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 1, Part 2, Part 3, Part 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.
