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.

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.

Article 257 of the Kenyan Constitution is one of the most interesting constitutional provisions that I’ve seen. Titled “Amendment by Popular Initiative”, it sets out ten steps for amending the Constitution, which ostensibly begin with the collection of one million signatures of registered voters, and end with a referendum. In between, there is the involvement of the representative organs (Parliament and County Assemblies) as well as a fourth-branch institution (the Independent Electoral and Boundaries Commission, or the IEBC). If each of these ten steps is completed – with its mixture of direct and representative democracy, and the participation of independent constitutional bodies – the Constitution stands amended by Popular Initiative.

As the Constitution Amendment Bill 2020 was going down the Popular Initiative Route, Article 257 was at the heart of much of the litigation, both before the High Court, and the Court of Appeal. Out of the twenty-one thematic issues framed in paragraph 50 of Musinga (P)’s lead judgment, I counted six that were directly about the interpretation of Article 257, and a few more that were ancillary. For the sake of simplicity, I propose to analyse three issues here.

1. While the “promoters” of the BBI initiative were Mr Dennis Waveru and the Hon. Junet Mohammed, it was strongly urged that the actual force behind the initiative were H.E. President Uhuru Kenyatta and the Hon. Raila Odinga. This then led to a mixed question of fact and law: on fact, who was actually behind the initiative; and on law, if it was the President, then does Article 257 contemplate a situation where the President sets the popular initiative process in motion?
2. The Constitution Amendment Bill contained seventy-four proposed constitutional amendments. Does Article 257 allow for this kind of a “package deal” to be put to a referendum, or does it require each proposed amendment to be put to the People in a separate referendum?
3. What are the standards of public participation contemplated by Article 257, and did the BBI process meet those standards?

According to the Disposition, the Court of Appeal (i) unanimously held that the President was behind the BBI initiative, and that this was unconstitutional; (ii) by a 4-3 majority, held that separate amendments need not be put to the People as individual referendum questions; and (iii) did not specifically pass any orders on the third issue. Let us now consider each in turn.

Top-Down or Bottom-Up?

On the issue of who really was behind the BBI initiative, the findings are fairly straightforward. The lead judgment of Musinga (P) traces the chronology as follows: the “handshake” between H.E. President Uhuru Kenyatta and the Hon. Raila Odinga; the establishment, by the President, and through a formal gazette notification, of the BBI Taskforce; the establishment, also by the President, and also through a formal gazette notification, of the BBI Steering Committee; and the coming-into-being of the Constitution Amendment Bill 2020 as an annexure to the Steering Committee Report. Musinga (P) therefore holds:

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President. (paragraph 312)

During proceedings before the Court of Appeal, Appellants had nonetheless argued that the BBI Taskforce and the BBI Steering Committee were distinct from the BBI Secretariat, a voluntary alliance of political parties, and from where the actual promoters of the initiative under 257 (Mr. Waveru and Hon. Mohammed) came from. Musinga (P) rebuts this point by noting that constitutional amendment proposals were clearly within the terms of reference of the BBI Steering Committee (paragraph 321), evincing a clear intention to start the process under Article 257. Thus:

Considering the way the Amendment Bill was developed and processed, it cannot pass muster as a popular initiative. The Bill came into being after “the President and Commander –in-Chief of the Defence Forces” appointed the BBI Taskforce which prepared a report and presented it to the President, who in turn set up the BBI Steering Committee that eventually drew up the Bill. It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative. (paragraph 325)

We find similar analysis in the other judgments (see Nambuye JA, paragraphs 66 – 71; Okwengu JA, paragraph 136, 154 – 158; Kiage JA, pgs 101 – 107, 118 – 121; Gatembu Kairu JA, paragraph 83; Sichale JA, pgs 67 – 69; Tuiyott JA, paragraphs 66 – 78, for a particularly detailed examination of affidavits).

Musinga (P) then affirms the High Court’s historical analysis, according to which a clear distinction was drawn between amendments initiated “by the People”, and those initiated by the “political elite”, with the BBI falling clearly within the latter category. A perusal of the CKRC Report reveals that the entire purpose of what eventually become Article 257 – and its passage through multiple draft Constitutions through the 2000s – was to release the amendment process from parliamentary monopoly, and provide an avenue whereby the public could be involved, not just at the end of the process (through a referendum), but at the point of initiation.

Now, what of the argument that the President could nonetheless initiate the process “in his capacity as a private citizen”, exercising his own constitutional rights? Here, Musinga (P) affirms the High Court’s conceptual analysis, noting that the Kenyan Constitution itself recognises the distinction between representative and direct democracy; consequently, a provision that expressly contemplates the latter process cannot be usurped by representative organs (paragraph 348). Other judges agree (see Nambuye JA, paragraphs 99 – 101; Okwengu JA, paragraphs 110 – 112, and also paragraph 152, noting that the President cannot “temporary remove his executive mantle”; Kiage JA, pg 108 – 110; Gatembu Kairu JA, paragraphs 77 – 81, Sichale JA, pgs 69 – 72; Tuiyott JA, paragraphs 49, 52 – 55).

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President

I want to make two further points here. The first is that during oral arguments, Appellants pointed out a situation where the President’s agenda would be stymied by an opposition-dominated Parliament (the famous “veto points”, to borrow a term from American Presidentialism), leaving them no choice but to take their case to the People directly. Article 257 facilitated this. This argument is acknowledged by Kiage JA, but his response is, essentially, “too bad, the Constitution doesn’t allow for that.” I think, however, that Kiage JA does indeed answer this question, but as part of his basic structure analysis (see previous post). In his analysis of comparative constitutional history, Kiage JA notes how the “Imperial Presidency” came to dominate African constitutionalism after the first wave of decolonisation in the 1960s, and he goes on to argue that the 2010 Kenyan Constitution is a response – inter alia – to the pathologies of the Imperial Presidency.

This is a crucial point, because the arguments in the context of Article 257 reveal the stakes here. As multiple Justices note, the text of Article 257 does not specifically bar the President from initiating or promoting the popular amendment process. The question then becomes, how do you resolve this constitutional silence? Now if you think of the Presidential system as set out under the 2010 Constitution as empowering the President against the kind of veto-points that one finds in the United States, then the Appellants’ arguments would be persuasive; however, if you think that the 2010 Constitution was meant – inter alia – to check the Imperial Presidency, then ambiguities and silences should be resolved in favour of veto points and against expanded Presidential power. As is clear, this debate goes right to the fundamental premises of the 2010 Constitution – its “basic structure”, one might almost say! And consequently, which side one takes on this will have implications beyond this judgment, in future litigation concerning Presidential and executive powers. None of the judgments in the Court of Appeal squarely address this point, and so, arguably, it remains open.

My second point involves a debate (of sorts) between Okwengu JA and Tuiyott JA on this point. In her analysis of the legality of the BBI Steering Committee itself, Okwengu JA appears to suggest that had the Steering Committee simply floated some proposals on constitutional amendment, and had those proposals then been taken up by ordinary citizens, the process under Article 257 may have been kicked off validly. This, however, raises a concern that I had indicated in my earlier post about the High Court judgment: even a ruling clarifying that neither the President nor any other State organ can initiate or promote the process under Article 257 will leave open the possibility of doing an end-run around the Constitution through clever use of proxies. Interestingly, this danger is specifically recognised by Tuiyott JA. In paragraph 60, Tuiyott JA notes that:

That said, the process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation. (paragraph 60)

Tuiyott JA therefore spends the next eighteen paragraphs minutely examining the evidence on record, including – in particular detail – the affidavit of Mr Waveru, where he himself conceded links between the BBI Secretariat, Taskforce, and Steering Committee, to demonstrate that what was happening here was indeed “an enterprise of the State actor.” This is promising: I suspect that, given the Court of Appeal’s ruling, in the future, the use of proxies – only more subtly and cleverly than the somewhat ham-fisted attempt in this case – to circumvent Article 257 is a non-trivial possibility. In such cases, Tuiyott JA’s detailed consideration of evidence indicates how the judiciary may examine this issue.

The Referendum Questions

Recall that the High Court had held that in a proposal for amending the Constitution that goes to a referendum, the proposed amendments must be submitted as separate and distinct questions, and not as a “package deal”. There are many rationales for this, two of which are succinctly summarised by Nambuye JA (paragraph 121). First, the binary, up-down nature of referenda makes them particularly unsuitable for the simultaneous determination of multiple issues, especially where citizens may have different views on those issues. By forcing a “package deal” vote, actual public preferences are thus seriously distorted. Secondly – and relatedly – the “package deal” allows the State to throw in “sweeteners” to make undesired changes more palatable. Suppose I offer to buy you ice-cream for a week if – and only if – you allow me to whack you in the face, your affirmation of my “package deal” doesn’t actually signify that you want to be whacked in the face – especially when the two “offers” are entirely unrelated.

It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative.

On this point, Musinga (P) – whose opinion appears to be controlling (but see below) – adopts a textual reading that is somewhat (in my submission) at odds with the tenor of the rest of his judgment. He notes that under Article 257, what is required to be submitted to the People is a “Bill”, not a “question” or “questions”. The modalities of how this is to be done lies exclusively within the domain of the IEBC (paragraph 398). Note, however, that the textual point is not quite as clear-cut as all that. As Nambuye JA notes – in a very clear exposition of the argument (paragraphs 121 – 132) – the Article 257 differs from, say, the Article V of the United States Constitution, which uses the plural “amendments”, while Article 257 uses the singular “an amendment.” (see also Kiage JA, pgs 175 – 176) There, is therefore, at least a plausible textual argument for the proposition that the Article 257 process refers to a single amendment and therefore, by definition, excludes omnibus bills that offer up multiple amendments.

Now, on all other points, the Justices in the Court of Appeal – including Musinga (P) – consistently hold that wherever there is textual ambiguity or silence, an interpretation that strengthens public participation is to be preferred over one that does not. In this context, it is hard to argue with Nambuye JA’s observation in paragraph 128, that:

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand. (paragraph 128)

I respectfully submit, therefore, that on this issue, Musinga (P) departs from his own consistent interpretive methodology. Furthermore, and somewhat bafflingly, shortly after his analysis, he nevertheless goes on to say “that notwithstanding, it is improper to lump together 74 proposed constitutional amendments in a Bill” (paragraph 399) Evidently, therefore, Musinga (P) is entirely cognisant of the problem with “package deals” – and indeed, around sixty paragraphs before, he himself identifies the problem with this package deal:

Some of the proposed amendments are rather superfluous, and strictly speaking they ought not to have been proposed as constitutional amendments by the promoters. At best, they could only be proposed as statutory amendments but were intentionally included in the Amendment Bill and appropriate statutory amendment Bills drawn by the to act as sweeteners to coax voters into supporting the proposed constitutional amendments. (paragraph 336)

He goes on to describe these amendments (tax breaks, loan exemptions etc), and immediately after, notes:

These are definitely very good and appealing proposals, but anchoring them on the Constitution of Kenya (Amendment) Bill, 2020 that also proposed very far reaching alterations of the basic structure of our Constitution was a clever bait to entice the populace, and particularly the young registered voters, who are the majority, to support the Amendment Bill, without proper civic education on all the contents of the entire Bill. (paragraph 338)

But this “clever bait” is surely as much an end run around Article 257 as is the President standing behind the figures of Mr. Waveru and the Hon. Mohammed to initiate the BBI process! Thus, this makes Musinga (P)’s finding on the issue of separate referendum questions even more baffling. I wonder, though, if an answer is to be found in paragraph 400. There, Musinga (P) notes:

I do not therefore agree with the learned judges that what is to be subjected to the referendum is a question or questions, it is the Amendment Bill, but the people are to approve or disapprove of the Bill by answering a question or questions as framed by the IEBC and approved by Parliament. (paragraph 400)

This – I would submit – is a bit of a walk-back, because here Musinga (P) does become prescriptive about the form that the Amendment Bill should take, notwithstanding the IEBC. Now, realistically, it is hard to imagine how anyone might lump together 74 amendments into a single question, unless one takes the absolutely blatant route of listing out all the amendments and ending it with a single question: “Do you agree, yes/no?” What Musinga (P) seems to be saying here is that the referendum can be a single referendum, on a single Bill, but within that, the People should have a chance to vote on separate questions separately (this possibility of a multi-option referendum as solving the “Hobson’s Choice” at issue is indicated by Kiage JA, although he declines to make a finding on it, given that there is no Referendum Act in existence yet (Kiage JA, pg 179).

There is, however, a further issue that now arises. The Disposition notes that the High Court’s finding on multiple/single question referenda has been overruled by a 4-3 majority. The three in the minority are said to be Nambuye JA, Okwengu JA, and Kiage JA. I have referred to the views of Nambuye and Kiage JJA above, and Okwengu JA says that she agrees with Kiage JA.

Now, first of all, Tuiyott JA in his opinion does not return a finding on this issue: he says that there was no “live controversy” in the instant case, as the IEBC had not yet determined the manner and form in which it would frame the reference questions (paragraph 251). To start with, this already means that – even if we read Musinga (P)’s opinion as going against the Respondents, there is no majority for the proposition that multiple issues can be lumped together in a single bill.

Complicating matters further, Gatembu Kairu JA, in his consideration of the issue, has this to say:

…[the voter’s] choice, in my view, is rendered nugatory, inoperative, and inconsequential if the voter is called upon to vote on an omnibus draft Bill, that contains a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in this case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution. (paragraph 156)

He then says:

The argument made for the respondents on the principle of unity of content or single subject matter, that Constitutional amendment through a referendum should deal with only one main issue, is one I find most attractive and persuasive. (paragraph 157)

And he then says:

Ultimately, it seems to me that to put a single binary question or multiple question is a matter to be informed by the nature of amendment proposed. It may well be that certain proposed amendments may require separate and distinct referendum questions to be framed. What in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in this case. (paragraph 159)

Gatembu Kairu JA thus seems to adopt a middle ground, where it is possible to have thematic amendment bills, where the several questions relate or are part of the same theme, thus leading to “unity of content”. It is easy to imagine examples: say, for instance, the restructuring of a regulatory body, where it wouldn’t make sense to treat the amendments separately. This determination, it is clear, must be on a case to case basis. Gatembu Kairu JA makes this explicit when, in his summary, he says that he is not overruling, but qualifying the High Court’s orders on this point by adding the phrase “subject to the nature of the amendment” (paragraph 197); but what is also clear is that Gatembu Kairu JA – along with the three other judges in the minority – is unambiguous on the point that the lumping together of unrelated amendments into an Omnibus Bill is not merely improper, but unconstitutional.

As, however, there is nothing in the overall Disposition on this, we will have to see what the future holds.

Public Participation

The final issue that I want to consider in this post is the scope of public participation under Article 257. Public participation as a constitutional value is one of the outstanding features of the Kenyan Constitution, explicitly set out under Article 10, and subject to interpretation in a number of judgments such as Kiambu County Government v Robert N. Gakuru. Public participation under Kenyan Constitutional law has both procedural and substantive elements: transparency, adequate time, accessibility, and so on.

The requirements of public participation are somewhat challenging to articulate in the abstract, and are therefore best understood through application. In the majority judgments, the following aspects come through: (a) that copies of the Amendment Bill were posted online only in English, despite Kiswhaili being both the national and an official language (Musinga (P), paragraph 333); that there was no indication that civic education about the amendments had been undertaken (Musinga (P), paragraph 335; Nambuye JA, paragraph 84; Okwengu JA, paragraphs 122 – 128;); that the time gap between when the Bill was published in local newspapers and its approval in County Assemblies, as well as at other stages of the process, was much too short to allow for any reasonable public participation; (Musinga (P), paragraph 339; Kiage JA, pgs 135 – 137).

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand.

Importantly, a majority of the bench also holds that the burden of demonstrating public participation lies upon the State, as – in accordance with the law of evidence – it has the requisite information on that point. To this I would only add: to the extent that public participation is a constitutional value under Article 10, the argument that an amendment process (for example) is not constitutionally complete until public participation has been affirmatively demonstrated, is a powerful one. Beyond the law of evidence, thus, there is a constitutional reason why the burden of proof should be upon the State.

There is, however, something of a split in the bench when it comes to the stages at which this obligation exists, and the intensity to which it exists. This split reveals something of an internal tension within Article 257. On the one hand – as almost all the Justices note – public participation is particularly vital especially in the context of Article 257, given that it is an instance of direct democracy; on the other hand, given that Article 257 is meant to be initiated by the People, ordinary people (small-p) will invariably lack the resources that will allow them to conduct public participation at a national scale, at the stage of collection of signatures. This tension is articulated by Kiage J, when he notes that:

I must express my unease, brought out quite poignantly by Mr. Karori in his address to us, that it would be to place an onerous, and well-nigh impossible burden on promoters of a constitutional amendment by popular initiative, to expect them to go the whole hog captured in the above excerpt before they can properly collect the signatures. It seems to me, with respect, that the requirements stated by the judges must be present before or as at the time the voters finally make their decision on the proposed amendments at the referendum failing which the mandatory requirement for public participation will not have been met, with fatal consequences to the proposed amendment. I am of the view, however, that the elements of public participation stated must per force be understood to form a spectrum or a continuum which is incremental in character. (pg 130; see also Tuiyott JA, paragraph 209).

Similarly, Gatembu Kairu JA notes that:

For it might appear that by one hand, Wanjiku is given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle is then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. (paragraph 88)

Gatembu Kairu JA, however, proposes a different solution. While Kiage J would simply hold that the requirement of public participation – in all its rigour – applies at the final (referendum) stage, Gatembu Kairu JA holds that in an individual case, it would be “open” to Wanjiku to claim a lack of resources (a claim that would not be open to the IEBC, when it gets involved in the process).

I respectfully submit that Gatembu Kairu JA is correct. It is true that the burden of public participation is one that should be borne by the State – or State organs – and not by wanjiku. However, this is where we come right back to the elegant design of Article 257, which accommodates the involvement of the People, of County Assemblies, of Parliament, and of the IEBC. Consequently, would it not make sense for the requirement of public participation – in all its rigour – to be applicable corresponding to the stage at which State organs get involved? This, in my respectful submission, would resolve the tension within Article 257.

The structure and design of Article 257 gives rise to a range of fascinating questions, many of which came to be answered by the Court of Appeal. These include the difference between top-down and bottom-up amendment, with the Court affirming that, viewed in its history and context, Article 257 precludes an executive-driven process. These also include the manner in which a popular initiative may be crystallised into a referendum question (or questions), with a clear majority of the Court holding that “omnibus Bills” that have no “unity of content” are outside the scope of Article 257. And these further include the extent to which the obligation of public participation applies to a public-initiated directly democratic process. Here, the Court affirms that it is clear that in this case – given that it was executive-driven in any event – the obligation has not been discharged; it remains open, however, what standards will apply when – in the hypothetical future – a 257 process is genuinely wanjiku-driven.

I think that some of the ambiguities and tensions in the judgment(s) reflect the challenges of interpreting what is, undoubtedly, a complex provision, and also the fact that these questions are coming up for the determination for the first time, in a relatively young Constitution. Faced with these challenges, the judges of the Court of Appeal, in my respectful submission, have done important, pioneering work (as have the judges in the High Court). It now remains to be seen how future benches take some of these principles forward, and build on them.