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White Settlers, Black Colonialists and the Landless Majority

13 min read.

The problem of landlessness in Kenya started with the stealing of land by the British colonialists and has been perpetuated by powerful individuals in the top echelons of post-independence governments.

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White Settlers, Black Colonialists and the Landless Majority
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Even as the August 2022 general election approaches, the land question remains unanswered. And with the uncertainty as to who will win the presidency, which remains the centre of power despite devolution following the enactment of the 2010 Constitution, many Kenyans who migrated to the Rift Valley are anxious.

Already, there are land invasions in parts of Laikipia, a county in the Rift Valley, targeting the farms of migrant communities and those of White settlers.

In July, the media reported that herders had driven hundreds of livestock into private ranches, sparking protests from ranch owners in Rumuruti, Mugie, Laikipia Nature Conservancy and Suiyan.

According to Laikipia County Commissioner Daniel Nyameti, the herders were from the neighbouring Baringo, Samburu and Isiolo counties in search of water and pasture for their livestock.

While the invasions were—as in previous years—blamed on prolonged drought in the neighbouring counties, there seems to be a pattern that often leads to deadly conflicts.

In the mix is bad politics, land grievances and unresolved historical land injustices. “The invasions of ranches and farms and the resultant conflict have a historical and cultural context. The herders are most of the time used to invade Laikipia with the aim of driving out land owners and ranchers and claim land for themselves,” Rumuruti resident Charles Kimani told the Nation in July.

“Politicians sometimes provide arms to the morans and pay them to raid and occupy land. This is not about pastoralists escaping drought, because sometimes even after it rains, they still remain here. This is forcible occupation of land that belongs to other people,” Kimani added.

As has been the case before, the security forces intervened.

On 28 July 2021, Interior Cabinet Secretary Fred Matiang’i gave the herders one week to leave the farms or face forceful evictions by the police. “We are preparing a serious crackdown. It’ll be ruthless and merciless, and I plead with all illegal herders to move out within the period,” CS Matiang’i said at the Anti-Stock Theft Unit camp in Naibor in Laikipia County, where he was accompanied by the Inspector General of Police Hillary Mutyambai.

Matiang’i also appeared to blame local politicians for the violence saying, “We must put an end to this balkanization. We will not allow wananchi to be hurt due to political positions. We will immediately arrest those encouraging election rearrangements through forced movements.”

Former Laikipia North MP Mathew Lempurkel has been arrested by police on several occasions for inciting his community to invade private land to graze their animals. In 2017 Lempurkel was arrested following the murder of Tristan Voorspuy, a dual Kenyan/British national, was killed as he visited a site where two cottages had been set ablaze on the Sosian Ranch of which he was co-owner.

On 29 July Narok Senator Ledama Olekina, who comes from the pastoralist Maasai community, tweeted, “Good Morning @FredMatiangi you cannot order our people out of their ancestral lands! Those Ranchers -mostly colonials and former Government official stole our lands and you know that! Saying you will buy out own cows to ease pressure on pasture is killing our economy! No way!”

“When I become President of Kenya . . .  no single person will own more than 1,000 acres of land. All ranches in Laikipia will revert back to the original owners! Neocolonialism will end!” Olekina added.

The senator lamented that the Maasai of Laikipia have been made landless by the “British colonial and neocolonialism as well as their own government orchestrated by CS Fred Matiang’i who makes colonialists look more like philanthropists.”

The recurrent land clashes in Laikipia are just but part of a bigger problem.

Colonial land theft

The problem started with the stealing of land in the fertile areas referred to as the “White Highlands” by the British colonialists. Between 1902 and 1961, the colonial government reserved these areas exclusively for Europeans. They included Machakos, Nairobi, Thika, Mt Kenya region, Laikipia, Naivasha, Nakuru, Kericho, Sotik, Lumbwa, Songhor, Nandi, Uasin Gishu, Trans Nzoia and Mt Elgon.

How it happened

Towett J. Kimaiyo explains Kenya’s land policy since the colonial period in his book, Ogiek Land Cases and Historical Injustices 1902 – 2004. Kenya was declared a British Protectorate on 15 June 1895, which conferred on the British Crown political jurisdiction over the land from the Coast to the Rift Valley.

“Beyond that, the declaration of Protectorate did not confer any rights over land in the territory. Any rights over the land would have to be on the basis of conquest, agreement, treaty or sale with the indigenous people,” Kimaiyo writes.

But to overcome the problem of title to land in the territory, in 1899 the law officers of the crown advised that the Foreign Jurisdiction Act of 1890, which empowered the crown to control and dispose waste and unoccupied land with no settled forms of government and where land had been appropriated to the local sovereign individuals, be effected.

In 1901 the East African (Lands) ordinance-in-council was enacted conferring on the Commissioner of the Protectorate (later named Governor) the power to dispose of all public lands on such terms and conditions as he might think fit, Kimaiyo explains.

In effect, the land—now referred to as Crown Land—was vested in the Commissioner in trust for the British Crown.

The Crown Land Ordinance of 1902 followed suit and empowered the Commissioner to sell up 1,000 acres of Crown land in freehold to any person, or grant leases of 99 years, extended to 999 years in 1915.

The problem started with the stealing of land in the fertile areas referred to as the “White Highlands” by the British colonialists.

As a result, between 1902 and 1915, about 7.5 million acres—20 per cent of the best and most fertile land in Kenya—was reserved for the settlers as Crown Property.

In his book Kenya: A History Since Independence, Charles Hornsby explains that many of the first settlers came from the British aristocracy and military, accustomed to command, and with deeply engrained prejudices against foreigners.

“These imperial settlers were convinced that they were the natural rulers of Kenya (as of everywhere else) and that Africans were their feudal subjects,” writes Hornsby. He further observes that the inhabitants, many of them Kikuyu, resisted colonial rule but the colonialists employed large-scale violence.

History informs that between 1895 and 1908 other communities in the White Highlands, among them the Gusii, the Nandi, the Luhya, the Luo and the Teso, resisted colonial occupation. Colonialization displaced many inhabitants in the “White Highlands”, while others sold their parcels while understanding that they were merely ceding the right to use of the land.

Interestingly, the Maasai did not really resist. Why is this?

Hornsby says that 30 years before the arrival of the British colonialists, the Maasai had suffered drought, wars, and outbreaks of smallpox and rinderpest, which depopulated their land in Central Rift Valley and killed most of their cattle. They thus gave in to the colonialists and even became mercenaries for the British alongside the Kamba and the Luhya Wanga, finds Hornsby. The Maasai lost the entire Central Rift Valley.

According to John M. Lonsdale in The Politics of Conquest: the British in Western Kenya, 1894–1908, three-quarters of the alienated lands had been Maasai-controlled until 1890.

Hornsby says the British signed controversial land agreements with the Maasai, most of whom were illiterate, alienating them for colonial settlements. One of these agreements was the infamous Maasai Agreement of August 1904, a treaty signed by the colonial government and Maasai elders. The Maasai ceded possession of pastures in the Central Rift Valley in return for exclusive rights to a southern reserve in Kajiado and a northern reserve in Laikipia.

Many of the first settlers came from the British aristocracy and military, accustomed to command, and with deeply engrained prejudices against foreigners.

“The British moved the Maasai of Nakuru and Naivasha north to Laikipia ‘in perpetuity’. In 1911-13, to extend white farms and ranching north, the governor drove all 10,000 Maasai from Uasin Gishu, Trans Nzoia, Laikipia and Nakuru into the southern Maasai reserve, which later became Kajiado and Narok districts.”

“Both deportations were justified by agreements with [illiterate] Maasai elders but were repudiated later as having been signed under duress,” Hornsby finds.

This is what Senator Olekina means when he says the Laikipia land belongs to the Maasai. Settlers who remain in Laikipia still own large tracts of land of this alienated land.

The black colonialist

Wĩyathi na Ithaka (independence and Forests [land]) was the rallying call of the Mau Mau, the Gikuyu, Embu and Meru (Gema) resistance movement against the British.

In his Mau Mau song, Wĩyathi na Ithaka, popular Benga artist Joseph Kamaru’s says,

Our people let us join hands, this country is ours and it is our share/ µGod shower us with blessings/We don’t mind being captured, being detained, being displaced, being taken to peripheries/ But we will never stop agitating for our independence until this land sees the light/ This is a black man’s land and our hope is independence.

Therefore, when Kenya became independent in 1963, there was hope among the inhabitants, particularly those who had fought against the colonialists, that they would get their land back.

They were disappointed.

Once he became President, Jomo Kenyatta betrayed the cause of restitution and redistribution of land.

In his paper, History of Land Conflicts in Kenya, Peter Veit notes that Kenyatta maintained the system of freehold land titles and did not question how the land had been acquired. Individual private ownership rights continued to derive from the president just as in colonial times.

“Government programmes to systematically adjudicate rights and register land titles persisted and continued to undermine customary tenure systems. After independence, much of the colonial-era “Crown Land” was categorized as government land. The native reserves became Trust land, but were still governed by statutory trustees—the County Councils and the Commissioner of Lands—rather than directly by traditional institutions,” he writes.

The Kenyatta government also established the Settlement Fund Trustees to facilitate the purchase and distribution of settler farms to landless Kenyans.

The high-density settlements provided some land to landless households, but the schemes were based on a market system and principally benefited Kenyans with the financial means to purchase land, Veit observes.

This, consequently, led to the commercialization of land, inequality, corruption and the continued dispossession of those who were displaced by the colonial government. This is because those who had customarily owned the land did not have access to the necessary capital, or were rightfully against the idea of buying land they had owned.

And those who bought such land—in the Rift Valley for instance —were viewed as foreigners. These were the landless Kikuyu, Luhya, Kamba and Kalenjin who sought settlement in the under-utilised areas in the Rift Valley, the Eastern region and at the Coast.

This was the beginning of displacement under the Jomo Kenyatta regime.

It is important to note here that during the negotiations for Kenya’s independence, Kenyatta accepted the colonialists’ demands that the White settlers remain on their farms if they wished to and that land be transferred only on the basis of “willing buyer, willing seller”.

After independence, land acquisition was largely through four methods: “willing buyer, willing seller”, settlement schemes, shirika schemes (cooperative or collective farms) and land buying companies.

Settlers who remain in Laikipia still own large tracts of land of this alienated land.

These methods, Hornsby says, favoured the Kikuyu because they were richer, had easier access to loans and had more leaders in the high echelons of government. They settled primarily in Nakuru and Uasin Gishu.

Mwalimu Mati of Mars Group, one of Kenya’s leading anti-corruption and fiscal transparency watchdogs, told The Guardian that the root cause of Kenya’s land crisis is that the land was not bought by the people who lost it but by the Kikuyu elite of the time.

“That was the situation in Central Province where the Kikuyu came from. Kenyatta then settled the poor landless Kikuyu in the Rift Valley on land that had belonged to the Kalenjin,” Mati said in February 2008 at the height of the post-election violence, which was largely blamed on land grievances.

Kenyatta allowed politicians and civil servants to buy farms in Uasin Gishu and Trans Nzoia from the Agricultural Development Corporation (ADC) which acquired and continued to buy farms from the settlers, further contributing to inequalities in land ownership. The Ndung’u Land Report lists the ADC lands that were allocated illegally on pages 134-135.

The wealthy Gema elite, most of them in the Kenyatta government, continued to acquire the good and fertile land, triggering protests from locals, particularly the Kipsigis. Kipsigis MP Moses arap Keino is on record saying in 1973 that the Ministry of Lands and Settlement had become the Ministry of Settling the Rich. The Minister of Lands and Settlement between 1963 and 1979 was Jackson Angaine from Meru.

Kenyatta, too, bought large tracks of land.

“Kenyatta himself illegally acquired large tracts of settlement land. By 1989, “incomers” comprised 35% of the Rift Valley population. Other ethnic groups were outraged, a source of long-term ethnic animosities,” Veit writes.

The Guardian 2008 article reported,

The extended Kenyatta family alone owns an estimated 500,000 acres (2,000 sq. km). That represents a large chunk of the 28m acres (113,000 sq. km) of arable land in Kenya. The remaining 80% of the country is mostly semi-arid and arid land. The Kenya Land Alliance says more than half the arable land in the country is in the hands of only 20% of the population. Two-thirds of the people own, on average, less than an acre per person. There are 13% who own no land at all.

What were the implications?

More and more Kenyans were rendered landless and became squatters. Those who were economically able joined hands to buy their own land back from British settlers through the aforementioned means. Settlements became popular in the Rift Valley, the Coast region and Central Kenya.

In their Promised Land: Settlement Schemes in Kenya, 1962 to 2016, Catherine Boone, Fibian Lukalo and Sandra F. Joireman identify 73 schemes in the former Coast Province, 32 in Eastern Province, and 13 in Nakuru in Rift Valley Province.

They include Cherangani, Kabisi, Lugari, Kipkaren, Ndalal, Elgeyo Border, Lesos and Keben, Ainabkoi East, West and North, Kibigori, Muhoroni and Tamu, East Sotik, Sabatia, Kilombe, Ol Kalou, Wanjohi, Malewa and Kipipiri areas, South Kinangop and Njabini, Eburu, Mweiga/Amboni, Naro Moru and Warazo, Island Farms, Maragwa Ridge, Sigona Estates and Machakos (Mua Hills, Koma Rock and Lukenya).

Peasant farmers also saved and pooled resources together to buy shares in companies that bought land from settlers. Among them was Ngwataniro-Mutukanion Land Buying Company led by former Nakuru MP Kihika Kimani.

Coast region

Land as a historical injustice at the Coast is always an issue on the Kenyan presidential campaign trail during elections.

The land in the region was first grabbed by the Arabs, later by the British and by powerful individuals in post-independence governments, particularly that of Kenyatta.

“In 1970s, to help move ownership of these [beach] plots to Africans, Kenyatta issued a presidential edict that barred the sale of all beach plots without his permission. The result was to move control of these assets entirely into presidential favour, a process administered by Coast PC [Provincial Commissioner] Eliud Mahihu who could decide who could and could not buy coastal plots,” writes Hornsby.

The beach plots were taken over by top government officials, including Kenyatta, further dispossessing the inhabitants.

Quoting the Sunday Times, Hornsby says Mama Ngina bought land at the Coast to build two hotels, while Kenyatta built Leopard Beach Hotel, “which was registered in a Swiss company’s name”. In 1972, it was revealed that the Mombasa County Council had waived all rates on companies and properties owned by the Kenyatta family. 

PC Mahihu owed the Bahari Beach Hotel, while Rift Valley Provincial Commissioner Isaiah Mathenge owned The Coral Beach Hotel.

“The extended Kenyatta family alone owns an estimated 500,000 acres (2,000 sq. km). That represents a large chunk of the 28m acres (113,000 sq. km) of arable land in Kenya.”

Kenyatta also acquired large sisal farms in Taveta in 1972 jointly with the Greek Criticos family, pushing more inhabitants to become squatters.

In 2016, the Kenyatta family “voluntarily gave out” 2,000 acres of “its land” to squatters in Taita Taveta (essentially returning or relinquishing land to the original owners).

Reacting to the move, Raila Odinga—then Opposition leader and now President Uhuru Kenyatta’s ally—said the president should issue more than 2,000 acres.

According to Fr Gabriel Dolan, a human rights activist, hundreds of families were evicted from Gicheha farm in 2018 —land believed to be the property of the Kenyatta family—and resettled on adjacent land popularly known as Sir Ramson land. This became the Ziwani Settlement Scheme in Taveta Sub-county.

There is also the unpopular Lake Kenyatta Settlement Scheme formed in 1973 in the Coast region.

By 1979, Lamu District – now Lamu County – had an 80 per cent population increase, among them nearly 10,000 Kikuyu (including ex-Mau Mau veterans), says Hornsby. The indigenous Bajuni ended up becoming the minority as the Kikuyu became more influential economically and politically.

In a brief for the Norwegian Peacebuilding Resource Centre, David M. Anderson notes that this caused tension between the immigrants and the indigenous local community during the 2013 elections.

“Candidates representing the outsiders at Mpeketoni did well, supported by a well-financed campaign. Local Bajuni feared that their interest might be sacrificed to the entrepreneurial skills of these outsiders,” Anderson writes in Why Mpeketoni Matters: al-Shabaab and violence in Kenya.

A year later, in June 2014, came the Mpeketoni attack in which at least 60 people, mostly men, were massacred by al-Shabaab militants.

The Ministry of Lands and Settlement had become the Ministry of Settling the Rich.

Anderson writes, “Mpeketoni was a legitimate target. The victims were not Muslim, and none were local Bajuni people: those killed were Kikuyu from the far-distant highlands of central Kenya, members of families that had come to Mpeketoni in the early 1970s, taking up land on a government settlement scheme. Mostly Christian, they were in every respect “outsiders” in this coastal district.”

It was not the first spate of violence in the area. In the run-up to the 1997 elections, violence erupted at the Coast, killing over 100 people and displacing over 100,000, mostly pro-opposition up-country people. At the time, the Kikuyu were in the opposition.

Incidents of violence sparked by the land issue are arguably a consequence of these inequalities, grabbing and disenfranchisement. And while the violence that followed in the wake of the 2007 election is widely viewed as the worst, the 1992 land clashes were in reality far worse.

In those clashes that took place between late 1991 and December 1992, at the height of the general election, some 5,000 people were killed and another 75,000 displaced in the Rift Valley Province, with the Molo area being the epicentre of the violence.

According to the Kenya Human Rights Commission, between 1991 and 1996, over 15,000 people died and almost 300,000 were displaced in the Rift Valley, Nyanza and Western Provinces by politically instigated violence.

The clashes were largely between the Kalenjin and the Kikuyu, with land ownership cited as one of the key triggers.

Commissions of Inquiry

After he came to power in 2002, President Mwai Kibaki, who won the election on an anti-corruption platform, formed the [Paul] Ndung’u Land Commission, a Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, in June 2003.

In its report, the Ndung’u Land Commission found that President Kenyatta and his successor, Daniel arap Moi, who had been his Vice-President, abused their presidential powers by grabbing land and that there had been “unbridled plunder”.

The 20-member commission found that in many instances, presidents Kenyatta and Moi made land grants to individuals without any consideration of the public interest, for political reasons, and without proper pursuit of legal procedures, whilst there was also extensive illegal allocation of alienated land. An accusing finger was also pointed at Commissioners of Land for various illegalities.

Among other recommendations, the commission directed that all illegal allocations of public utility land be nullified, and that such lands be repossessed and restored to the purpose for which they were intended and the culprits be prosecuted.

The report is yet to be implemented.

The report of the Truth, Justice and Reconciliation Commission (TJRC) also found that the colonial administration used irregular and/or illegal methods to acquire land from the Kenyan inhabitants.

It was revealed that the Mombasa County Council had waived all rates on companies and properties owned by the Kenyatta family.

The report also found that top officials in the post-independence government of President Kenyatta turned the settlement schemes into cartels for their own benefit.

The report said the officials bought land in the Rift Valley, and in other parts of the so-called White Highlands, and in the process swindled communities that were supposed to benefit from the settlement schemes after having been displaced by the British.

It also identified the “willing buyer, willing seller” policy as one that exacerbated the problem.

The TJRC found that there is a close link between land injustices and ethnic violence in Kenya, and that the failure by successive governments to address landlessness has caused individuals and communities to turn to violence. Landlessness has in previous cases, such as in 1992 and 2007, been used as a political tool, causing further displacements.

The TJRC report was published in May 2013 and tabled in the National Assembly in July 2013 but there has not been any substantive progress, mainly because of lack of political will and also because those identified as responsible for the injustices are politicians occupying top government positions.

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Eliud Kibii is a sub-editor with The Star newspaper and writes on international relations, security and electoral processes.

Politics

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

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

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

Phase OneThe Respondent’s Arguments

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

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

Phase Two: The Judges’ Questions

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

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

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

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

Discursion: Thinking through Lenaola J’s Question

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

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

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

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

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

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

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

First Phase

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

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

Second Phase

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

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

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

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

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

Third Phase

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

The Basic Structure

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

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

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

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

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

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

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

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

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

The Popular Initiative

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

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

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

The IEBC and the Quorum

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

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

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

Conclusion

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

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

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