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The Kenyan High Court’s BBI Judgement: An Instant Classic

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The High Court joins the family of courts that have adopted a variant of the basic structure doctrine, and has done so in an entirely unique and compelling manner.

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The Kenyan High Court’s BBI Judgement: An Instant Classic
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On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Others v Attorney General and Others (the BBI Judgment). Through the course of the judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world in the days to come.

The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” (BBI Taskforce), which was mandated to come up with recommendations and proposals for building a lasting unity in the country”. After the BBI Taskforce submitted its report, the president appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report”. The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution (“The Constitution of Kenya Amendment Bill, 2020).

Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257[1]). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its constituent parts – was challenged before the High Court through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.

The Court framed a total of 17 issues for disposal.

The basic structure

As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the constitution itself (the “basic structure” question).

The constitutional provisions

To understand this better, let us briefly consider Articles 255 to 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the constitution: through parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission (IEBC), approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).

Article 255 of the Kenyan Constitution places a further requirement for certain types of amendments. If an amendment falls into one of the ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, presidential terms, etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum by a simple majority (and under certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.

The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257). It also divides the constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 to 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.

The history

To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model . . .  of participatory constitution building process”. This meant that the public was meant to be involved in every step of the constitution-making process, as opposed to the “20th century model”, where constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version.

Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from independence in 1963). The first was a “culture of hyper-amendment”, where presidents amended constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “constitutions without constitutionalism”. This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party state, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.

If there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a model of participatory constitution-building process.

The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at paragraph 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the president sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” – efforts to centre the citizen in the constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya”, and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process. The Constitution of Kenya Review Commission (the CKRC) implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the commissioners’ report. After a long process that included considering more than 35,000 submissions from the people, a draft constitution was prepared by 2002. This process was, however, short-circuited when the then President Daniel arap Moi dissolved Parliament before the 2002 general election.

In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory parliamentary process that resulted in a fresh document called “the Wako Draft”. Attempts to force through the Wako Draft were forestalled when, in 2004, the High Court of Kenya famously held that the draft would have to be put to a referendum. In 2005, when the referendum did take place, the Wako Draft was voted down 58-42.

Constitutional reform came back on the table after the large-scale violence in the aftermath of the 2007 general election, which needed international mediation. The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft constitution was passed with 68.55% of Kenyans voting in its favour.

Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.”

This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation in the constitution-making process required four distinct steps: civic education to equip people with sufficient information to meaningfully participate in the constitution-making process; public participation in which the people – after civic education – give their views about the issues; debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and, a referendum to endorse or ratify the Draft Constitution.

The Court thus found:

What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010.

The Court labeled this the “primary constituent power” – i.e., the power possessed by the people themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256). The “primary constituent power” was located outside of the constitution’s amendment provisions, and was plenary and unlimited. It followed that there were substantive limitations upon which amendments the secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with “the People.”

Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order but – for obvious reasons – does not spell that out. The assumption is that if a constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.

It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis, while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).

A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the constitution could not be altered without going back to the people. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.

The popular initiative and the BBI process

A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?

The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. Here, the president’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters. This was also impermissible because the scheme of Article 257 made the president the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match”, if he was also allowed to initiate proceedings.

Thus, as the Court summed up:

It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.

While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.

In this case, however, it meant that the BBI process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal. An executive-led amending process was unknown to the constitution: it had to be parliament (Article 256) or people and parliament (Article 257).

The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.

The Court also found the BBI process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10, that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages.

Thus the Court held:

The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments.

Constituency apportionment and delimitation

A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units”. The Bill sought to introduce 70 new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”). The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission (IIBRC) had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89.

The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies was not part of the eternity clauses, the provisions dealing with the method of delimitation were:

Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level . . . Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies.

Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional. Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):

We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.

Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.

There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.

Democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference.

If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.

If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender.

But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the constitution. In a world that is too full of Imperial presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of courts and constitutions at their very best.

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Gautam Bhatia is a constitutional lawyer based in New Delhi, India.

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BBI and Kenya’s Finest Jurists

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto.

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On May 13 this year, a five-judge bench of the Kenya High Court struck down a state effort to amend Kenya’s 2010 Constitution. With the possible exception of the 2017 ruling of the Supreme Court of Kenya overturning the re-election of Mr. Uhuru Kenyatta – a first for Africa – no judicial opinion has been more consequential. The ruling struck like a thunderbolt and upset Mr. Kenyatta’s legacy, and possibly upended his succession plans. It is not an exaggeration to say that Mr. Kenyatta has pegged his tenure on the fate of the Building Bridges Initiative (BBI), a project ostensibly designed to rid Kenya of perennial electoral violence, rampant corruption, and ethnic and sub-national exclusion and marginalization.

From the “Handshake” to BBI

In 2017, Mr. Kenyatta sought re-election against a strong challenge from Mr. Raila Odinga, without doubt Kenya’s key opposition figure. Mr. Odinga had run against pro-establishment candidates before, each time coming up short. On several of those occasions, Mr. Odinga had claimed fraud and ballot-stuffing. But each time, he was eventually declared the loser. That pattern repeated itself in 2017. Citing irregularities, the Supreme Court annulled that election and ordered a fresh vote. Mr. Odinga boycotted the re-run, assuring Mr. Kenyatta of victory. Mr. Odinga refused to concede and swore himself in as the “people’s president.” Deadly violence, often with ethnic undertones, broke out. The economy was paralyzed. Then on March 9, 2018, Mr. Kenyatta and Mr. Odinga shocked the nation by declaring a truce.

The rapprochement between Kenyatta and his archrival Mr. Odinga came to be known as the “Handshake.” Out of it grew BBI, which they termed a historic initiative to right Kenya’s past wrongs and firmly put it on an irreversible path to full citizenship and belonging for all its diverse peoples. Mr. Kenyatta and Mr. Odinga unilaterally appointed the Building Bridges Initiative Task Force, a fourteen-member body composed mainly of status quo apparatchiks and politicians. In October 2020, the task force released its report and a constitutional amendment bill. Articles 255-257 of the Constitution provide for the process of amending the Constitution through a referendum after approval by Parliament and a simple majority of Kenya’s 47 counties.

In March 2021, Parliament approved the BBI bill. However, groups of NGOs and citizens sued the State, the legislature, and the Kenya’s Independent Electoral and Boundaries Commission (IEBC) to stop them from conducting the referendum. The suit alleged, inter alia, that the process of the BBI was illegal and unconstitutional. It argued that the BBI bill would usurp the sovereignty of the people and abridge the constitution. They submitted further that Parliament was powerless to pass bills that would negate the “basic structure” doctrine which allows only the people – not the legislature – to fundamentally alter the basic logic and architecture of the constitution. This last point was a novel one in Kenyan jurisprudence because no one had hitherto invoked it in live proceedings.

Kenya’s Finest Jurists

Sitting at the High Court in Nairobi to hear the petition were arguably Kenya’s finest jurists. The bench was led by Presiding Judge Joel Ngugi. Justice Ngugi, a Harvard-trained academic, had been a professor of law at the University of Washington School of Law in Seattle, one of America’s finest law schools. He is also a reputable member of the school of thought known as TWAIL, or Third World Approaches to International Law. He is recognized as a leading intellectual in Kenya and elsewhere. Early in his judicial career, he led the Judiciary Transformation Institute (JTI) when Dr. Willy Mutunga was Chief Justice in 2012-2016. His judicial rulings have been original, progressive, and stretch the scope of human rights.

Justice Ngugi was joined on that bench by four other judges, including Justice George Odunga, a leader in expanding the rights of the citizenry against an illiberal state bend on curtailing the rule of law. Justice Odunga is one of a small cadre of brilliant and courageous judges who are leading a judiciary long held captive by executive overreach and corrupt cartels to a more independent posture. The others on that bench – Justices Chacha Mwita, Teresia Matheka, and Jairus Ngaah – have themselves been lauded for standing up to an executive prone to the abuse of power. The bench had been appointed by former Chief Justice David Maraga, who had often clashed with Mr. Kenyatta for failing to carry out court orders.

The ruling was a shocker when it came down. In a scathing – even disdainful – ruling, the judges uprooted tree, stem, and branch of the entire BBI process. The bottom line was that the judges viewed the whole BBI process as the fruit of a poisoned tree, and therefore wholly unsalvageable as a constitutional matter. In a tongue lashing the likes of which Kenyans were unaccustomed to, the court laid waste to every one of the basic arguments for the BBI initiative. After the five-hour ruling, there was hardly anyone who thought the BBI project could be revived. Its proponents were shell-shocked, and its opponents supremely elated. The state and the initiative’s backers have gone to the appeals court to reverse the ruling.

A Jurisprudential Milestone

Several of the court’s findings deserve special attention. The court agreed with the petitioners that the BBI initiative was irregular, illegal, and unconstitutional. First, in the televised ruling, the judges held that Mr. Kenyatta had failed the integrity test of leadership and violated the norms contained in Chapter Six of the Constitution. This is significant because no one should hold office – and is liable to impeachment if they do – once they are found in violation of Chapter Six. It is not clear what the political implication for Mr. Kenyatta is on this finding. But the judges warned that Mr. Kenyatta could be sued in his individual capacity. The import was to pull the moral rug from under him.

Secondly, the judges rubbished the five million votes collected from citizens by the BBI task force to support the referendum push. They ruled that the initiative was not started, or led, by citizens. The court ruled that only the people, not the government, can initiate and conduct a process to amend the constitution through a referendum. In other words, the state cannot hide behind a murky process to take away the people’s will.

Thirdly, the judges held that the IEBC – several of whose members had resigned – was not properly constituted and therefore lacked quorum to conduct any legal business. As such, any decisions that the IEBC had taken, or would take, on the BBI process were null and void.

Fourth, the court ruled that only a people-driven initiative (exercising constituent authority) as opposed to a state-driven exercise (exercising constituted authority) can change the fundamental architecture of the Constitution. Thus, the “basic structure” doctrine prohibits the state from taking a machete to the Constitution and mutilating its foundational assumptions, norms, and basic edifice. The larger meaning of this finding is a jurisprudential milestone for Kenya because it disallows the piecemeal and selfish amendments to the constitution by Parliament in cahoots with the executive. It says only the people have the power to fundamentally reconstitute the state either through enacting a wholly new constitution, or carrying out deep reforms of the extent one. This preserves the notion of popular sovereignty.

Fifth, the court held that Parliament did not have the power to allocate 70 more constituencies in the BBI bill. The judges ruled that only the IEBC – and no other entity – could allocate new constituencies. The largest share of these additional constituencies were allocated to Mr. Kenyatta’s Kikuyu ethnic strongholds as way of enticing his supporters to support BBI. Mr. Kenyatta has been locked in a battle of supremacy in his backyard against Mr. William Ruto, the Deputy President. Mr. Kenyatta had vowed to support Mr. Ruto, a Kalenjin, as his successor, but then reneged. Mr. Ruto then went behind Mr. Kenyatta’s back to peel away a large chuck of the Kikuyu electorate and turn it against BBI.

Do or Die

For now, the state and the backers of the BBI bill have gone to the Court of Appeal seeking to overturn the High Court’s historic ruling. It is anyone’s guess what the appellate process will yield. Anything is possible given the capture of large sections of the judiciary by the executive. The appeal could result in a reversal in whole, or in part, of the High Court ruling. Or it could wholly reaffirm the lower court’s ruling. One thing is undeniable – it is now an open question whether a referendum is even feasible given the election calendar in 2022. Time may simply run out on the BBI clock. Mr. Ruto and his supporters have celebrated the court’s ruling.

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto. The BBI agenda could’ve been an important calculus in that matrix. One of its proposals was to expend the executive to include a prime minister and two deputy prime ministers. These offices would have been an important carrot to bring on board a broader ethnic coalition of major communities to support Mr. Odinga. It is clear that Mr. Kenyatta and his family and political orbit cannot risk a Ruto presidency because of the bad blood between the two men. BBI for him is a do or die proposition. Will the courts rescue, or sink, him?

This article was first published in Verfassungsblog.

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India’s COVID-19 Surge Is a Warning for Africa

The surge in COVID-19 cases in India, spurred by a more transmissible variant and complacency, provides a stark warning to African populations to remain vigilant to contain the pandemic.

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India has been grappling with a deadly COVID-19 surge that hit the country like a cyclone in early April. Within a month, new daily cases peaked at over 400,000. On May 19, India set a global record of 4,529 COVID-19 deaths in 24 hours. Over 500 Indian physicians have perished from COVID since March. The actual figures on these counts are likely to be much higher due to testing limitations. Conservative estimates indicate India has experienced over 400 million cases and 600,000 deaths overall.

India’s hospitals are overflowing with patients in the hallways and lobbies. What hospital beds are available are often shared by two patients. Thousands more are turned away. Entire families in the cities are falling ill, as are whole villages in some rural areas. Countries in the region, such as Nepal, Thailand, and Malaysia, have also experienced a sharp uptick in cases fueled by the highly transmissible Indian variant.

India’s surge is also remarkable considering the country largely avoided the worst of the earlier stages of the pandemic.

India’s COVID-19 surge is a warning for Africa. Like India, Africa mostly avoided the worst of the pandemic last year. Many Sub-Saharan African countries share similar sociodemographic features as India: a youthful population, large rural populations that spend a significant portion of the day outdoors, large extended family structures, few old age homes, densely populated urban areas, and weak tertiary care health systems. As in India, many African countries have been loosening social distancing and other preventative measures. A recent survey by the Africa Centres for Disease Control and Prevention (Africa CDC) reveals that 56 percent of African states were “actively loosening controls and removing the mandatory wearing of face-masks.” Moreover, parts of Africa have direct, longstanding ties to India, providing clear pathways for the new Indian variant to spread between the continents.

So, what has been driving India’s COVID-19 surge and what lessons might this hold for Africa?

The Indian Variant Is More Transmissible

In February, India was seeing a steady drop of infections across the country, and life was seemingly returning to normal. Unfortunately, this was just a calm before the storm. That same month, a new variant, B.1.617, was identified in the western state of Maharashtra, home to India’s largest city of Mumbai. Now widely known as the “Indian variant,” B.1.617.2 (or “Delta” variant according to WHO’s labeling) is believed to be roughly 50 percent more transmissible than the U.K. or South African variants of the virus, which, in turn, are believed to be 50 percent more transmissible than the original variant, SARS-CoV-2, detected in Wuhan.

Some experts say the emergence of B.1.617.2 represented a significant turning point. Within weeks, the new variant spread throughout southwest India and then to New Delhi and surrounding states in the north. Densely populated urban centers of New Delhi and Mumbai became hotspots. The virus then started spreading rapidly in poor, rural states across the country.

The Rapid Spread of India's COVID Variant

Medical professionals are saying the new variant is infecting more young people compared to the transmissions of 2020. Multiple variants are now circulating in India, including the Brazil (P.1) and U.K. (B.1.1.7) variants. Moreover, a triple mutant variant, B.1.618, has been identified and is predominantly circulating in West Bengal State. A triple mutant variant is formed when three mutations of a virus combine to form a new variant. Much remains unknown about B.1.618, though initial reports suggest it may be more infectious than other variants.

Complacency and the Loosening of Restrictions

When the COVID-19 pandemic emerged as a global threat in 2020, Indian authorities implemented a strict and early lockdown, educational campaigns on mask wearing, and ramped up testing and contact tracing where they could. However, since the peak of infections in September 2020, a public narrative started to emerge that COVID-19 no longer posed a serious threat. It was also believed that large cities had reached a measure of herd immunity. The relative youth of India and its mostly rural population that spends much of its time outdoors, further contributed to the sense that India had escaped the public health emergencies seen in other parts of the world.

“Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk.”

Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk. Prime Minister Narendra Modi declared victory over the coronavirus in late January. In March, India’s health minister, Harsh Vardhan, proclaimed the country was “in the endgame of the COVID-19 pandemic.”

Behavioral fatigue also set in. Mask wearing waned, as did social distancing, all while tourism opened up and people began traveling to other parts of the country as in pre-pandemic times. Leaders in the western state of Goa, a popular tourist destination, began ignoring pandemic protocols and allowed entry to tens of thousands of tourists in an effort to bounce back from the economic fallout of the 2020 lockdown. Instead, Goa is believed to be the epicenter of the 2021 surge and now has one of the highest rates of infection in the country.

People began socializing in large gatherings elsewhere in the country as well. Contradictory COVID-19 protocols that called for strict night curfews and weekend lockdowns while simultaneously allowing large weddings and mass religious festivals only added to the collective sense of confusion and complacency. Contact tracing and follow-up in the field largely stopped.

Super-Spreader Events

India’s COVID-19 surge was also seemingly driven by a variety of super-spreader events. Most prominently were two international cricket matches in Gujarat State in western India where 130,000 fans converged, mostly unmasked, at the Narendra Modi Stadium.

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Prime Minister Modi, himself unmasked, campaigned in state elections at rallies of thousands of maskless supporters in March and April. In West Bengal, where voting is held in eight phases, infections have since spiked.

Thousands gathered in the state of Uttar Pradesh to celebrate Holi, the weeklong festival of colors that began on March 29. Meanwhile, millions pilgrimaged to the Hindu festival Kumbh Mela in Uttarakhand State in April, which possibly led to “the biggest super-spreader [event] in the history of this pandemic.”  Leaders in Uttarakhand not only allowed the festival to take place but also openly encouraged attendance from all over the world saying, “Nobody will be stopped in the name of Covid-19.”

Warning for Africa

The recent surge in COVID-19 cases in India underscores why African countries cannot let their guard down or succumb to myths that cast doubt on how to bring the pandemic to a halt. Most directly, the Indian variant has already reached Africa. It was first detected in Uganda on April 29, 2021, and is now circulating in at least 16 African countries. Moreover, hospitals and ICUs in Uganda are now reporting an overflow of cases linked to the Indian variant. Many of the incoming patients are young people. India also shares similar social features with Africa: a young population, extended family structures that include caring for the elderly at home, and returning to less-populated rural areas of origin when crisis strikes.

COVID-19 Variants Spreading in Africa

Previous analysis has shown that there is not a single African COVID-19 trajectory. Rather, reflective of the continent’s great diversity, there are multiple, distinct risk profiles. Two of these risk profiles—Complex Microcosms and Gateway Countries—seem particularly relevant when assessing the Indian surge risk for Africa.

Complex Microcosms represent countries with large urban populations and widely varying social and geographic landscapes. Many inhabitants of countries such as the Democratic Republic of the Congo, Nigeria, Sudan, Cameroon, and Ethiopia live in densely populated informal settlements, making them particularly susceptible to the rapid transmission of the coronavirus. This group also has a higher level of risk due to their weaker health systems, which limits the capacity for testing, reporting, and responding to transmissions. Both the Democratic Republic of the Congo and Nigeria are among Complex Microcosm countries that have already detected the Indian variant.

Gateway countries, such as Egypt, Algeria, Morocco, and South Africa, have among the highest levels of international trade, travel, tourism, and port traffic on the continent. This makes them more exposed to potentially more infectious and deadly variants that have emerged from other parts of the world, such as India. The interconnected nature of South Asia and the African continent is seen by the early detection of the Indian variant in Algeria, Morocco, and South Africa.

India and the African continent have strong historical, cultural, and economic bonds. Roughly 3 million people of Indian origin live on the continent, and India is Africa’s second most important trading partner after China. Southern and East Africa, in particular, have deep ties to India and large Indian populations with families on both continents. In short, there are many economic and socially driven pathways for the Indian variant to reach Africa.

Priorities for Africa
Lessons from India show that its unprecedented COVID-19 surge was driven by both a more transmissible variant as well as by letting its guard down on preventative public health measures. This exposed the vulnerability of India’s closely integrated and densely populated demographics. A number of African countries also face elevated risks to the spread of the pandemic. Learning from India’s experience highlights several priorities for Africa.

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Sustained Vigilance. Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave. The new Indian variants are spreading rapidly among young populations, and there is evidence that these newer variants, rather than just exploiting compromised immune systems, are causing some young healthy immune systems to overreact, resulting in severe inflammation and other serious symptoms.

This was the pattern observed in Africa during the 1918-1919 Spanish flu pandemic. The second wave of this pandemic was the result of a significantly more infectious and lethal strain that devasted the continent, infecting the young and the healthy. Countries outside Africa exposed to the mild first wave seemed to experience a reduced impact during the second wave, even though the two strains were markedly different. Having largely escaped the mild first wave, Africa was particularly vulnerable to the virulent second wave.

Continued Importance of Mask Wearing and Social Distancing. The strength of Africa’s public health system is its emphasis on prevention over curative care. African health systems do not have the infrastructure or supplies to respond to a crush of cases. Yet, many African countries have been actively loosening mask mandates and social distancing controls. On May 8, the Africa CDC hosted a Joint Meeting of African Union Ministers of Health on COVID-19 to encourage governments to overcome pandemic fatigue and invest in preparedness. With an eye toward India, prevention measures such as mask wearing, social distancing, and good hand hygiene are still as important as ever until vaccines become more readily available.

“Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave.”

Public Messaging. India suffered from confusing messaging at the early stages of the surge with prominent leaders and public health officials downplaying the severity of the risk and not modeling safe practices with their own behaviors. As they did with the initial onset of the pandemic, African leaders must convey clearly and consistently that the COVID-19 threat persists. Special outreach must be made to youth, who may feel they are immune, but who face greater risks from the Indian variant than previous variants that were transmitted on the continent. In cases where there is a low level of trust in government pronouncements, communication from trusted interlocutors such as public health practitioners, cultural and religious leaders, community leaders, and celebrities, will be especially important.

Ramping Up of Vaccine Campaigns. According to the Africa CDC, the continent has administered just 24.2 million doses to a population of 1.3 billion. Representing less than 2 percent of the population, this is the lowest vaccination rate of any region in the world. With the Indian and other variants coursing through Africa, the potential for the emergence of additional variants rises, posing shifting threats to the continent’s citizens. Containing the virus in Africa, in turn, is integral to the global campaign to end the pandemic. Recognizing the global security implications if the virus continues to spread unchecked in parts of Africa, the United Nations Security Council has expressed concern over the low number of vaccines going to Africa.

While this can largely be attributed to the limited availability of vaccines in Africa during the early part of 2021, this is changing. A number of African countries are now unable to use the doses they have available as a result of widespread vaccine hesitancy driven by myths surrounding the safety of the vaccines. Meanwhile, several African countries have not yet placed their vaccine orders with Afreximbank.

African governments and public health officials, therefore, need to ramp up all phases of their COVID-19 vaccine rollout—public awareness and education, identification of vulnerable populations for prioritization, and logistical preparations and outreach—for a mass vaccination effort to reach as large a share of their populations as possible. Africa’s well-established networks of community health workers provide a vital backbone as well as a trusted and experienced delivery mechanism to successfully achieve these objectives. With technical, financial, and logistical support from external partners, African vaccination campaigns can rise to meet the challenge.

This article was first published by the Africa Centre for Strategic Studies.

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Mr President, in the Name of the Constitution, Swear in the Judges

President Uhuru Kenyatta should live up to his oath of office to obey the constitution and resist the temptation to be garlanded in the pettiness of performing power, writes former Chief Justice Willy Mutunga.

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Mr President, In The Name Of The Constitution, Swear In The Judges
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Mr. President

I have elected to speak elaborately and strongly on this issue because when apparently innocuous and blithe breaches to the Constitution begin to occur, especially from the highest office in the land, they signal a dangerous dalliance with impunity. This is particularly so when these occurrences are intentional, persistent, defiant, and brazen – fuelled by an inexplicable determination to overrun the barricades of Kenya’s constitutional order.

There is a reasonable presumption that anyone seeking public office would be familiar with the Constitution. The presumption is even stronger that such persons have read, re-read, and understood provisions specific to the office they seek and, consequently, fully comprehended the allocation and demarcation of power and authority thereto. If they haven’t, then they don’t deserve to be in those offices in the first place. If they have, they have an obligation to respect every provision. That’s the meaning of public officers taking an oath before assuming office to protect, defend, and promote the Constitution, and to abide by all other laws of the Republic.

Nothing in the oaths says, ‘I will obey and protect only those aspects of the Constitution that I find convenient and self-fulfilling; so help me God’. The oath is comprehensive, total, and unqualified; and its administration is not an exercise in jest, but rather a very solemn commitment to conscience and to country; to self and to the public, in the performance of public duty held in trust for the Kenyan people. If any public officer does not like the powers the Constitution donates to them, or find the exercising of those powers annoyingly inconvenient, they have no business continuing to occupy those offices. Resignation and early voluntary retirement are readily available options that the Constitution merrily provides, in order to protect itself from individuals who may find further fidelity to its edicts a burdensome enterprise.

The provision on the appointment of judges is clearly articulated in Article 166, as well as the Judicial Service Act. The JSC discharged its mandate properly and completely in 2019 by recommending for appointment 41 judges. The president, by dint of plain, clear constitutional provisions, and numerous court orders, is obliged to appoint all the recommended judges without hesitation, review, or negotiation.

It is disappointing that this standoff, needlessly occasioned by presidential obduracy, has recurred. Sadly, it has done so in a manner that lowers the esteem of the office, undermines the rule of law, and erodes public confidence both in the elevated majesty of statecraft, and in the granularity in administration of justice.

In 2015, when this issue first emerged, the JSC and the president openly discussed the matter, and agreed on a framework that not only respected the constitutional processes but also acknowledged the unique nature of the presidency. Under this framework, it was agreed that, if the president has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State, and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process. However, in the interest of fairness, these reports or allegations – just like all the others the JSC receives – would be put to the candidate for his or her response, before the Commission makes a determination on the suitability of that candidate. This is such a fair and common-sense approach that has worked before. In the recruitment of the 41 judges, the president did not present any adverse reports at the appropriate stage, leaving JSC with no option but to make recommendations for appointment.

I rehash this account in the public interest, and because statesmanship requires honour. It abjures petulance. The president’s conduct in this matter has been beneath the dignity of that high office. For two years he has subjected several advocates to untold personal suffering for no reason at all and called into question the integrity of serving judges and judicial officers without any due process. That the president has finally gazetted 34 of the 41 (one had in the meantime died) advocates recommended two years ago following an inexplicable and dishonest delay, speaks to an exercise of power that is egregious, reckless and insensitive.

Most disturbing is the president’s decision to omit the names of six judges and judicial officers from the list. Strikingly, the presidential ‘list of hate’ has even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather that principle. That is not the way to conduct the serious business of state.

The scientific formulation in the provision of the Constitution on the appointment of judges was intended precisely to be an antidote to this kind of whimsical and capricious presidential conduct such as is being seen in ugly display in this matter.

State offices are not the personal property of any individual or officer. All Kenyans have a right to seek to serve in the manner prescribed by law and no individual or authority can arbitrarily renounce, withdraw, or abrogate this right.

The constitution is clear on the mechanisms for raising any issue the president or any other person may have against a sitting judge or judicial officer at whatever level. The JSC has been tested on these issues and has dealt openly and fairly with complaints against judges of ranks even higher than the Court of Appeal. Even Chief Justices, myself included, have had to answer to public petitions in an open and fair process — and that is as it should be. That the president has delayed appointments for two years without presenting any evidence to the Commission in spite of active and repeated solicitation points to bad faith, and most likely, absence of any actionable information on the judges.

And this is not the time to commence muck-racking adventures in a feeble and abominable attempt to besmirch the character of the judges and judicial officers.

The president must resist the temptation to be garlanded in the pettiness of performing power, particularly by those who have built a thriving pettiness cottage industry, completely consumed by the pursuit of personal vendetta, at the expense of the national good and Kenya’s fledging constitutional democracy.

It is urgent that the president immediately appoints the six judges, many of whom are exceptional, because that’s what fairness, common decency, the rule of law and the Constitution require. The independence and accountability of the judiciary is not negotiable. And in the fullness of time, everybody gets to learn this lesson — some rather too painfully, too late, having played a part in undermining it.

Mr President, you bear a burden of history to do the right thing for Kenya’s Constitution, her institutions, and the general public. Discharge this burden. Simply do the right thing.

Mr. President I remain sincerely,

 

Willy Mutunga

Chief Justice & President, Supreme Court of Kenya,
Republic of Kenya,  2011-2016

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