The Court of Appeal is today expected to give a verdict on the nullification of the Constitutional Amendment Bill, 2020 dubbed the Building Bridges Initiative (BBI).
A Seven-judge bench consisting of Court of Appeal President Daniel Musinga, Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott will make the landmark ruling, that will shape the political landscape in Kenya.
Chronology of Events:
2:40 pm: Justice Patrick Kiage begins his judgement
12:33 pm: Justice Gatembu Kairu begins his judgement
After looking at arguments from both sides, Justice Gatembu says: “In terms of identification of the basic structure (in the constitution), the court stated that it consists of the foundational structure provided in the preamble, the 18 chapters, the 6 schedules which form its fundamental core structure, values and principles, which cannot be amended without recalling primary constituent power of the people.”
He reads these structures outlines the system of government Kenyans chose including the design of the Judiciary, Parliament, Executive and Independent commissions in the devolved system of government,” he adds.
After looking at arguments from both sides, Justice Gatembu says: “In terms of identification of the basic structure (in the constitution), the court stated that it consists of the foundational structure provided in the preamble, the 18 chapters, the 6 schedules which form its fundamental core structure, values and principles, which cannot be amended without recalling primary constituent power of the people.”
He reads these structures outlines the system of government Kenyans chose including the design of the Judiciary, Parliament, Executive and Independent commissions in the devolved system of government,” he adds.
In contrast, he said the court stated Article 2(5) that provides “The general rules on International Law shall form part of the law of Kenya is also part of the basic structure. The spirit and the core meaning/value of that clause cannot be changed without involving primary constituent power. It may, however, be amended through the secondary constituent power under Article 255 to clarify its meaning.”
On the applicability of the Doctrine, Justice Gatembu says: “The question of whether the High Court correctly determined the doctrine of basic structure is applicable in Kenya is a difficult one. The arguments advanced by learned councils on both sides are powerful and most persuasive.”
He borrows from D.Smith’s book ‘Constitutional and Administrative Law’ which argues: “Although written constitutions differ wildly in their purposes, form and content, they will normally be found to have 2 characteristics in common, namely: Fundamental law of the land and a kind of higher law, and the legal source of legitimate authority. A higher kind of law in that the law set out in the constitution would be hierarchically superior to other laws and will not be alterable except by specially prescribed procedures for amendment.”
He goes on to cite Chapter 16 of the Kenyan Constitution which prescribed the amendment procedures. He explains Article 255 (1) stipulates “a proposed amendment to the constitution shall be enacted in accordance with Article 256/7 and approved in accordance with clause 2 by a referendum.”
He argues that provisions in Chapter 16 would appear clear and unambiguous and construed in their natural and ordinary sense would mean that every provision is amendable provided the stipulated process is followed. However, Article 259 commands the Constitution will be interpreted in a manner that will promote its purposes, values and principles, advances the rule of law and human rights and fundamental freedoms in the bill of rights, permits the development of the law and contributes to good governance.
Article 10, he argues stipulates “In applying or interpreting the contrition, the national values and principals of governance including the rule of law, democracy and participation of the people bind all organs.”
Given the above principles of constitutional interpretation, Justice Gatembu says “the High Court was right in the methodology it employed in interpreting constitutional provisions from a historical and contextual perspective and the complaint that the court misapprehended the methodology applicable is not well-founded.”
Was the high court right in holding that it applies to Kenya?
He used a Ugandan article titled the ‘Basic structure doctrine and constitutional restraint’ by Benson Tusariwe which reads “the constitution has certain basic features that underlie its spirit. These features constitute the inviolable core of the constitution and any amendment which purports to alter the constitution in a manner that takes away the basic structure is void and of no effect.”
He also uses a book (Unconstitutional Constitutional amendments: The limits of Amendment powers) quoted widely by both counsels which states, “Under the doctrine, the amendment power is not unlimited. Rather, it does not include the power to abrogate or change the identity of the constitution or its basic features. Any organ established within the constitutional scheme to amend it, however unlimited it may be, cannot modify the basic pillars underpinning its constitutional authority so as to change the constitution’s identity,”
He uses several phraseologies in reference to the doctrine of basic structure.
Justice Gatembu argues the doctrine of basic structure is not new to their jurisprudence.
“The doctrine of basic structure and the pillars on which it is founded has been recognized and applied by our courts. It is not an alien concept,” says Justice Gatembu.
Gatembu notes Kenyans intended each of the Four steps in constitution-making would be necessary before they denatured or replaced the social contract they equipped themselves in the form of the 2010 Constitution. To fundamentally alter it, and equally vigorous process must be undertaken.
“Provided the amendments proposed do not amount to dismemberment or abrogation, they are permissible. But even then, such amendment must be done in accordance with article 257,” he says.
Gatembu argues the proposed doctrine does not prevent genuine amendments to the constitution. He says there are no eternity clauses in the constitution.
On Popular initiative and public participation, Justice Gatembu’s view is “There is no qualification of who may/not promote a popular initiative. There’s no explicit bar against any person, including the President from promoting constitutional amendment by popular initiative.”
He says public participation is a fundamental constitutional principle in Kenya. “I’m in agreement with the High Court that there is a legal requirement under article 10 of the constitution for voters to be supplied with adequate information to make informed decisions. There is no evidence that was done in this case.”
On verification of signatures: “Independent commissions are clothed with discretion and latitude to decide the governance process and the procedure to employ as to how and when to execute their mandate as long as it’s within the law,” Gatembu says.
“Had the IEBC given sufficient notice, opportunity and means to the public to interrogate the list, it would have perhaps considered having discharged its duty of ascertaining and verifying that the registered voters, who had indicated a supporting it, had indeed done so,” he added.
Regulatory and legal framework: “There is undoubtedly, therefore, some legal framework albeit not an elaborate one for the conduct of referendum even though it may not specifically address all aspects of a referendum including the collection, presentation and verification,” Justice Gatembu explains.
1:36 pm: Justice Gatembu finishes his judgement.
11:20 am: Justice Fatuma Sichale reads her judgement
Is the basic structure of the doctrine applicable in Kenya?
Justice Sichale noted the appellants and respondents in support of the appeal and the respondents opposed to it both relied on scholarly writings as well as history, text and context of the 2010 constitution.
She says scholars were not in agreement on the applicability of the Doctrine. Professors Migai Aketch and Charles Manga supported the non-applicability of the basic structure doctrine in Kenya, while Dr Ojwang, Dr Linda Musumba and Dr Osobu supported the notion of its applicability.
Respondents opposing appeal expressed fear that if the Legislature is left unchecked, the 2010 constitution may be dismembered and mutilated to the extent of it being a shell of the constitution. The respondents urged the court to find out that the basic structure doctrine is rooted in Kenya’s history, text and experience, as well as comparative constitutional theory in the form of decided cases and scholarly works.
Respondent’s argument was that the cause must reconcile contradiction, draftsmanship gaps, vagueness and phraseology and arrive at the conclusion that the basic structure doctrine is applicable in Kenya for the safety of the 2010 constitution. They relied on several authorities to support their contention:
Justice Sichale uses the example of a case (Mother Kerubo Moracha vs UoN) in the commission of the implementation of the constitution vs national assembly where the judge (Justice Lenaola) held that:
“Where the basic structure, design and architecture of our constitution is under threat, the court can genuinely intervene and protect it,”
The respondents also relied on other scholarly works including one which stated, “In order to find an amendable basic principle, one has to resort to the interpretation of the constitution as a coherent whole,” she reads.
Respondents opposed to the appeal also argued that notwithstanding the fact that the 2010 Constitution does not expressly bar amendments, it does so implicitly as one has to pay attention to its overarching themes and/or the spirits of the constitution.
Heavy reliance was placed on an Indian Supreme Court decision on Kesevenanda, where it was held there are some provisions in the Indian Constitution that form the basic structure of a constitution, hence not amendable, not even when the prescribed procedures are adhered to.
Justice Sichale says appellants and respondents in support of the appeal urged the court to find that the 2012 constitution had sufficient safeguards that mitigate against hyper-amendments of yesteryears. They also relied on decided cases, these included:
Council of Governors vs Attorney General where the Supreme Court stated, “Court may not impose a meaning that the text is not reasonably capable of bearing. Interpretation should not be unduly strained. It should avoid excessive peering at the language to be interpreted.
On the invocation of the spirit of the constitution, reliance was placed on a South African decision (Premiere of Kwazulku Natal v President of South Africa) where the court held that: “The reliance upon the spirit of the constitution is in my view misconceived. There is a procedure that is prescribed for amendments to the constitution which have to be followed. If that is properly done, the amendment is constitutionally unassailable.”
Justice Sichale goes on to give examples of cases appellants and respondents in support of the appeal relied on.
She highlights the manner in which the 2010 constitution was used and abused for political gains.
She gives the example of Paul Ngei in 1974. He was barred from running for elections having been found guilty of an electoral offence. To save him, President Jomo Kenyatta passed into law a bill pardoning Mr Ngei.
Justice Sichale, says the proposed amendment process was largely initiated by the Executive and not the people who are the constitutional decision-makers.
She argued proposals by the BBI secretariat co-chairs should have been done via a parliamentary process, which is the route of any popular initiative.
“The proposals by Junet Mohamed and Dennis Waweru (BBI Secretariat Co-Chairs) would have been best channelled through a parliamentary process, this was not a Wanjiku process. The process leading up to the formulation of the Constitution of Kenya Amendment Bill, in my view, was largely driven by the Executive,” she said.
“It was wrong for the High Court to proceed with the hearing and thereafter make adverse findings against His Excellency President Uhuru Kenyatta without ascertaining whether he had been served either with the petition and or the subsequent hearing notices,” Justice Sichale explained, faulting the five-judge bench for making findings without confirming whether President Uhuru Kenyatta had been served.
Justice Sichale noted verification of signatures does not require the IEBC to have a quorate, adding a constitution must be flexible to allow for a country’s growth and development.
“What is good for one generation may not necessarily be good for the next; present and future generations should not be ruled by the dead hand of their ancestors,” she added.
12:32 pm: Justice Sichale finishes her judgement.
Court of appeal Judge Francis Tuiyott at the Supreme court building on Friday, August 20, 2021, during the judgement of the BBI appeal case.[Collins Kweyu, Standard]
At 10:10 am, Justice Francis Tuiyott begins reading his judgement
He covers just two portions of his decision: One, the basic structure doctrine and its application to Kenya.
He says the basic structure doctrine prescribes that “notwithstanding the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations which guard against amendments that change its identity.”
He proposed the doctrine should be rejected because: “Had the framers of the constitution intended this category of limitation to be part of the law, then they should have found explicit expression in the text of the constitution.”
Another matter he reflects on is what constitutes the basic structure in Kenya’s constitution. Justice Tuiyott says, “fundamental alterations to the core of the constitution requires the exercise of the primary constituent power of the people.”
He says it is Common ground interpretation of the constitution is influenced by both text and context.
He gives an example of the Supreme Court of India decision in the Reserve Bank vs PLS General Finance Investment and company, where the court said interpretation must depend on text and context. If the text is texture, context gives colour.
He says a history of the making of the 2010 constitution gives colour to the text of the provisions of Chapter 16 on amendments.
Justice Tuiyott points out the Bomas of Kenya initiative encountered a legal challenge, presented in the Njoya and six others vs Attorney General and another. The appellant in these proceedings earlier sought a declaration that certain provisions of the Kenya Review Act diluted the constituent power of the people to adopt a new constitution.
He says the making of a new constitution could be through the exercise of people’s constituent power perfected in a referendum. The Kenya Review Act was thus amended to provide for a mandatory referendum to ratify a new constitution.
He continues: “There was now a mechanism provided by statute for the adoption of a new constitution after the exercise of people’s constituent power in a referendum but which mechanism was not contemplated by section 47 of the repealed constitution. In the run-up to the referendum, the process faces another hurdle,”
He outlines a case in Nairobi (Miscellaneous civil application No 677, Onyango and 12 others vs Attorney General and 2 others). An issue that arose in those proceedings, which he says relates to the matter at hand was whether a new constitution could validly come into being without an amendment to section 47 of the existing constitution.
The three-judge bench then, observed as follows: “However, the exercise of legislative power and the distinction is not applicable to the making of a new constitution by a constituent assembly or referendum because constituent power is not subject to the restrains of any external authority. The constituent power to frame a constitution is unfettered by any external restrictions and is a plenary law-making power. The power to frame a constitution is a primary power, whereas the power to amend a rigid constitution is a derivative power since it is derived from the constitution and is subject to the limitations imposed by the prescribed procedure …”
On whether or not the constituent power of the people needed to be textualised, the judges said, “This court does not regard this as good constitutional law or justice. Section 47 does not deal with the making of a new constitution or the process of making one. The power to make a new constitution was not vested in Parliament, it is the amending power that is vested in Parliament, subject to the special procedures concerning the entrenched provisions and also subject to the doctrine of the basic structure …”
Important for the discussion at hand: There was an attempt to replace the constitution by the people exercising their constituent power, notwithstanding that the power was not expressly provided by the constitution sought to be replaced.
“A recognition in my view, that the power was not subject to restrictions or limitations prescribed by the written words of the constitution…”
Justice Tuiyott also highlighted a fresh drive to replace the constitution which came after the 2007/08 post-election violence. Here, he says Parliament enacted the Constitution of Kenya Review Act and the Constitution of Kenya Amendment Act. The latter Act introduced Section 47 to the then existing constitution, making provisions for its replacement.
The new 2010 constitution was therefore created in the context where the constituent power of the people to replace their own constitution has been codified in the constitution that was to be replaced.
Lesson to learn in this journey: 2005 and 2010 referendums are testimony that the people of Kenya embraced and adopted a constitutional making concept in which the sovereign rights to replace it was exercisable.
“The 2005 referendum tells us that constituent power is unfettered and unlimited notwithstanding that it is not textualised in the constitution to be replaced. While codifying the constituent power is good practice, failure to do so neither takes away or weakens the force of that power,”
He notes the provisions of Chapter 16 makes reference to the word ‘amendment’. He says Chapter 2 of the Interpretation and General Provisions Act is not helpful since those provisions don’t apply in the construction or interpretation of the new constitution.
“Unless otherwise expressed by a constitution, an amendment entails a minor revision, alteration or addition, but which nevertheless does not destroy the constitution being amended. It does not extend to abrogation, complete re-peal or replacement…” says Justice Tuiyott.
He says an amendment to transfer Judicial authority to the Executive is ‘un-making’ the constitution since it fundamentally alters a central feature of the constitution. He argues an amendment is not as drastic because properly defined it keeps the altered constitution in unison with its pre-changed identity and structures.
He then refers to Article 255 (1), whose provisions he says only provide for an amendment, anything further must be sanctioned by the exercise of primary constituent power. The provisions of this article and the popular initiative were made against the backdrop, that the making/un-making of the constitution is a preserve of the people exercising their primary constituent power. A change that derogates from the core character of the Constitution is not a change in unity with it, but one that defaces it. That change too is one that can only be made by people organised and exercising their primary constituent power. By falling short of making provisions and procedures for un-making, re-peal, re-enactment, or abrogation of the constitution a textual reading of Article 255(1) is in accord with the contextual interpretation of the clause. The power to make such change rests elsewhere, in the primary constituent power of the people and it need not be codified.
Another matter he reflects on is what constitutes the basic structure in Kenya’s constitution. Justice Tuiyott says, “fundamental alterations to core of the constitution requires the exercise of primary constituent power of the people.”
He proposed the doctrine should be rejected because: “Had the framers of the constitution intended this category of limitation to be part of law, then they should have found explicit expression in the text of the constitution.”
He says the basic structure doctrine prescribes that “notwithstanding the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations which guard against amendments that change its identity.”
At 10:10 am, Justice Francis Tuiyott begins reading his judgement. He covers just two portions of his decision: One, the basic structure doctrine and its application to Kenya.
Justice Tuiyott finishes his judgment at around 11:00 am.
9:20 am: Court of Appeal President Daniel Musinga begins his introductory remarks. He revisits the issues appellants raised during the four-day Appellate Court hearing and gives responses.
9.00 am: Judges arrive at Supreme Court Buildings, Nairobi all set for the verdict.
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