The Constitution of Kenya (Amendment) Bill, 2020 commonly known as the BBI proposed to initiate constitutional amendments in a country where there have been twenty-one unsuccessful constitutional amendments in the last ten years. The Amendment Bill proposed seventy-three changes to the Constitution at a go. By proposing this, did the BBI like Icarus fly too close to the sun only to have the sun melt off its wax and suffer the tragic fate of complete death?
To many, what was known as 'Reggae' came to a stop when eight (8) petitions were filed before the High Court challenging the constitutionality of the BBI process which resulted in the Amendment Bill and the contents thereof. The High court highlighted thirteen issues to be determined. Following its judgment against the BBI, appeals were lodged to the Court of Appeal which pronounced its judgment on the twenty-one framed issues. Once again not satisfied with the decisions several appeals were lodged to the Supreme Court that were later framed into seven issues. In this article, I shall give an account of the Basic Structure Doctrine and the question of whether the president can initiate a constitutional amendment through popular initiative.
The Basic Structure Doctrine
The issue brought before the Court was on the applicability and extent of the applicability of the Basic Structure Doctrine and; whether the Basic Structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power.
The Basic Structure Doctrine put in the Kenyan context, is defined as the transcendental, essential, fundamental and foundational values found in the 2010 Constitution which cannot be derogated through constitutional amendments [Para 452 High court]. In illustrating the Basic Structure, Katureebe CJ, using the pillar metaphor, states that the Basic Structure is the pillar and foundation upon which a Constitution is built and propped. That if the bearing pillars were undermined or removed, the whole structure will collapse and it would not be a dwelling house anymore. (Ibrahim J, paragraph 783)
The Basic Structure Doctrine saw its first recognition in courts in the famous Indian Supreme Court ruling on the Kesavananda case of 1973.[1] Since then, the Basic Structure Doctrine that is yet to mature as a universal constitutional norm has crawled and found its way in many courts of different states and today, it presents itself in our courts albeit not for the first time (Koome CJ, paragraph 185).
The Supreme Court declared the existence of the Basic Structure of the Constitution but out rightly rejected the applicability of the Basic Structure Doctrine. The decisions made by a majority of 6-1(Ibrahim, SCJ dissenting) recognises that the Independence Constitution had the illness of hyper- ammendability and to cure this, it is necessary to entrench some clauses.[2] The Supreme Court however declared that the people of Kenya did not want to move from one extreme end of hyper- ammendability to rigidity. The Court recognised the superiority of the tiered constitutional amendment design that seeks to create a balance between flexibility and rigidity. The rejection of the Basic Structure Doctrine was made on grounds that it lacks contextual applicability in Kenya. This is because unlike in India, where too much power is vested on the parliament to amend the constitution, Kenya has expressly limited the parliamentary powers of amendment in Article 255-256.
The Kenyan Constitution indeed has a Basic Structure however, the Basic Structure Doctrine is not applicable in our courts and has no constitutional foundation.I applaud the courts for interpreting the Constitution, keeping true to its autochthonous nature, and being able to critically analyse the Doctrine without directly transplanting it. Only time will tell whether this Doctrine will become a reality in our courts.
The president as an initiator of constitutional amendments
The issue presented was whether the president can initiate amendments to the Constitution through popular initiative.
The genesis of the BBI can be traced to the 2017 presidential elections where His Excellency Uhuru Kenyatta won against his running mate Raila Odinga. In order to cool the political atmosphere and unite a divided nation they reconciled in an event that was famously dubbed as the 'Handshake'. On 9th March 2018 Honorable Uhuru and Honorable Raila launched a joint committee known as the Building Bridges to a New Kenyan Nation that published a report and a number of documents including a draft Constitution of Kenya (Amendment) Bill 2020 and proposed legislative amendment bills. The BBI Steering Committee Draft Bill through the BBI National Secretariat put in motion the process of collecting signatures in support of the Amendment Bill. Following the brief history can we then say that the president initiated the Bill? And if so, what was his role and what did the courts say about it while interpreting the Constitution?
In the words of David Hume "The law always limits every power it gives". The Apex Court with a majority of 6-1(Ndungu, SCJ dissenting) found that the president in line with Article 255 cannot initiate an amendment process posing as an ordinary 'Mwananchi'. According to Philomena SCJ[Para 453] she says that together with Article 131 and the oath taken to office the president upon assumption of office ceases to be an ordinary citizen. Being therefore clothed with such powers and responsibility he cannot act like 'Wanjiku'. Another reason for dissenting is that the president in Article 257(5) if presented with a bill that attempts to amend a provision in article 255(1), he is to request the IEBC to conduct a referendum within ninety days, this cloaks him with the power as the umpire and now allowing him to initiate changes that can advocate his own personal interest and agenda would give him the role of a player (Ibrahim J, paragraph 781). Or as Ouko J put it, "he cannot run with the hares and hunt with the hounds". Therefore, the Constitutional Amendment could not be said to be through popular initiative since although the president had not been named as the promoter, we saw his hand at every stage.
In her argument, Justice Ndungu faults the Superior Courts for making declarations of unconstitutionality without specifically itemising the article of the Constitution that was denied, violated or infringed, or threatened. In her view the Superior Courts made erroneous conclusions assuming that the BBI Steering force, BBI Taskforce and the promoters were the same. That the promoters, Junet Mohammed and Dennis Waweru, initiated the bill as individuals and in no way acted or represented the presidency.
Being one of the contentious matters that saw its way to the Supreme Court, the president's role as an initiator did indeed cause a lot of clamor and a dilemma in our courts. Many worthy arguments were made such as; before he was president, he was a citizen and whilst still in office he reserves his political rights that empower him to initiate a constitutional amendment through popular initiative. While the decree by the Court upheld the Rule of Law, I cannot help but wonder what the practicability of Article 257 is. Is it possible for a normal citizen to amass the resources to initiate a constitutional amendment bill and see it to its fruition?
Conclusion
Together, we have looked through the question of the Basic Structure Doctrine and the president as an initiator of a constitutional amendment bill under popular initiative. At the beginning of the article, I stated that I was to give an account and introspect the fate of the BBI, do you my dear reader think the Basic Structure Doctrine will resurface in our courts? If so, is there a possibility that it may one day gain recognition in our rich jurisprudence? For now, only time will tell.
The decision of this Court especially on the president as an initiator has spoken volumes on the independence of the judiciary that firmly planted both of its feet on the ground and stayed true to its role as the protector and guardian of the constitution. The Court's ability to adjudicate on the matters and give extensive and intensive judgments on the same has indeed cemented the role of the courts as one of the captains steering this nation into a great future of rich jurisprudence. Thus concludes the first part of my analysis of this Judgement, in the second part, I shall address public participation vis- a- Vis the role of the IEBC, presidential immunity, quorum issue & the Omnibus question.
[1] Kesavananda Bharati Sripadagalvaru & Others v. State of Kerala & Anor, (Writ Petition (Civil) 135 of 1970)
[2] These clauses include: Chapter One on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on the Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary.
