On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya delivered its judgment in David Ndii and Others vs The Attorney General and Others, widely referred to as the BBI judgment.

The judgment has led to a flurry of analysis. All commentators have included in their analyses reflections on how the court was attentive to history, specifically Kenya’s constitutional history since independence in 1963. Indeed, the court found in this history a guide to the people’s intentions in ‘bequeathing themselves’ the 2010 Constitution. The court reasoned that although ‘there is no clause in the Constitution that explicitly makes any article in the Constitution un-amendable’:

“…the scheme of the Constitution, coupled with its history, structure and nature creates an ineluctable and unmistakable conclusion that the power to amend the Constitution is substantively limited. The structure and history of this Constitution makes it plain that it was the desire of Kenyans to barricade it against destruction by political and other elites… the Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and at times, against the Political and other elites. Kenyans, therefore, were keen to ensure that their bequest to themselves would not be abrogated through either incompatible interpretation, technical subterfuge, or by the power of amendment unleashed by stealth.” 

The court’s reliance on history in part explains the excitement the judgment has generated. Commentators have pointed out that the basic structure doctrine elaborated by the court rests on the foundations of Kenyan history. They have carefully analysed the work that history does in the judgment. But the inverse is also an interesting question: what work has law done for history? I will argue that the court has added to Kenya’s archive in important ways.

Background to the litigation

In 2018, President Uhuru Kenyatta and Mr. Raila Odinga, opponents in a fraught and contentious Presidential election in 2017, sought to come to an accommodation in what is known as ‘the Handshake’. Purporting to seek a lasting peace, President Uhuru Kenyatta appointed a Building Bridges to Unity Taskforce to recommend administrative and other changes to achieve this. The taskforce’s report was followed by the appointment of a BBI Steering Committee tasked with proposing constitutional and other changes. These recommendations morphed into the Constitution of Kenya Amendment Bill 2020, following which a number of petitioners moved to court to challenge the controversial amendment proposals it contained. The resulting judgment rules on eight consolidated petitions challenging the proposed changes to the Constitution.

History in the BBI judgment

In its judgment, the court laid great emphasis on the attributes of the constitution-making process that resulted in the 2010 Constitution. Relying on the writings of Chief Justice Willy Mutunga as he then was, the court notes that the 2010 document ‘has been described as a “model” of “participatory constitution building process” and as

“a story of ordinary citizens striving and succeeding to reject or as some may say, overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. Some have spoken of the new Constitution as representing a second independence.” 

The court held that a detailed grasp of Kenya’s constitutional history was essential to considering the matter before it. It elaborated on how the 1963 independence Constitution had been amended so thoroughly by an over-weaning executive that by the time Kenya became a multi-party state in 1991 the constitution had been ‘stripped of most of its initial democratic and social justice protections’ so that the country ‘had effectively become an authoritarian state’. The court cites detention without trial, abuse of legal process, personalized rule, entrenched patronage, endemic corruption, oppressive use of police force, severely compromised judicial independence, discrimination, and marginalization as characterising Kenya during those years.

In his analysis of the judgment, Gautam Bhatia has noted that it is ‘designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations’. These are, first, a ‘culture of hyper-amendment’ [para 406 citing amici curiae Duncan Ojwang’, John Osogo Ambani, Linda Musumba, and Jack Mwimali] and, second, ‘a two-decade emphasis on a citizen-led process’ Bhatia notes that the ‘entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the Constitution could not be altered without going back to the People.’ (author’s emphasis)

Considering the judgment, Jill Cottrell Ghai and Yash Pal Ghai have written that the High Court was concerned not just with how Kenya had come to be badly governed ‘but how it happened’. They point out astutely that ‘[t]he methodology was not by simply ignoring the Constitution…but particularly by changing it.’ The court put its historical analysis to ‘use’ to reason that ‘some aspects of the Constitution cannot be changed by ordinary amendment processes.’

In his analysis of the judgment, Gautam Bhatia has noted that it is ‘designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations’

The court used history to exclude the possibility that ‘having gone through this whole, complex and participatory, process of getting a new constitution’ the people would be happy to allow it ‘to be changed in fundamental ways by any less people-centred process.’ Because Article 259(1)(a) requires a purposive approach to constitutional interpretation, at the ‘forefront of the court’s mind [was] what the constitution was designed to achieve.’ At a webinar on the judgment organised by the East Africa Law Society, Issa Shivji described this as the court’s attentiveness to the mischief which the 2010 constitution sought to address.

Yaniv Roznai has noted the court’s ‘holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.’ And Upendra Baxi has described the judgment as ‘decisively people-centred rather than State-friendly’ whilst also drawing on the Indian experience since the Kesavananda Bharti case (upon which the Kenya High Court relies to assert the doctrine of basic structure) to ask pressing questions about the possibility of the ‘judicial and demosprudential co-governance of the nation.’

Struggle memories

Joshua Malidzo Nyawa has written that: ‘the Court emphasizes that the Constitution of Kenya 2010 is both monumental and memorial – monumental because it celebrates our achievements, memorial because it reminds us of our past atrocities.’ For Bhatia, ‘the High Court’s account of this history – starting at para 411 of the judgment – is deeply fascinating, and repays careful study.’ Building on both these insights, I want to suggest that we should think about the historical account given by the court beyond the work it does to bolster the basic structure argument.

The shape and future of the constitution is not all that is contested. So too is Kenya’s history. What is and should be an authoritative account of the period of constitutional reform is up for grabs. If lawyers are worried about a renewed culture of hyper-amendment in which the BBI constitutional proposals are the first act, historians are right to worry about the risks of historical revisionism in scholarship and more widely. Citizens should worry about both.

The revision of history to minimise or call into question the history of the struggle over constitutional change and the demands of the people for an end to repression, patronage and illegality is a certainty: many would say it is already underway, as evidenced in the veneration by some of Kenya’s Presidents since independence.

In his 1995 essay The Invention of Kenya, ES Atieno-Odhiambo argued that one of the tasks of the postcolonial historian of Kenya has been to forge a new history, one which ‘had to be invented, assembled together, arranged around the metaphor of struggle.’ Writing about the struggle for land and justice, I have argued that Kenyans have developed a peoples’ history of land. I have analysed how a deep engagement with history is to be found in the Kenya Supreme Court’s Advisory Opinion on the National Land Commission which gave considerable space to elaborating on Kenya’s land and constitutional history. In so doing, I have argued, the court gave Kenya’s history of struggles over land what Grace Musila labels ‘epistemic authority’ (though, I argued, their resultant ruling disappointed).

Knowledge production

On this reading, what the court was doing in the BBI judgment was the work of bolstering not just the constitution but history itself. By narrating history in the ‘epistemic register’ of a court judgment, they lent Kenya’s constitutional history some authority. The judgment was thus anticipatory in two regards. It sought to create a shield against a return to the ‘culture of hyper-amendment’ which came to characterise Kenya’s regimes after 1963.

And it was anticipatory too in relation to the historical record: setting out on paper an authoritative account not to be amended in future. To be clear, I am not imputing this intention to the judges. But reading the judgment the danger strikes me that, sometime in the future (including on appeal), an amended history could be attempted, one that would lie alongside an amended constitution. This makes all the more important the robust work the court has done to try to give legal authority to Kenya’s constitutional history in its judgment.

Ann Laura Stoler has written that we should think of archives ‘not as sites of knowledge retrieval, but of knowledge production, as monuments of states as well as sites of state ethnography.’ Archives are not just places. Court judgments too can be sites of knowledge production not just of retrieval. We see this in relation to land inquiries: reports recording the land grabbing, dispossession, irregular land dealing, and land related violence committed by a predatory Kenyan state become available because of the concerted work of civil society calling for their publication (see for example the Ndung’u commission report and the Truth Justice and Reconciliation commission report).

I have argued that they have come to form an archive of sorts, and that when the Constitution of Kenya Review Commission heard evidence around the country in preparation for a new draft constitution, it was on a people’s archive accumulated over many years that citizens were able to draw (see ‘What the people told the CKRC’).

An Historic Judgment

As commentators have shown, it is difficult to envisage a basic structure doctrine argument that stands up unless undergirded by the historical account given by the court. The BBI judgment is therefore historic in two ways. It is historic for its elaboration of basic structure doctrine. But it is also historic because it does history work. It is a deeply historical reading that enables us to see what the Kenyan people meant when they gave themselves the 2010 constitution. The court imputes intention to the people, invoking the everywoman of Kenyan constitutional history, Wanjiku, whom Wambui Mwangi has described as ‘a Kenyan every-body or Kenyan any-body’ forged ‘out of an ethnically specific but poignantly disembodied no-body.’ Wanjiku is mentioned twelve times in the judgment.

Bhatia has written that the judgment relies upon

“an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.”

I have suggested here that Kenya’s radical social history also relies on constitutionalism and the opportunity for courts to record – and to valorise – the struggles of the people.

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This article was first published in Verfassungsblog. You can find the original text here. 

My generation grew up in a country where the government used to dump shiploads of grain into the ocean. But not finishing your broccoli, in contrast, invoked mealtime lectures about hungry children in less fortunate countries. Wasting food was a moral problem and not the outcome of global inequality and skewed access that we later learned were responsible for those starving children pictured in UNESCO funding appeals on television.

Aversion to wasting food is probably wired into our genes. Even so, competing with your friends to kill oranges by rolling them under the wheels of passing vehicles was not exactly a sin when you were surrounded by near-endless expanses of citrus groves, and where neighbours routinely left gift bags of oranges on the doorstep that only added to the surfeit accumulating inside.

This and other examples of excess and profligacy remained largely invisible to the public until research during the 1970s indicated that up to 40 per cent of the food produced worldwide was never consumed. The 1973 University of Arizona garbage study, for example, concluded that American households were wasting up to a fifth of the meat, produce, and grains they purchased. This cost the average family US$600 a year at a time when the annual median family income was US$12,500.

This waste was only part of a much larger complex. The industrialisation of agriculture had improved the efficiencies of production but exacerbated the problem of waste between the farm gate and the family table. We may have come of age feeling guilty about the growing mountains of garbage that had become too big to hide during the 1970s, but this was actually one aspect of a far more insidious syndrome encompassing massive waste and pollution, inhumane treatment of animals, poor conditions affecting the food chain work force, and negative impacts on consumer nutrition.

These and other related issues were brought home by Eric Schlosser in his seminal 2001 book, Fast Food Nation. We came of age aware that commoditisation and convenience had created a monster. This is why many of my peers and I became strict vegetarians. We avoided processed foods and sought out organic produce wherever it was available. Food was one of the sacraments of the counterculture movement, and we believed our elevated tastes and preferences made us holy. Subsisting on bean sprouts, carrot juice, and brown rice was our ticket to heaven.

Famine and food in Turkana, 1974

I eventually came to recognise that this culinary elitism was a luxury, an Aquarian age equivalent of a Roman bacchanal. The realisation contributed to my decision to travel abroad and experience life in the more organic environs of the developing world.

After nine months in Central America, I ended up in Kenya, which was still a slow food nation the time. I arrived at a time when the hunger crisis precipitated by the Great Sahel Famine was peaking, and my first venture beyond the relatively well-fed highlands saw me spend several weeks in Turkana. My real education in the anthropology of food began in November of 1974.

We left Kitale on the back of a lorry carrying sacks of famine relief flour, arriving in Lodwar under a full moon at 2.30 a.m. Our driver insisted I join him for libations in the local bar, where we sat next to a window besieged by a posse of naked boys. The driver teased them by pretending to press a coin into the skinny hands protruding through the windows. He allayed my apparent discomfort with a beaming smile, “Sijali, wako na njaa, lakini tumewabebea chakula.” Yes, these kids are hungry, but we are the ones bringing them food, he said. I slept under the lorry, waking up to a stark landscape of scattered acacia dotted with stick people wrapped in dirty white togas.

We explored downtown Lodwar, which consisted of two streets lined with wooden storefronts. A door opened up briefly and a Somali man motioned us inside, where he served us black tea and dry bread and refused payment. My friend the lorry driver said he was going on to Kalokol, and invited us to join him. A crowd of stick people collected around us as we waited for the lorry to depart, withered arms extended. I watched an old man squatting to the side keel over.

Impelled by a mix of compassion and discomfort, we started cutting up our travel stash — a basket of fruit — distributing strips of papaya and mango as the engine roared into life. Then, as the lorry lurched into gear, the recipients of our largesse pelted us with the fruit.

My distraught traveling companion caught a ride back to Kitale after a few hours in Kalokol on the shores of Lake Turkana. Because the owner of the only transport firm serving the area had passed away the night we were on the road, I ended up marooned at the lake where I wandered during the day, and spent the evenings listening to the BBC with my host Mr Muriuki, a quiet man who worked for the National Council of Churches of Kenya. After he went to sleep, I slipped under the wire fence surrounding the missionaries’ and civil servants’ houses to listen to the Turkana singing and clapping late into the night.

It was three weeks before the next lorry left for downcountry. We traveled during the day this time. The lorry briefly stopped at a laaga, where several emaciated Karamoja men petitioned us for food.  The upcountry people on the lorry tossed them some biscuit boxes, then enjoyed a hearty laugh when the pastoralists found they were empty. “We work for our food,” they told me.

Making sense of my time in Turkana coalesced around two observations. The first was that how we define food is a culturally-bound concept. I will forever associate Kalokol with the pungent aroma of roasted doum palm nuts, which the Turkana spent their days converting into a course flour — on the shores of one of the world’s least exploited inland lakes.

As for the hungry Turkana who wasted our fruit, they had probably never seen a papaya or mango, much less tasted one. Several years later the same point was reinforced by my mother-in-law in Lamu, who demurred when I argued for reducing our young children’s starch-heavy diet: “hii mboga yako si chakula,” she objected.

The second observation notes that the universal practice of sharing food in Africa is subject to issues of identity and social relations: some people fall through the cracks. In any case, food losses, and not food waste, is the greater problem in Kenya. Food losses refer to any decrease in food mass across the edible food supply chain, which claims up to 30 per cent of the food produced across the world. Food rarely goes to waste here, but post-harvest grain losses range between 10 and 20 per cent of the harvest in this part of the world — an average of 13 per cent of Kenya’s maize harvest — and such figures would be much higher if they factored for food in the field and on the hoof that is lost to drought, disease, and other risk factors.

As for the hungry Turkana who wasted our fruit, they had probably never seen a papaya or mango, much less tasted one.

Where the losses increase closer to the consumer’s plate in the developed world, in Africa most of the losses occur close to the farm-end of the chain. Halving these losses in Africa alone would significantly impact food availability, affordability, and malnutrition among the poor.

The political ecology of food in Kenya

The European push into the Kenya highlands coincided with conditions more severe than those that I witnessed in Turkana. Disease and famine ravaged the region during the 1890s. The Maasai lost 90 per cent of their cattle to rinderpest, and drought forced many communities to seek refuge among less affected neighbours. Long-term impacts included the increased population of highland agricultural communities and the net loss of land to colonial settlement.

The structural and legal institutional framework of Kenya’s commercial agriculture that followed replaced the indigenous political ecology of food with a monoculture mindset geared to supporting commodity production for export. Native producers were confined to tribal reserves and much of their production was quarantined by colonial statutes limiting the free movement of local crops and livestock. African production systems were deemed pre-scientific and inefficient, and the trade networks that were expanding during the decades preceding European intervention were curtailed.

The colonial economy experienced a succession of crises that persist up to now. Kenya’s economy is nevertheless a complex system, and the dynamism of the indigenous order has helped offset the entropy undermining the monoculture model. Fifteen years after my Turkana awakening, I set off for the Meru highland fringe, where one of the indigenous production systems least affected by the rules of colonial agriculture was flourishing.

When the women in the lower Nyambenes winnowed their njavi, one Samburu elder told us, the papery skin of the beans was carried away by the wind. After a day or so, our eagle-eyed warriors would see the tiny flakes floating in air, and we would know it is time to collect some animals for trade and travel there.

Food storage did not feature prominently in most precolonial production systems. Cassava and other low protein-high starch root crops were important because they could be stored in the ground. Unused food was fed to the livestock that played a critical interstitial role in food systems as currency and as a protein bank.  In some societies, force-feeding young women to make them plump was an indicator of wealth that conferred prestige. The merits of voluptuous bodies for marriageability and childbearing in areas of West Africa is a tradition that still conditions African concepts of feminine beauty.

Storage was difficult in the African environment for reasons that still make it problematic today, and this is why reinvesting surplus food in social relations through trade and reciprocal arrangements was universal practice.  The importance of the circulation of food resources was underscored by the protocols enabling women to trade during episodes of group conflict.

The variability intrinsic in regional environments gave rise to multiple variations on non-hierarchical organisation that contrasted with the centralised states that emerged in areas of sustained surplus food production like Buganda and Bunyoro in the intra-lacustrine region.

The Lozi system of the Barotse plateau encompassed irrigated fields complemented by cultivation on the drier margins, followed by seasonal migration into the riverine plain where receding floodwater watered another crop. The King in the Lozi system coordinated production across the annual cycle, conscripted labour for maintenance of the dikes funneling water into the irrigation zone, and organised the mass migration into the floodplain. He also presided over the distribution of food held in communal granaries. This included assisting other communities dependent on rainfed agriculture during times of shortfall, a practice that at times emptied the royal stores.

The importance of the circulation of food resources was underscored by the protocols enabling women to trade during episodes of group conflict.

Kjekjus detailed the intricate workings of social ecologies in Tanganyika, where diverse small-scale communities operating in synch achieved an impressive level of disease control and resilience in conditions of periodic zoonotics and climatic uncertainty. The invisible hand guiding these economies highlights the role of econiche-conditioned comparative advantage enhanced by a continuous process of experimentation and adaptation.

I found these dynamics still functioning in the Nyambene region, an area relatively undisturbed by the rigid hierarchical order imposed by colonial rule. My surveys included a question on sources of agricultural information, listing four responses: extension services; the educational curriculum; radio and other media; and non-governmental organisations. Over 70 per cent of the informants replied by adding a new category: personal on-farm experimentation and observation of the same by neighbours. I collected a 50-page list of trees and plants incorporated into their on-farm production that provide a diverse range of benefits from soil fertility maintenance to herbal concoctions for treating human, livestock, and crop diseases.

Where tens of thousands of households in the coffee, tea, and maize zones of Meru received famine relief food during the 1984 drought, only several hundred non-Igembe Meru families required government food support. The disparity highlighted the stability of the Nyambene miraa-powered permaculture, which continued to generate income even during the height of the drought, and the internally mobilised assistance for food-poor households. The unending criticism of miraa production, which supports an indigenous social institution with its own multi-directional information flows, is a telling reflection of the monoculture brainwashing that holds sway among Kenya’s educated elite.

The colonial government used a range of legal acts to centralise and control the agricultural sector, and this came with strict rules regulating the production and movement of food. The systems described above, in contrast, operated as free-scale networks featuring multiple lateral linkages interspersed with nodes created by a high concentration of connections.

The disparity highlighted the stability of the Nyambene miraa-powered permaculture, which continued to generate income even during the height of the drought.

Hunger was not uncommon, and even had a season named after it, but it is difficult to find accounts of large-scale starvation in pre-colonial Africa. The more serious problem was, and still is, malnutrition, the incidence of which was episodic and location-specific in the accounts of European explorers. According to doctors who came after them, malnutrition was often aggravated by infections and parasites, which explains why disease is the main cause of death in famine-struck areas. The emergence of structural food shortfalls and endemic malnutrition was a colonial era development.

The indigenous systems referred to above sat on top of food webs, where human populations participated in the larger energy-generating ecology. Unlike the supply chains we now depend on, food webs are anchored by the 99 per cent conversion efficiency of plant photosynthesis. These webs subsume complex multi-species relationships and overlapping food chains. The indigenous political ecology of food in this region came to reflect a mosaic of coevolutionary adaptations, including cultural protocols facilitating internal and external social relations.

The emergence of structural food shortfalls and endemic malnutrition was a colonial era development.

The rise of the industrial nation-state subjected these webs to top-down control, simplifying and making them more fragile in the process. The energy-to-food conversion rate has declined precipitously under the regime of mechanisation and industrial inputs, while consumption of empty calories has skyrocketed apace. Human obesity has paralled the three-fold increase of sugar over the past fifty years, and the number of people living with diabetes across the world has quadrupled since 1980. Eighty per cent of the deaths it causes occur in low and middle income countries.

Viewed from a holistic perspective, the rising incidence of diabetes and other lifestyle diseases in Kenya reflecting these trends is another form of food waste.

The political economy of eating in Kenya

A week before I travelled to Kenya, a fracas erupted over food that had gone missing from the communal refrigerator in our dormitory. An angry young lady was ranting about other students eating her food when a Kenya student named Saleh Karanja interrupted: “People do not steal food,” he told her, “they eat it.” The observation piqued my attention, and the full implications are still sinking in.

It did not take long to understand that eating is a very context-dependent verb in this part of the world. On the positive side, I learned from my early interactions with Kenyans that sharing food was near practice. This was offset by the frequent “help me with something to eat” petitions, which I soon found out rarely referred to real food.

My survey of food waste issues for this article led me to a similar contradiction. Food waste occurs in Kenya, but it not among the poor who are not sure where their next meal will come from. Rather, the problem is limited to specific sectors. Most food waste occurs in the export horticulture industry where broken contracts, late deliveries, and other logistic glitches lead to produce not reaching its destination, or farmers not receiving full payment. Milk is the other industry prone to waste and spoilage. These findings prompted me to do my own neighbourhood spot survey to test the hypothesis. My statistically insignificant sample yielded the following results:

The restaurants recycle their leftovers, as do the produce sellers. Unsold fruit and vegetables also account for most of the supermarket waste; wholesale milk buyers are the only business that actually dumps their spoilage, which is placed in septic tanks. But this is not to say that Kenya’s food sector is waste-free.

Kenyan parastatals are known for the mismanagement and inefficiencies that have cost small-scale coffee, tea, maize, pyrethrum, sugar, and milk producers high losses over the years. Leakages, poor management of grain stores, and corruption at buying centres are responsible for many of the problems. The procurement of maize, sugar, and imports of agricultural chemicals are the source of most of the national scandals affecting the availability and prices of staple commodities, which in turn lowers the quality of life and nutritional status of poor Kenyan households.

The delivery of famine relief supplies during periods of extended drought has earned high marks in contrast, the incidence of District Officers and private sector transporters diverting supplies notwithstanding. All of this qualifies Saleh Karanja’s observation: taking food and not eating it is stealing. The same applies for diverting resources and prejudicial policies that benefit state-based actors and the private sector cartels they cultivate.

Footage of hungry Kenyans collecting the condemned maize some lazy civil servant decided to deposit at Nairobi’s Dandora landfill summed up Kenya’s food waste conundrum: happy scavengers interviewed by the press thanked the KANU government for the gift of free food.

Resistance and escape on fast food planet

The waste problem runs much deeper than the high levels of global food losses and the exploitation of land and agricultural resources by elites at the top of the food chain pyramid. Agronomists define weeds as plants in the wrong place. The issue of food waste, by the same logic, is often a function of food in the wrong place, Food policy analysts have weighed in on the problem by stressing the tradeoffs between investing in curtailing losses instead of improving production. The gains to be realised through the former option, they note, are finite; investing the same resources in agricultural research can generate production gains that far exceed production lost to waste.

This recommendation, however, runs up against the yet larger dilemma highlighted by the declining state of the planet’s environmental commons and the precarity overtaking the world’s small-scale producers. The quest for national food security, for example, is directly responsible for the ongoing African land grab. Ceding ownership of large tracts of communal land to increase the supply for food insecure nations in the Middle East and Asia means more carbon intensive production and negative impacts on the livelihoods of the displaced communities forced to labour on the new estates and commercial farms.

Monoculture cultivation of grains and pulses plays an important role in the provision of global food supplies. But increasing industrial agriculture at the expense of peasant producers entails, among other things, more energy-intensive transport, increased losses across supply chains, and more consumer-attractive packaging generating the plastic waste that ends up polluting our dying oceans. The policies promoting these outcomes are ironically presented as smallholder-empowering reforms.

The World Bank policy matrix adopted by the Narendra Modi government is a case in point. The new laws passed in 2020 are designed to transform locally managed rural economies into a national industry. But incorporating India’s small-scale producers into the system of global food supply chains highlights a complex of negative consequences for the country’s 100 million farmers that include the expansion of private agribusiness, mandatory use of corporate-owned hybrid seeds, centralised state management of the agriculture sector in place of the local mandi marketing system, and a ban on the private storage of key foods.

We are all caught in the new webs spun by the world’s capitalist high roaders. Like the intense protests provoked by Modi’s reforms, the conversion of the world into a fast food planet is feeding a gathering fightback in the West. The movement is based on the formation of intentional communities predicated on sustainable production and lifestyle, the adoption of permaculture, practices promoting environment regeneration, and the rejection in general of the maladaptive social operating system driving the earth to the point of collapse. Regional cultural ecologies in this part of the world and elsewhere embody many of the holistic sensibilities driving this movement, as advocates of indigenous knowledge systems have long pointed out.

Research on the anthropology of food has detailed the role of local foodways as a repository of historical memory and meaning, and ethnographic studies demonstrating how eating and drinking are intrinsic to their informants’ domestic, economic, political, and spiritual lives. Producing more high quality food in the right places is one antidote to eating at the top.

Treating food as a sacrament, as it turns out, was not such a bad idea after all.

On 13 May 2021, a panel of five High Court justices unanimously adopted a significant ruling disqualifying The Constitution of Kenya (Amendment) Bill, 2020. The bill aimed to implement President Uhuru Kenyatta’s so called “Building Bridges Initiative” (BBI) and was supposed to be the most significant change to the state’s governmental structure since the constitution was adopted in 2010. It included the creation of 70 new constituencies, an increase in parliament seats, the selection of cabinet Secretaries from among members of parliament , the creation of a Prime Minister’s position together with Deputy Prime Ministers, and the creation of a Leader of Official Opposition in the National Assembly.

Having been approved by the legislature, the amendment was awaiting presidential approval after which it would be put to a referendum. The High Court ruled that the constitutional amendments are unconstitutional and, most importantly, that the so-called Basic Structure Doctrine applies in Kenya. Gautam Bhatia called the judgment “an instant classic” and “an example par excellence of transformative constitutionalism”. The judgment is not only a milestone from the perspective of comparative constitutional law; it might also change the future landscape of constitutionalism in Africa.

Constitutional amendment and basic structure doctrine

In a nutshell, the basic structure doctrine is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity. The doctrine migrated from Germany to India, where it was accepted by the Supreme Court (see e.g. Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461), and from there migrated to other countries, in one name or another (see, for instance, the Slovak Constitutional Court’s “material core” doctrine).

The basic theoretical argument for this idea, as I elaborate in my book Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, is that the constitutional amendment power is not unlimited. The amendment power is a delegated legal competence which acts as a trustee of the people and therefore is limited both explicitly and implicitly.

Firstly, it is limited by those explicit limitations / eternity clauses stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it to destroy the constitution from which the body’s authority derives in the first place. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power thus undermines its own raison d’être.

There are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.

Amending the constitution in a way that would destroy the old and create a new constitution would be an action ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy those basic principles.

The alteration of the constitution’s core would result in the collapse of the entire constitution and its replacement by another. This decision, however, is not left to the delegated organs, but to the people’s primary constituent power and it ought to be taken via the proper channels of higher-level democratic participation and deliberations.

Three layers of sovereignty

The dramatic judgment of the Kenyan Court reflects this general idea very well.

Reading out the judgment, Justice Joel M. Ngugi, a former law professor at the University of Washington, began with a review of Kenya’s constitutional history and the 2010 constitutional process. As we shall later see, this historical review will be important for drawing the exact basic structure limitations. The most important part of the judgment, however, is this: the basic structure doctrine applies in Kenya. In particular, the doctrine limits the authority of amending the constitution (as set forth in sections 255-257) in a way that would change the basic structure of the 2010 Constitution.

According to the court, the sovereignty of the people in its constituent capacity is expressed in three layers. The first one, the Primary Constituent Power, is the extraordinary power to draft or radically change a constitution. This is, in the tradition of Sieyès, the immediate expression of the people. This authority is free and independent of any constitutional restrictions and is unlimited by the constitutional rules and procedures of the previous Constitution.

The Secondary Constituent Power is the constitutive authority for constitutional changes which are not material and therefore do not change the basic structure of the constitution. In Kenya, this power “is exercisable through a referendum subsequent to public participation and Parliamentary process” and may be exercised only in accordance with the procedure set forth in Articles 255-257 of the Constitution.

The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power.

The Constituted Power is a delegated authority limited by the Constitution and derived from it. In Kenya, this limited power to amend the constitution is in the hands of the parliament.

The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power. In other words, the essential features of the constitution that form the basic structure can only be changed by the people exercising the primary constitutive authority.

The Court’s reasoning on this dimension of the primary constitutive authority marks an extremely important development. In Kenya, the court states that this power can be exercised in four stages: through civic education to provide the public with sufficient information regarding the possibility of participating in the process of establishing or amending the constitution; through public participation, in which the people share their positions on constitutional issues; through deliberations in a Constituent Assembly for the formulation of constitutional ideas through representatives specially elected for establishing or amending the Constitution; and through a referendum for the adoption or rejection of the constitution or the amendments to the basic structure of the constitution.

If constitutional theory regarded the people in its “original constituent power” capacity as either the initiator of the process but not necessarily its executor, or alternatively, as its ratifier at the end, than the Kenyan judgment is crucial in elaborating that for constitutional moments to truly manifest the people’s will, popular participation in constitutional moments should not be limited to a solely “yes” or “no” vote in a referendum but should extend to the stages before, throughout, and after the process of constitutional change. As I claimed elsewhere, “it is the manifestation of ‘we the people’, not simply ‘oui, the people’”.

Foundational structure interpretation

As the notion of constituent power is returning to the front stage of current constitutional theory (see for example only recently: Arato,  Colón-Ríos, Rubinelli, Arvidsson, Brännström & Minkkinen,  Spång, Patberg, and López Bofill), this amplification of the  various stages through which the people’s primary constituent power can be democratically initiated and exercised, provides an important contribution and a ground for both scholarly work and for future constitution-drafters and courts.

The court learned about these implied limitations of the basic structure doctrine from what I term in my book “foundational structure interpretation”: a holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.

The historical point is interesting. According to the court, the 2010 constitution-making process served as a “model . . . of participatory constitution building process” and was a response to the previous “culture of hyper-amendment, especially under one-party states where the constitution was frequently amended for every-day politics which is a mark of what Okoth-Ogendo described as “Constitutions without Constitutionalism”.

Considering this constitutional history of struggle for popular participation in constitution-making and change, and the hyper-amendment culture, the court notes that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments”.

This latter emphasis on “destruction through gradual amendments” is especially important in the current era of populist constitutionalism in which constitutional democracies are eroded through subtle and gradual means, by a “straw that broke the Constitution’s back”.

Thus, the court held that the core of the constitution, the foundations of constitution-building, cannot be transformed without summoning the primary constituent power of the people. And this point is crucial for any criticism that might – and probably will – arise from the decision. When the court enforces the implied limitations on constitutional amendments, it ensures that the amendment power does not exceed its authority, and thereby protects popular sovereignty and the vertical separation of powers between the primary constituent power of the people and the secondary constituent power.

In addition, the court ruled that the president has no authority to initiate changes to the constitution, and that only parliament, through a parliamentary initiative or through a popular initiative, can initiate a constitutional amendment. Giving the president the authority to initiate amendments which should be made through a popular initiative, would grant the president the dual role of initiating and deciding on the amendment – and therefore put him in a conflict of interest: “The President cannot be both player and the umpire in the same match.”

The court further ruled that the matter as such was justiciable and that legal proceedings could be initiated against an incumbent president for any violation of the constitution. The Steering Committee, which was established for the Implementation of the BBI, is unconstitutional and therefore cannot initiate constitutional changes. By initiating and promoting the process of constitutional change contrary to the constitution, the president violated the constitution.

Winds of change?

Apparently, an appeal of the court’s decision will be filed at the Court of Appeal, but it is difficult to predict how the matter will be decided. On the one hand, affirming the decision would mean going against a strong political leadership based on a substantive rather than a formal interpretation of the constitution. On the other hand, the High Court discussed all the issues comprehensively and convincingly, and it might be difficult for the court to go against such a grounded decision that guards constitutionalism and the people’s constituent power. Gitobu Imanyara writes that:

“The . . . court has saved our hard-won constitution from the most serious assault it has faced during the ten years of its existence. The culture of rule of law and constitutionalism that our country is settling into has been entrenched.”

And Joshua Malidzo Nyawa adds,

“This decision sets a tempo in our constitutional democracy. It tells the wielders of state power that they are subject to the Constitution, reminding Judges that it is their duty to protect and safeguard the Constitution and its aura.”

Beyond the implications for Kenya, this ruling could have wider implications in Africa. It might signal the prospect for the much needed consolidation of constitutionalism and democracy in Africa. The news of the dramatic ruling will have already reached courts in other countries of the continent such as Zimbabwe, where the High Court recently held hearings concerning petitions against constitutional amendments. And indeed, two days after the Kenya decision, on 15 May 2021, the High Court of Zimbabwe declared that the decision of President Emmerson Mnangagwa to extend Chief Justice Luke Malaba’s tenure by five years through a constitutional amendment was invalid because it breached the constitution.

Perhaps these judicial decisions signal the winds of change for constitutionalism in Africa.