[On 13th May 2021, in David Ndii v Attorney-General, the High Court of Kenya struck down a set of proposed amendments to the Kenyan Constitution, popularly known as the “BBI Initiative”. The High Court dealt with many issues, the most prominent of which was perhaps the finding that the Kenyan Constitution has a basic structure, which can be amended only under conditions that closely replicate its founding process. The judgment of the High Court was carried to the Court of Appeal, and is due for decision on August 20. In these two posts, a few salient issues in the High Court’s judgment are analysed.]

One important issue in the High Court BBI judgment was on the constitutional remit of the constitutional amendment through popular initiative as provided for under article 257 of the Constitution. The Constitution provides for two ways of amending the Constitution-through parliamentary initiative and through popular initiative. The Constitutional Amendment Bill 2020 (BBI Bill) was christened by its promoters as a popular initiative. The Court revisited the attendant history of constitution making to discern what is meant by a ‘popular initiative’ by the Constitution. Making reference to various documents including the Bomas Draft, the Wako Draft, and the Constitution of Kenya Review Commission (CKRC) Report, the Court found that the issue of amendment by popular initiative was non-contentious in the former drafts of the Constitution holding that the drafters of the relevant clause intended that it be invoked only by citizen registered voters and civil society groups as opposed to state institutions and state officers.

The Court also reverted to the definition of ‘Popular Initiative’ from Wikipedia and comparative jurisprudence to make the finding that constitutional amendment through popular initiative cannot be undertaken by government when it is the same government that has to undertake the amendment. Arguably, the reliance by the Court on Wikipedia (an unreliable source which can be edited by anyone) for a definition of ‘popular initiative’ in such an important matter on which the decision turned unnecessarily took away from the credibility of the judgment, and may well found a ground for challenging or critiquing the decision.

Finding that the BBI Bill had emanated from the BBI Taskforce and Steering Committee which were creations of the President as exemplified by their publication in a Gazette Notice (the official government publication), the Court held that the BBI Bill was a Presidential initiative and therefore could not have been a popular initiative. The court was emphatic that the government and the President have no authority to initiate changes to the Constitution and that the President could only initiate amendments through Parliament. The Court premised its reasoning on the conflict of interest on the part of the President in the amendment process, which requires the President to assent to the Bill once ratified by Parliament before it proceeds to a plebiscite.

The enduring question therefore is what is meant by popular initiative and relatedly, whether the BBI Bill is a popular initiative. A popular initiative must be distinguished from a popular referendum-both of which are citizen-initiated with initiators required to collect signatures from the citizenry. Both are a form of expression of direct democracy as contradistinguished from representative democracy. A popular referendum usually refers to a decision-controlling mechanism whereby a referendum is demanded by a political actor who is not the author of the legislative proposal to amend the Constitution.[1] On the other hand, a popular initiative is a decision-promoting mechanism whereby a political actor demanding a referendum also happens to be the author of the amendment proposal such as where the people propose constitutional amendments and also demand for a referendum.

Applying this definition to the BBI bill, it is not difficult to see why the High Court declared that the BBI Bill as currently framed is not a popular initiative within the meaning of the Constitution. In a popular initiative, proposals for amendment must originate from citizens. The crux of the appeal in this regard will therefore be determining the initiator of the amendment proposals; and whether state officers may initiate amendments through popular initiative in their individual capacities as citizens.

[1] <https://journals.openedition.org/revus/3337 > accessed 11 August 2021.