[Editor’s Note: On 20th August 2021, the Kenyan Court of Appeal delivered a landmark judgment in a set of consolidated cases known as “the BBI Appeals”. By a majority, the Court of Appeal upheld the High Court’s finding that the Constitution Amendment Bill of 2020 – that sought to introduce 74 amendments into the Kenyan Constitution through a method known as the “popular initiative” – was unconstitutional. The OxHRH blog will be running a series of posts by Kenyan scholars and lawyers analysing various aspects of this globally significant judgment.]

Introduction

On the 18^th day of March, 2018, the President of Kenya and the opposition leader met for the first time since the disputed presidential election that was held in 2017. The said election was nullified by the Supreme Court on the grounds of non-conformity with the principles set out under the Constitution. In a bid to bury the political hatchet and cool the political temperatures in Kenya, the President and opposition leader shook hands on the steps of the president’s office, Harambee House,  in what has now been termed as ‘the Handshake”. In order to achieve their end goal of promoting ‘national unity’, the two formed the Building Bridges Initiative which later birthed 72 proposed Constitutional amendments. The bid to amend the constitution was challenged at the High court and in a ground breaking decision, the High Court declared the bid unconstitutional on several grounds inter alia lumping of 72 amendments was unconstitutional (see here).

Judicial Acrobatics at the Court of Appeal

As was expected, the decision was appealed to the Court of Appeal and on 20^th August 2021, the Court of Appeal upheld by majority , most of the findings of the High Court and set aside some inter alia the finding that the Constitution does not allow lumping together of multiple amendments ( 4 to 3 judges). For the purposes of this blog, I have decided to restrict myself to this finding.

The Majority (Justices Musinga,Tuiyott, Kairu and Sichale) found that the Constitution only requires the preparation of a bill and it is not limited to one amendment. I call this  a form of judicial acrobatics. Justice Musinga in his Judgment rejects the deployment of formalism and mere textual interpretation of the constitution and endorses a value laden interpretation (which includes a holistic interpretation taking into account the context, purpose and history) yet falls to the same trap; the majority recognize the centrality of the people in popular initiative, the importance of public participation, the sovereignty of the people. Justice Musinga (Para 336) acknowledges that that the BBI bid included sweeteners which were meant to coerce voters into supporting the Bill. Yet he chooses to close his eyes to this and favors a dry reading of the Law. Simply, Judicial acrobatics!

There are various reasons as to why lumping together of proposals is unconstitutional. Firstly, the right to vote under the Constitution is accompanied by the guiding principle that the election/referendum must be a true reflection of the will of the Kenyan people. This is to mean that the method used must be simple in order to avoid confusion and improper influence (See Article 81 of the Constitution). Secondly, our bitter experiences (a history of hyper amendments) demand that for every substantial amendment, the people should be at the center of the process. This would mean that there must be proper public participation and civil education. Put differently, the process must be made to be difficult and every proposed amendment to be evaluated on its own merit. This would avoid the deployment of sweeteners by democracy’s assassins so as to pass constitutional amendments whose end result is to dismember the Constitution. Thirdly, for the people to properly exercise their sovereign power, they must be able to make a choice. Lumping of 74 amendments in one bill takes away the freedom of choice and compels the people to either vote yes or no to the entire bill.

It is on this basis that I find the majority opinion misleading, and the minority opinion to be the correct position of the Law. Kiage JA (Pages 175-180), holds and correctly so, that the lumping together of amendments leads to intolerable confusion. Gatembu Kairu JA (156-159) while considering Article 257(10) of the Constitution holds the view that the import of referendum is to ensure that a voter makes a choice. The lumping together of amendments in an omnibus bill renders this choice nugatory and that the constitution does not allow hotchpot of an amendment Bill.

For Nambuye JA (Para 122-132), the answer as to whether the Omnibus bill is constitutional can only be discerned by deploying a holistic  interpretation because the constitution does not favour formalist or positivist interpretation. Further, the interpretation can only lead to one conclusion that omnibus bill is unconstitutional because it takes away the choice of the voter and would enable a promoter to hide harmful proposals.

Conclusion

A referendum, just like an election, must reflect the actual will of the voter. Every voter’s freedom of choice must be unfettered. The questions posed to a voter must be uncomplicated, clear, and not confusing. An Omnibus bill takes away the freedom of the people from expressing their sovereign powers and is therefore unconstitutional. If the majority had seriously engaged with our history and the context of the provision, they would not have arrived at a finding which I consider a constitutional aberration.