By Omwanza Ombati
On March 31, 2022, the Supreme Court of Kenya rendered its decision in Attorney General v Ndii & 73 others; Akech (Amicus curiae) (Petition E016 of 2021)  KESC 20 (KLR), (hereinafter the BBI Judgment), where it addressed itself on seven pertinent issues. The Supreme Court of Kenya (SCOK) had the opportunity to address itself on seven (7) broad grounds discerned from the appeal to which it held:
The Basic Structure Doctrine does not apply in Kenya;
The President cannot initiate a popular initiative of a constitutional amendment under article 257 of the Constitution;
The Second Schedule of the Constitution of Kenya (Amendment) Bill, 2020 (BBI Bill) is unconstitutional for want of public participation;
The President of the Republic of Kenya is immune from civil proceedings for actions done or not done in his capacity as an office holder of the Office of the presidency;
The IEBC had no obligation to ensure the promoters of the BBI Bill complied with the public participation threshold;
The IEBC had the required quorum and composition to undertake the verification of signatures under article 257 (4) of the Constitution; and
The SCOK held that the issue of drafting the referendum questions as one or several questions was not ripe for determination.
As determined by the Supreme Court, the issues dealt a death blow to the BBI Bill and posed significant implications for the future of Constitutional Amendments in Kenya and globally. For this paper, the Basic Structure Doctrine as espoused in the Kesavananda Bharati v. the State of Kerala, (1973) 4 SCC 225 (Kesavananda Case) will gain more intellectual emphasis owing to its legal and political implications in the short and long term. However, the other issues will be analyzed as well.
The Basic Structure Doctrine
The High Court and the Court of Appeal held that the doctrine applies in Kenya. The Supreme Court differed from the other Superior Courts by holding that the Kesavananda principles (Basic Structure Doctrine) do not apply in Kenya. While dissenting, Justice Ibrahim noted that Chapter 16 of the Constitution allows for basic features of the Constitution that form its basic structure. Indeed, these basic features can only be amended by invoking constituent power and creating a basic structure.
The Supreme Court erred in its analysis and understanding of the framers’ minds concerning the question of basic structure. Under Chapter 16, the Constitution can be amended through a popular or a parliamentary initiative. The articles that can only be amended through a popular initiative form part of the basic structure that holds sanctity and the democratic values that Kenya stands for. The primary objective of the petitioners in the case was to protect the Constitution against hyper-amendability as it was under the previous Constitution. The Supreme Court’s holding opened the floodgates for hyper amendments to the current Constitution.
In excusing the Basic Structure Doctrine as not forming part of the Kenyan law, the Supreme Court relied on Article 2(5) of the Constitution and held that it does not form part of international law or norms. Respectfully, such an analysis is not only mechanical but a failure by the apex court to correctly apply itself to persuasive principles from other jurisdictions. The Constitution itself is a creature of imported legal principles from other jurisdictions, which have formed part of Kenyan law. It is proper that courts are persuaded, as they have always been, to incorporate legal doctrines and principles in the Kenyan legal atmosphere if it is for the benefit of jurisprudential development. When the courts import these doctrines, they do not first check whether they form part of international legal norms of international law. Consequently, the Supreme Court erred by ousting the Basic Structure Doctrine as not part of Kenyan legal norms simply because it is not an internationally recognized legal norm.
The President cannot initiate a popular initiative.
A majority of the judges held that the President could not initiate a popular initiative to amend the Constitution. In the Court’s view, Article 257 imagined the ordinary person and not the holder of an executive office to push for a popular initiative. The overriding word is a citizen-driven initiative. The Supreme Court refused to consider the President an ordinary citizen within Article 257. Although he is a citizen of Kenya who must enjoy all the rights that pertain to it, the President is a custodian of the Constitution; he swore an oath to protect and uphold the Constitution. How can he come to make amendments to the same law he swore to uphold?
In analyzing the President’s powers/rights in a constitutional amendment, it is important to look at the mind of the framers and the potential dangers that lie if such a person was to be allowed to initiate popular amendments. First, it must be noted that some sections of the Constitution, in this author’s opinion, and that of the High Court and the Court of Appeal, form part of the basic structure of the Constitution. Therefore, these parts, including the structure of government, term limits of office holders of the President, and the bill of rights, must be subjected to a popular initiative where citizens decide whether to amend or reject the amendments proposed. The President, same as parliament, is a representative of the people but whom the Constitution has expressly denied the power to amend specific clauses without reference to a public vote. What is the danger that the framers wanted to avoid?
A brief trip to Russia’s legal-political landscape helps to reveal the primary fears that the Committee of Experts and the citizens of Kenya had when passing the current Constitution. In Russia, President Putin has the power to amend the Constitution at his wish. In 2020, for instance, President Putin addressed the nation and amended the 1993 Yeltsin Constitution, where he extended his term limits and created a top-down system of governance that suited his short and long-term political objectives. This is the fear that Kenyans had when they stripped parliament and the executive of the powers to amend specific clauses of the Constitution to avoid the current officeholders from enacting self-serving constitutional changes that serve personal interest at the expense of the public. In that regard, the Supreme Court of Kenya must be applauded for standing with the people and the Constitution in preventing constitutional abuse by the presidency.
Research notes that the success of a constitutional amendment relies on the initiators. Proposals made by the cabinet and the President are more likely to pass than popular and parliamentary proposals owing to the political backing. This is because a constitutional amendment is a political process with deep-rooted institutional interests where the politically and financially resourced individuals can easily have their way unless they are checked by constitutional powers. Further, the success or failure of the amendment process depends on the rigidity of the process and the democratic level of a country. In the case of Kenya, the courts rescued the Constitution from the jaws of dismemberment but did the Supreme Court not impair the rigidity of its amendment?
There is a wide belief in the legal and political circles that the SCOK reduced the threshold of public participation in the BBI judgment. Previously, the Superior Courts had imposed a considerably high threshold to be observed in collecting public views and considering them before any law, be it an Act of Parliament or Subsidiary rules, before they can be adopted as part of the law.
In British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v. Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party), SC Petition. No. 5 of 2017;  eKLR (BAT Case). In paragraph 96 of its Judgment, the Court set the constitutional test for adequate public participation as being the “reasonableness” threshold. The Court observed thus: “Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.” It is unclear whether the promoters of the BBI Bill gave all citizens a reasonable notice and opportunity to have their views adopted.
However, in the instant case, while dealing with weighty issues of a constitutional amendment, the SCOK held that although there were ‘traces’ or attempts at public participation, the same was sufficient in the circumstances save for the 2nd schedule that introduced 70 new constituencies. In that holding, the SCOK rejected the 4-step sequential process of a constitutional amendment adopted by the High Court to ensure maximum public participation in any constitutional amendment terming it as foreign doctrine in law. The High Court held that the four sequential steps include civil education, public participation, collation of views, constituent assembly debate, and a referendum, a view upheld by the Court of Appeal.
In the minds of the High Court and Court of Appeal, public participation is heralded and sanctified if it is made within the confines of an educated person. The 4-sequential steps were meant to promote a higher threshold of informed decision-making in a constitutional amendment. Before people can decide on an amendment to the Constitution, they should be educated on the implications of the same. The 4-sequential steps were not, in my view, a creation of law by the two superior courts but an attempt at providing jurisprudential guidance on the constitutional and legal amendment as it is a weighty decision for any country. Indeed, public participation has been heralded as a significant aspect of the law-making process worldwide. If not checked, the Constitution of Kenya could be subjected to hyper-amendments to suit the institutional interests of the powerful political elites who will strive to accumulate more power at the expense of the bill of rights, judicial independence, and accountability.
The President of the Republic of Kenya is immune from civil proceedings for actions done or not done as an office holder of the Office of the Presidency.
This is another contentious issue that separates the jurisprudential leaning of the High Court and the Court of Appeal on the one hand and that of the Supreme Court on the other part. The two Superior Courts (High Court and Court of Appeal) firmly held that the President could be sued in civil proceedings for actions contrary to the Constitution. The two courts held that article 143 (2) only protected the President from actions done while exercising legal authority as the President of the Republic. If the President veers off the constitutional tangent, the superior courts held that he could be sued; the SCOK disagreed and reversed. In the two divergent opinions, what comes out is the issue of presidential immunity versus presidential accountability. Blanket immunity allows the President to get away with blatant breaches of the Constitution and misuse of public funds under the protection of the law that he/she abuses.
In borrowing from foreign jurisdictions, the doctrine of presidential immunity has been found to erode the system of checks and balances and people’s ability to reign in a renegade president. Lessons can be drawn from Trump v. Vance, where the Court held that immunity does not shield the President from criminal investigations. Therefore, if the bar to civil and criminal proceedings for unconstitutional actions of the President will offend constitutional principles, including values under article 10 and chapter 6 of the Constitution, the citizen’s only recourse should be to institute legal proceedings in Court. Absent that remedy, the citizens of a country remain helpless in the face of a rogue president and cannot exercise their sovereign powers under article 1 of the Constitution. In that respect, the Supreme Court failed to provide effective intellectual guidance regarding the President’s role in unconstitutional actions is concerned. This comes amidst several instances of ignored court orders and unconstitutional actions of the President concerning the appointment of 6 High Court and Court of Appeal judges.
The IEBC had no obligation to ensure the promoters of the BBI Bill complied with the public participation threshold.
The IEBC was held not to have had an obligation to ensure public participation before the bill was presented. In the absence of any legal obligation requiring the IEBC to verify that a constitutional amendment bill is subjected to public participation, the SCOK was right in its holding on that point. To hold otherwise would be overstretching article 10 of the Constitution beyond its applicable principles.
The IEBC had the required quorum and composition to verify signatures under article 257 (4) of the Constitution.
The holding that IEBC was quorate has far-reaching ramifications. Other than the Isaiah Biwott Kangowny v. Independent Electoral Boundaries Commission & Attorney General, HC Constitutional Petition No. 212 of 2018;  (Isaiah Biwott Case) (in rem) and which the IEBC relied on to make its decisions, the IEBC relied on article 250 (1) of the Constitution to be guided on its composition. Besides, in my view, the Commission had passed administrative procedures and guidelines that would provide markers for the verification of signatures under article 257 (4). If the guidelines were adopted when the IEBC was properly composed according to the IEBC Act, then the said guidelines provide proper direction. The High Court misdirected itself in holding that the IEBC secretariat and the Commission were the same entity. Legally, they may be the same entity but with different roles. The secretariat implements policies as formulated by the Commission. Further, the Commission is tasked with the role of supervision of the secretariat.
In that vein, the Supreme Court rightfully upheld the quorum and composition of IEBC. In any case, the contentions in the BBI Bill sought to push the political interests of a select few to continue holding political power beyond the August 9, 2022 elections. Why would such a person not avoid appointing IEBC commissioners to ensure the August 9th General elections do not proceed as planned since IEBC is not properly composed? The two superior courts should have had such foresight in their analysis to avoid creating a more significant constitutional impasse and perhaps making the country degenerate into anarchy.
The SCOK held that the issue of drafting the referendum questions as one or several questions was not ripe for determination.
The doctrine of ripeness is entrenched in the Kenyan jurisprudential spaces. Courts are generally reluctant to address themselves before real questions regarding the application of the law emerge. Since the IEBC did not have an opportunity to address the question, the majority abstained from addressing that question. The doctrine of ripeness allows the state actors to strengthen the doctrine of separation of powers. If the Court were to decide, it would have been directing the IEBC on how to conduct its business, contrary to the independence of commissions and separation of powers principles.
The Supreme Court of Kenya is deemed to have killed the BBI case but did not entirely bury it. While the agitation has been halted, albeit for now, the Supreme Court gave such proponents a new route to bring it back later with limited impediments. In my view, the biggest barrier to the BBI Bill was the Basic Structure Doctrine, which has been held not to apply in Kenya. Another noble block was the President’s inability to initiate popular initiative amendments to the Constitution. On the second ground, holders of the executive Office would find alternatives in pushing for constitutional amendments through popular initiative as the Basic Structure Doctrine poses no barriers. The Supreme Court should have, in my view, adopted the Basic Structure Doctrine as applicable in Kenya to safeguard against hyper-amendability of the Constitution because of the clear codification of the Basic Structures in Chapter 16 of the Constitution. Let Kenyans expect more proposals for amendments to the Constitution, which are more likely to succeed after the SCOK-Kenya Judgment in the BBI case. (