unfortunate to call for the disbandment of AGRA at this point in time. I wonder which farmers they are representing. AGRA believes in increasing choices to farmers, and promotes ways how more farmers can have access to technology and apply them.”
She went on: “We have been carrying out value for money assessments and every $1 we have spent has produced close to $10. The questions we should be asking are did the African farmers get access to information and technology?”
AGRA officials say that the agency’s budget and contributions are too small to have its impact reflected in national-level data. “The data could not possibly be extrapolated onto the kinds of regional/sub-regional work that we do,” AGRA’s Cox wrote via email to Stacy Malkan of U.S. Right to Know. Critics point out that if AGRA reached the 30 million farmers it set out to reach and transformed their practices, such impacts would be evident. Still, AGRA claims that its recent Annual Report provides evidence of yield increases, income gains and improved food security.
Wise reviewed the new documents and was critical of the data, saying it was hastily constructed, poorly documented, and highlighted improvements in just a few crops and countries over a very short period. Other critics also consider AGRA’s failure to document its impacts over its full 15 years of existence as telling.
Muketoi Wamunyima, country coordinator for PELUM Zambia, which works to improve the livelihoods of small-scale farmers by fostering ecological land use management, co-signed a letter to AGRA last year asking for evidence of its impacts. They received a long response from AGRA’s Andrew Cox, which they dismissed as non-evidence. “As civil society organisations working in Zambia, we have challenged AGRA’s model and engaged with our local government to highlight the fact that AGRA’s approach does not respond to the needs of the small-scale food producers,” Wamunyima said.
Rwanda is widely touted as a star performer in AGRA’s plan, with a quadrupling of maize production since 2006. But according to the False Promises report, the Rwandan “miracle” showed weak overall productivity improvements across staple crops in the country as farmers abandoned the cultivation of more nutritious local crops for maize. And according to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.
Mariam Mayet, executive director of the African Centre for Biodiversity, said, “For years we have documented the efforts to spread the Green Revolution in Africa, and the dead-ends it will lead to: declining soil health, loss of agricultural biodiversity, loss of farmer sovereignty, and locking of African farmers into a system that is not designed for their benefit, but for the profits of mostly Northern multinational corporations.”
Africa is not a monoculture
AGRA’s Konde dismissed AFSA’s criticisms. “We invited those that have been complaining to the AGRF summit so that we can exchange views but they did not come.”
AFSA’s General Coordinator, Million Belay, confirmed that he was invited but only at the last minute. Belay explained why he declined the invitation in an opinion piece for Al Jazeera.
“We at AFSA disagree with the Green Revolution’s approach on a basic level. The strategy has indebted our farmers, ruined our environment, harmed our health and undermined our seeds and culture. We object to the flurry of initiatives to amend our seed laws, biosafety standards, and institutionalise fertiliser rules and regulations that seek to entrench Africa’s overreliance on corporate agriculture.”
He took particular issue with AGRA’s claim that the forum would speak for Africa in a “single coordinated African voice.”
“Africa is not a monoculture and we do not want it to become one. Africa does not speak with a single voice, certainly not that of the Green Revolution Forum. Its diversity of voices is as rich as the diversity of the continent’s landscapes, cultures and food traditions. Those voices want to sing, not in monotones but in harmony, with one another, with nature, and with government leaders and donors who value that diversity and support it.”
According to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.
Anne Maina, the Coordinator of the Biodiversity and Biosafety Association of Kenya (BIBA-K), concurs. She believes that sustainably improving nutrition, increasing production, enhancing biodiversity, raising resilience and boosting incomes will come about with the participation of all – smallholder farmers, pastoralists, fisher folk, hunter/gatherers and indigenous peoples – in their diversity and not through expensive, high-input monocultures.
And while AGRA’s technocrats have in the past been more combative in their response to criticism, its board chairman, Ethiopia’s former Prime Minister Hailemariam Dessalegn, sounded conciliatory in an op-ed published by AfricanArguments.com.
“The solutions for transforming Africa’s food systems [have] come down to one approach over another. Such binary debates are unhelpful and at times counterproductive. Building more resilient food systems on the continent will require a mix of approaches from agroecology to the latest crop and soil science,” wrote Mr Dessalegn.
Whatever the case may be, the need to resolve Africa’s hunger crisis in a sustainable way is an urgent one.
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.
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 One: The 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.
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.
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.
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.
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.
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.
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.
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 Ndii. Kesavananda 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 frame, re-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.
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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