While Kenya’s 46 other counties are preparing for the next ballot, through consensus building for some and negotiated democracy for others, Marsabit residents are caught in a snare, not knowing where the next bullet will be fired from and whose life it will snuff out. This has been their reality for the last four years.

All is not well at Marsabit; we have thrown the sanctity of human life to the dogs and turned Marsabit Central, our only oasis in the desert, into a hell on earth. Sixty lives have been lost in the Saku constituency alone in the last four months. But this figure is not conclusive since the killings are not systematically reported and revenge attacks are swift.

The changing dynamics of this conflict are evident; targeted daylight assassinations in Marsabit town have introduced a new and dangerous twist to the tribal hostility between the Boran and Gabra, once close cousins now arch-enemies.

It is claimed that the assassins use either a motorbike or a saloon car to carry out attacks targeting influential people in the rival community. This has led to a four-month ban on boda boda within Marsabit town, exacerbating youth unemployment and resulting in the economic decline of families whose source of livelihood revolves exclusively around the boda boda business.

The result is that Marsabit town has become a ghost town; businesses have collapsed, and some people have abandoned their homes and fled to other towns to seek refuge. Most affluent families have temporarily relocated to Isiolo, Nanyuki, and Meru, leaving behind the poor—those with no means of escape—to continue butchering each other.

These constant attacks and counterattacks have reduced Marsabit to an empty shell of its former self. Yet I believe that it cannot be that we lack the ability and the goodwill to engage in constructive conversations. At this juncture, let me share an interesting story I came across on social media:

If you can catch about 100 red fire ants that live mostly in the desert and also about 100 of those large black ants and drop them in the same jar, not much will happen– until you shake the jar vigorously and dump them out on the ground. The red ants will attack the black ants and the black ants will attack the red ants and they`ll devastate each other. The thing is, the red ants think the enemy is the black ants and the black ants think the enemy is the red ants and all those ants put together never figure out that the real enemy is the guy who shook the jar. (Anonymous)

It is difficult to prove or disprove this tale. However, I am interested in using it, like one of Aesop’s fables, to dig deeper into the moral of the story in the context of our situation as Marsabit residents.

The centre of interest in this tale is the “outside force” that shook the jar. The ants lived in harmony until that outside force set them against each other. The same hand of disruption must be at play in the Marsabit conflict; we had been going about our daily lives in perfect harmony until someone shook our jar and destroyed our peace and stability. Therefore, the onus is on each one of us to dig deep and unearth the faces behind those shaking our jar and denying us peace.

Of all the factors contributing to the insecurity in Marsabit, the one that stands out is the unhealthy fight for political supremacy that is used as a wedge to pull us apart, yet politics is just a small part of who we are. We were like those ants in the jar, existing side by side and often interacting without boundaries as far as our relationships are concerned until someone somewhere disrupted this serene coexistence.

We had been going about our daily lives in perfect harmony until someone shook our jar and destroyed our peace and stability.

To illustrate this point further, look at the cordial relationship enjoyed by the Borana and Gabra just two decades ago, a relationship in which the two communities lived in harmony, intermarrying and sharing resources, including grazing rights and even certain aspects of each other’s culture.

Who shook our jar and turned us against each other so successfully that we no longer see eye to eye today? Our past relationships and blood ties are no longer binding. The animosity and hostility between us is at an all-time high. We have turned into each other’s nemesis overnight, baying for and shedding each other’s blood every day.

Who is this powerful, faceless individual who has set us apart and created a conflict that has led to massive loss of life, displacement of populations and destruction of property? The finger is often pointed at our elected leaders and politicians as the instigators of this ongoing conflict that is devastating Marsabit; and they are on record making accusations and counter-accusations and blaming each other through press releases.

We have turned into each other’s nemesis overnight, baying for and shedding each other’s blood every day.

Instead of addressing this runaway violence, our political leaders are now rushing to switch political parties for their political survival, committing betrayals that will likely aggravate the conflict during this election season in total disregard of the people’s suffering.

The political class and their supporters seem to benefit from this vicious cycle of conflict; at times they pretend to be in control of the chaos and able to pull us back from the abyss of our self-destruction. And while the incumbents are using the conflict as their main campaign tool for re-election, some of the new aspirants have not been left behind since they are presenting themselves as the antidote to what ails Marsabit while others act as warlords to shield their communities from aggression.

Indeed, the onus is on each one of us within our communities, as members of the civil society, as religious leaders, as the business community, and as professionals, to make the hard choice between continuing to enable these conflicts or choosing to hold the forces shaking our jar accountable to reverse the path of self-destruction in which we have placed ourselves.

Let us use this electioneering period to right some of the wrongs by choosing the right leaders whose manifestos revolve around promoting unity and peace among our diverse population instead of selecting those who present themselves as warlords. Let us also utilize this opportunity to weed out and send home those of our current leaders whom we believe to be part of the individuals shaking our jar and thus trading with our lives.

Let us also utilize this opportunity to weed out and send home those of our current leaders whom we believe to be part of the individuals shaking our jar and thus trading with our lives.

Let us embrace honesty and open engagement to return the warring communities to peaceful coexistence. Let us jumpstart a process of sincere reconciliation anchored on justice. True justice demands that perpetrators of violence be brought to book and held liable for their actions regardless of their status in society. Moreover, for justice to prevail, those who have lost their loved ones, their homes, and their livestock must be compensated. And although peacebuilding is a complex process, a lasting peace can be achieved if we are willing to act.

This is the third and concluding article about the Kenyan Supreme Court’s BBI judgment. The first and second articles can be accessed here. In this article, I will end by examining some of the possible implications of the judgment of the Court, going forward.

Distinct and Separate Referendum Questions

Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.

A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.

In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.

The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.

But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!

The purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment.

It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open, and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments. As Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it.

One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the president could or could not initiate a popular initiative. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the popular initiative. The same considerations apply to the issue of distinct and separate referendum questions.

Constitutional Gaps

On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.

The first issue had also been discussed by the judges in the superior courts below. In the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments. Thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.

In order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable

The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative. Eighteen out of nineteen judges who heard this case agreed that the president cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the president’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future president might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies.

At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future. And the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to parliament, parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of state actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.

Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest.

Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial presidency is not so easy to contain – its “taming” will need more than one set of judgments – but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package-deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.

Conclusion: Shadow and Light

It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three articles reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions; I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (state power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.

Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.”

In the previous article we discussed the Kenyan Supreme Court’s BBI judgment, on the issue of basic structure and limitations upon the constitutional amending power. That discussion provides an ideal segue into the second major issue before the Court: the interpretation of Article 257 of the Kenyan Constitution, which provides for constitutional change through the “popular initiative”.

Recall that other than the substantive challenge to the contents of the BBI Bill, another ground of challenge was that, on a perusal of the record, the president was the driving force behind the Bill (the High Court called him the “initiator”), going back to the time that he engaged in a “handshake” with Raila Odinga, his primary political rival at the time. It was argued that Article 257’s “popular initiative route” was not meant for state actors to use – and definitely not for the head of the executive to use. It was meant to be used by ordinary people, as a method for bringing them into the conversation about constitutional reform and change. The High Court and the Court of Appeal (see here) agreed with this argument; the Supreme Court did so as well, although it split on the question of whether the president had, actually, been impermissibly involved with the popular initiative in this case.

The Long Shadow of the Imperial Presidency

At the outset, it is important to note that Article 257 does not explicitly bar the president from being a promoter (the technical term) or an “initiator” of a popular initiative (Ibrahim J, paragraph 784). Any restriction upon the President, in this regard, would therefore have to flow from an interpretation of the constitutional silences in Article 257.

How does the Supreme Court fill the silence? As with its analysis of the basic structure, the Court turns to history. Where the point of Chapter XVI was to provide internal safeguards against hyper-amendments, more specifically, Article 257 – as gleaned from the founding documents – came about as a response to the “Imperial Presidency”, i.e., the period of time under Kenya’s Independence Constitution, where power was increasingly concentrated in the hands of the president, and where the president was in the habit of simply amending the Constitution in order to remove impediments to the manner in which he wished to rule (Koome CJ, paragraph 243; Mwilu DCJ, paragraphs 463, 472; Wanjala J, paragraph 1046; Ouko J, paragraph 1917-1918).

This being the case, the Supreme Court holds, it would defeat the purpose of the popular initiative to let the president back in. The purpose of Article 257, according to the Court, is to provide an avenue for constitutional change to the People, as distinct from state organs (Mwilu DCJ, paragraph 491; Ibrahim J, paragraph 789; Lenaola J, paragraph 1537). In other words, the scheme of Chapter XVI – with its twin parliamentary (Article 256) and popular initiative (Article 257) routes – is to balance representative and direct democracy when it comes to constitutional change (Koome CJ, paragraphs 237 – 242; Mwilu DCJ, paragraph 480; Wanjala J, paragraph 1042; Lenaola J, paragraph 1535; Ouko J, paragraph 1900). That balance would be wrecked if Article 257 was to be converted from a bottoms-up procedure for constitutional change to a top-down procedure, driven by the president.

This is a particularly important finding, whose implications extend beyond the immediate case. Recall that the contest over the interpretation of Article 257 was – as so much else in this case – a contest over legal and constitutional history. While the challengers to the BBI Bill told the story of the imperial presidency, its defenders told a different story entirely: for them, Article 257 was not about constraining the president, but about enabling them. The situation that Article 257 envisaged was one where a recalcitrant parliament was stymying the president’s reform agenda; in such a situation, Article 257 allowed the president to bypass parliament, and take their proposals directly to the people.

The contest, thus, was fundamentally about the relationship between power, presidentialism, and the 2010 Constitution. Was the 2010 Constitution about constraining the imperial presidency – or was it about further entrenching the power of the president vis-a-vis other representative organs? And thus, in answering the question the way it did, the Supreme Court not only settled the fact that the president could not initiate a popular initiative, but also laid out an interpretive roadmap for the future: constitutional silences and ambiguities would therefore be required to be interpreted against the President – and in favour of checks or constraints upon their power – rather than enabling their power. This is summed up in paragraph 243 of Koome CJ’s opinion, which demonstrates the reach of the reasoning beyond its immediate context:

In its architecture and design, the Constitution strives to provide explicit powers to the institution of the presidency and at the same time limit the exercise of that power. This approach of explicit and limited powers can be understood in light of the legacy of domination of the constitutional system by imperial Presidents in the pre-2010 dispensation. As a result, Chapter Nine of the Constitution lays out in great detail the powers and authority of the President and how such power is to be exercised. In light of the concerns over the concentration of powers in an imperial President that animate the Constitution, I find that implying and extending the reach of the powers of the President where they are not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes. (Emphasis supplied)

Furthermore, in this context, Koome CJ’s endorsement of Tuiyott J’s opinion in the Court of Appeal (Koome CJ, paragraph 256) becomes particularly important. As Tuiyott J had noted, simply stating that the president is not allowed to initiate a popular initiative will not solve the issue; there are many ways to do an end-run around such proscriptions – for example, by putting up proxies (as arguably did happen in this case). What is thus required is close judicial scrutiny, and the need for a factual analysis that goes behind a proposed popular initiative, in order to ensure that it is genuinely citizen-driven, and not a front for state actors (especially the president) (see also Mwilu J, paragraph 509, for some of the indicators, which she suggests ought to be addressed legislatively). Indeed, a somewhat more formal reading of the process (with respect) led to Lenaola J dissenting on this point, and finding that the president was not involved, as it was not he who had gone around gathering the one million signatures for the popular initiative. Thus, how well the judiciary can police the bounds of Article 257 is something only time will tell; in the judgments of the High Court, Court of Appeal, and now the Supreme Court, the legal standards – at least – are in place.

Public Participation

The Supreme Court unanimously found that the Second Schedule to the BBI Bill – which sought to re-apportion constituencies – was unconstitutional. Their reasons for doing so differed: a majority holds that there was no public participation; Mwilu J also holds that the amendment was not in harmony with the rest of the Constitution (paragraph 533) and Wanjala J says that it amounted to constitutional “subversion” (paragraph 1063), on the basis that it amounted to a direct takeover of the functioning of the Independent Electoral and Boundaries Commission – raising some of the basic structure issues discussed in the previous post. On public participation with respect to the rest of the BBI Bill, the Court split 4 – 3, with a wafer-thin majority holding that – on facts – there had been adequate public participation in the process thus far. In this context, it is important to note that CJ Koome – one of the majority of four – notes elsewhere that the most intense public participation – that is, voter education, etc. – occurs at the time of the referendum (which had not yet happened in the present case).

Was the 2010 Constitution about constraining the imperial presidency – or was it about further entrenching the power of the president vis-a-vis other representative organs?

A couple of other points arise for consideration on the point of public participation. The first is that in a dispute about whether or not there was adequate public participation, who bears the burden of proof? On my reading, a majority of the Court holds that it is the state organs which bear the burden of demonstrating that there was adequate public participation (Koome CJ, paragraph 270, 311; Mwilu J, paragraphs 599, 604; Ibrahim J, paragraph 849; Wanjala J, paragraphs 1096 – 1097). The rationale for this is set out by Ibrahim J at paragraph 849:

With profound respect, as stated by Musinga, (P), the amendment of a country’s constitution, more so our Constitution, should be a sacrosanct public undertaking and its processes must be undertaken very transparently and in strict compliance with the country’s law.

This chimes in with the Court’s finding that the tiered amendment process under Articles 255 – 257 is an internal safeguard against abusive amendment. Needless to say, if that interpretation is indeed correct, then within the scheme of Articles 255 – 257, constitutional silences should be interpreted in a manner that protects the citizenry from abusive amendments; one of the most important safeguards is public participation, and it therefore stands to reason that the burden of establishing it – especially where state organs are concerned within the scheme of Article 257 – should be on the state. In this context, it is interesting that other than repeatedly emphasising that Article 257 was an onerous, multi-step procedure whose very onerousness was designed to protect the basic features of the Constitution, Koome CJ is the only judge to both hold that the burden lay upon State organs, and to hold that the burden was discharged in this case.

The second point about public participation is the Court’s finding that it flows throughout the scheme of Article 257, with its specific character depending upon what stage the amendment process was at: at the promoters’ stage, at the stage of the county assemblies, at the stage of the legislature, and at the stage of the referendum. A majority holds – and I think correctly – that at the initial stage – the promoters’ stage – the burden is somewhat, especially given that this is the only stage where state institutions are not involved, and the burden falls upon the promoters, who are meant to be ordinary citizens.

Given the contested facts in this case – which are discussed at some length in the separate opinions – it will be interesting to see how future judgments deal with the issue of public participation under Article 257, especially given the Court’s finding that it is this tiered amendment process that is meant to protect against abusive amendments.

The Quorum of the IEBC

Recall that a key question before the High Court and the Court of Appeal was whether the IEBC, working with three commissioners, had adequate quorum, notwithstanding the fact that the Schedule to the IEBC Act fixed the quorum at five. The High Court and the Court of Appeal held that it did not have quorum; the Supreme Court overturned this finding.

The reasoning of the judges on this point overlaps, and can be summed up as follows: Article 250(1) of the 2010 Constitution states that “each commission shall consist of at least three, but not more than nine, members.” This means that, constitutionally, a commission is properly constituted with three members. Any legislation to the contrary, therefore, must be interpreted to be “constitution-conforming” (in Koome CJ’s words), and read down accordingly (Koome CJ, paragraph 325 – 326, 336 – 337; Mwilu J, paragraph 661; Wanjala J, paragraph 1113; Ouko J, paragraphs 2060, 2070).

How well the judiciary can police the bounds of Article 257 is something only time will tell.

With the greatest of respect, textually, this is not entirely convincing. If I say to you that “you may have at least three but not more than nine mangoes”, I am leaving the decision of how many mangoes you want to have up to you; I am only setting a lower and an upper bound, but the space for decision within that bound is entirely yours. Similarly, what Article 250(1) does is set a lower and upper bound for Commissions and quorum, with the decision of where to operate in that space being left up to legislation (see Ibrahim J, paragraph 892). This point is buttressed by the fact that under the Transitional Provisions of the Constitution, it is stated that

“Until the legislation anticipated in Article 250 is in force the persons appointed as members or as chairperson of the Salaries and Remuneration Commission shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”

I would suggest that this indicates that the appropriate body for implementing Article 250 is the legislature, and consequently, questions about quorum and strength ought to be left to the legislature (subject to general principles of constitutional statutes and non-retrogression, discussed here).

Conclusion

There were, of course, other issues in the judgment that I have not been dealt with here; the question of presidential immunity, for example. In this article, however, we have seen that the overarching finding of the Court – that the tiered amendment procedure under Articles 255 – 257 is meant to provide an internal safeguard against abusive constitutional amendments and hyper-amendments – necessarily informed its interpretation of Article 257 itself, in particular, in holding that the president cannot initiate a popular initiative, that the burden of demonstrating public participation lies upon the state, and that public participation is a continuing process flowing through the several steps of Article 257. In the final – and concluding – article, we shall examine some of the other implications of this logic, in particular upon issues such as distinct and separate referendum questions.