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Déjà Vu: The BBI Moment in Historical Perspective

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It is an unacknowledged fact that, in Kenya’s relatively short political history, if one were to speak of the BBI report and launch as a moment, the people of Kenya have been here before.

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Déjà vu: The BBI Moment in Historical Perspective
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The reports that have resulted from the Building Bridges Initiative (BBI) have identified the need for greater political, economic and religious inclusivity as the key issues confronting Kenya. The roots of political, economic, and social exclusion are embedded in Kenyan history, and they must be recognized and confronted for any attempt to promote inclusion to be successful.

This means that Kenya’s politics, economy and society have been polarized by divisions based on race, ethnicity, class, and religion, to name the most historically prominent, since the start of the colonial conquest in 1895. The rulers of Kenya during the colonial era and beyond put such divisions into place by legal measures and political and social usage both before and after independence. This produced a colonial society marked by rigid racial segregation in all aspects of life, including access to political inclusion and economic resources (e.g., the so-called white highlands). Social amenities were also segregated, and employment and leisure activities limited according to race, religion, and economic status.

While legally supported racial discrimination disappeared after independence, other forms of exclusion, grounded in ethnicity, class, and religion, continued to thrive after December 1963. The legal and constitutional framework that concretized those forms of exclusion is what the BBI initiative seeks to alter and overturn through constitutional amendments to provide a new framework for governing Kenya in the interests of all its inhabitants.

Looked at in context, it is clear that this process will only be possible if leaders of the BBI movement take account of past history. For example, Kenya’s constitutional history prior to 1963 represented a patchwork of legal decrees, colonial ordinances, and imperial directives in the form of orders-in-council. There was no single constitutional document setting out rules and philosophies for governance until the publication of the self-government constitution in April 1963. It was set out in an order-in-council and published in the Official Gazette. It came into effect on 1 June 1963. Like other colonial era constitutional instruments, the self-government constitution was imposed by the imperial power. A primary reason for this was that none were marked by negotiations involving all Kenya’s people or their representatives, nor were they a product of compromise and consensus.

A conspicuous example was the introduction of elected representation to the East Africa Protectorate (after June 1920 the Colony and Protectorate of Kenya) Legislative Council (LegCo) and local government bodies. The LegCo passed an ordinance in 1919 providing electoral representation only for Europeans resident in the territory. Europeans made up most of the body, and the then governor allowed official (civil servant) members a free vote. The result was strongly opposed by Asian (primarily from British India) residents, and as a result the British government was forced to intervene and decree, in the Devonshire White Paper of 1923, that Asian residents should have five elected representatives in LegCo and Europeans 11. The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.

This lack of inclusion for the colony’s majority population and the imposition by the colonial power manifested itself after World War II in the form of the Lyttleton Constitution of 1954 and the Lennox-Boyd Constitution of 1957-58. In both cases, a Secretary of State for the Colonies imposed constitutional arrangements that were rejected by those representing the African people. Acceptance by the European settler (or white highlander) representatives on behalf of the miniscule unofficial European population was deemed most important by the colonial rulers. In these cases, as earlier, it was only a portion of the colony’s elite who participated in constitutional discussions, and once the secretary of state had made up his mind, there was no discussion nor changing of constitutional specifics. Consensus, compromise, and inclusivity were not part of this process.

The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.

The constitutional alterations introduced as a result of the first Lancaster House conference in early 1960, moreover, continued the practice of elite involvement at the expense the Kenyan masses. As before, another secretary of state imposed a formula for a new LegCo and council of ministers as the delegates at the London meeting failed to reach agreement as far as the future legislative and executive branches were concerned. A major change in 1960 was that the 14 African elected members of LegCo were now the key group, but even they were not able to obtain changes to the new constitutional arrangements Iain Macleod laid before them. They accepted his formula while not all the European elected members did.

This was a significant change as at the conference the British government recognized that Kenya’s future was as a state governed by majority rule with Africans in control of the state. However, the fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace, and not subjected to a referendum. It took almost a year to work out the specifics of the new constitutional arrangements with representatives of the colonial state playing a key part in the proceedings. (A key reason for this is that the colonial state and the British government wished to create a system of representation whereby “moderate” candidates were returned to the new LegCo by African and European voters in what would be Kenya’s last non-universal suffrage election.)

The self-government and independence constitutions emerged through similar circumstances. The political elite, now African-led and divided in two political parties, KANU and KADU, negotiated with the British government regarding the type of successor state that would rule Kenya. Both parties had European and Asian representatives as members of their delegations. As is well known, the second (1962) and third (1963) Lancaster House conferences were deeply divided over the issue of a federal or unitary state. At Lancaster House II, KADU advocated for majimbo, or a federal system of governance with powers devolved to geographically defined regions while KANU stood firm behind the call for a unitary system based on the existing administrative divisions and very much resembling the British model of parliamentary democracy. Here again, a secretary of state had to impose a settlement, this time a framework rather than a detailed constitution. It was left to Kenya’s political elite to work out the specifics of the constitution for self-government.

The fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace.

The divisions in constitutional philosophy together with an inept handling of the negotiations by the leadership of the colonial state, delayed the process during 1962. Following the arrival of a new governor in January 1963, the process speeded up considerably, but agreement on many critical issues was not reached. This left another secretary of state for the colonies to decide the outstanding issues in dispute in March. Not only did the Kenyan political elite fail to agree, but the whole process did not involve participation by the population in the form of public meetings to explain the issues in dispute or a referendum. The self-government constitution (1 June 1963) provided for an extensive bill of rights and sought to institute a governmental structure based on a separation of powers between executive, legislative, and judicial branches, and thus unlike the structure of the colonial state.

However, the final form of the independence constitution, introduced on 12 December 1963, was much influenced by the universal suffrage general elections of May 1963. The victory of KANU in the House of Representatives and Senate opened the way for significant changes to that constitution in the next decade that did away with federalism and established a de facto one-party state. Significantly, it began the retrenchment of the bureaucratic-executive state. This meant that over time the executive branch of government dominated the legislative and judicial through an authoritarian imperial presidency.

Before turning to constitutional developments in the independence period, it is important to briefly examine the political culture and trends that marked the colonial era. Until 1961, constitutional arrangements were characterized by the politics of race. Kenya’s rulers conceived of the colony as a territory of several distinct racial groups. This vision was underpinned by a firm adherence to racist ideas of Social Darwinism which emphasized inequality among humans and a need for exclusion in political, economic, and social facets of colonial life. Segregation rather than integration was the mantra of colonial officials, settlers, and missionaries. As noted, the politics of race began to change in the early 1960s to be succeeded by the politics of ethnicity which also had its roots in the colonial decades.

Both the politics of race and ethnicity shared some common elements in terms of political strategies and actions. A few will be mentioned here as they had an influence on constitutional developments as well as remaining influential in independent Kenya. Divide and rule has been an enduring part of Kenyan political history. Keeping the population divided lessened opposition to ruling groups as well as privileging certain racial and ethnic groups and disadvantaging others (collectively most of the population). The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice. It is influential whether applied to racial or ethnic politics. In addition, a political practice that emerged in colonial Kenya burst forth again after independence. This is what some of Kenya’s colonial governors viewed as an “opposition mentality.” After 1923, Kenya’s European politicians enjoyed considerable influence, but could never take control of state power. This led to the adoption of European obstructionist opposition in LegCo and elsewhere combined with a refusal to support reformist programs in the political, economic, and social spheres. Their politics was that of irresponsible attack on the colonial state, knowing that they could never win control of that state in any democratic election.

A similar situation existed from 1969 until 1991 when the single party KANU government led by all-powerful presidents could not be democratically influenced or changed. That situation was the product of a neo-patrimonial political system with roots in the colonial era. Patrons (with presidents as patron-in-chief) ruled by gaining clients whom they bound loyally to them using state resources. This perpetuated the divisions noted above and also the on-going dichotomy of the elite against the masses, oligarchy vs democracy, and exclusion and inclusion.

The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice.

These themes and the practices associated with them impacted post-independence history and produced many of the issues highlighted by the two reports of the BBI taskforce. These political factors have been, and are, closely tied to many of the critical, and most divisive, issues confronted in any study of Kenya’s history since the end of 1963. Prime amongst those are devolution or majimbo, unequal access to national resources, and income inequality with access to land right at the top. Others noted in studies of that historical period include questions relating to the “ownership” of Kenya. Does it belong to all Kenyans or to a few? Can a Kenyan citizen live anywhere within the nation’s boundaries? How can gender inequality be fruitfully addressed? Another unaddressed issue is the so-called “neglected north” of Kenya that has been “left behind” in many ways. All these can be directly tied to policies and practices that have produced exclusion, at least in theory, and can certainly be addressed, in some measure, by constitutional changes.

Changes by means of constitutional amendment were relatively common during the second half of the twentieth century as that period witnessed several “change the constitution” initiatives. The first of these emerged immediately after Madaraka Day (June 1, 1963), and a key demand and goal of Prime Minister Jomo Kenyatta’s government was to alter the procedure for amending the independence constitution. Mzee Kenyatta was partially successful in achieving change at Lancaster House III, though it was not the result of negotiations and compromise with the KADU opposition leaders. The majorities required in both houses of parliament were reduced for certain categories of amendments, and a procedure for a national referendum was inserted in the independence constitution, although it would not be used for several decades.

The changes, the KANU government’s failure to implement portions of the independence constitution, and the demise of KADU in November 1964 opened the way for constitutional amendments that established a republic with an imperial presidency (itself reinforced by further amendments such as the 10th of 1968) and the seeming end to devolution through the elimination of regional powers and a bicameral legislature as well as periods for Kenya as a de facto one-party state (1964-66 and 1969-82). All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum. Many amendments to the constitution were passed quickly and with minimal debate. For example, the amendment opening the way for the “little general election” of 1966 was approved by parliament in two days as was the 15th amendment of 1975 (the so-called Paul Ngei amendment). The infamous 19th constitutional amendment of 1982 (that made Kenya a de jure one-party state) was also rapidly approved with no opposition on the second and third readings. A key characteristic of this period was that constitutional change was politician-driven (in some cases by the president himself) rather than people-driven.

The history of amendments in independent Kenya is thus important to take into consideration. The return of multipartyism in 1991 was a result of, and produced additional, change the constitution initiatives, but the changes advocated were on the whole different from those of previous years as they called for democratization of the political system and an extension of civil liberties. The failure of political pluralism to bring these about or to remove the autocratic and corrupt KANU regime of President Daniel arap Moi led many to move from demands for constitutional change by amendment to calling for the introduction of a new constitutional order. Such campaigns for change became increasingly strong during Moi’s last term as president (1997-2002). A key characteristic in this drive for change was the continued conflict between those who wished a people-driven process of constitution-making versus those advocating a politician-driven pathway to a new constitution.

A key characteristic of this period was that constitutional change was politician-driven rather than people-driven.

This conflict came to the fore after 1999-2000 when a serious attempt was launched to create a new constitution with the creation of the Constitution of Kenya Review Commission and the appointment of distinguished law professor Yash Pal Ghai as chairman of the review commission. The commission began to collect public views on constitutional reform during 2001 and 2002 for what many Kenyans hoped would be the basis for a new, people-driven, constitution to be introduced prior to the general election expected to be held at the end of 2002. Politicians had the last word, however, as the new constitution produced by Ghai and his team was not moved forward in parliament, and Moi quickly dissolved that body leading to the 2002 election. KANU was defeated by the NARC coalition and the hopes of many Kenyans for a new constitution under now president Mwai Kibaki seemed likely to be quickly fulfilled.

As is well known, this hope did not materialize during Kibaki’s first term, and by 2007 many Kenyans had reason to despair. Many factors have been put forward to explain this delay. Among these were continued division over a people-driven versus a politician-driven process, which in some ways reflected the elite or big men versus the larger number of small men dichotomy of the past. The influence of the neo-patrimonial politics remained a factor with wealthy individuals seeking to control the process, and the inability to adopt democratic norms proved a barrier to a new governing order. Also critical were divide and rule traditions (producing exclusion for many) as against the ideal that all Kenyans should have a stake in their government, no matter their ethnicity or place of residence (inclusion). The opposition mentality mentioned earlier also made compromise and agreement difficult.

These divisive factors played themselves out around several key constitutional issues. Those included the shape and powers of the executive branch, the nature of the franchise and of representative government, separation of powers, civil liberties, devolution, and financing a new constitutional order. These all presented bones of contention in the framing process as Kenyans struggled particularly to find consensus around the executive (a president as head of state and government versus an executive prime minister as head of government), legislature (unicameral or bicameral), system of representation, and devolution. The latter issue had become critical since majimbo came back into popular discourse and political contention in the 1990s and later.

Calls for federalism had accompanied the ethnic clashes that disrupted western Kenya and the coast during that decade. Furthermore, as time passed federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch that had marked the presidencies of Jomo Kenyatta and Moi.

As most Kenyan adults in the 2020s know, the process of reaching a new constitutional order took many twists and turns between 2002 and 2010. The divisive constitutional issues noted earlier continued to burn brightly with the struggle for a people or politician-driven governing document at centre stage. 2004-05 witnessed parliament take control of the reform process through a select committee. Although politician/elite-driven, the process of constitution-making was now, and in the days and years to come, marked by deep division among the political elite and the public. Despite a lack of consensus among members of parliament (usually viewed as between those supporting Kibaki and those opposing his re-election), the select committee dropped the revised Ghai draft constitution presented to the attorney general in March 2004. Devolution was provided for in the new document as well as a unicameral parliament, a powerful presidency, and a non-executive prime minister. A divided political class and populace moved to the November 2005 referendum, the first in Kenyan history, which produced a decisive rejection of what was then termed the “Wako draft”. The constitution itself was not the only factor, and other issues such as the performance of the Kibaki administration were influential.

All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum.

In many ways, the referendum proved to be a rehearsal for the general election of December 2007. Despite political realignments, the demand for a new constitution was a central topic for discourse and many of the issues in constitutional dispute remained contentious while politicians and populace remained deeply divided in hostile parties. The most controversial election in Kenya’s history was the result, and the disputed outcome led to electoral violence, loss of lives, and the displacement of thousands of Kenyans from their places of residence in early 2008. As in the late colonial period described earlier, the inability of the Kenya political elite to compromise and reach consensus necessitated outside intervention, though this time not the British government. A political settlement ending the violence emerged with the assistance and pressure of the African Union and the United Nations, and a key element of this was the agreement of all political leaders and parties to work expeditiously to give Kenya a new constitution which would deal with the issues of the 2002-07 era as well as those dating from a much earlier period.

The new constitution was promulgated in August 2010 following the approval of 67 per cent of those voting in a referendum early that month, but the process was hardly easy or straightforward. Differences among the political elite, regarding the executive and devolution, again characterized the process. The latter took the form of 47 county governments, while the former, after intervention by parliamentarians, provided for an executive president and a deputy president, but no prime minister. In a major departure from the past, these leaders were to work with a cabinet consisting of non-members of parliament which was to be cast, as in the independence constitution, as bicameral. The referendum outcome indicated a significant level of public support and, led by Raila Odinga, most politicians supported approval in the referendum. Yet there were warning signs in this outcome that created Kenya’s second republic.

Among those signs were the fact that following the promulgation, much needed to be done to flesh out the details through legislation (as in the creation of a new supreme court). This proved to be a slow process and had not been completed by the time of the first general election (March 2013) under the new constitution. There were also misgivings that despite the democratic and progressive nature of the new constitution, its promise of inclusion and a better future for Kenyans might be weakened by tribalism, inexperience and incompetence at the level of devolved units of government, and continued corruption of the type that had plagued the previous governmental order under Moi and Kibaki. Political divisions remained as was illustrated in the outcome of the referendum. Eighty-eight per cent of Kalenjin voters rejected it as did 53 per cent of the Maasai. Moreover, only a slim majority voted in favour among the Kamba. Yet if press comments and political commentaries are any kind of a guide, the Kalenjin, following the lead of Deputy President William Ruto, now strongly support the 2010 constitution and see no need for change.

As time passed, federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch.

The result over the past decade has been to spark yet another change-the-constitution movement despite the progressive nature of the 2010 constitution. On the whole, the factors driving the movement and leading to the handshake agreement of 2018 represented few new elements in Kenyan politics and constitutional discourse. The controversial general elections of 2013 and 2017, marked by heightened ethnic animosity and violence, were illustrative of a lack of inclusion, consensus, and a common feeling of nationhood among large segments of Kenya’s population. The first-past-the-post electoral system inherited from the British model, so it was argued, discouraged compromise, heightened ethnic hostility, and left some ethnic groups feeling marginalized and excluded from national decision-making, particularly through exclusion from the executive.

In the views of many Kenyans, moreover, corruption at both the level of the national and the county governments has not been tamed, but has grown more widespread. Unequal access to national resources and economic inequality generally continued to grow. For those Kenyans who feel that the cost of governance itself is a cause for concern, these economic factors also have emerged as critical considerations for constitutional reform. While the 2010 constitution demanded gender equity, on the other hand, it has clearly not been achieved and nor has affirmative action aimed at inclusion for disabled people and other underrepresented minority groups.

Right from the beginning, the self-government and independence constitutions were fatally flawed in that they were not completely implemented, and the same has been true of the 2010 constitution. The BBI reports discuss these and other issues and make recommendations for change, but the process remains elite-driven and far from radical.

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Nicholas Githuku is a scholar and writer based in New York. Robert M. Maxon is Professor of History at West Virginia University. He served as an Education Officer in Kenya from 1961-64 and has served as a visiting professor of history at Moi University in Kenya on four separate occasions. Maxon has carried out research in East Africa on numerous visits since 1968

Politics

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.

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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’s defence 

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.

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

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

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

Phase OneThe Respondent’s Arguments

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

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

Phase Two: The Judges’ Questions

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

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

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

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

Discursion: Thinking through Lenaola J’s Question

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

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

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

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

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

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

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

First Phase

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

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

Second Phase

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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