How the BBI flew too close to the sun: An account of the Supreme Court's judgment on the Second Schedule of the Constitution of Kenya Amendment Bill - Part 2 (public participation vis- a- Vis the role of the IEBC, presidential immunity, quorum issue and the Omnibus question)

BBI Photo courtesy of Unsplash.com

By Adeline Chelagat Kiptoo

Second Amendment Schedule

The Bill purported to take away the mandate of the Independent Electoral and Boundaries Commission (IEBC) by suggesting the manner of delimitation and distribution of the constituencies, the time frame for the creation of constituencies and the criteria to be used for delimitation (Mwilu VCJ, paragraph 522). Relying on an advisory opinion, the Court asserted that the purpose of the independence clause is to safeguard commissions against interference by other persons or government.[i]

The Court noted that there was no evidence of any form of public participation or deliberation on the issue of apportioning the seventy constituencies. The first version of the Constitutional Amendment Bill published on 21 October 2020 did not have the second schedule provision. The Schedule appeared in the second version published on 25 November 2020. There was no explanation of how it came to be, or who sought for the constituencies as there was no evidence of public participation on whatsoever level between 21 October and 25 November, 2020 (Ouko J, paragraph 1938).

The delimitation of boundaries remains a crucial and delicate procedure in a democratic system. As noted by Justice Ouko, the suggestions to incorporate seventy new constituencies were widely perceived as a calculated move in bad faith, aimed at circumventing the legally established delimitation process and bypassing constitutional time frames. The intention was to hasten the process in order to influence the upcoming general elections, which were imminent at the time, but are now just a few months away (Ouko J, paragraph 1943). This leads to the conclusion that the constitutional threshold of reasonable public participation was not met in coming up with the Second Schedule of the Amendment Bill and that the Second Schedule was unconstitutional.

Existence of public participation and the role of the Independent Electoral and Boundaries Commission (IEBC) in ensuring that there was public participation

The issue as framed by the Court contains two components. The first relates to the role of the IEBC under Article 257(4) of the Constitution and in particular, whether IEBC is under an obligation to ascertain that promoters of a popular initiative have undertaken public participation during the collection of signatures. The second part deals with the broader question as to whether there was public participation in respect of the Amendment Bill save for the Second Amendment Schedule.

The power granted to the IEBC under Article 257(4) is limited to "verifying that the initiative is supported by at least one million registered voters." The power of the IEBC does not extend to ensuring there is public participation before the public signed to support the Bill, its role is to only verify the signatures presented before it (Koome CJ, paragraph 298). The IEBC, also being a creature of the law can only carry out the roles explicitly set out in the law, therefore, expecting it to ensure there was public participation is to stretch its roles.

In obiter, there was a need for parliament to enact a legislative framework to guide and regulate the process of public participation. The Court recommended that it is best left to the legislature to enact a law that will address the different roles of the different players in the process ranging from: the promoters, Independent Electoral and Boundaries Commission, County Assemblies and the Houses of Parliament (Mwilu VCJ,paragraph 604). Further, there was no obligation on the IEBC to ensure that the promoters of the impugned popular initiative complied with the requirements for public participation before determining that the Amendment Bill had met constitutional requirements for transmittal to the County Assemblies. In addition, there was reasonable public participation with respect to the Amendment Bill save for the Second Schedule of the impugned Bill.

Presidential immunity

The issue before the Court was whether civil proceedings can be instituted against the president or a person performing the functions of the office of the president during his or her tenure of office with regard to anything done or not done contrary to the Constitution.

Mwilu VCJ stated that, the president needs to have the operational confidence to take certain executive measures in order to effectively govern the country without the colloquial sword of Damocles hanging over his head, worrying about the consequences of his actions or omissions when executing his functions as President. (Mwilu VCJ, paragraph 567)

Article 143 bears a compulsory tone when providing absolute immunity to the president against civil matters litigated against him while in office. Such proceedings can be instituted against the President vide the Attorney General.

Quorum of the IEBC

The question regarding the quorum of the Independent Electoral and Boundaries Commission (IEBC) was raised in relation to the interpretation of Articles 88 and 250 of the Constitution of Kenya. These Articles establish the IEBC and state the composition of commissions respectively. The Constitution stipulates that the minimum composition of any commission must be three members. However, section 8 of the IEBC Act and paragraph 5 of the Second Schedule of the same Act indicate that a quorum of five commissioners is needed for conducting business. The High Court and the Court of Appeal found that the IEBC lacked quorum to process the Amendment Bill and verify signatures, which are considered policy matters.

The Supreme Court of Kenya overturned the decisions of the two lower courts and held that the provisions of the IEBC Act cannot override the Constitution. As noted by Sichale J, it was absurd to expect a commission with only three members to meet the quorum of five. The Supreme Court ruled that the IEBC had quorum, as specified by Article 250 of the Constitution, which set the composition of the commission to a minimum of three members.

Omnibus Question

The issue submitted was whether the interpretation of Article 257(10) of the Constitution requires that all specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions. In determining whether a question is ready for determination, the courts looked to the principle of justiciability, rooted in the doctrines of ripeness and mootness. This is a necessary examination that the courts must do in order to ensure that they do not overstep their constitutional authority by either adjudicating on a question too early based on conjecture or too late when its decision would be rendered superfluous. During the filing of these petitions the IEBC had not been given a chance to frame the referendum questions. What's more, it had not been suggested that IEBC had already determined the manner or formula in which it would frame the question or questions in respect to the referendum touching on the impugned Bill. As a result, it was found that there was no live controversy that required the High Court to pronounce itself on and the whole question was not ripe for determination (Koome CJ, paragraph 185). Largely agreeing with Tuiyott J, the Court held that under Article 257(10) of the Constitution of Kenya 2010, the referendum question was premature, unripe and therefore not justiciable.

In conclusion, the Supreme Court judgment is one that has explicitly declared itself on the matters that were up for contention. The Supreme Court's declarations breathed new life into certain aspects of the law, such as solidifying the president's immunity, but put to rest others, such as the basic structure doctrine, which was previously discussed. I applaud the court for its in-depth and analytical examination of the presented issues. It is likely that the constitutional amendment process will once again appear before the courts, possibly under different circumstances, and when it does, I hope the Court will maintain its independence and continue to uphold the rule of law, principles of natural justice, and the protection of the constitution, as it had done in this matter.

[i] In the Matter of the Interim Independent Electoral Commission, Constitutional Application no. 2 of 2011, Ruling of the Supreme Court, 20 December 2011, eKLR. 

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