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Looking for New Suitors: Is Israel Trying to Influence the African Continent’s Stance on Palestine?

3 min read.

Israel’s success in getting observer status at the African Union is also a sign of the growing lack of interest among African leaders in the Palestinian issue altogether.

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Looking for New Suitors: Is Israel Trying to Influence the African Continent’s Stance on Palestine?
Photo: Cole Keister on Unsplash

On June 22,  Israel achieved a diplomatic goal it has been working towards for nearly two decades and became an “observer” state at the African Union (AU). “This is a day of celebration for Israel-Africa relations,” Israel’s new Minister of Foreign Affairs, Yair Lapid, stated, adding that the achievement “corrects the anomaly that has existed for almost two decades.” The Ministry of Foreign Affairs explained that Israel’s observer status will enable greater cooperation, “among other things, in the fight against Corona and the prevention of the spread of extremist terrorism throughout the continent.”

The latter is a somewhat disingenuous claim, given that Israel’s international cooperation strategy is virtually non-existent, and that its global “counterterrorism” agenda is largely focused on selling technologies of oppression to autocrats. In reality, the key objective behind Israel’s longstanding effort to gain access to the AU has been undermining Palestinian efforts to influence the continental stance on the situation in Israel/Palestine, and by implication, the stance of independent African states on the matter. Palestine has long had an observer status in the AU. President Mahmoud Abbas is regularly given the opportunity to address the organization’s summits. But if African states are expected to follow the position set by the AU when casting their votes in other international fora, Israeli officials believe, then an Israeli ability to influence decisions at the AU could have significant political implications.

There are more than 70 states and NGOs that are accredited to the AU. For most, this is not a particularly big deal. But for Israel this has long been a major diplomatic objective with considerable symbolic weight. Israel used to be an observer state at the Organization of African Unity in the 1990s but was denied this status when the AU was founded in 2002. Muammar al-Gaddafi, who donated to the new institution in an effort to project his own influence in Africa, opposed any Israeli presence. Since his ousting in 2011, and as part of Israel’s “return” to Africa over the past decade, Israeli leaders and diplomats have been trying to mobilize their allies in the continent to advocate for Israel’s admission to the AU.

The main obstacle, however, was the objection of several states—“mostly Arab states but also other African states,” an Israeli diplomat previously explained—among them South Africa and Egypt. Ambiguity with regard to the exact procedure required in order to approve the granting of an observer status to a non-African state and the number of AU member states that need to support such a decision, made it easy to rebuff Israel’s appeals in the past. An application submitted by Jerusalem to the previous Chairperson of the AU Commission, South Africa’s Nkosazana Dlamini-Zuma, was not approved. The argument has commonly been that there are not enough African states supporting the bid.

Several things have changed over the past year. One was Israel’s normalization of diplomatic ties with Sudan and Morocco, as part of the US-backed Abraham Accords, which followed Israel’s normalization of ties with Chad in 2019. Another was the replacement of South African president Cyril Ramaphosa with DRC president Felix Tshisekedi (who has been making efforts to strengthen ties with Israel) as the Chairperson of the AU. Israel’s increasingly constructive ties with Egypt—with Cairo apparently hoping to improve its relationship with Washington as well via Jerusalem—also seem to have helped. All of this has made it easier for Israel to embark on another campaign in recent months to gain access to the AU, led by the new head of the Africa section in the Ministry of Foreign Affairs, Aliza Bin-Noun.

To the extent that the move was supposed to attract attention from Washington, it seems that it worked. US Secretary of State Antony Blinken was quick to congratulate the AU “for its leadership in building bridges and creating new avenues for exchange,” adding that the US welcomes “Israel’s return to the African Union as an observer as part of our support for broader normalization.” But while Israel made sure to publish this latest victory as widely as possible, the AU’s own statement on the matter, has been less celebratory. A press release from Faki’s office merely stated that the Chairperson “received credentials” from Israel’s ambassador to Addis Ababa and that he used the opportunity to “reiterate” the African Union’s longstanding support of the two-state solution.

This reiteration of support of “peaceful co-existence” notwithstanding, the timing of this development—weeks after the Unity Intifada across Palestine/Israel and a wave of global protests in support of Palestinian liberation—tells another, bleaker story. It testifies not only to the irrelevance of the Palestinian Authority in countering in any meaningful way Israel’s ongoing international efforts to mobilize support for its apartheid policies, but also to the growing lack of interest among African leaders in the Palestinian issue altogether. With no concrete policies upon which members have any intention to act, it seems, the AU’s rhetoric of solidarity with Palestine is becoming increasingly hollow—an old ritual that is no longer meant to achieve anything in particular apart from appeasing a few disgruntled critics.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Yotam Gidron a researcher and author of 'Israel in Africa: Security, Migration, Interstate Politics' (Bloomsbury, 2020).

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Cyberspace: The New Battleground for Competing Norms

A proposal by Russia that the United Nations should consider a global cybercrime treaty has been adopted with the support of 30 African countries, raising concerns that Moscow’s known preference for state cyber sovereignty will prevail in ways that give countries regulatory freedom to stifle political opposition or citizen dissent.

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Cyberspace: The New Battleground for Competing Norms

Early in July 2021, cyber attacks originating from Russia prompted US President Joe Biden to call for action from Moscow. This, Biden said, was conveyed to Russian President Vladimir Putin during an hour-long phone call. While the Kremlin denies the US even contacted Moscow about the attacks, recent events have promoted debate around the responsibility of state actors, including Russia, in cyberspace.

That country’s attempts to promote or resist norms around traditional global governance areas are well documented. It is known to offer a more conservative approach towards issues of human rights and military intervention, for example. And now it is under scrutiny in newer areas of contestation, including cyber governance and cyber security.

Over the past five years, Russia has become an active promoter of cyber governance norms. As it continues to push its cyber proposals on the international stage, where does Africa stand? Do growing relations between Africa and Russia mean they always share the same stance?

‘Splinternet’ or global infrastructure?

Moscow’s cyber norm promotion is closely linked to its national interests. Russia seeks to reclaim its stature as a global power (including in the technology landscape), but is also interested in how cyberspace can be harnessed for domestic purposes.

In deciding whether the internet should remain a global infrastructure or become a “splinternet” (controlled nationally), Russia and China are proponents of cyber sovereignty. They argue that countries should manage their own cyberspace and that the internet should be bordered and thus restricted.

This has led to a range of concerns around internet freedoms, from the censorship of political content online to large-scale internet shutdowns (a practice that has gained traction in some parts of Africa, Asia and the Middle East, especially around elections or public protests). While traditionally opposed by the US and other democracies, the ability to confront cyber threats, conduct surveillance and enforce regulations on harmful content such as child pornography and terrorist propaganda, means the idea of cyber sovereignty is gaining ground in the Western world too.

In promoting this cyber norm, Russia seeks to pull as many countries as possible into its orbit to enhance its soft power capabilities. At the UN in 2018, a Russian-proposed working group, open to all UN member states, garnered the support of 109 countries. Many of these countries were African, demonstrating international interest in discussing cyber norms in terms favourable to Russia.

Of the working group’s initiatives, capacity-building efforts to enhance countries’ abilities to protect their ICT environment may particularly appeal to African states who perceive themselves as lagging. Indeed, the rise in cybercrime — with critical national services often affected — has seen cyber security become an issue of international concern.

African support for Russian cybercrime resolutions

Russia is a major supporter (and sponsor) of several international cybercrime resolutions at the UN. In December 2018, a Russia-backed resolution that required the UN Secretary-General to collect countries’ views about cybercrime was adopted by a majority vote. Of the 88 countries that voted in favour, 32 were African. Only four African countries — Botswana, Ghana, Morocco and South Africa — submitted their views, but all four listed lack of state capacity and lack of international consensus as major challenges in combating cybercrime. These and other views were summarised into a report for consideration by the General Assembly.

Moving the ball forward once more, in December 2019, Russia succeeded in pushing through a UN General Assembly resolution that aimed to create a negotiating platform, under UN auspices, for the consideration of a new cybercrime treaty. This move was strongly opposed by the US which expressed concerns that this resolution would stifle existing global anti-cybercrime efforts. But with 79 votes in favour, including 30 from Africa, the resolution was adopted. Officers were elected to the ad hoc committee in May 2021 and it has been agreed that six negotiating sessions will take place before the possible adoption of a treaty.

One of the major concerns with Russia’s resolution is its vagueness around the definition of cybercrime. Not only could this lead to legal uncertainty among countries, but could perhaps provide Russia with the regulatory room it needs to stifle political opposition or citizen dissent. A month before Russia’s UN resolution was passed, amendments to domestic legislation allowing the government to block internet traffic from outside Russia came into force. Human Rights Watch said the laws undermined freedom of expression and privacy.

How do Africa’s own cybercrime initiatives compare with Russia’s international efforts?

“A global governance system will be important,” Tomiwa Ilori, researcher at the University of Pretoria’s Expression, Information and Digital Rights Unit, told SAIIA. But African countries need to be wary of external influence, he said. “When deciding on a framework, a human rights-based approach should be used.”

An African Union Convention on Cyber Security and Personal Data Protection was adopted in 2014, but has yet to meet the minimum number of ratifications required for it to come into force. The convention references the need for regulatory frameworks to respect the rights of citizens, but it does not establish a framework for all member states. Instead, it encourages signatories to draft their own legal, policy and regulatory measures to manage cybercrime.

Almost 40 African countries have introduced legislation that deals with cybercrime. Some of the laws, like Russia’s UN resolution, are vaguely worded while others are similar to the European Union’s General Data Protection Regulation — an earlier attempt to establish uniform cyberspace policies across countries.

This tells us that as a continent of 54 states, African views on cyber governance are not homogenous. And while many share a preference for cyber sovereignty, particularly as a means to quash political dissent, African countries do have some level of agency when it comes to adopting a model. With cyberspace fast becoming the new battleground for competing norms and influence, there is also a role for civil society in Africa to continue advocating for cyber freedoms.

This article was first published by the South African Institute of International Affairs (SAIIA).

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Court of Appeal’s BBI Judgment: The IEBC as a Fourth Branch Institution

The IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation.

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Court of Appeal’s BBI Judgment: The IEBC as a Fourth Branch Institution

If you were to draw one of those Venn Diagrams that are so popular as internet memes these days, for the BBI Judgment, the Independent Electoral and Boundaries Commission [“IEBC”] would be at the centre. Established under Article 88 of the Constitution (see here), the IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation (see Article 88(4)). In the BBI Case, the IEBC was involved in a range overlapping issues: one of the grounds for challenging the Constitution Amendment Bill was that by directly altering constituencies, it took away the prescribed function of the IEBC; and furthermore, since the IEBC plays an important part under Article 257, its own conduct during the Popular Initiative came under scrutiny. Let us take some of these issues in turn.

The Constitution Amendment Bill and the IEBC

Recall that one of the features of the Constitution Amendment Bill was the creation of seventy new constituencies, allocated to twenty-nine counties. This had been invalidated by the High Court, on the basis that the independence of the IEBC and its constitutionally guaranteed role of delimitation was itself a part of the basic structure. Agreeing with this analysis, Musinga (P), in his lead judgment (with which Gatembu Kairu JA agrees), frames the issue as one of political gerrymandering (paragraph 292) (thus implicitly agreeing with Respondent’s counsel during oral arguments, where it had been pointed out that constituencies are essentially sources – and terrains – of political and resource patronage). This point is strengthened by the fact that the criteria in the Second Schedule to the Constitution Amendment Bill to determine the manner of increase of constituencies were different from the criteria set out in Article 89.

This, coupled with the fact that the Second Schedule to the Constitution Amendment Bill would essentially set up two parallel – and conflicting – power centres with respect to delimitation (without deleting Article 89(2)) allow Musinga J to hold that in any event, the creation of additional constituencies via amendment is unconstitutional (paragraphs 416 – 417; see also Nambuye JA, paragraph 150).

The deeper rationale for this is provided in Kiage JA’s opinion. Kiage JA notes:

The protective role of independence commissions over the sovereignty of the people is of critical and vital importance and can only be attained by a jealous and uncompromising assertion, exercise and defense of their independence. I apprehend that it is independent commissions alongside the Judiciary which must police and patrol the lines of delegation of the sovereignty of the people to Parliament and the legislative assemblies in the county governments, the national exercise and the executive structures in the county governments, and the Judiciary and independent tribunals. Independent Commissions are charged with duty of vigilantly and keenly ensuring that the State organs to which sovereign power is delegated maintain the stance of delegates accountable to their principals, and remain always the servants of the people. (pg 187)

These comments chime with a growing trend in comparative constitutionalism, which is the recognition of “Fourth Branch Institutions” as crucial guarantors of constitutional democracy. Information Commissions, Elections Commissions, Ombudspersons (such as, for example, South Africa’s Public Protector or India’s Comptroller and Auditor General), are examples of such bodies. Their importance lies in the fact that as far as certain fundamental rights are concerned, their effective realisation is impossible without a kind of institutional mediation.

The right to vote, for example, needs an election commission to be realised; similarly, the right to information needs an information commission; and so on. Consequently, the independence of such bodies is an integral feature of the complete fulfilment of the right itself, and insofar as issues such as the membership and functions of those bodies are to be determined by legislation, such legislation must (a) be framed so as to ensure that the right is actually realised, and (b) once framed, attains the status of a “constitutional statute.” While a range of these issues were, of course, not before the BBI Court, Kiage JA’s observations – specifically about the role of commissions in ensuring accountability – gesture towards a recognition of the constitutional status of Fourth Branch institutions, and all that such recognition entails.

Kiage JA’s observations are also a response to Sichale JA’s dissent. As the High Court had held, amending Article 89 itself was permissible as long as the procedures under Articles 255 – 257 were followed. Thus, hypothetically, the total number of constituencies could be increased via a procedural amendment. However, the manner in which this increase took place would have to be such that the independence of the IEBC in matters of delimitation (which constitutes a part of the basic structure) was not compromised. Thus, the issue with the Constitution Amendment Bill was not that it sought to increase the number of constituencies, but that it sought to cut the IEBC out of the process altogether.

Sichale JA then argues that a mere increase in the number of constituencies does not amount to a “delimitation” exercise. With respect, this argument appears to play upon a distinction without a difference: the seventy new constituencies will not be created out of a vacuum. They must necessarily be carved out of existing constituencies, thus – ipso facto – altering boundaries and in effect (even if not formally) becoming an exercise in delimitation. It is this that the majority finds must require the independent assessment of the IEBC before any increase in the number of constituencies is effected. Indeed, Tuiyott JA grasps precisely this point when he notes that:

Further, section 1(2) identifies the counties where the additional seventy constituencies will be located. In doing so, delimitation in respect to these 70 constituencies is in a sense pre-set without the involvement of IEBC as they are already allocated to counties set out in the schedule. (paragraph 234)

The IEBC: Questions of Process

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds: an absence of quorum, the absence of an adequate legislative framework, the absence of mechanisms for voter registration, and so on. On almost all the counts, the IEBC was found wanting, both at the High Court, and at the Court of Appeal. By a majority, the Court of Appeal affirmed the High Court’s findings that:

  1. That the minimum quorum requirement for the IEBC to carry out its functions was five members (an understaffed IEBC, following a spate of resignations, did not meet this). This finding required the Court to engage with two potentially conflicting precedents on this point (Katiba Institute and Isiah Biwott); it was ultimately held that the judicial invalidation of a prior attempt to amend legislation and bring down the quorum meant that, as per law, the quorum stayed at five (but see Tuiyott JA’s opinion for the same outcome, albeit with different reasoning).
  2. That, prior to the Popular Initiative, the IEBC had failed in its obligation to demonstrate continuing voter registration, which would have ensured that there was a sufficient degree of correspondence between those who were entitled to vote, and actually registered voters.
  3. That the task of the IEBC under Article 257 was not simply a head-count of the million votes, but a basic level of verification as well (based on the IEBC’s own previous documents). The IEBC, however, failed to put into place a mechanism for verification; and the Administrative Procedures that it did put into place failed the threshold requirement for such secondary legislation (including, for example, that of public participation).
  4. That there did not exist an adequate legislative and regulatory framework for the conduct of referenda (the provisions in the Elections Act were unfit for purpose, especially considering the seriousness of a referendum under Article 257).

The analysis here concerned detailed engagement with Kenyan statutory and administrative law. Upon this, I am not qualified to comment, noting only that I found Tuiyott JA’s opinion the most granular and instructive (although his reasoning departs from the majority in certain respects). However, there are two larger public law points that I want to briefly flag. The first is the Court’s insistence that the importance of referenda required, in essence, the strictest possible compliance by constitutional authorities. When you survey global constitutional jurisprudence, you find two approaches. One is what may be called a “leeway” approach: that the undertaking of complex administrative tasks requires play in the joints, and that therefore, upon challenge, a Court will allow the State to get away without strict compliance with law, as long as there is substantive compliance (a theory familiar, perhaps, from contract law).

The other, however, is closer to criminal law: that it is the precise importance of the issues at stake that require any deviation from the established procedure to be treated with great seriousness. Across the Court of Appeal’s judgments, the point that a an amendment to the Constitution is a matter of paramount importance. Consequently, issues such as quorum – which would appear to be minor procedural flaws that should not vitiate an exercise of scale – attain the same degree of gravity as the exercise itself, and cannot be lightly brushed aside.

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds

The second point ties in with the first half of the post, and brings us back to the point of constitutional statutes. It is interesting to note that the Court of Appeals is pellucidly clear on the point that the implementation of the Popular Initiative required the enactment of a legislative scheme (although the High Court did hold – and Tuiyott JA affirms – that for something like Article 257, the legislature’s failure to act should not be held against the People, and that consequently, a procedure that is constitutionally compliant will still pass muster).

This comports with the view that certain fundamental rights are incomplete without legislative instantiation, and raises a host of interesting questions about how statute and Constitution are to be read together, when that legislation does come into existence. It has been argued by scholars that constitutional statutes are a kind of “super statute”, their status somewhere between ordinary law and constitutional law. Indeed, the precedent in Katiba Institute, involving the striking down of the attempt to reduce quorum – as discussed above – is a good example of how, once a legislative scheme does exist to instantiate a set of rights, certain kinds of clawback, or regression, will not be treated as a simple legislative amendment, but an actual constitutional violation (see here). (And this is why I respectfully disagree with Tuiyott JA’s argument that even when the revised Quorum provision was struck down in Katiba Institute, the older one did not revive; Musinga (P)’s reasoning that the older provision stays in force is closer to the theory of constitutional statutes).

For example, suppose that tomorrow Kenya enacts a Referendum Act, which follows the Court of Appeals judgment and prescribes a “unity of content” approach towards the framing of referendum questions. Now suppose that a future Kenyan Parliament decides to amend that Act to allow for a “lumping” of questions a la BBI. The theory of constitutional statutes will allow a Court to strike down such an amendment on constitutional grounds. The argument will be that once a statutory framework has been established to instantiate a certain constitutional right, it is not open to Parliament to retrogress and once again bring the legal position to that of non-compliance from compliance.

Of course, none of these questions were before the Court of Appeals. I believe, however, that the theory of constitutional statutes forms an unarticulated major premise of the Court’s findings on adequacy of legislative framework. It will therefore be exciting to see whether, in a future case where the question is front and centre, the concept attains full articulation.

The BBI Appeals also considered a range of other issues, such as Presidential immunity, the question of service upon the President, the role of County Assemblies, the inclusion of the Kenyan National Union of Nurses, cross-appeals, and many others.

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BBI Appeal: The Doctrine of Basic Structure Revisited

On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya, where the Constitution Amendment Bill of 2020, containing seventy-four proposed amendments to the 2010 Kenyan Constitution, had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions.

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BBI Appeal: The Doctrine of Basic Structure Revisited

The Court of Appeal’s judgment comes in at a formidable 1089 pages, with all seven judges writing separate opinions. Very helpfully, however, the Court has also provided a disposition (here), that sets out eighteen findings along with the bench-split on each issue. This immediately obviates any confusion about what the judgment is, and leaves us free to focus on the Court’s reasoning. In brief: on almost all significant issues, with fluctuating majorities, the Court of Appeal upheld the judgment of the High Court, and affirmed the finding that the Constitution Amendment Bill 2020 was unconstitutional.

In the following series of posts, I propose to analyse the Court of Appeal’s judgment(s), thematically. I will begin with the issue of the basic structure. As the disposition indicates, the Court held that the basic structure doctrine is applicable in Kenya (6-1), that it provides an implied limitation upon the amendment process set out in Articles 255 – 257 (5-2), and that the basic structure can be altered only through an exercise of primary constituent power – i.e., a recreation of the conditions under which the Constitution was founded, which include a four-step process of civic education, public participation, Constituent Assembly Debate, and a referendum (4-3).

Amendment or Repeal: The Heart of the Issue

I will begin with the judgment of Kiage JA, as – in my reading – on the issue of the basic structure, it is the “lead judgment”. Kiage JA’s analysis of the basic structure issue is found between pgs 5 – 98 of his judgment. At its heart, Kiage JA’s argument is a straightforward one, and follows the logic of basic structure judgments across the world, namely that (a) there is a distinction between “amendment” and “repeal”, and (b) repeal can either be express, or implied. The latter form of repeal can take place through a set of amendments that are fundamentally inconsistent with the Constitution as it stands. At pg 83, thus, he notes that “amendments always presuppose the existence of the constitution with which they must be consistent, and which they cannot abolish.

In my analysis of the arguments before the Court of Appeal, I had pointed out that the Appellants’ reliance on Article 1(1) of the Kenyan Constitution was counter-productive, as the words of that article – “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” – presuppose the existence of this Constitution; amendments that amount to implied repeal, however, are no longer operating within the framework of “this” Constitution. This is the argument that effectively forms the basis of Kiage JA’s acceptance of the basic structure doctrine: that, just like a house no longer remains a house if you knock down its foundations and pillars (as opposed to merely redecorating it), this Constitution no longer remains this Constitution, if your amendments are such that alter its identity.

Direct Democracy under Articles 255 and 257: The Kiage JA/Okwengu JA/Sichale JA Debate

Now, while this argument is a persuasive argument for adopting the basic structure doctrine per se, in the Kenyan case there is an added wrinkle. And that is that the ten “core” themes set out under Article 255 already require a referendum in case they are to be amended; and furthermore, a “popular initiative” under Article 257 also requires public participation and a referendum. For this reason, the core of the Appellants’ case before the Court of Appeal was that the concerns that the basic structure doctrine sought to address had already been addressed within the Kenyan Constitution: by having a mix of representative and direct democracy in its amendment provisions, the framers of the Kenyan Constitution – and, by extension, the People – had provided for an eventuality where any amendment to the basic structure could not be accomplished solely by the representative organs, and would have to go to the People.

Indeed, if we study the dissenting judgment of Okwengu JA, we find that it is precisely this argument that she finds persuasive. In paragraph 76 of her judgment, Okwengu JA notes that:

This means that the popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried. (paragraph 76)

Okwengu JA then goes on to note that the “basic structure” of the Kenyan Constitution has already been identified in Article 255 – through the setting out of ten thematic areas that require a referendum if they are to be amended – and a specific process for its alteration (involving the People) has been set out:

That is to say that the framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. This is a clear indication that in regard to amendments, the Constitution of Kenya, 2010 is explicit and self-sufficient. (paragraph 82)

We find something similar in the dissenting judgment of Sichale JA. Sichale JA finds particularly persuasive the Appellants’ argument that what distinguishes India from Kenya is that Article 368 of the Indian Constitution limits the amending power to a (representative) Parliament, while Articles 255-257 of the Kenyan Constitution explicitly envisage a role for the People (pg 29). She then goes on to note that the scheme of Articles 255 – 257 specifically respond to the pathologies identified in Kenya’s past, and their solution is found within the text itself:

Indeed, the 2010 Constitution was informed by Kenya’s dark past and its citizenry were determined “Never Again” shall we have a Constitution that can be amended at will. In the formulation of the 2010 Constitution, a conscious effort was made to ensure that we do not have hyper-amendments. (pg 37)

This is, thus, a powerful argument – commanding the acceptance of two Justices – and one that deserves a response. And in Kiage JA’s judgment, we find three responses: conceptual, historical, and theoretical. Conceptually, Kiage JA points out – taking forward the argument set out above – that by definition, if you want to replace the Constitution instead of amending it, you must go outside of the Constitution and not within it (what the High Court referred to as the primary constituent power) (pg 59). Historically, Kiage JA endorses the High Court’s historical analysis of the detailed public participation that went into the making of the Kenyan Constitution, as well as the desire to avoid hyper-amendments, but he also goes further: he locates a core pathology of post-colonial African constitutionalism as that of excessive centralisation of power within the figure of the President (this is crucial for another aspect of the appeal, which I will deal with in a future post) – and how this centralisation of power enabled various Presidents to shrug off constitutional checks and balances through the process of amendments:

It is a sad blight on Africa’s post-independence experience that no sooner did the nations gain independence than the power elites embarked on diluting and dissolving all restraints on power and authority, a blurring and final obliteration of checks and balances and a concentration of power in the Presidency. They did this principally through facially legal and constitutionally compliant changes to their constitutions. (pg 53)

Kiage JA goes on to argue that Kenyans were entirely aware of this “in their search for a new constitutional paradigm” (pg 53), and that this found reflection in the CKRC Report. Crucially, Kiage JA then uses this argument to segue into his third point, which is a democratic-theoretical point: relying upon the work of Yaniv Roznai and others, he argues that by themselves, referenda can be top-down, imposing a set of pre-decided choices upon a passive population. The fact, therefore, that Articles 255 and 257 contemplate a referendum is not sufficient justification to argue that the the reason why the basic structure doctrine exists in the first place has been adequately addressed within the Constitution itself: “an effective bulwark against abusive constitutionalism therefore seems to me to be, on the authorities, one that entails more as opposed to less people involvement.” (p. 96)

The popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried

We are now, therefore, in a position to reconstruct the essence of Kiage JA’s argument: first, that amendment and repeal are two different things; secondly, that therefore, constitutional alterations that fall in the latter category amount to reconstituting the Constitution, and must be taken to the People exercising primary Constituent power; and that thirdly, the existing provisions for direct democracy and referenda under Articles 255 to 257 lack the extent and guarantees of public participation that would – in light of Kenyan constitutional history – be sufficient safeguards against abusive constitutionalism. Thus, the High Court’s finding regarding the basic structure doctrine and the four-step participation process is correct and ought to be upheld.

The Analysis of the Other Judges

Now, what of the other judges? In large part, they agree with Kiage J’s analysis (see the analysis of Nambuye JA, paragraphs 62 – 65; Kairu JA, paragraphs 32 – 55; Tuiyott JA, paragraphs 25 – 34). Some additional points are added by Musinga (P). The analysis of Musinga (P) begins at para 272 of this judgment. Musinga (P) agrees with the basic point that “any amendment that alters constitutional fundamental values, norms and institutions cannot pass as an amendment, it is in the nature of dismemberment” (paragraph 285). He then spends substantial time on illustrations: in particular, he focuses on the proposed addition of a judicial ombudsman to the Constitution, a Presidential appointee whose presence, he argues, constitutes an “ingenuous and subtle claw back to the independence of the Judiciary.” (paragraph 288). He undertakes a similar analysis for changes in the legislature, which seek to convert Kenya from a Presidential to a hybrid-Presidential system, and to the controversial issue of delimitation, where he finds that the proposed amendments attempt to take away the determination of this question from an independent constitutional body (paragraph 292).

Interestingly, Kairu JA – while agreeing with the High Court’s historical analysis and finding on the basic structure – differs as to the application of the doctrine. He finds – along with Okwengu JA on this point – that the basic structure has already been identified by the Constitution, via the ten thematic areas of Article 255(1). He then holds that while these provisions may be amended (following their stipulated process), there is a complete bar on their “dismemberment”. This actually brings Kairu JA’s finding very close to the classical (or, shall we say, Indian) version of the basic structure, and – incidentally – cuts the majority in favour of alteration of the basic structure via the four-step exercise of primary constituent power, to a wafer-thin 4-3.

The Identification of the Basic Structure

One final point: the disposition does not specify the question of what constitutes the basic structure of the Kenyan Constitution. And by my count, there is no clear majority on this point. Out of the six judges who agree that the Kenyan Constitution does have a basic structure, a plurality of three (Okwengu, Kairu, and Tuiyott JA) hold that the basic structure is to be found under the ten thematic areas of Article 255; two Justices (Musinga (P) and Kiage JA) agree with the High Court that the enquiry is to be undertaken on a case to case basis; and Nambuye JA does not express an opinion on this point.

As historians of the basic structure doctrine will know, there is something almost deliciously fitting about this.

The Kenyan Constitution’s amendment provisions are singular in their detail, the obvious care with which they have been crafted, and the attention that has gone into their design. There is a reflective mix of representative and direct democracy, and the articulation of a hierarchy of norms within the Constitution – two classic features of the global basic structure doctrine. Despite this, five judges at the High Court and five out of seven at the Court of Appeal ultimately found that despite all this textual detail, there exists an additional, implied limitation upon the amending power, in the form of the basic structure doctrine.

For the reasons that I have provided in my previous analysis of the High Court judgment, and for the reasons above, I believe that both Courts are correct on this point. It is important to note that the singular Kenyan amendment provisions have called forth a singular solution: departing from global basic structure doctrine, neither the High Court nor the Court of Appeal has held that any provision of the Kenyan Constitution is unamendable per se; but rather, even the basic structure can be amended, subjected to procedural and procedural/substantive constraints that aim to replicate the participatory character of its founding.

The framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment.

But at the end of the day, I believe that the two Courts are correct for an even simpler reason: the very existence of the BBI and the Constitution Amendment Bill. The fact that this case came to Court at all shows that notwithstanding the care with which Articles 255 – 257 were crafted, it was still possible for to push through far-reaching constitutional changes, via a top-down elite political pact, while still staying within the formal constraints of the Constitution.

Now of course, the counter-argument will be that all the two judgments have actually achieved is replaced the elite political pact with gatekeeping by a judicial elite (and indeed, we find echoes of this fear in Sichale JA’s dissent). To this, only one answer can be made: that if future judicial decisions on this point reflect the clarity of reasoning and self-awareness exhibited by these two judgments, then fears of a judicial capture will likely not come to pass; but that, of course, is something that only time will tell. In this sense, the basic structure doctrine is a bit like HLA Hart’s famous rule of recognition: nothing succeeds like success.

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