With its vast expanses and diversity of wildlife, Kenya – Africa’s original safari destination – attracts over two million foreign visitors annually. The development of wildlife tourism and conservation, a major economic resource for the country, has however been at the cost of local communities who have been fenced off from their ancestral lands. Indigenous communities have been evicted from their territories and excluded from the tourist dollars that flow into high-end lodges and safari companies.
Protected areas with wildlife are patrolled and guarded by anti-poaching rangers and are accessible only to tourists who can afford to stay in the luxury safari lodges and resorts. This model of “fortress conservation” – one that militarizes and privatizes the commons – has come under severe criticism for its exclusionary practices and for being less effective than the models where local communities lead and manage conservation activities.
One such controversial model of conservation in Kenya is the Northern Rangelands Trust (NRT). Set up in 2004, the NRT’s stated goal is “changing the game” on conservation by supporting communities to govern their lands through the establishment of community conservancies.
Created by Ian Craig, whose family was part of the elite white minority during British colonialism, the NRT’s origins date back to the 1980s when his family-owned 62,000-acre cattle ranch was transformed into the Lewa Wildlife Conservancy. Since its founding, the NRT has set up 39 conservancies on 42,000 square kilometres (10,378,426 acres) of land in northern and coastal Kenya – nearly 8 per cent of the country’s total land area.
The communities that live on these lands are predominantly pastoralists who raise livestock for their livelihoods and have faced decades of marginalization by successive Kenyan governments. The NRT claims that its goal is to “transform people’s lives, secure peace and conserve natural resources.”
However, where the NRT is active, local communities allege that the organization has dispossessed them of their lands and deployed armed security units that have been responsible for serious human rights abuses. Whereas the NRT employs around 870 uniformed scouts, the organization’s anti-poaching mobile units, called ‘9’ teams, face allegations of extrajudicial killings and disappearances, among other abuses. These rangers are equipped with military weapons and receive paramilitary training from the Kenyan Wildlife Service Law Enforcement Academy and from 51 Degrees, a private security company run by Ian Craig’s son, Batian Craig, as well as from other private security firms. Whereas the mandate of NRT’s rangers is supposed to be anti-poaching, they are routinely involved in policing matters that go beyond that remit.
Locals allege that the NRT compels communities to set aside their best lands for the exclusive use of wildlife.
Locals have alleged the NRT’s direct involvement in conflicts between different ethnic groups, related to territorial issues and/or cattle raids. Multiple sources within the impacted communities, including members of councils of community elders, informed the Oakland Institute that as many as 76 people were killed in the Biliqo Bulesa Conservancy during inter-ethnic clashes, allegedly with the involvement of the NRT. Interviews conducted by the Institute established that 11 people have been killed in circumstances involving the conservation body. Dozens more appear to have been killed by the Kenya Wildlife Services (KWS) and other government agencies, which have been accused of abducting, disappearing, and torturing people in the name of conservation.
Over the years, conflicts over land and resources in Kenya have been exacerbated by the establishment of large ranches and conservation areas. For instance, 40 per cent of Laikipia County’s land is occupied by large ranches, controlled by just 48 individuals – most of them white landowners who own tens of thousands of acres for ranching or wildlife conservancies, which attract tourism business as well as conservation funding from international organizations.
Similarly, several game reserves and conservancies occupy over a million acres of land in the nearby Isiolo County. Land pressure was especially evident in 2017 when clashes broke out between private, mostly white ranchers, and Samburu and Pokot herders over pasture during a particularly dry spell.
But as demonstrated in the Oakland Institute’s report Stealth Game, the events of 2017 highlighted a situation that has been rampant for many years. Local communities report paying a high price for the NRT’s privatized, neo-colonial conservation model in Kenya. The loss of grazing land for pastoralists is a major challenge caused by the creation of community conservancies. Locals allege that the NRT compels communities to set aside their best lands for the exclusive use of wildlife in the name of community conservancies, and to subsequently lease it to set up tourist facilities.
Although terms like “community-driven”, “participatory”, and “local empowerment” are extensively used by the NRT and its partners, the conservancies have been allegedly set up by outside parties rather than the pastoralists themselves, who have a very limited role in negotiating the terms of these partnerships. According to several testimonies, leverage over communities occurs through corruption and co-optation of local leaders and personalities as well as the local administration.
A number of interviewees allege intimidation, including arrests and interrogation of local community members and leaders, as tactics routinely used by the NRT security personnel. Furthermore, the NRT is involved not just in conservation but also in security, management of pastureland, and livestock marketing, which according to the local communities, gives it a level of control over the region that surpasses even that of the Kenyan government. The NRT claims that these activities support communities, development projects, and help build sustainable economies, but its role is criticized by local communities and leaders.
In recent years, hundreds of locals have held protests and signed petitions against the presence of the NRT. The Turkana County Government expelled the NRT from Turkana in 2016; Isiolo’s Borana Council of Elders (BCE) and communities in Isiolo County and in Chari Ward in the Biliqo Bulesa Conservancy continue to challenge the NRT. In January 2021, the community of Gafarsa protested the NRT’s expansion into the Gafarsa rangelands of Garbatulla sub-county. And in April 2021, the Samburu Council of Elders Association, a registered institution representing the Samburu Community in four counties (Isiolo, Laikipia, Marsabit and Samburu), wrote to international NGOs and donors asking them to cease further funding and to audit the NRT’s donor-funded programmes.
A number of interviewees allege intimidation, including arrests and interrogation of local community members and leaders, as tactics routinely used by the NRT security personnel.
At the time of the writing of the report, the Oakland Institute reported that protests against the NRT were growing across the region. The organization works closely with the KWS, a state corporation under the Ministry of Wildlife and Tourism whose mandate is to conserve and manage wildlife in Kenya. In July 2018, Tourism and Wildlife Cabinet Secretary Najib Balala, appointed Ian Craig and Jochen Zeitz to the KWS Board of Trustees. The inclusion of Zeitz and Craig, who actively lobby for the privatization of wildlife reserves, has been met with consternation by local environmentalists. In the case of the NRT, the relationship is mutually beneficial – several high-ranking members of the KWS have served on the NRT’s Board of Trustees.
Both the NRT and the KWS receive substantial funding from donors such as USAID, the European Union, and other Western agencies, and champion corporate partnerships in conservation. The KWS and the NRT also partner with some of the largest environmental NGOs, including The Nature Conservancy (TNC), whose corporate associates have included major polluters and firms known for their negative human rights and environmental records, such as Shell, Ford, BP, and Monsanto among others. In turn, TNC’s Regional Managing Director for Africa, Matt Brown, enjoys a seat at the table of the NRT’s Board of Directors.
Stealth Game also reveals how the NRT has allegedly participated in the exploitation of fossil fuels in Kenya. In 2015, the NRT formed a five-year, US$12 million agreement with two oil companies active in the country – British Tullow Oil and Canadian Africa Oil Corp – to establish and operate six community conservancies in Turkana and West Pokot Counties.
The NRT’s stated goal was to “help communities to understand and benefit” from the “commercialisation of oil resources”. Local communities allege that it put a positive spin on the activities of these companies to mask concerns and outstanding questions over their environmental and human rights records.
The NRT, in collaboration with big environmental organizations, epitomizes a Western-led approach to conservation that creates a profitable business but marginalizes local communities who have lived on these lands for centuries.
Despite its claims to the contrary, the NRT is yet another example of how fortress conservation, under the guise of “community-based conservation”, is dispossessing the very pastoralist communities it claims to be helping – destroying their traditional grazing patterns, their autonomy, and their lives.
The Constitution of Kenyan 2010 and the 2016 Community Land Act recognize community land as a category of land holding and pastoralism as a legitimate livelihood system. The Act enables communities to legally register, own, and manage their communal lands. For the first three years, however, not a single community in Kenya was able to apply to have their land rights legally recognized. On 24 July 2019, over 50 representatives from 11 communities in Isiolo, Kajiado, Laikipia, Tana River, and Turkana counties were the first to attempt to register their land with the government on the basis of the Community Land Act. The communities were promised by the Ministry of Land that their applications would be processed within four months. In late 2020, the Ministry of Lands registered the land titles of II Ngwesi and Musul communities in Laikipia.
The others are still waiting to have their land registered. In October 2020, the Lands Cabinet Secretary was reported saying that only 12 counties have submitted inventories of their respective unregistered community lands in readiness for the registration process as enshrined in the law.
Community members interviewed by the Oakland Institute in the course of its research repeatedly asked for justice after years of being ignored by the Kenyan government and by the police when reporting human rights abuses and even killings of family members. The findings reported in Stealth Game require an independent investigation into the land-related grievances around all of the NRT’s community conservancies, the allegations of involvement of the NRT’s rapid response units in inter-ethnic conflict, as well as the alleged abuses and extrajudicial killings.
Pastoralists have been the custodians of wildlife for centuries – long before any NGO or conservation professionals came along. While this report focuses on the plight of the Indigenous communities in Northern Kenya, it is a reality that is all too familiar to indigenous communities the world over. In far too many places, national governments, private corporations, and large conservation groups collude in the name of conservation, not just to force Indigenous groups off their land, but to force them out of existence altogether.
Pastoralists have been the custodians of wildlife for centuries – long before any NGO or conservation professionals came along.
The latest threat comes from the so-called “30×30 initiative”, a plan under the UN’s Convention on Biological Diversity that calls for 30 per cent of the planet to be placed in protected areas – or for other effective area-based conservation measures (OECMs) – by 2030.
The Oakland Institute’s report, Stealth Game, makes it clear that fortress conservation must be replaced by Indigenous-led conservation efforts in order to preserve the remaining biodiversity of the planet while respecting the interests, rights, and dignity of the local communities.
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AGRA’s Green Revolution Has Failed, Critics Say
Fifteen years later, and a billion dollars in funding, AGRA’s promise to double productivity and incomes for 30 million smallholder farming households by 2020 while reducing food insecurity by 50 per cent has not been fulfilled.
When the Bill and Melinda Gates Foundation and the Rockefeller Foundation launched the Alliance for a Green Revolution in Africa (AGRA) in 2006, it was billed as a game-changer in addressing the continent’s hunger crisis. Africa would get the sort of productivity revolution that could reduce hunger, improve livelihoods and create jobs. “Sustainable intensification” was the goal – getting more food from the same land, the “green” in the name being in opposition to the “red revolutions” that were sweeping through Asia in the 1960s.
While at the outset this ambitious project appeared to be the sort of aid that could transform Africa’s agricultural sector and feed its growing population, AGRA is now hard-pressed to demonstrate its achievements after 15 years and one billion dollars in funding.
The criticisms against AGRA emanate from diverse quarters and are gaining momentum. The Alliance for Food Sovereignty in Africa (AFSA), the continent’s largest civil society network, comprising 35 groups that involve some 200 million food producers, has embarked on a robust campaign, painting AGRA as a misguided effort that has fallen short in bringing any sort of productivity revolution in its 13 focus countries. Faith leaders in Southern Africa issued their own challenge to the Gates Foundation. Neither has received a reply from AGRA’s major donors, which include the two US foundations and aid agencies from the United States, United Kingdom, Germany and Canada.
Those challenges came to a head on 2 September 2021 at a press conference prior to the opening of AGRA’s annual Green Revolution Forum when civil society leaders called for donors to stop funding AGRA. “What African farmers need is support to find communal solutions that increase climate resilience, rather than top-down profit-driven industrial-scale farming systems,” said Francesca de Gasparis, the executive director of the Southern African Faith Communities’ Environment Institute (SAFCEI).
AFSA released an open letter signed by its 35 member networks and 176 international organizations from 40 countries. “AGRA has unequivocally failed in its mission to increase productivity and incomes and reduce food insecurity, and has in fact harmed broader efforts to support African farmers,” reads the strongly worded letter.
AGRA Vice President for Innovation Aggie Asiimwe Konde disagrees. “We focus on informing farmers, enable access to technology and increase production and income to farmers. We have had a resounding success in that we have seen farmers doubling their income, diversification of crops, and integration into the market.”
Searching for evidence of Green Revolution success
AGRA was founded in 2006 with ambitious goals: To double productivity and incomes for 30 million smallholder farming households by 2020 while reducing food insecurity by 50 per cent. That deadline has now passed, and independent research suggests that AGRA’s rosy promises are far from being realised.
In fact, AGRA is unable to provide evidence of that progress, says Timothy A. Wise, a senior advisor on the Future of Food at the Institute for Agriculture and Trade Policy and senior research fellow at Tufts University’s Global Development and Environment Institute. Wise undertook an impact assessment in 2020 and found no comprehensive evaluations of AGRA’s progress in meeting its goals by AGRA itself or by its major donors. After AGRA refused to accede to his request for data on its beneficiaries, Wise took a broader and more revealing approach.
“I chose to examine data from AGRA’s 13 priority countries to see if there were indications that a productivity revolution was taking place with rising incomes and improved food security. I found little evidence of significant productivity improvements,” notes Wise on his research. As he explained in a recent article for The Conversation, “By any estimate, 30 million smallholder farming households represent a significant majority of farmers in the 13 focus countries. If the alliance had doubled yields and incomes and halved food insecurity for that many farming households, that would indeed have shown up in the data.”
It did not. For a basket of staple crops, Wise found that productivity increased just 18 per cent over 12 years. That is nowhere near the goal of doubling productivity, which would be a 100 per cent increase. More tellingly, it is barely higher than the rate of productivity growth before AGRA was launched.
And neither did incomes nor food security improve significantly. According to the latest United Nations estimates, the number of severely “undernourished” people in AGRA’s 13 focus countries has increased by 30 per cent since 2006, a far cry from AGRA’s promise to cut food insecurity by half.
“After 15 years and one billion dollars in outside funding, AGRA has failed to catalyse a productivity revolution in African agriculture. Farmers’ yields have not grown significantly,” Wise stated at the September 2 press conference. “It is time for donors to listen to African farmers and community leaders.”
Wise pointed out that his critique goes well beyond AGRA, implicating the entire Green Revolution approach to which African governments devote significant resources, including an estimated one billion dollars per year in subsidies for seeds, fertilizers and other inputs. “Our research assessed the progress of the Green Revolution project as a whole. This should indeed have produced measurable results in 15 years given the billions of dollars invested in the project. It has not,” he wrote in The Conversation.
“It is time for donors to listen to African farmers and community leaders.”
African and German civil society organisations produced a report drawing on Wise’s research. Titled False Promises, the report calls on countries to abandon AGRA and its Green Revolution and instead support initiatives that boost small-scale food producers, particularly women and the youth, to develop climate-resilient and environment-friendly farming practices.
A lot of money went into supporting maize production, and total production went up 87 per cent, according to the report. But most of that increase came from farmers increasing the land under maize cultivation, encouraged by the subsidies. Yields increased only 29 per cent over 12 years, but land under maize production went up nearly 50 per cent, hardly a sustainable way of farming.
The bias towards maize at the expense of other equally essential food crops such as millet, which are drought-tolerant and more nutritious, has also been cited as one of the downsides of AGRA’s interventions. Millet production had declined by a quarter, says the report.
Rising hunger across the continent
The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger. According to the UN Food and Agriculture Organization’s annual hunger report published on 12 July 2021, the world experienced an almost unprecedented increase in severe hunger from 2019 to 2020. The agency’s annual estimate of “undernourishment” showed an increase of up to 25 per cent over the 2019 levels, to between 720 and 811 million people.
In sub-Saharan Africa, about 44 million more people faced severe malnutrition in 2020, with 30 per cent of the continent’s population struggling to feed their families. Some 66 per cent of the population faced “moderate or severe food insecurity” in 2020, says the FAO, up from 51 per cent in 2014, an increase of 244 million food-insecure people in just six years.
The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger.
Wise points out that since AGRA was founded in 2006, hunger in Sub-Saharan Africa has not gone down by half but has increased nearly 50 per cent. “The Green Revolution is taking Africa in precisely the wrong direction,” he says.
AGRA has itself faulted Wise’s survey, conducted under the aegis of Tuft University’s Global Development and Environment Institute, saying the research failed to meet “basic academic and professional standards of peer review. . .” Andrew Cox, chief of staff and strategy at AGRA, is quoted terming the research as “not professional and ethical.” But Tufts University administrators have defended Wise’s methods.
AGRA’s Konde said in an interview that the organization was successful. “We targeted 9.5 million farmers and now we have 10 million farmers with minimum technology.” She then went on to fault African governments for not doing their part. “Unfortunately, only Ghana, Rwanda, and Nigeria have implemented the 10 percent of their budget to the agricultural sector as per the 2003 Maputo Declaration. The rest of Africa has only committed 2 percent of their budget to agriculture.”
Konde took issue with the demands of AGRA’s critics. “Taking into account the uncertainties brought about by climate change and the COVID pandemic, it would be unfortunate to call for the disbandment of AGRA at this point in time. I wonder which farmers they are representing. AGRA believes in increasing choices to farmers, and promotes ways how more farmers can have access to technology and apply them.”
She went on: “We have been carrying out value for money assessments and every $1 we have spent has produced close to $10. The questions we should be asking are did the African farmers get access to information and technology?”
AGRA officials say that the agency’s budget and contributions are too small to have its impact reflected in national-level data. “The data could not possibly be extrapolated onto the kinds of regional/sub-regional work that we do,” AGRA’s Cox wrote via email to Stacy Malkan of U.S. Right to Know. Critics point out that if AGRA reached the 30 million farmers it set out to reach and transformed their practices, such impacts would be evident. Still, AGRA claims that its recent Annual Report provides evidence of yield increases, income gains and improved food security.
Wise reviewed the new documents and was critical of the data, saying it was hastily constructed, poorly documented, and highlighted improvements in just a few crops and countries over a very short period. Other critics also consider AGRA’s failure to document its impacts over its full 15 years of existence as telling.
Muketoi Wamunyima, country coordinator for PELUM Zambia, which works to improve the livelihoods of small-scale farmers by fostering ecological land use management, co-signed a letter to AGRA last year asking for evidence of its impacts. They received a long response from AGRA’s Andrew Cox, which they dismissed as non-evidence. “As civil society organisations working in Zambia, we have challenged AGRA’s model and engaged with our local government to highlight the fact that AGRA’s approach does not respond to the needs of the small-scale food producers,” Wamunyima said.
Rwanda is widely touted as a star performer in AGRA’s plan, with a quadrupling of maize production since 2006. But according to the False Promises report, the Rwandan “miracle” showed weak overall productivity improvements across staple crops in the country as farmers abandoned the cultivation of more nutritious local crops for maize. And according to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.
Mariam Mayet, executive director of the African Centre for Biodiversity, said, “For years we have documented the efforts to spread the Green Revolution in Africa, and the dead-ends it will lead to: declining soil health, loss of agricultural biodiversity, loss of farmer sovereignty, and locking of African farmers into a system that is not designed for their benefit, but for the profits of mostly Northern multinational corporations.”
Africa is not a monoculture
AGRA’s Konde dismissed AFSA’s criticisms. “We invited those that have been complaining to the AGRF summit so that we can exchange views but they did not come.”
AFSA’s General Coordinator, Million Belay, confirmed that he was invited but only at the last minute. Belay explained why he declined the invitation in an opinion piece for Al Jazeera.
“We at AFSA disagree with the Green Revolution’s approach on a basic level. The strategy has indebted our farmers, ruined our environment, harmed our health and undermined our seeds and culture. We object to the flurry of initiatives to amend our seed laws, biosafety standards, and institutionalise fertiliser rules and regulations that seek to entrench Africa’s overreliance on corporate agriculture.”
He took particular issue with AGRA’s claim that the forum would speak for Africa in a “single coordinated African voice.”
“Africa is not a monoculture and we do not want it to become one. Africa does not speak with a single voice, certainly not that of the Green Revolution Forum. Its diversity of voices is as rich as the diversity of the continent’s landscapes, cultures and food traditions. Those voices want to sing, not in monotones but in harmony, with one another, with nature, and with government leaders and donors who value that diversity and support it.”
According to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.
Anne Maina, the Coordinator of the Biodiversity and Biosafety Association of Kenya (BIBA-K), concurs. She believes that sustainably improving nutrition, increasing production, enhancing biodiversity, raising resilience and boosting incomes will come about with the participation of all – smallholder farmers, pastoralists, fisher folk, hunter/gatherers and indigenous peoples – in their diversity and not through expensive, high-input monocultures.
And while AGRA’s technocrats have in the past been more combative in their response to criticism, its board chairman, Ethiopia’s former Prime Minister Hailemariam Dessalegn, sounded conciliatory in an op-ed published by AfricanArguments.com.
“The solutions for transforming Africa’s food systems [have] come down to one approach over another. Such binary debates are unhelpful and at times counterproductive. Building more resilient food systems on the continent will require a mix of approaches from agroecology to the latest crop and soil science,” wrote Mr Dessalegn.
Whatever the case may be, the need to resolve Africa’s hunger crisis in a sustainable way is an urgent one.
The BBI Case at the Supreme Court of Kenya – Day 3
What is at stake is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change.
As with Day 2, the final day of the proceedings in the BBI Case before the Supreme Court of Kenya can be divided into three phases (watch here). In some ways, it was a microcosm of the entire hearing – and indeed, of the entire BBI case so far: in Phase One, the Respondents finished their arguments. In Phase Two, the bench put a series of questions to the Respondents. In Phase Three, the Appellants made their Rejoinder. This, then, concluded the hearing (read analysis of Day 1 and Day 2 here), and judgment was reserved.
Phase One: The Respondent’s Arguments
Carolene Kituku advanced detailed submissions on the IEBC/Quorum issue, arguing – in particular – that when a judgment struck down a legal provision as unconstitutional, the default position was that the provisions so struck down were deemed to have been always unconstitutional, right from the moment of their enactment (and not from the date of the judgment). Now if these amended provisions were void ab initio and never came into force, it would follow that the original, pre-amended provisions were never actually replaced, and continued to hold the field in the interim period. Thus, when in the Katiba Insitute case it was held that amended paragraphs 5 and 7 of the Schedule to the IEBC Act were unconstitutional, it would follow that the pre-amended provisions for quorum – which the IEBC was in breach of – would continue to apply during the intervening period – and indeed – as Elisha Ongoya argued later in the day – would be applicable until either the declaration of unconstitutionality was set aside, or another, legally valid amendment, was enacted. Carolene Kituku also advanced submissions on why the popular initiative process failed to pass the threshold of public participation (insufficient time, the draft bill only on the internet, PDFs, and so on).
In his submissions, Elisha Ongoya pointed out that at this stage, the BBI case had received close attention from a dozen judges combined (five at the High Court and seven at the Court of Appeal), and their concurrent findings should, therefore, be treated with a modicum of deference; in particular, and in any event, factual findings (such as insufficient public participation) should not be disturbed. Following up on this argument, Elisha Ongoya argued that the High Court’s determination of the basic structure doctrine – and the four-step-sequential process – was rooted in a detailed analysis of the text, structure, and history of the 2010 Kenyan Constitution. Ongoya argued that the onus was on the Appellants to demonstrate, specifically, which of these considerations was wrong or irrelevant; however, they had not done so, choosing instead to attack the High Court in general terms, for having converted itself into a philosophical tribunal. In particular, on Article 89 (delimitation of constituencies), the High Court produced six specific reasons, none of which had been disturbed by the Appellants. Moving through the abstract and the particular (as he had in the Court of Appeal), he illustrated the very specific political and historical concerns around constituency delimitation that had necessitated the High Court to evolve the basic structure doctrine. He was followed up on this by Evans Ogada, who argued that by prescribing a procedure and a time limit for the IEBC to carve out these new constituencies, the BBI Bill fatally compromised the independence of this fourth-branch institution. The line-up on the Respondents’ side was finally completed by Dr John Khaminwa, who summed up the arguments in favour of the basic structure doctrine.
Phase Two: The Judges’ Questions
In my opinion, the brief half an hour around midday today was perhaps the most important part of the hearing; having heard the judges’ questions to the Appellants the day before, their questions to the Respondents perhaps indicated in the clearest manner what their concerns were, and what the issues were upon which the decision would finally turn.
On the basic structure, Ouku J asked whether the High Court and Court of Appeal had provided sufficient guidance to the citizens of Kenya for determining what the basic structure was; and further, was the four-step-sequential process to be found within the Constitution, or coming from outside. Wanjala J asked about the distinction between “amendment” and “alteration”: what meaning was to be given to the “disappearance” of the word “alteration” from the constitution-making process, and how might that word be revived, constitutionally. He also asked about the where the juridical form of the constituent power was located. Koome CJ wondered if Kesavananda Bharati had attained the standard of a municipal decision that could be taken to lay down “a general principle of international law” – and whether, indeed, it had informed the framing of Kenya’s own Constitution, in particular Articles 255 – 257. Sticking with the theme, Lenaola J asked where in Kesavananda Bharati it was said that the Indian Constitution has any “eternity clauses”. He then asked what – in my view – was the most important question of the hearing (I will examine the reasons for this below): given that Article 255(1) specified which entrenched matters had to go to a referendum for amendment Article 257(1), what were those matters outside Article 255(1) that might need to go to the primary constituent power for amendment?
On the IEBC and quorum, Ouku J asked what would happen to those acts that the IEBC had done while it was improperly constituted. Njoki J asked if the quorum requirements could be read into the Constitution – and if not, why did the Constitution provide a “minimum” and a “maximum” number for the composition of commissions. Wanjala J wanted to know what would happen if Parliament made a law for a three-member commission, and fixed quorum on that basis. Similarly, Lenaola J asked what the meaning was of Article 250(1) setting the minimum number at three (as no constitutional provision ought to be considered superfluous), and what – if any – acts the Commission could undertake with three members.
On public participation, Njoki J asked what specific steps the IEBC could have taken to reach ordinary Kenyans. And Koome CJ expressed a concern similar to the one she had expressed during Appellants’ arguments: was there something in the Constitution that could be used to determine the standards for public participation, even in the absence of express statutory framework?
Discursion: Thinking through Lenaola J’s Question
Before continuing with this post, I want to briefly think through Lenaola J’s question, as I believe it is fundamental to the case. The point is basically this: as the Appellants argued repeatedly, the Kenyan Constitution has a two-track process for amendment. The regular Parliamentary route on the one hand (Article 256), and then, for the ten entrenched subjects under Article 255(1), the public participation + referendum route under Article 257. Appellants argued that this two-track process was doing the same work that the basic structure doctrine was otherwise meant to do: it was identifying the basic features of the Kenyan Constitution, and then prescribing a more onerous, people-involved way of amending them, which approximated the primary constituent power.
This being the case, the obvious challenge for the basic structure doctrine is this: if you say that the basic structure of the Kenyan Constitution is the ten subjects under Article 255(1) (the supremacy of the Constitution, the territory of Kenya, the sovereignty of the People, etc.), then an immediate problem arises – given that there is a specific and express way to amend these subjects (Article 257), how then can the four-step process be simply superimposed upon this scheme? If, on the other hand, you say that the basic structure of the Kenyan Constitution is not in these ten subjects, then a whole host of other problems arise. What, for example, is even more fundamental or basic than sovereignty, or the bill of rights, or constitutional supremacy, that would need an even higher threshold of amendment than what is set out in Article 257? And how would you identify what those even more fundamental themes are?
So how does one answer Lenaola J’s question? I think there are two sequential (sorry!) responses. The first is to accept that the basic structure is (largely) located within Article 255(1) of the Kenyan Constitution (as the Court of Appeal, in fact, did) and not outside of it. However, here is the key: not every amendment to an Article 255(1) subject will trigger the basic structure doctrine and the four-step-sequential process. It is important to note here that the OG basic structure case – Kesavananda Bharati – never actually said that you cannot amend the basic structure. What it said – and this is crucial – is that you cannot damage or destroy the basic structure. And the distinction is significant: for example, amendments to Article 16 of the Indian Constitution setting out the modalities for affirmative action have passed the judicial scrutiny, even though they “amend” the Constitution’s equality code, which is unambiguously part of the basic structure.
So, even with respect to the subjects set out under Article 255(1), not every amendment will necessarily trigger basic structure scrutiny. Consider, for example, 255(1)(e) – the Bill of Rights. Article 24 of the Kenyan Constitution sets out the conditions for limiting a particular fundamental right. It follows familiar language – the nature of the right, the purpose of the limitation, etc. Now, suppose you wanted to amend Article 24 and make the language clearer – for example, incorporate into the Article, in express terms, the global proportionality standard that is now followed in many jurisdictions across the world. This would be an amendment to an Article 255(1) subject, and therefore trigger Article 257. However, it would not be damaging or destroying the basic structure in a manner that would trigger the primary constituent power, and the four-step-sequential process. Indeed, you can think of many ways in which the subjects set out under Article 255(1) could be amended (i.e., making language more precise, modifications to standards, adding standards, etc.) that would not trigger what we generally think of as basic structure scrutiny. On the other hand, if you were to repeal Article 24 altogether, and replace it with a provision such as: “All rights in this Part may be limited whenever the government deems fit in the public interest” – now that would be a basic structure violation that would go beyond Article 257 and trigger the four-step-sequential process.
This point is crucial, because it really does go to the heart of the case – the difference between amendment and repeal – and why the existence of the two-track process (as the Appellants argued) does not preclude the operation of the basic structure doctrine. This is because at the end of the day, the two-track process is concerned with amendment – whether of non-entrenched provisions (Article 256 route) or entrenched provisions (Article 255(1) + 257 route). The two-track process does not contemplate wholesale repeal of the Constitution (express or implied). It is for those situations that the primary constituent power and the four-step-sequential process is needed. Thus, there is nothing absurd about saying that one does not need to go looking for the basic structure outside of Article 255(1): the same sub-clauses under Article 255(1) might trigger either Article 257 or the four-step-sequential process, depending upon the nature of the change in the Constitution sought to be effected, and whether it genuinely amounts to an amendment, or whether it is a repeal. In other words, the key is not Article 255(1), but the nature of the change.
My second, brief point is that at the same time, one might hesitate to definitively say that Article 255(1) necessarily exhausts the basic structure. Arguments were made before the High Court and the Court of Appeal, for example, showing how the questions of boundary delimitation – given Kenya’s context and history – needed to be considered as basic structure questions (arguably this would come within sub-clause (g), but bracketing that for the moment). One can also think of a case such as Indira Nehru Gandhi v Raj Narain, for example, where a constitutional amendment that simply precluded a challenge to the Prime Minister’s election was invalidated by the Court. Again, this would arguably fall within 255(1)(d) (the rule of law) and (g) (independent of the judiciary), but it is possible to differ on that. In any event, I do not think too much turns on this point: I think it is also perfectly reasonable to finally and conclusively say as follows:
. . . the basic structure – as the Appellants correctly argue – is found in Article 255(1). But not every amendment to Article 255(1) triggers the application of the basic structure doctrine, the primary constituent power, and the four-step-sequential process. For the primary constituent power to be triggered, the amendment must be of such nature, extent, and consequence, that it amounts to an implied repeal of the Constitution or its basic structure. Thus, if you were to make a venn diagram, there would be a larger circle of amendments to Article 255(1) subjects, and a smaller circle – contained within it – of amendments that triggered the basic structure doctrine.
With respect to the judge’s questions, Nelson Havi argued that both the High Court and the Court of Appeal had correctly stated that to identify the basic structure, you would have to look at the context and history of each provision. For example, in order to understand why the independence of the judiciary was part of the basic structure, you would have to look at how the colonial judiciary was a department of the executive, and how and why it migrated from the State department to independent status. On the four-step process, Havi argued that it was not found within the Constitution, but a means of preventing constitutional death: it was found in the process that made the 2010 Constitution. Indeed, it had to be outside the Constitution because the primary constituent power was, by definition, primordial. On the distinction between “alter” and “amend”, Havi submitted that the reason for the change was precisely the flaws that had been discovered with the Independence Constitution providing for the means of its own “alteration”.
Esther Ang’awa then argued that quorum could not be read into the Constitution, as the Commission had to operate on the basis of both the Constitution and legislation (the two engines). This argument was supplemented by other counsel, who pointed out that “composition” was just for membership, whereas quorum was to transact business – thus, the two concepts remained fundamentally distinct.
On public participation, Carolene Kituku provided various ways in which it could have been secured (e.g., use of other media of communication, such as radio). She also made an interesting burden of proof argument. Flipping the question around – i.e., what evidence was there that public participation was insufficient – she asked, instead, what evidence had been produced by State organs to show that public participation had taken place. I believe that this question is correctly framed: because if public participation is a guaranteed right under the Kenyan Constitution, and if it is easier for the State to prove the affirmative (i.e., that public participation had been carried out), then to me it seems to follow that the initial evidentiary burden lies upon the State: until the State has produced satisfactory evidence that the public participation requirement has been fulfilled, the presumption ought to be that it has not (this flows from the fact that it is a right).
Finally, Topua Lesinko made the point that the judgments of the High Court and the Court of Appeal were different in crucial respects from Kesavananda: to continue with the running theme of the proceedings, while in Kesavananda the Court permanently shut out certain amendments from being made altogether, the High Court and Court of Appeal surrendered them to the primary constituent power without shutting them out. In my view, another way of putting it would be that Kesavananda puts substantive limits on constitutional amendments based on their content, while the High Court and the Court of Appeal placed procedural limits based on deepening public participation, so that the People could adequately determine when the content could be allowed to go through and when not.
The last segment of the hearing saw the rejoinder by the Appellants. I will focus here on the basic structure doctrine, as the rest of the arguments were addressed, but only briefly, and with arguments similar to those that have already been discussed previously.
On the subject of the basic structure, in closing, the Attorney-General’s legal team laid out the core of their case: that the basic structure constituted the foundational provisions of the Constitution. These were entrenched, and were to be found in Article 255(1). At the same time, the basic structure doctrine was an extra-constitutional doctrine that substantively limited the power of amendment. Thus, the Kenyan Constitution had a basic structure, but did not contemplate the basic structure doctrine. The Kenyan Constitution’s basic structure was protected not by the basic structure doctrine, but by the onerous amendment provisions under Articles 255 and 257.
The reason why the basic structure was located in Article 255(1) was to be found in the history of the constitution-making process. The People’s concern during the framing – as captured in the Constitution of Kenya Review Commission report – was how quickly and how fundamentally the Independence Constitution was amended. The CKRC then identified the People’s solution: a distinction between entrenched and non-entrenched provisions, with a stringent procedure being put into place for the amendment of the latter. This would safeguard the core of the Constitution. And that core was what was provided under Article 255(1).
The AG’s team argued that the basic structure doctrine was being deployed to obstruct the sovereign (i.e., the People’s) right to amend the Constitution under Article 257. In this context, there was no real difference between “amendment” and “alteration.” The contextual meaning of the word “amend” simply flowed from the ability of the sovereign to make or unmake anything, and that was the manner in which it was used in Chapter XVI of the Kenyan Constitution.
George Oraro SC then took up the baton. Speaking about the four sequential steps, he argued that what the High Court and Court of Appeal judges were trying to do was to revert to the original ratification procedure as a basis for legitimising the basic structure doctrine. But – according to Oraro SC, as I understood him – this, ultimately, was a futile endeavour: the power of making a Constitution was primordial and belonged to the People. By definition, it could not be regulated by a Court. The People had the right of reserving to themselves how they would use this power (e.g., Article 1(1)) – but even that could not stop them from coming up with a new method of creating or recreating a Constitution.
However, for now, the People had set out the route that they wanted to take, and that route was through Articles 255 and 257. The role of the Court, thus, was to ensure that those strict provisions for exercising the primary constituent power were very strictly followed: for example, sufficient participation, sufficient consultation. In essence, the role of the Court was to ensure that the right of the People to exercise their primary constituent power was protected. Oraro SC closed by stating that ultimately, it was the citizens – who were registered voters – who were holders of the primary constituent power, and it was this primary power that had been textualised under Article 257. This – thus – precluded the application of the basic structure doctrine.
As a closing remark of my own, I believe that this is as clear a statement of the case as it is possible to make. However, I am not entirely convinced that it responds to the core point: namely, that while the People indeed chose to constitutionalise the amendment to entrenched provisions under Article 257, that does not necessarily imply that said power carried with it the power of repeal or abrogation. Oraro SC’s argument assumes a conflation of that distinction, but in my respectful view, does not demonstrate it. It does not respond (in my view) to the independent arguments making that distinction, and showing why the primary constituent power is different from the power of amendment, and why – therefore – it must lie outside the Constitution.
The three days’ hearing before the Supreme Court saw arguments touch upon a wide range of issues crucial to both Kenyan constitutional law, and to comparative constitutional law in general. What is at stake (in my view) is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change. We will now wait to see the final fate of this case.
As Solicitor General Kennedy Ogeto said at the very end of the hearing, the judgment of the Court would be with Kenya for posterity. To that I will only add: it is also the kind of judgment that will echo in the annals of global constitutional law and thought for generations to come.
The BBI Case at the Supreme Court of Kenya – Day 2
By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion.
Day 2 of the BBI hearing (read analysis of Day 1 here) at the Kenyan Supreme Court (watch here) can be divided into three phrases. In the first phase, counsel supporting the appellants (i.e., broadly, the pro-BBI side) finished their submissions. In the second phase, the bench posed a series of questions to the pro-BBI side. In the third phase, the anti-BBI side (or, the Respondents) commenced its submissions. This typology is slightly reductive: for example, Mr. Isaac Aluochier, who argued in the first session, was against the basic structure doctrine, but was also against the BBI (for other reasons). Mr. Morara Omoke, who argued in the third session, was technically an appellant, as he had filed a cross-appeal on the question of single and multiple referendum questions. However, in the interests of sanity, this typology will have to do for the purposes of this post.
The President’s legal team opened Day 2. SC Waveru Gatonye addressed the Court on the issue of Presidential immunity. Like his predecessors the day before, he focused on how the Kenyan Constitution contains inbuilt accountability mechanisms that are consistent with wide-ranging Presidential immunity from civil proceedings during the term of office. For example, wronged parties could sue the Attorney-General, and impeachment proceedings could always be launched. A bar upon suing the President during their term of office, therefore (for things done in the operation of their office) would not lead to impunity. Continuing on the theme of Presidential powers, SC Kimani Kiragu then argued on Presidential involvement in the Popular Initiative under Article 257: he argued that the sovereign People of Kenya had delegated a part of their authority to H.E. the President. Once that had been done, there could be no half-measures: the President must be deemed to possess all sovereign powers that had been delegated – including the power to initiate constitutional reform – unless there was an express limitation in the Constitution. In the context of Article 257, there was no such limitation. Readers will take careful note of this argument; as we shall see, it will become particularly important when contrasted with the Respondents’ submissions on this point.
Mr. Isaac Aluochier took the podium, to argue against both the basic structure doctrine and Presidential immunity. I want to flag one particular argument, as it was made before the Court of Appeal as well: that the basic structure doctrine is precluded by Article 1 of the 2010 Constitution of Kenya, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Mr. Aluochier argued that Article 1 is express authority for the proposition that there can be no “extra-constitutional defence mechanism” for the Constitution, such as the basic structure doctrine. However, as I have tried to show before, this argument proves too much: at all times, the phrase “this Constitution” presumes the existence of the Constitution under advisement, that is, the 2010 Constitution. However, the whole point of the basic structure doctrine is to prevent or regulate amendments that are of such a nature that “this Constitution” will no longer be “this Constitution”, as its fundamental identity has been altered. Thus, if the basic structure doctrine is otherwise correct, Article 1 does not refute it: when you say that sovereign power will be exercised in accordance with this Constitution, it already excludes situations where this Constitution is no longer this Constitution – which is the situation that the basic structure doctrine is meant to cover. To be clear: this is not an affirmative argument in support of the basic structure doctrine. It is, however, a defensive argument that demonstrates that whatever other arguments there might be against the doctrine, Article 1(1) cannot be pressed into service here.
In an interesting turn of events, the bench did not pose any questions to counsel while they were arguing; instead, in the second phase, each of the judges took turns in posing a series of questions. Counsel for the pro-BBI side were then granted three minutes each to respond to the questions most relevant to their brief.
Let us group the questions thematically. On the subject of the basic structure, Lenaola J asked what it meant to say that sovereignty was “extra-constitutional”. Njoki J wanted to know if the four-step sequential process was found anywhere in the Constitution. Smokin Wanjala J asked why the appellants located the Kenyan Constitution’s basic structure within Article 255 – and why believed that the basic structure doctrine was inapplicable in Kenya. On the popular initiative, Lenaola J asked if there was any global precedent for a President – or a President-like figure – being involved in something like a popular initiative. Njoki J asked if the President was authorised to move under a popular initiative in order to fulfil his constitutional functions (readers will note this question, as an interesting answer was provided during Respondents’ submissions). Smokin Wanjala J enquired why it was being argued that the popular initiative kicked in only after the collection of a million signatures – and not before. Koome CJ also asked about the initiation of the popular initiative, and whether the requirement of public participation required a legal framework or rules of procedure, to be instantiated. Finally, on the subject of distinct and separate referendum questions, Ouku J made the important point that while four judges in the Court of Appeal seemed to endorse the “thematic unity” approach to referendum questions (i.e., referendum questions within a single theme could be grouped together, but not from different themes), the final disposition of the Court of Appeal reflected the opposite holding. Lenaola J asked if it was correct to say that the question was not yet ripe, as the IEBC was yet to decide how to frame the referendum questions; and Njoki J wanted to know if – given that there was nothing express in the Constitution – whether the thematic approach implied inserting into the Constitution something that was not there.
Responses to these questions were along familiar and expected lines: counsel reiterated – or further explained – the positions they had taken, including the argument that the basic structure doctrine applies only when there is a parliamentary monopoly over amendments, that the Kenyan Constitution’s basic structure was identified in Article 255 and provision for its amendment set out in Article 257, that Kesavananda Bharati is inapplicable to Kenya, that the scope of public participation is expressly set out in Article 257, and varies with the stage of the popular initiative, that the referendum question issue was unripe. Most of these points were addressed in yesterday’s blog post, and I will not repeat the arguments here.
Let me, however, flag two interesting responses. One response came on the question of global precedent: apparently, in Lichtenstein, the Prince had proposed a series of constitutional changes through a popular initiative (including the power to appoint judges), which were eventually passed by a referendum. Now, it was undoubtedly fascinating to hear – for the first time – some comparative constitutional law from Lichtenstein! I do wonder about the appropriateness of the example, though: a Prince taking control of the judiciary through constitutional amendment doesn’t exactly feel like a particularly inspiring instance of the use of the popular initiative. Out of curiosity, I did some digging after the hearing: it appears that the Venice Commission strongly criticised many of the constitutional reform proposals for their anti-democratic character, for the reason that they would result in excessive centralisation of power with the monarch. If anything, therefore, the Lichtenstein example seems to show that letting a powerful head of State bring about constitutional reform through popular initiative is more a recipe for abuse than anything else!
The second response was on the basic structure. Perhaps for the first time, counsel bit the bullet, and told the Court that if, tomorrow, there was a constitutional amendment seeking to curtail judicial review itself, the Court could participate in the public discussion around it – but would have no power to invoke the basic structure to invalidate the amendment. Putting the point in such stark terms – i.e., telling the Court that it had no legal power to protect even its own existence from constitutional amendment under Article 257 – is undoubtedly a starkly honest – and rather bold! – argumentative technique. It remains to be seen how the Court will respond to the issue being framed in such categorical terms.
The third phase was kicked off by Mr. Morara Omoke’s team, which had filed a cross-appeal on the referendum questions issue, but ultimately launched a full-throated defence of the High Court and Court of Appeal judgments. Counsel responded directly to the Appellants’ Kesavananda point, noting that there was a key distinction between Kesavananda and David Ndii. Kesavananda expressly “locked out” a set of amendments altogether. The High Court and the Court of Appeal, however, were equally express that in principle, every provisions of the 2010 Kenyan Constitution – including its basic structure – could be amended (as I argued in yesterday’s post, this distinction is crucial, as it – in my view – tracks the contextual differences between the Kenyan and Indian Constitutions). Secondly, counsel argued that the purpose of the four-step sequential process was to deepen public participation in the amendments process. It is important to read the two arguments together. The first argument is an argument demonstrating the need for a different form of the basic structure doctrine in the Kenyan context; and the second argument is an argument demonstrating that the form chosen by the High Court and the Court of Appeal was justified: where the amendment process already provides a role for the People (the two-track process referred to by the Appellants), the basic structure doctrine can only exist to the extent that it deepens that role to a level commensurate with constitutional framing. That, in essence, was what – according to counsel – the High Court and Court of Appeal did, and that was why this particular form of the basic structure doctrine (i.e., the four-step sequential process) was justified in the specific context of Kenya.
Mr. Morara Omoke then advanced a series of arguments supporting the High Court and Court of Appeal: on the issue of IEBC quorum, that Article 250(1) mentioned that the composition of Commissions had to be a minimum of three – but that composition did not equate to quorum. Extending the argument – in terms somewhat similar to the constitutional statute point made in yesterday’s blog post, he took the example of the tax code: if – Mr. Morara Omoke argued – amendments to the tax code were struck down, would it be the case that the Code itself would be treated as repealed, leaving the entire domain unregulated? He argued that that could not be the case – and similarly, the striking down of Sections 5 and 7 of the IEBC Act Schedule could not lead to the conclusion that there was now no statutory regulation governing the functioning of the IEBC.
For the sake of completeness, this argument was carried forward later in the day by Ester Ang’awa, who pointed out that the IEBC was regulated by both the Constitution (Article 250(1)), and by statute (the IEBC Act) – both of which, together, functioned as two wings of a plane, and were necessary for it to continue flying. On the failure of one engine (the statute, parts of which were struck down), the plane could not simply run perpetually just on the other. Readers may here again spot similarities with the constitutional statute argument, without the term expressly being mentioned.
Finally, on the issue of referendum questions, Mr. Morara Omoke noted that he had written to the Court of Appeal after its judgment, requesting clarification on the apparent contradiction between the holdings and the disposition; he had a reply stating that there was no contradiction (pretty impressive due diligence!). Mr. Omoke then made the case in favour of the “thematic unity” approach. The case is, by now, a familiar one: a voter cannot exercise choice in any true sense if she is provided with a grab-bag of seventy-four constitutional amendments – some of which she may support and some of which she may oppose – and then asked to approve or reject all of them in an up-down vote. This is a specific problem when “sweeteners” that have nothing to do with constitutional reform are thrown into the mix with the specific intention of making the reform proposals more palatable.
The Respondents then formally opened proceedings, with Mr. Nelson Havi starting the case. His conceptual and theoretical arguments on the basic structure should – by now – be familiar; one important point to flag is that Mr. Havi affirmed that – by its very nature – primary constituent power must lie outside of the Constitution itself. This is a direct response to the argument – made by George Oraro SC the day before – that the 2010 Constitution had textualised the primary constituent power within Articles 255 and 257. Now, while this is true as a matter of constitutional theory, a more subtle point that the appellants had made remains: which is that the closer the amending process in a Constitution gets to the primary constituent power, the less role there is for judicial intervention through the basic structure doctrine. To this, Mr. Havi replied that the four-step sequential process was what provided the wedge between constitutional amendment and constitutional repeal. The four-step sequential process – which lay outside the Constitution – kicked in only when what was being attempted was constitutional repeal (express, or through necessary implication). Thus, no matter how close an amendment process came to approximating the primary constituent power, when what was being done was not an amendment at all, but a repeal, it became necessary to look outside the Constitution in order to find the power for such an action; because, recall – Mr. Havi argued – that the primary constituent power is the power to frame, re-frame, or repeal a Constitution, and must therefore lie outside of it.
On the involvement of the President in the popular initiative, Mr. Havi inverted the argument made by the Appellants: he asked, instead, where in the Constitution was the President granted the power to involve himself in the popular initiative process. This emphasises the point that I made in yesterday’s blog post: the popular initiative dispute is, at the end of the day, a dispute about how to interpret a constitutional silence, and will turn upon what the Court thinks is the purpose of Article 257. If the Court thinks that the purpose of Article 257 is to establish bottom-up direct democracy, it will exclude the President; if, however, it does not view Article 257 in that manner, it may not do so.
In the final set of arguments for the day, Elias Mutuma addressed submissions on Presidential involvement in the popular initiative – again, responding specifically to the appellants’ core point that in the absence of any constraining provision, the President should be deemed to have the power as part of the normal exercise of his constitutional rights. While it was true – Mr. Mutuma argued – that the People had delegated sovereign power to the President, it was important to note that what had been delegated was executive, not legislative power; thus, to the extent that the President wanted to legislate (and constitutional reform through the Popular Initiative was a form of legislation), he needed express authorisation under the Constitution. A constitutional silence, thus, would need to be interpreted against the President.
Mr. Mutuma went on to make a fascinating argument about the nature of the popular initiative, and when it could be deemed to commence. Under Article 257 – he noted – the People had to be involved with enacting the constitutional reform in question. This envisaged an active role for the People right from the beginning, and not simply a situation where the People were just given a constitutional reform proposal to endorse or reject. Thus, the mere fact that there was a reform proposal with one million signatures did not ipso facto mean that the requirements of Article 257 had been fulfilled.
I want to pause for a moment and reflect upon the deep roots of this argument in democratic theory. Article 257 of the Kenyan Constitution – as I’ve argued before – is a particularly important provision in how it seeks to infuse direct democracy into the constitutional amendment process. Direct democracy itself, however, can be of two kinds, depending upon whether the citizenry is to be treated as passive consumers of laws, or active participants in their enactment. In the former situation, the political elite continue to devise and frame the laws, with the “direct” role of the People being limited to (mostly) accepting them by acclamation, or (rarely) turning them down. In the latter situation, however, the involvement of the People is deeper, and begins from the moment of the devising of laws. Mr. Mutuma argued that Article 257 envisioned the latter conception of direct democracy, and this would have an impact (a) on the question of when the Popular Initiative could have been deemed to have begun, and (b) on the scope of public participation. Incidentally, it would also have an impact on the question of Presidential involvement: it is far more difficult to justify Presidential involvement if the purpose of Article 257 is to empower an active citizenry to play a front-stage role from the get-go. Top-down, led initiatives are in fundamental conflict with this vision of direct democracy.
Finally, Mr. Mutuma posed a hypothetical: if this was a pre-constitutional moment, and the 2010 Constitution was being submitted for ratification, would the procedure under Article 257 be deemed sufficient? He argued that it would not, and that was why the four-step sequential process – which provided for a deeper and more sustained level of public participation – was justified. Arguments for the day were then concluded by Caroline Jerono, who argued that as all the terms in Article 257 (Bill, Amendment, Suggestion) were in the singular, it was a strong indication in favour of the thematic unity approach to referendum questions.
This brings us to the close of day 2 of the hearings. By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion. Tomorrow should bring the curtains down upon the case, and leave us with a clear sense of the issues on which this case will finally turn.
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