The COA in Kenya has upheld a High Court's decision to halt President's constitutional changes.

Yesterday (20th/August/2021) The Court of Appeal in Kenya upheld a High Court decision to nullify Building Bridges Initiative calling the project "unconstitutional and unlawful."

The proposed amendments, popularly dubbed as "Building Bridge Initiative" (BBI), was aimed at amending the 2010 constitution - which established a presidential system - to create, among other things, a post of prime minister, two deputy prime ministers and a leader of the opposition and increase the number of seats in parliament.

But "the president does not have the power under the constitution to initiate constitutional amendments. A constitutional amendment can only be initiated by Parliament (...) or by popular initiative," said presiding judge Daniel Musinga at the conclusion of the more than ten hours of reading of the ruling.

The head of state may be subject to civil proceedings for illegally initiating this process, the seven judges also ruled.

The Seven-judge bench consisting of Court of Appeal President Daniel Musinga, Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott upheld the High Court decision in May that declared the proposed reforms illegal on the basis that Kenyatta acted unconstitutionally.

As seen below,

According to Justice Musinga, any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment; it amounts to the dismemberment of the constitution.

Making his submissions, Musinga said some of the proposed amendments have the effect of interfering with the concept of separation of powers, which is well-engrained in the constitution.

He argued that the constitution of Kenya Amendment Bill 2020 as structured violates certain components of our constitution’s basic structure.

“Having the provisions that have been referred to as unamendable, immutable, unchangeable, unalterable, irrevocable eternity clauses ‘serve as a mechanism for limiting amendment power but they do not and cannot limit the primary constituent power of the people, however, I do not think that the alteration of the basic structure must be undertaken through the repeal of the constitution and the promulgation of another',” said Musinga.

On who initiated and promoted the BBI Bill, Musinga argued that there is no dispute that the promoter was the National Secretariat.

He submitted that the president confirmed through submissions before the court that he established both the BBI task force and Steering Committee.

“The president was the initiator having established and gazetted, under his hand, BBI taskforce and secretariat… It is evident that one of the major functions of the BBI steering committee was to propose, among other things, constitutional changes that were thought necessary for the implementation of the recommendations contained in the BBI taskforce report and submit a comprehensive report to the government. If this was intended, as it turned out to be, a move towards amendment of the constitution as a popular initiative; that is where the rains started beating the process,” submitted Musinga.

Noting that BBI Steering Committee had no constitutional mandate under Article 257 of the constitution, Musinga said argued that the move was initiated by the political elite, and not by the people of Kenya.

Musing highlighted that the appellants – on public participation - did not tell the High Court the number of Kenyans that have reliable access to the internet and were able to read and understand the English version of the bill.

“Article 7 (1) of the constitution says that the national language of the republic is Kiswahili, while Article 7 (2) provides that the official languages are Kiswahili and English. Considering that the national language is Kiswahili and all major political gatherings are addressed in Kiswahili, it was dishonest on the part of the promoters to purport to have reached out to the masses by simply posting on the internet the amendment bill in the English language,” said Musinga.

He went on to point out that under our constitutional architecture, the President cannot initiate the process of amendment of the constitution as a popular initiative.

“The president’s intentions in initiating the process were noble but the process of its execution was not in line with the constitution,” submitted Musinga while agreeing that there is no statutory requirement for IEBC to carry out a nationwide voter registration before a proposed referendum.

He, however, underscored that the electoral agency is under obligation to carry out continuous voter registration in all constituencies.

Justice Musinga, after a near seven-hour judgement, then went on to issue a permanent injunction restraining IEBC from conducting a referendum on the Constitution Amendment Bill 2020.

“Having determined all the issues in the consolidated appeals, the final orders of the court are as follows;

(a) We uphold the judgement of the High Court to the extent that we affirm the following,

(1) The basic structure doctrine is applicable in Kenya.

(2) The basic structure doctrine limits the amendment power set in Articles 255 to 257 of the constitution.

(3) The basic structure of the constitution can only be altered through the primary constituent power which must include four sequential processes; civic education, public participation, constituent assembly debate and ultimately a referendum.

(4) Civil court proceedings can be instituted against the president or any person performing in the functions of the office of the president. “Having determined all the issues that we considered in this consolidated appeals, the final orders of the court are as follows;

We uphold the judgement of the High Court to the extent that we affirm the following:

(1) The basic structure doctrine is applicable in Kenya.

(2) The basic structure doctrine limits the amendment power set in Articles 255 to 257 of the constitution.

(4) Civil court proceedings can be instituted against the president or any person performing in the functions of the office of the president during their tenure of office in respect of anything done or not done contrary to the constitution.

(5) The president does not have authority, under the constitution, to initiate changes to the constitution and that a constitutional amendment can only be initiated by parliament through a parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the constitution.

(6) The steering committee on the implementation of the Building Bridges Initiative to a united Kenya taskforce report, the BBI steering committee has no legal capacity towards promoting constitutional changes.

(7) Constitution of Kenya Amendment Bill 2020 is unconstitutional and a usurpation of the people’s exercise of sovereign power.

(8) The Constitution of Kenya Amendment Bill 2020 cannot be subjected to a referendum in the absence of evidence of continuous voter registration by IEBC.

(9) The IEBC does not have the requisite quorum for purposes of carrying out its business relating to the conduct of the proposed referendum, including the verification of whether the initiative as submitted by the BBI secretariat is supported by the requisite number of registered voters in accordance with Article 257 (4) of the constitution.

(10) At the time of the launch of the Constitution of Kenya Amendment Bill 2020 and the collection of endorsement signatures, there was neither legislation governing the collection, presentation and verification of signatures nor an adequate legal framework to govern the conduct of the referendum.

(11) County Assemblies and Parliament cannot, as part of their constitutional mandate change the contents of the Constitution of Kenya Amendment Bill 2020 initiated through a popular initiative under Article 257 of the constitution.

(12) The second schedule of the Constitution of Kenya Amendment Bill 2020, in so far as it purports to predetermine the allocation of the proposed additional 70 constituencies and to direct the IEBC on its functions of constituency delimitation, is unconstitutional.

(13) The administrative procedures for the verification of signatures in support of the constitutional amendment referendum made by IEBC are illegal, null and void because they were made without a quorum and in violation of sections (6) and (11) of the Statutory Instruments Act 2013.

(14) A permanent injunction be, and is hereby, issued restraining IEBC from undertaking any processes required under Article 257 (4) and (5) in respect of the Constitution of Kenya Amendment Bill 2020.

Whereas Justice Justice Kiage on the interpretation of the constitution:

"We need a purposive, value-laden and principled approach as opposed to a narrow, neutral and ultimately neutered formalism

On the spirit of the constitution, Justice Kiage said it must preside and permeate the process of judicial interpretation and judicial discretion.

“It is a mirror that reflecting the national soul; the identification of ideas and aspirations of a nation, the articulation of the values binding people and disciplining its government… We dare say that there is a spirit that relentlessly pervades this provision.

As a consequence, that spirit, which is always speaking, must be discerned as an integral part of interpreting the provisions of the constitution,” said Kiage.

Kiage added that he finds it strange that anyone would doubt the existence of a basic essential core being the pillar upon which the constitution stands.

“The conclusion I have arrived at, during my forays into judicial jurisprudence and learning that I have referred to, and much more besides, is that basic structure doctrine is legitimate and sound.”

The judge said he agrees with fellow learned judges that the amendments proposed by the BBI amendment and Bill were so far-reaching in character, scope and content as to shake the foundation and alter the identity and character of the constitution.

“They were effectively dismembering the constitution, blasting so huge a hole in it as to pulverize, and essentially create a new Constitutional order,” he said.

The judge went on to observe that mere invitation of the people to vote on the radical transformative proposal at a referendum was not an effect summons on the correct authority.

“The people, acting on the amendment plane constitute the secondary constant power only and are limited to amendment. They are in no position, while acting in that capacity and space, to endorse and effect a constitutional replacement,” said Kiage.

He added: “The limitation, in this case, stems from the fact that certain aspects of the proposed amendments questionably go to the essential core and fundamental fabric of the constitution by purporting to alter, irredeemably, its character and identity.”

On the referendum, Kiage said it cannot be effective unless the initial three steps have been involved and engaged in real and substantive manner as opposed to a ritualist and minimalist manner akin to a mere token ticking of boxes.

“The amendments proposed and contemplated by the BBI amendment Bill have the potential to alter by one fell swoop the fundamental pillars that define our constitution.”

“To me, there is only one path that commends itself consistently with conscience and fidelity to the constitutional demand,” said Kiage as he offered that he must defend the constitution and keep its fortification firm and effective. “I must stand up for it heeding to the words of the hymn, ‘Where duty calls or danger, be never wanting there’.”

Delivering his decision on the legality of BBI, specifically on whether it was a popular initiative, Justice Kiage noted that a popular initiative is a citizen-conceived, citizen-initiated and citizen-driven process.

Kiage said the President does not shoulder any obligation to initiate constitution changes. His [President] duty, said Kiage, is to obey and defend it in keeping with the oath of allegiance.

“If the process is born of presidential fiat, no matter how well-intentioned, it ceases to be a popular initiative and must be named a state or presidential initiative. Popular, as a sense of gaining admiration by many people, is not what is meant by the constitution. Popular means as pertaining to the general public,” said Kiage.

Kiage observed that the BBI steering committee was a government project.

“The steering committee was a government project. They were prominent personalities joined together by presidential fiat; they had no mind or idea of their own to initiate but were instead tasked to identify constitutional, among other changes.”

source:

https://www.standardmedia.co.ke/national/article/2001421302/live-blog-the-bbi-judgement

Waboga David