Is the BBI ruling a sign of judicial independence in Kenya?

Kenya's President Uhuru Kenyatta (L) greets opposition leader Raila Odinga of the National Super Alliance (NASA) coalition after addressing a news conference at the Harambee house office in Nairobi, Kenya March 9, 2018. REUTERS/Thomas Mukoya

On May 23, 2021, a special five-judge bench sitting at the High Court of Kenya at Nairobi declared unanimously that the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional. The High Court’s judgment, argued journalist and commentator Ferdinand Omondi, “is arguably the most significant ruling by Kenyan courts since President Uhuru Kenyatta’s election win was nullified in 2017.”

Notably, the government has appealed the ruling of the High Court and the case is now before a seven-judge bench of the Court of Appeal, with Musinga J presiding. The Court of Appeal is expected to deliver its verdict on August 20, 2021.

Importantly, the judicial decision and subsequent reactions from the Kenyan political class, civil society, and institutional actors appeared to shed light on the changing political environment within the country as well as the continuing strengthening of democratic institutions, especially at the national level.

The ‘handshake’ and the Building Bridges Initiative

The Constitution Amendment Bill 2020 was an outcome of the Building Bridges Initiative (BBI)—an effort by Kenyatta and political rival Raila Odinga, the leading contenders for the presidency in 2017 and their supporters. The BBI was expected to generally improve governance and prevent future post-election violence like that of the aftermath of the 2017 elections.

Indeed, in March 2018, Kenyatta and Odinga publicly declared that they had decided to put aside their political differences and come together through a “handshake.” As magnanimous and patriotic as this political gesture may have appeared to many observers, especially since it “brought calm and a sense of relief” to Kenyans following the extremely contentious 2017 presidential election, another interpretation is that this was essentially an effort to ensure the continued political relevance of Kenyatta and Odinga. In fact, many cynics view the truce with suspicion, arguing that this rapprochement could place Kenyatta, who is constitutionally barred from standing for a third term as president in 2022, in a position to assume the role of managing the country behind the scenes with a puppet president in post-2022 Kenya.

Importantly, while the handshake may have cooled political temperatures, it did not resolve the feelings of alienation and marginalization that continue to consume some ethnolinguistic groups that are suspicious of the central government and believe that it is either unwilling or unable to deal effectively and fully with issues of extreme poverty and underdevelopment, inequality, inequities in the distribution of income and wealth (particularly land), ethnic animosity, and other problems that have relegated them to the political and economic margins.

The constitutional amendment bill

The Kenyatta-Odinga handshake led directly to the production of the Building Bridges Initiative (BBI), whose main objective was to thoroughly investigate nine issue areas that were deemed by Kenyatta and Odinga to be critical to the creation of “a united nation for all Kenyans living today, and all future generations.” Among the BBI report’s wide-ranging series of recommendations are institutional reforms for significantly restructuring the country’s institutions, particularly its constitution, and reintroducing a hybrid system of government that will include power-sharing between a president and a prime minister, with members of the Kenyan Parliament effectively allowed to serve as part of the Cabinet.

If implemented, the proposed BBI reforms will likely undermine the country’s institutions of governance. They will also threaten judicial independence, eliminate opportunities for the formation of an effective opposition to government, severely erode Kenyan democracy, pervade any efforts to adhere to the rule of law, and make it extremely difficult to build the types of national ruling coalitions that can advance the interests of all Kenyans, instead of those of specific ethnolinguistic factions. In response, five political activists have challenged the process before the High Court.

The High Court rules on who can initiate amendments to the constitution

In May of 2021, the five-judge bench struck down the proposed amendment, declaring that “the President does not have authority under the Constitution [of 2010] 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 Popular Initiative under Article 257 of the Constitution.” In other words, an amendment must emerge from the ordinary citizen and not the president, as required by the basic structure doctrine.

In this way, the court declared that the BBI steering committee was “an unconstitutional and unlawful entity,” hence not recognized by law, and with no legal capacity to initiate any action to change the constitution. In other words, the entire BBI process, which ultimately culminated in the Constitution of Kenya (Amendment) Bill 2020, was unconstitutional. Importantly, the court went further: In order to prevent “the mischief of disguising unpopular amendments among the popular amendments of the constitution,” the court held that each referendum designed to effect amendments to different articles of the constitution must have multiple questions, each dealing with each proposed amendment to the constitution.

The High Court then issued a permanent injunction that effectively restrained the Independent Electoral and Boundaries Commission (IEBC) from verifying that the initiative is supported by the requisite number of voters and submitting the draft bill to each county assembly for consideration. Finally, the court held that President Kenyatta could be sued in his personal capacity “in respect of anything done or not done contrary to the Constitution.”

Is Kenya an example of increasingly strong democratic institutions and judicial independence?

Kenya has been here before when it comes to contentious political issues being brought before a high court. Indeed, in September 2017, the country’s Supreme Court, under a challenge from Odinga, then-leader of the opposition, annulled the 2017 election and called for a new election to be held within 60 days. This Supreme Court ruling was “an unprecedented move,” particularly in a region in which judicial independence is a rarity and the executive branch of government usually dominates and controls the judiciary. Indeed, this ruling was considered historic and an important development in Kenya’s efforts to entrench democracy and the rule of law.

However, Odinga boycotted the rerun election in October 2017, “claiming that he and his party lacked confidence in the credibility of the process,” which led to Kenyatta capturing 98 percent of the vote. Although Odinga rejected the results, he did not challenge them before the courts. Nevertheless, a number of private citizens did challenge those results in several petitions to the Supreme Court, but the Supreme Court held that the rerun election had fulfilled or met all the constitutional requirements and hence was valid.

Despite this exemplary performance, Kenya’s judiciary continues to face some major challenges, which include the need to significantly “expand its own infrastructure and build professional capacities” as well as make certain that the integrity of judges “must never be in doubt.” In addition, political interference and lack of financial security remain serious threats to the independence of the judiciary.

Amending Kenya’s constitution

The constitutional review process is extremely complex and is often plagued by the factional appeals of special interests, which are contrary to the common will of the people. This complexity and the occasional intervention by factional interests partly explain why it took Kenya more than 20 years to finally produce a new constitution in 2010. The process through which the constitution can be legally amended is spelled out in Article 255. Initiatives to amend the constitution can originate in the Kenyan Parliament through a bill. The role to be played by the president, the public, and the IEBC are spelled out in Article 256. An amendment to the constitution can also be proposed by a popular initiative, which must be signed by at least 1 million registered voters. Such a popular initiative can be in the form of a general suggestion or a formulated draft bill as elaborated in Article 257. While the constitution does not grant the president the power to initiate changes to it, the president still has an important role to play—he or she can provide the leadership to make certain that amendments are designed to maximize the interests of the people writ large and not those of some faction, regardless of how it is defined.

Lessons from the High Court ruling and other signs of the strengthened rule of law in Kenya

There are several lessons that Kenyans and other Africans can learn from the High Court’s 321-page and well-reasoned and articulated judgment made in May 2021. First, the process, as frustrating as it may appear to Kenyatta, Odinga, and other supporters of the BBI, has reaffirmed the important role that courts can and must play in the peaceful resolution of political and constitutional issues in Kenya. Second, the ruling shows that Kenya’s constitution is working perfectly well—the petitioners, who strongly believed that the BBI process was unconstitutional and hence, unlawful—chose, and were able, to take their grievances to the High Court, instead of resorting to extra-constitutional approaches, such as violent mobilization. Indeed, the decision by both proponents and opponents of the BBI process to adhere to the law augurs well for constitutionalism and the rule of law in Kenya.

The way forward for Kenya

Despite the claim by Kenyatta and Odinga that the BBI is designed to finally bring to an end ethnic-induced post-election violence, this process, if successful, will only undermine Kenya’s constitutional order and threaten its democratic institutions. While the additional 70 parliamentary constituencies might satisfy and placate the groups that benefit from these new constituencies, those that consider themselves marginalized by the new constitutional changes will make demands for additional constitutional changes to accommodate them. Such opportunism is unlikely to end until all groups in Kenya, whether identified by religion or ethnicity, have been assigned their own political constituencies, effectively rendering the Kenyan state virtually ungovernable.

Kenya’s 2010 constitution essentially introduced a pseudo-federalist system consisting of national and county governments, with the goal of bringing government closer to the people, improving participation and inclusiveness, and abolishing what had been a dysfunctional and untenable governing process inherited from the colonial state. However, in contrast to a federalist system, sovereignty is not constitutionally divided between the national government and the counties and, in addition, national legislation can override or prevail over county legislation in some cases. Granting the national government significant constitutional powers to interfere with governance in the country’s subnational units does not augur well for true devolution of power.

Importantly, the country’s existing constitution already spells out and emphasizes the separation of powers, and these recent court rulings prove that the system is working. The BBI must either be abandoned or be subjected to more restructuring, possibly through a more inclusive and participatory process, because in its present form, it does not augur well for the type of institutional reforms that can significantly improve political and economic outcomes in Kenya. In other words, the BBI, if implemented in its present form, is not likely to resolve the problem of post-election violence nor significantly improve the peaceful coexistence of the country’s subcultures.

Proponents of the BBI argue that if it is successful, it can provide significant benefits to Kenyans. First, they argue that it can lead to a reduction in post-election conflicts and their destabilizing impacts. Both Kenyatta and Odinga have noted the “destabilizing impact [that] post-election conflicts have had on the country’s growth over the last 30 years” and have argued that the BBI “is aimed at finding a homegrown solution to the divisive nature of Kenyan politics.” Even opponents of the BBI must agree that dealing with the country’s “divisive politics and the resultant ethnic tensions” is a public policy imperative. The two politicians also argued that the BBI will help unify the country, and address several challenges that the country currently faces, including “youth unemployment, corruption and negative ethnicity.” With this in mind, it is important to note that the High Court faulted the process and not the contents of the BBI itself. Thus, if there must be changes to the constitution, they must be undertaken through a legal process, as prescribed in the constitution.

With respect to the reforms proposed by the BBI, it is important to note that parchment prohibitions alone are not enough to secure and protect the fundamental rights of Kenyans. Like their counterparts in other African countries, Kenyans are frustrated with their political elites who have been negligent in safeguarding the rights of the masses and providing them with the wherewithal to create the wealth that they need to confront poverty and improve their living standards. While institutional reforms are critical for peace and security—as well as economic and social advancement of all Kenyans—in order for these institutions to perform their functions and advance the general welfare, Kenya must have “a virtuous public and virtuous leaders” or else the country will remain trapped in a state of political dysfunction and deteriorating economic conditions.