Lady Justice Martha Koome’s appointment as our Chief Justice is causing me angst. It gives me hope yet wrenches something in my gut. Her reputation as a defender of human rights is unquestioned. Yet a confession during her interview by the Judicial Service Commission showed a bias towards government.  In Requiem for a nun, William Faulkner warns, “The past is never dead. It’s not even past”.

There is Koome’s activist past, her legendary past as the chairperson of the Federation of Women Lawyers (FIDA). There is the Koome who, from 2001, led civil rights organisations in securing women’s participation in the constitutional review. She frightened the Moi era regime which deemed her ideas dangerous. Koome pushed for children and women’s rights, sought the release of people locked up on trumped-up charges, those whose rights the regime had violated. That they did not lock her up as well is inexplicable. That possibility frightened her then. Not anymore.

Justice Koome hasn’t fought the government in a while. No sooner had she become a judge than she jettisoned activism. As she told the JSC panel, her work at FIDA was situational. As a judge, she said, “I have changed completely. . . . I am government, as the Chief Justice of the Republic of Kenya . . . I head the other part of government.” This is her immediate past. And it makes many anxious.

Writing on race equality in the America of the 1940s, Faulkner’s message was that some day, the people would rise above these divisions and recognise the ties that bind them. They would recognise the fundamental lie of racism. But the protagonist, with his very Southern attitudes and bigotries, fails that test, and hence the past is never dead. For Justice Koome, which of these pasts is past?

Our main worry is something that her 18 years as a judge have revealed. Petitioning the JSC to reject Koome’s nomination, the President of the Law Society of Kenya Nelson Havi argued that her appointment would weaken the independence of the judiciary. Havi cited a questionable Saturday night sitting of the Court of Appeal during which Hon. Justice (rtd.) E.M. Githinji, Hon. Justice Fatuma Sichale and Hon. Justice M.K. Koome delivered a judgment ex parte (in the interests of one side only), a final order reversing a High Court ruling in the case of the Republic v IEBC Khelef Khalifa and another (2017) that had been delivered that very morning.

If Justice Koome is to deliver justice, she will have to find her true north again, her human rights past. Upholding justice must not be situational, Madam Chief Justice. Justice is about equal rights, and access to justice for those denied it. Delivery of justice must start within the judiciary.

While interviewing Justice Koome, Commissioner Everlyn Olwande spoke for the judges and magistrates when she expressed her fears using piercing allegory: Is the judiciary fast hurtling towards another purge? There was the radical surgery under Justice Aaron Ringera, and the judicial vetting that saw a host of judges evicted. The signal has always been to claim corruption within the judiciary.

In 2019, the state moved its war on graft to the judiciary. The Chief Public Prosecutor, Noordin Mohamed Haji, brought a charge against the Deputy Chief Justice Philomena Mwilu, that she had “abused her office for personal gain, undermining public integrity in the judiciary”. Haji claimed he had instituted criminal proceedings against her in the public interest as he had gathered enough evidence for “a reasonable prospect of conviction”.

But observers saw through the scheme. If the case had not been brought in order to force the JSC to eject the DCJ from office, then it was in fulfilment of the “we shall revisit” promise made by the president to the judiciary. This, in my view, was the veiled fear in Commissioner Olwande’s questions. It would be tragic if the Chief Justice were to cede her power to the executive.

The only hope the judiciary can hang on to is Justice Koome’s statement that, “An institution like the Judiciary should be self-cleansing . . .  from within and . . .  not from without,” to “ring-fence the independence of the judges, the judges’ decision making and the institution,” she said.

Chief Justice Koome’s major challenge will be to deliver justice to Kenyans. With a compromised legislature and an executive that is working on its own agenda, as the custodian of law, the judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

It would be tragic if the Chief Justice were to cede her power to the executive.

Governments have a propensity to oppress and Uhuru Kenyatta’s government isn’t unique in the little regard it has for justice. Justice Koome inherits a judiciary that has been battered to a pulp by the regime; punitive budget cuts, disregard of the courts’ authority, derisive rhetoric. How else can we explain the president’s delay in appointing the 41 judges recommended by the the JSC in mid-2019? Chief Justice Maraga complained that the delay had made work difficult for the courts while  Kwamchetsi Makokha argued that the president’s agenda was to diminish the stature of the judiciary.

I appeal to Chief Justice Koome’s faith to make the judiciary work for Kenyans and in this regard, an episode in Exodus 1 demands our attention since it a turning point in human history. Its heroines are two outstanding women, Shiphrah and Puah. The Pharaoh instructed these two midwives thus: “When you are helping the Hebrew women during childbirth on the delivery stool, if you see that the baby is a boy, kill him; but if it is a girl, let her live” (Exodus 1: 16). But they did not carry out the order: “The midwives, however, feared God and did not do what the king of Egypt had told them to do; they let the boys live”(1:17).

Commenting on the episode, Rabbi Jonathan Sacks termed it as “the first recorded instance in history of civil disobedience”. The two women refused to obey the order of their world’s most powerful man, an order they judged unethical and inhuman. Questioned by Pharaoh they explained: “Hebrew women are not like Egyptian women; they are vigorous and give birth before the midwives arrive,” (1: 19) to which he had no reply.

In refusing to follow the orders, Shiphrah and Puah showed that the ultimate sovereignty lies with God. The notion that sovereignty belongs to the people is a fallacy. Rabbi Jonathan Sacks argues that moral law transcends and may override the law of the state.

The judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

During the 1946 Nuremburg trials, the war criminals’ plea was that “they were merely obeying orders, given by a duly constituted and democratically elected government”. But for the new legal concept of a crime against humanity, the guilt  of the perpetrators of the holocaust would have remained unestablished. Sacks observes that “The Nuremberg principle gave legal substance to what the midwives instinctively understood, that there are orders that should not be obeyed, because they are immoral.” So, any human order transgressing the will of God is by that fact alone ultra vires. Shiphrah and Puah were the first to teach humanity the moral limits of power.

We are a country, it seems, that is bankrupt of goodness. A space filled with the evil that we commit against each other. If we do not cooperate in shunning evil against others, a good judiciary will be as useless as a scarecrow after the harvest. We should do good because that is what a human being is supposed to do.

It confounds me how attractive evil is to others. We give undue attention to the whispers or the shouts of evil. Not that evil does not demand confrontation, but I wonder why it is so elevated.  Toni Morrison, the winner of the 1993 Nobel Prize for Literature, noted that “Evil has a blockbuster audience; Goodness lurks backstage. Evil has vivid speech; Goodness bites its tongue.”

To understand goodness, Toni explored the term altruism, selfless compassion for the “other”. In her research, she learned something about altruism, its weight and its relevance in contemporary thought. What defined goodness for her was an incident that occurred within the Amish community of Pennsylvania in the United States. On the 2nd of October 2006, 32-year-old Charles C. Roberts arrived at the West Nickel Mines Amish School and ordered the male students to leave. He also allowed a pregnant woman and three women with babies to leave. Roberts then lined up 10 girls aged between 9 to 13 and shot them, killing five girls and injuring five others. Then he killed himself.

Although Roberts was not Amish, the community forgave him, refused to seek justice, demand vengeance, or even to judge him. They visited and comforted his widow and children, just as they embraced the relatives of the slain. In refusing to judge Roberts, the Amish community asserted that it was God’s place to judge. They said nothing or very little to outside inquiry, held no press conferences and submitted to no television interviews, only cautioning, “Do not think evil of this man.” They buried their dead, then attended the killer’s funeral the following day. Then they built a new schoolhouse, having torn down the old one.

Their silence following the slaughter, along with their deep concern for the killer’s family, seemed to Toni characteristic of genuine “goodness” or altruism and she became fascinated with the term and its definition.

Toni Morrison found that altruism is not an instinctive act of selflessness, but a taught and learned one. Altruism can also be used to enhance the ego in a desperate attempt to decrease self-loathing. Others have argued that altruism is embedded in our genes to enable the sacrifice of self for others. Such sacrifice for kin and/or community is innate, they claim, and is built into our genes, just as we hold individual conquest of others to be an instinctive drive that serves evolution.

This goodness can be learned. We can be taught goodness until it becomes a habit of helping strangers and/or taking risks for others at our expense. We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet, an unquestioning compassion for all.

Justice John Khamoni (rtd) learnt this goodness and the Law Society of Kenya recognised him for his distinguished service in the administration of justice in 1999, an award which the then Chief Justice barred him from receiving. In 2015 Justice Khamoni was awarded the Justice C. B. Madan prize for his contribution to the administration of justice. Justice Khamoni is in my view an example of altruism within the judiciary.

We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet.

Justice Khamoni’s acts of goodness were carried out at significant risk to his career in the judiciary. In November 1991, at the peak of the calls for political reforms, the movement’s leaders were arrested and charged. A magistrate had refused the bail applications for James Orengo and Luke Obok and the case had come before the newly appointed Justice Khamoni at the High Court in Kisumu. In that charged atmosphere, Khamoni considered the refusal to grant bail on purely legal grounds and both applicants were granted bail.

Justice Khamoni’s vision of the criminal justice system was one that was averse to oppression. He held that the High Court had a duty to prevent vexatious and oppressive prosecutions, instituted for an improper purpose and hence an abuse of the court.

The two midwives, Shiphrah and Puah, acted like good people. As did Justice Khamoni. By their acts we learn that they “feared God”, a generic description of those who have a moral sense.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General? He served as the LSK chairman from 1979 to 1981 and was a member of the UN Human Rights Committee between 1985 and 1992. The honour accorded him and the awe in which he was held reached beyond Kenya to places far away and in countries where the intelligence of Africans is the source of much amusement. Expecting that he would check the Nyayo era excesses turned out to be a futile dream. As head of the state law office, he oversaw the torture and oppression of Kenyans agitating for multi-party politics. Wako witnessed the wanton abuse of human rights without flinching. And although Kenya achieved multi-party rule and change of constitution during his tenure, the KANU government tethered him to the Goldenberg scandal during his entire time as Attorney General which led to his being sanctioned by the US government.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General?

The government is a toxic soil. This we now know. This soil is bad for certain kinds of flowers, to borrow the words of Claudia at the end of Toni Morrison’s The Bluest Eye. Certain seeds this soil will not nurture, certain fruit it will not bear. Can Chief Justice Koome thrive in this soil?

When we say the past is just a prologue, we mean the past should not enslave us; rather we spring into the bright day from lessons learnt from that dark past. Prologue because we follow those such as Shifra and Puah who paved the way.

With weeks to go until the Ugandan presidential election on January 14, 2021, Ugandan readers of The Elephant, an online platform published in Nairobi, Kenya, suddenly could not access its site. Typically, at first, they presumed, the site was down, or was experiencing some normal malfunctions associated with the heavy use of such a platform. So, they really were not duly concerned, they knew the site managers would no sooner fix the problem. But after a week, or so, word started filtering out from Kampala to Nairobi, that The Elephant site had been hacked and interfered with, and the worst thought was that the Ugandan government had shut down the website. Indeed, it had precisely done that. The publisher John Githongo had to explain to the Ugandan readers, on January 14, 2021, why they were experiencing difficulties accessing the site.

“For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country. We have further ascertained that the directive to do so came from the Uganda Communication Commission (UCC) and was implemented beginning 12 December, 2020, when we noticed a sudden traffic drop coming from several providers in Uganda, including Africell and Airtel. We have written to the UCC requesting a reason for the blocking, but we are yet to receive a response.”

The publisher assured the readers that the management had temporarily put in place measures to obviate the blocking: “To circumvent the block, a Bifrost mirror has been deployed.” The Bifrost mirror enabled the readers to access the website through a specially established link.

Yoweri Kaguta Museveni, who was inaugurated on May 12, 2021, in Kampala for his sixth record time, is setting a precedent, that of completely clamping down the entire communication system, that may as well be emulated by other African strongmen. Strongmen like President Museveni, who have no intentions whatsoever of abandoning state power, have come up with ingenious methods, every time they are faced with a general election, of winging the election into their favour.

One of the latest methods is temporarily shutting down the internet. “Museveni has gone a step further, Ugandans could not even use short message service (SMS),” said an Al Jazeera newsman who covered the election. “He also made sure that people with cross-country telecommunication roaming services could not use their mobile phones, hence blocking all forms of mobile telephony communication.”

President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country. Two, that the wonders of the Internet have allowed the platform, to be available to all corners of the country, therefore to anyone, so long as they have a smart phone and can afford some internet bundles.

Towards the end of 2019, I got a Twitter direct message from a Ugandan reader of The Elephant from Jinja town, who told me the publication had become his reliable source of well-analyzed information. When the platform begun writing stories on Uganda, the platform became a must read for him. He told me if there is one thing he uses his internet bundles for, is to download all the stories he wants to read from The Elephant, so as to read them offline later on.

The ‘New Breed’

Yoweri Museveni, it will be recalled, is an ageing East African leader, who in the mid-1990s was part of a group of leaders who were referred to as the “New Breed”. The others were Paul Kagame of Rwanda and Meles Zenawi of Ethiopia. Kagame was then the Vice President and Minister of Defense. Zenawi was until his death in 2012, the Prime Minister. One of the distinguishing characteristics of the “New Breed” leaders was their capacity to control and channel communication effectively to their advantage. So, even as early as in the 1990s, leaders like President Museveni already understood the importance of managing and manipulating information as a way of keeping a stranglehold on state power. In a candid interview, in 1995, one of these “New Breed” leaders told a foreign correspondent that “the handling of information was about the survival of my country”. He could as well have said: it is about my survival to hold onto absolute power.

The influence of the Internet and information communication technology was just beginning to be felt in Africa and savvy political leaders like Kagame and Museveni were alive to the fact that it is the leader who controlled these communication advances that would stay at the apex of power. In essence, they mastered the art of information warfare. Is it any less surprising that the trio become the masters of shutting down the internet every time they are faced with presidential elections?

President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country.

The latest president to shut down the internet during election time was Denis Sassou Nguesso of the Republic of Congo, which was prior to the March 21, 2021 presidential elections. In a continent that has one of the fastest penetrations of the internet worldwide, African rulers aware of the power of the internet in relaying news and mobilizing crowds, have quickly learned that the new weapon for controlling the flow of information and mass control is the shutting down the internet.

Lisa Garbe, an internet researcher who has done some work on internet shutdowns by the authoritarian regimes of Africa, has aptly noted that “internet shutdowns in African have become the new normal.” To be fair to African despots, it is not only them who have been conspiring to shut down the internet: Four months ago, in Myanmar, a military junta, one morning on February 1, 2021, woke up and overthrew the democratically elected government of state counsellor Aung San Suu Kyi. One of the first things it did, was to shut down the internet as a way of checking the flow of information and controlling crowd mobilization.

President Museveni’s chief opponent this time around was a young man – the 39-year-old Robert Kyagulanyi aka Bobi Wine, who was born four years before the 42-year-old Museveni captured state power in Kampala. Bobi considered a local boy, built his fame as a musician from the Kampala ghetto of Kyadondo, where he is the MP for Kyadondo East constituency. Because of being constantly harassed by Museveni’s security agencies, he could hardly hold political rallies. So, he resorted to investing heavily in social media, as a way of reaching his supporters.

But to Bobi’s (late) realization, he was using a campaign tool that was in complete control of his competitor. “Museveni was intent on shutting off Bobi from all information and communication relayed through the internet connectivity, from his legion of supporters: the tech-savvy millennial and Generation Z, whose use of social media is supposedly second nature to them,” said a foreign journalist who covered the election. Today, the millennial and Generation Z, constitute an upward of 65 percent of the total registered voters, hence, form the largest voting bloc in Uganda. “So even if it meant bringing the entire system altogether down, Museveni wasn’t taking any chances.”

Protests against IMF support

In Uganda, as indeed in many African countries including the East African countries of Kenya, and Tanzania, the most popular social media apps that today frighten the political class, are Facebook, Twitter, WhatsApp, YouTube and Telegram, necessarily in that order. Kenyans on Twitter (KOT), a motley crew of ferocious countrymen, for example, rallied in protesting against the IMF lending any more money to the ruling Jubilee Party. Said Grant Brooke, a social economist in Kenya on his Twitter handle: “Kenyans on Facebook and Twitter rejecting IMF lending Kenya government’s more money is a fascinating sign of things to come in global finance. Government might not care, but IMF is certainly sensitive to bad PR.”

On the eve of Museveni’s swearing-in, angry Ugandans unleashed a swift pushback aimed at the German Embassy in Kampala, after it posted a congratulatory message from Angela Merkel to President Museveni. “Hello followers, we are getting a lot of criticisms for this post…that’s OK.” Hoping to calm down the online warriors, the embassy’s acknowledgement only helped to fuel more anger. At night when everyone was apparently asleep, the embassy deleted the Facebook message.

Without information, the few election observers that were allowed into the country, for example, could not collect and collate data on the electioneering process. “But more fundamentally, Museveni made it nearly impossible to report on the election by the assembled media houses – local and foreign,” Al Jazeera claimed. “The internet shutdown took the media houses 20 years back in time. If you didn’t have satellite capabilities you couldn’t operate. Internet shutdowns not only work against the regime’s political opponents, but are also meant to cripple media operations or make it very expensive and difficult to report on the election.” Today, many of the media houses have invested in social media tools that greatly eased their work and lessened their operational costs.

Bringing the entire system down, Museveni wasn’t taking any chances.

“Some of us who could afford, had to resort to B-Gan and satellite phones to transmit information back to our stations,” said the journalist. B-Gan which stands for Broadband Global Area Network, just like satellite today, is very expensive, few media houses can ill-afford to equip all their journalists with the gadgets.”

Authoritarian regimes in Africa may be perfecting the art of shutting down the internet as an advanced form of rigging the elections, but they are not without a helping hand: Suraya Dadoo, a South African journalist in Johannesburg writes about Circles, an Israel telecoms company, which mostly deals with government helps those government, “intercept data from 3G networks, allows the infiltrator to read messages, emails and listen in on phone calls as they occur.”

On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya handed down an important judgment in David Ndii and Others v Attorney General and Others (BBI judgment). The decision struck down President Uhuru Kenyatta’s the “Constitution of Kenya Amendment Bill, 2020”, engineered through the Building Bridges Initiative (BBI), as unconstitutional.  The Constitution of Kenya Amendment Bill was a comprehensive constitutional reform proposal that aimed to introduce some fundamental changes to several chapters of the 2010 Constitution of Kenya to “build a lasting unity in the country.” For example, the redesign of the legislature by bringing the Government back to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies were among the many changes introduced by the Bill.

In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority. The Court found that the Basic Structure Doctrine is applicable in Kenya, that the Constitution of Kenya Amendment Bill is unconstitutional, and that President Kenyatta violated the Constitution in his attempt to amend it through the BBI.

The BBI judgment has already attracted the attention of several scholars. While this case will be further litigated in the Court of Appeal – and we have to wait and see what the final outcome will look like – the judgment offers some unique jurisprudential insights to the Basic Structure Doctrine and transformative constitutionalism. In this column, I analyze the judgment’s contribution to the theory and practice of transformative constitutionalism.

In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority

One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation. This feature of constitutionalism is called transformative constitutionalism. Although transformative constitutionalism may have more normative appeal and descriptive potential to much of the global south, its subject and extent varies widely, and its significance is not limited to the global south.

Even though the normative commitments, theoretical contours, and interpretive frameworks of transformative constitutionalism have been a subject of discussion for quite some time, Karl Klare’s original account captures its essence: transformative constitutionalism is ‘a long-term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’.

As an interpretive project, transformative constitutionalism may require a break from the liberal individualistic conception and its formal distinction between law and politics. As a broader constitutional vision, it mainly aims to transform rather than preserve the constitutional order and its animating socio-economic, political, and cultural systems. While the BBI judgment is transformative, it is transformative in a unique Kenyan way, and this is what makes the judgment so important to the theory and practice of transformative constitutionalism.

Transformative Constitutionalism as a Jurisprudence of History

Out of the 17 broad issues the Court framed for determination, the first two are the most relevant ones to transformative constitutionalism and are related to the Basic Structure Doctrine: Is the Basic Structure Doctrine applicable in Kenya, and if so, what are its implications for amendment powers in Articles 255 to 257 of the Kenyan Constitution?

To answer these questions, the Court first developed what it called a “canon of interpretation” that includes the underlying ethos of transformative constitutionalism: the interpretation of a transformative constitution, like Kenya, requires the rejection of both liberal formalism and the distinction between “law” and “non-law” matters.

Within such canon of interpretation, the Court resorted to history to determine whether the Basic Structure Doctrine is applicable in Kenya. After carefully examining the constitutional history of Kenya since independence – the history of “hyper-amendment culture”, one-party system, imperial presidency, and elite entrenchment – along with the specific history and processes of constitution-making – public participation and people-driven constitution-making processes and efforts, the Court concluded that “Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments” Accordingly, the Court found that “there are substantive limits on the constitutional power to amend the Constitution”. The Court further stated that:

To be sure, there is no clause in the Constitution that explicitly makes any article in the Constitution un-amendable. However, 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. As has been said before, the Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and, at times, against the Political and other elites.

As a result, the Court held, the Basic Structure of the Constitution, which “consists of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution” that form “the core edifice, foundational structure and values of the Constitution”, which could not be exhaustively listed ex-ante but determined on a case-by-case basis cannot be amended through Articles 255 to 257, i.e., through articles that regulate constitutional amendment. The Basic Structure of the Constitution can only be amended “through a similarly informed and participatory process” through the exercise of “Primary Constituent Power”, which is not bound by previous constitutional rules. The Court builds the Basic Structure Doctrine primarily from the constitutional biography of the nation and the ordinary Kenyans’ quest for and right to meaningfully participate in the constitution and reconstitution of their nation.

A Procedural Turn in Transformative Constitutionalism

If the Court’s use of “radical social history” makes it “an example par excellence of transformative constitutionalism”, as Gautam Bhatia beautifully put it, its further engagement with the Basic Structure Doctrine ushers in a procedural turn in transformative constitutionalism, which could open valuable avenues not only to protect constitutionalism but also to advance a more transformative constitutional vision that reflects the will of the people at any given time without necessarily undergoing war or violent revolution.

According to the Court, “the sovereignty of the People in constitution-making is exercised at three levels”: two are within the bounds of the Constitution and one is outside of it. First, according to the Court, the Basic Structure of the Constitution can only be changed through the exercise of “Primary Constituent Power” – i.e., an extraordinary power to radically change the Constitution without being limited by prior constitutional rules or procedures. In Kenya, while this “Primary Constituent Power” is substantively free to change the Basic Structure of the Constitution, it is procedurally limited. It can only be exercised “after four sequential processes are met: civic education, public participation, constituent assembly debates, and referendum”.

One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation.

Second, other parts of the Constitution, which do not constitute the Basic Structure, could be amended either by the “Secondary Constituent Power” – that is “through a referendum subsequent to public participation and Parliamentary process” or by the “Constituted Power” that is by Parliament, both following the amendment procedures provided in Articles 255 to 257 of the Constitution.

The invention of a normatively open and procedurally regulated “Primary Constituent Power” as the defender of the Basic Structure of the Constitution sheds light not only on transformative constitutionalism’s condition of possibility in bringing about a fundamental constitutional change, but also shows its potential in preventing the fermentation of a violent force (such as war or revolution) that brings about and structures the constituent power in the first place. This is particularly important not only to Kenya, but also to much of the global south, where societies may, first, not afford violent revolutions that could destroy the positive socio-economic and political gains and, second, could not be sure of the dividends of the post-revolutionary constitutional outcomes.

Preservative Constitutionalism as Transformative Constitutionalism

The Court found the BBI engineered Constitution of Kenya Amendment Bill unconstitutional because it falls outside of the three permissible methods of constitutional amendment noted above. It held that the BBI process was initiated by the President, in the words of the Court, who cannot be both “the promoter and the referee” or the “player and the umpire in the same match”.

Essentially, the BBI judgment is preservative of the 2010 Constitution of Kenya and its animating values, principles, and structures, which emanate from and are grounded in the notion of popular sovereignty manifested in the public participation and people-driven constitution-making processes and outcomes – the lack of which had troubled Kenya until 2010. While the Constitution of Kenya may require some improvements, like any constitution in the world, it is important to reiterate that it is almost peerless on the African continent both in the way it came into being and in the way it has structured political power and authority. Therefore, a theory of constitutional adjudication that preserves this constitutional framework and vision is no less transformative than an adjudication that enforces socio-economic rights or advances some progressive and egalitarian ideals.

While transformative constitutionalism has been considered as a ‘metaphor of crossing the bridge’ from ‘where we stand today’, largely being the ‘geography of injustice and inequality’, to a ‘promised land of more justice and equality’, the BBI judgment makes it clear that “protecting the bridge” is as transformative as “enabling its crossing”. Finally, if South Africa has exported the notion of “transformative constitutionalism 1.0” in the 1990s to the field of comparative constitutionalism, Kenya has provided “transformative constitutionalism 2.0.” that could expand the theory and practice of transformative constitutionalism in the years to come. The BBI judgment, beyond its jurisprudential contribution to comparative constitutional studies, may inspire courts on the African continent to execute their constitutional duties.

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This article was first published in I·CONnect: the blog of the International Journal of Constitutional Law.