Current Affairs

Roaring from the Bench: Demystifying the BBI Judgement 

by Joshua Malidzo Nyawa 
18 May 2021

 

On the evening of 13 May 2021, the Constitutional and Human Rights division of the High Court of Kenya (A five Judge bench comprising Justices Prof. Joel Ngugi – Presiding, Vincent Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka) sitting in Nairobi’s Milimani Law Courts issued an eagerly awaited decision in the Consolidated Building Bridges Initiative Case, Petition No. E282 of 2020 (https://efiling.court.go.ke/ ).  

 

Having been overwhelmingly endorsed by both the National Assembly and the Senate (skeptics continue to question the nature of that support, whether voluntary or induced), The Constitution of Kenya (Amendment) Bill 2020 was quickly hurtling towards a potential referendum, save for the High Court decision which would have either given a nod and allowed the Bill to proceed minus any barriers, or offered a firm no as it did, sending the Bill’s proponents back to the drawing board.  

 

Considering the Bill was fashioned as a pseudo-government project for all intents and purposes, there was a palpable sense of resignation that it would be pushed through no matter what, a fait accompli, until the Thursday night thunderbolt which caught the nation by surprise – not because it wasn’t the right judgment but because over time, standing up to the Executive has become easier said than done. The five judges were thus normalizing civic courage, to say as long as you have grounds, you can stand your ground and tell the state, and specifically the President, that he is wrong whenever he errs.  

 

And so as dusk approached, Kenyans were glued to their TV sets and other streaming gadgets as the four-man-and-one-woman bench started reading their decision, an exercise which was done ‘‘in the spirit of Harambee’’, according to the Presiding Judge Justice Joel Ngugi, to mean the five judges would take turns reading the decision. 

 

Unknown to judicial pessimists, the court was about to render a decision which I consider a milestone in our legal history. But firstly, let me tell you about what the decision is not about. The decision is not about timid judges or those famously known as timorous souls. The decision is not about those who subscribe to the relics of judicial conservatism. The decision is about bold spirits who refuse to hide behind the wig of judicial restraint. It is about constitutional vanguards willing to nip in the bud the reverse winds of instigated by an all-powerful Executive and a somewhat subdued Legislature – whose two houses okayed what the court considered far reaching assaults on the constitutional order.  

 

 

An analysis of the Decision  

 

In total, the Court formulated 17 wide ranging issues for determination, collated from a number of diverse petitions against The Constitution of Kenya (Amendment) Bill 2020. But for purposes of this this article, I will only point out whatever I consider the most outstanding findings by the Court, as itemized below, and in no way would I be diminishing elements of the ruling not elucidated herein. 

 

 

I. History as a Tool for Constitutional Interpretation 

 

The High Court starts off its voluminous judgment by reminding us of our laborious Constitution making journey, spanning long winding decades. The Court takes us down memory lane, from the bloody street battles of the 1990s, which eventually culminated in the 2010 Constitution after the closing of ranks between various reformist and status quo players across the political and civic spectrum.  By so doing, the Court emphasizes that the Constitution of Kenya 2010 is both  monumental and memorial – monumental because it celebrates our achievements, memorial because reminds us of our past atrocities, akin to the ‘Lest We Forget’ signage at Freedom Corner. The court thus insists that Kenya’s constitution making has been public-participatory, not exclusive to political leaders.  

 

More importantly, the court’s bigger point is that this public-participatory nature of Constitution making is reaction by Kenyans to the culture of hyper-amendment. By this, the court refers to the practice exhibited in the yesteryears where the independence Constitution was amended over and over by the de jure one party Parliament, to the extent that it lost its essence, reduced to nothing more than a Statute.  

 

Referencing the words of distinguished legal scholar (and member of the Constitution of Kenya Review Commission, which midwifed the 2010 Constitution) the court borrows from Prof. Okoth Ogendo who described this don’t care attitude towards Constitutional amendment as “Constitutions without constitutionalism”; a culture where the Constitution “underwent changes so profound and so rapid as to alter its value content and significance beyond repair….”. The point the Court makes from this history is that Kenyans wanted  to prevent the political elite from mutilating the Constitution for selfish ends.  

 

 

II. The Basic Structure Doctrine  

 

The Basic Structure Doctrine is associated with the Republic of Indian case of Kesavananda Bharati v. State of Kerala. The doctrine’s essence is that  although Parliament can amend the Constitution, this power is not limitless, to mean Parliament cannot amend a Constitution with the end effect of such an amendment(s) being equivalent to the act of replacing the Constitution.  Put differently, the doctrine posits that there are features of a Constitution – any Constitution – which cannot be altered or destroyed through ordinary amendments by the Parliament in exercise of its legislative powers.  

 

This is primarily because these particular features of a Constitution are considered to be so fundamental, being the principles that give identity to a constitution.  In accepting that the doctrine is applicable in the Kenyan context, the High Court appears to be appreciating Kenya’s history of Constitution making, being cognizant of the fact that Kenyans wanted a Constitution in ‘‘which the ordinary mwananchi, Wanjiku, took center-stage in debating and designing’’ and that this would remain so unless and until Wanjiku revisited the said document. 

 

The High Court further made another unprecedented point, by holding that the Constitution of Kenya contains what is Eternity Clauses, which form part of its basic structure. According to the Court, these are clauses that cannot be amended through ordinary processes of Constitutional amendment. 

 

To drive its point home, the Court observed that:  

 

i. Eternity clauses can only be amended through primary constituent power (civic education; public participation; Constituent Assembly plus referendum) and not through Secondary Constituent Power (public participation plus referendum only) or Constituted Power (Parliament only). On whether a clause can be considered as an Eternity Clause, the Court notes that it depends on an analysis of a Constitution’s and a Clause’s foundational structure, its text, its internal coherence and the history of the clause. 

 

ii. For as long as an amendment does not tilt the basic structure, it can be amended either through the secondary constituent power or constituted power. 

 

The point here is simple. The power to amend the Constitution is substantively limited in that the ‘‘fundamental core, the constitutional edifice, thus, cannot be amended without recalling the Primary Constituent Power of the people’’. 

 

 

III. The Popular Initiative Question 

 

The Court held that The Constitution of Kenya (Amendment) Bill 2020 is an initiative of President Uhuru Kenyatta. This is because the Building Bridges Initiative (BBI) Taskforce and the subsequent BBI Steering Committee were all set up by the Executive.  

 

The other question the Court considered was whether such an initiative – driven by none other than the Head of State – could fit the bill as a Popular Initiative. In its view, the Court found that from Kenya’s history, Kenyans intended that the Popular Initiative route be reserved only and strictly for the ordinary private citizen (the proverbial Wanjiku) and therefore neither the President nor any organ of State is permitted under the Constitution to initiate constitutional amendments using in the pretext of a Popular Initiative.  The Court further took note that the only way that the President can amend the constitution is through the Attorney General, by way of a Parliamentary Amendment.  

 

In concluding, the Court pointed out that the President was not acting in his private capacity as Citizen Uhuru Kenyatta because the BBI Steering Committee which was the process’s midwife was established vide a Kenya Gazette notice. 

 

 

IV. The President’s Personal Liability

 

The question that was posed before the Court was whether the President could be sued in  his individual capacity. The High Court answered this question in the affirmative, its reasoning being that whenever a sitting President embarks on a mission that is  not only clearly in violation of the Constitution but also whose implications are destructive to the nation, then the Head of State should be stopped in his tracks there and then. In its reasoning, Kenyans should not wait until the lapse of a President’s tenure for them to censure him or her, considering that by such a time the country may have tipped over the cliff thanks to the President’s unmitigated recklessness. The unprecedented point that the Court made was therefore that were the President to commits acts which are  constitutionally off limits, then he or she can be sued in their personal capacity. 

 

 

V. Constitutionality of the Steering Committee  

 

Having already found that the President could not amend the Constitution through a Popular Initiative, the BBI Steering Committee and the proposed BBI Constitutional amendments were similarly unconstitutional. This is because in the Court’s view, ‘‘the BBI Steering Committee was created to perpetuate what is clearly an unconstitutional purpose, it is an unlawful, and at any rate, an unconstitutional outfit’’. Further, the Court noted that although the President has the powers to establish an office in the public service, he can only do so on the recommendation of the Public Service Commission (PSC). In relation to the creation of the BBI Steering Committee, the Court held that the there was no such recommendation from the PSC. 

 

 

VI. The Sanctity of Public Participation 

 

The Court held that the promoters of the amendment bill were bound by Article 10 of the Constitution to conduct comprehensive, mandatory public participation. Although there exists no fixed formula of doing this, the Court was of the view that the promoters of the bill were at the very minimum required to – prior to the collection of signatures in support of the bill – distribute copies of the bill written in English, Kiswahili and braille.  This would have enabled the Kenyan masses to make an informed decision on whether to append their signatures in support of the bill or not. Since the bill was only circulated in English and even so was not distributed far and wide, the Court was of the conviction that there was no meaningful public participation, making the bill to be constitutionally flawed.  

 

 

VII. Leadership and Integrity  

 

Article 73 of the Constitution of Kenya 2010 requires all State Officer to exercise their authority in a manner that is consistent with the purposes and objects of the Constitution. Further, Article 132 enjoins the President ‘to respect, uphold and safeguard this Constitution’ in exercising his or her authority. By creating a Steering Committee to amend the Constitution which according to the High Court was neither a Parliamentary nor Popular Initiative, the President violated Article 132 and therefore fell short of the constitutional integrity test. The point here is that the Constitution only provides for two ways for its amendment, and since the BBI Steering Committee was pursuing a method which was neither parliamentary nor a Popular Initiative, the President violated the Constitution which he swore to protect.  

 

The implication of this holding is that the President can be impeached by the Parliament on these grounds. Article 145 of the Constitution provides that the President can be removed from office when a member of the National Assembly, supported by at least a third of all the members may move a motion for the impeachment for the President on among others the ground of gross violation of a provision of the Constitution. 

 

 

VIII. Legal Framework for a Popular Initiative 

 

The Petitioners asked the Court to find that there was no legal framework to regulate the conduct of a Popular Initiative. This is because Parliament is yet to enact a Referendum Act which will regulate how an amendment by way of a Popular Initiative will be carried out. The Court agreed with the Petitioners  that there was no proper legal framework upon which a Popular Initiative can be carried out and hence the need to enact a Referendum Act. The Court however held that the lack of legislation to implement the Constitution does not render the constitutional provision ‘‘inoperative and unenforceable’’. The Court concluded by noting that despite the absence of suitable statute, a referendum can still be conducted but it should be done in strict compliance of the Article 10, 255 and 257. The point that the High Court made is that although it is desirous to have a statute guiding the process of a Popular Initiative, the BBI constitutional amendment initiative can still be carried out but in strict compliance with the Constitution.  

 

 

IX. County Assembly’s and Parliament’s Role  

 

Article 257 of the Constitution requires the IEBC to forward an amendment bill to the County Assemblies. If such a bill is approved by a majority of County Assemblies (at least 24 out of the 47), the same shall be forwarded to the two houses of Parliament (the National Assembly and the Senate), which are also required to either pass or reject the bill. The main question before the Court was whether the County Assemblies and Parliament are mere conveyor belts, or whether they could amend the bill.  

 

The argument advanced by the Parliament and County assemblies was that during the consideration of this bill, they are required by law to  conduct public participation and as such they should be allowed to amend the bill so as to incorporate views received from the public. That if they would not be allowed to amend the bills, then the public participation would not serve any purpose. The Court answered this question in the negative, propagating the view that the Popular Initiative route is a preserve of the ‘mwananchi’, and therefore allowing legislators at the counties or in Parliament to amend such a bill would be to ‘‘defeat the purpose and objective for which the initiative was anchored in the Constitution’’. The Court therefore held that the County Assemblies and Parliament cannot be allowed to hijack a Popular Initiative and add their own views. This is to mean that County Assemblies and Parliament cannot amend a constitutional amendment bill initiated through a Popular Initiative. 

 

 

X. The Framing of the Referendum Question(s)  

 

The Petitioners’ case was that Kenyans should be allowed to vote for each amendment proposal separately rather than forced to vote for an entire bill.  The Respondents on the other hand, argued that once a bill reaches the referendum stage, it should be voted for as a whole ( as an omnibus). The High Court rejected the Respondents’ argument for an omnibus bill – The Constitution of Kenya (Amendment) Bill 2020 – as was advanced by proponents of BBI, holding that each amendment must be submitted as separate and distinct questions to the people in the referendum ballot paper. The Court was of the view that each amendment needed to be considered on its own merits, accepted and rejected as a stand-alone proposal. 

 

 

XI. The Independent Electoral and Boundaries Commission 

 

i. Constituency Delimitation  

 

The main contention here was the BBI’s proposal of the 70 new constituencies. The Petitioners’ case was that it is only the IEBC that has the powers to create new constituencies. The other argument was that Article 89 of the Constitution sets out principles to be followed in the creation of new constituencies. Thirdly, the Petitioners argued that the IEBC is independent and neither BBI proponents or anyone else can tell the Commission how to perform its functions.  

 

In considering whether the proposal to create the 70 constituencies was constitutional, the Court once again retreated to Kenya’s history, by considering the causes of the 2007/2008 post-election dispute which was partly triggered by the unfair distribution of constituencies. This is the underpinning of our Article 89 which gives the power on the IEBC to apportion and delimitate constituencies.  Although the Court found that Article is part of the basic structure, the same is not an eternity clause and therefore can be amended. However, the Court found the same to be unconstitutional to the extent that it directs IEBC on how to conduct its functions and its purport to set a criterion for the delimitation. 

 

 

ii. Quorum  

 

According to the Court, the IEBC Act stipulates that the electoral and boundaries agency is  properly constituted if it has a minimum of five commissioners. Since the agency currently has only three commissioners, the Court opined that the agency did not meet the constitutional threshold to perform any of its functions, including the purported verification of signatures in support of the BBI bill. All the work the IEBC did as regards the BBI bill was therefore declared null and void. 

 

 

iii. Voter Registration  

 

The Petitioners argued that the IEBC is required by the Constitution to conduct a continuous registration of voters and review of the register. Further, the Petitioners invited the Court to find that since the IEBC had not conducted registration of new voters, they should be barred from conducting a referendum. The Court held that holding a referendum without first conducting nationwide voter registration would violate the very essence of the right of a class of citizens who have not been given the opportunity to register and vote in deciding their destiny. This is because the IEBC is required by the Constitution to conduct a continuous voter registration, and failure to lay evidence that this had been done, the Court noted that the IEBC failed to discharge its constitutional and statutory mandate to continuously register voters and review the register of voters. 

 

 

The Big Take Away 

 

This decision sets a tempo in our constitutional democracy. It tells the wielders of state power that they are subject to the Constitution, reminding Judges that it is their duty to protect and safeguard the Constitution and its aura.  

 

The writer is a Kenyan lawyer. 

 



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