[This is the fifth post in the OxHRH Blog’s ongoing series on the Kenyan Court of Appeal’s landmark judgment in the set of cases known as the BBI Appeals. For earlier posts: Part One; Part Two; Part Three; Part Four.]
As the country was on the cusp of celebrating 11 years since the promulgation of the 2010 constitution, its very essence was threatened by 74 proposed constitutional amendments dubbed the Building Bridges Initiative (BBI), whose effects would no doubt shake the constitutional order; a process that culminated in an appeal lodged by the initiators of the BBI at the Court of Appeal. Vide Civil Appeal No. E291 of 2021, the success of the BBI ultimately hinged on two questions; a) whether the basic structure doctrine was applicable in Kenya and b) whether these sweeping amendments would affect the basic structure of Kenya’s constitution. This piece takes a look at the judicial considerations in answering that question.
The basic structure doctrine
This doctrine propounds the theory that Parliament lacks the power to amend certain constitutional clauses because such clauses radically change the “character and ethos” of the constitution, thereby fundamentally altering its core structure.
In arriving at their decision, the court focused on the following:
Kenya’s historical past
It is no secret that Kenya has a turbulent political history, which can be traced to the political elite. As explained by the judges, the post-independence government wasted no time in embarking on an amendment campaign, marking 26 amendments within 27 years. These amendments were of monumental effect as they converted the system of government from Parliamentary to Presidential, and did away with the devolution system which took two score and six years to re-establish. They also removed checks and balances on the presidential office, resulting in a virtually imperial presidency, and an authoritarian form of government that lasted 24 years.
The quinquennial problem has been post-election disputes, which once led to post election violence that made necessary the intervention of the African Union, after over 1000 people were killed and hundreds of thousands rendered homeless. This challenge has now been brought under control by the judicial remedies under the 2010 Constitution.
The constitutional pillars under the 2010 Constitution
In the pre-2010 era, all arms of government existed and operated at the behest of the president. The judiciary was no exception since all appointments were done by the president. Resultantly, all judicial officers had to toe the line as any decisions adverse to the president would invite his wrath and result in their termination. However, with the advent of the 2010 constitution came the principles of Separation of Powers, Independence of the Judiciary, Constitutional Commissions, Supremacy of the Constitution and Sovereignty of the People. With the 74 amendments came clauses with the power to rule them all, to bind them, in the office of the president, where all power lay.
Preparatory works – Constitution of Kenya Review Commission (CKRC) Report
Adopting a purposive approach, a majority of the judges referred to the detailed accounts of the CKRC report which reveal the intention of Kenyan citizens in their quest for a new Constitution, chief amongst which was to proof it against hyper-amendability by Parliament, which would water down the gains that had been made.
Primary versus Secondary Constituent Power
It is in exercise of their primordial power that the citizenry and birthed the 2010 constitution. And it is for these reasons that the court stated that only the citizenry wield the power to forge amendments that go to the core of the constitution. This power, which is recognized by the courts as the primary constituent power, could only be summoned and exercised via a four pronged step: civic education, public participation and collation of views; constituent assembly debate precoding a referendum.
On the other hand, Parliament wields secondary constituent power, which is subordinate to and derived from the primary constituent power, and granted after the constitution making process. This enables Parliament to undertake certain constitutional amendments. It is for this reason that Parliament could not exercise powers that were beyond their scope, regardless of whether it followed the procedure set out under Articles 255-257 of the Constitution.
Schrödinger’s (constitutional) cat dilemma
While the judgment no doubt saved the decade-old Constitution from dismemberment, it also thrust us into uncertainty. This is because much like the court of first instance, it failed to delimit the basic structure clauses, indicating instead, that they are to be determined on a factual case by case basis. This poses a difficulty for two reasons; first, at no point will the holders of secondary constituent powers have the ability to, with sufficient precision, determine what does or doesn’t constitute the basic structure, leaving it solely to the discretion of the judges. Secondly, as Sichale JA, put it, it is difficult to determine at what stage of the constitutional change the fact intensive investigation should be conducted.