ANALYSIS Jan Maina 07 January 2022
The Kenyan Constitutional Civil Appeal Case of Independent Electoral and Boundaries Commission & 4 others v David Ndii & 82 others[2021] commonly referred to as the Building Bridges Initiative (BBI) judgement, certainly impacts the constitutional jurisprudence within Kenya and Africa at large[1]. By declaring a presidential constitutional amendment unconstitutional in August 2021, the feisty Kenyan judiciary, that has been known to hold the highest independence in the region, again follows its pioneering spirit already demonstrated by overturning the presidential election in September 2017.
The Unconstitutionality-Jurisprudence-Nexus
Most countries’ constitutional amendment processes are not undertaken as weighty as they should be. Constitutional amendments are not any other typical amendments of the law, a constitution is a living instrument with a soul and a consciousness, and any alteration intended upon it should undergo the right checks and balances. Around the globe, there have been key constitutional amendments that have cast shadows of skepticism on the very essence of constitutionalism without any judicial interventions. Most of these states pass constitutional amendments that defy the basic structure of the constitution. From Uganda’s presidential age limits constitutional amendments in 2018[2], to Egypt’s constitutional amendment that sought to extend the presidential powers and term limits in 2019[3], to Turkey’s constitutional reforms that sought to eliminate the control of Parliament for the presidential decrees in 2017[4]. In all these amendments of the constitution, states have pursued dismemberment of their constitutions with little or no intervention of the courts in upholding constitutionalism. However, for Kenya, which is a locus classicus, the intervention by the courts has been a successful attempt to defend the integrity of the constitution.
The key highlight of the BBI Appeal jurisprudence is its impact on politics in Africa with regard to the court’s intervention in limiting constitutional presidential powers, an aspect that is not yet welcome in a majority of African countries. The Kenyan court observed that the sitting president has no authority to initiate constitutional changes and further those constitutional amendments should not be used to advance personal political interests[5]. In a well-orchestrated plan to interfere with the dynamics of constitutional law, the Kenyan Court of Appeal amplified the spirit of constitutionalism and democracy in limiting the access, use and abuse of the presidential powers at any given time.
Constitutionalism and the Separation of Powers
In a democratic society, the doctrines of separation of powers, checks and balances are a key condiment of constitutionalism. In light of this, courts should step in to remedy the unscrupulous exercise of powers by its leaders, a challenge that continues to sting for most African countries. In the Kenyan BBI Constitutional Appeal, the court exercised its obligation and mandate in interpreting the constitution of Kenya, 2010 in a manner that cements the existence of the doctrines for the people, by the people and of the people which begets constitutionalism.
Like most African countries, the struggle for constitutionalism in Kenya has not been a ride at dawn, it has a tainted past of blood and antagonistic rivalry from post-election violence and extrajudicial killings to advance the selfish political interest of the ruling class[6]. Judicial independence has also been a foreign concept in Kenya for well a long period, and the BBI Constitutional Appeal could not have offered a better opportunity for integration this concept into national jurisdiction. In buttressing the autonomy of the judiciary, the constitutionalism process comes with embracing the opportunities for the establishment of an efficient opposition to the executive. In the end, it is not a constitutional society if the government itself keeps interfering with the independence of the judiciary. This abuse of power can eventually lead to an irresponsible erosion of democracy in a country and pervasion of the rule of law.
Constitutional Amendment v Constitutional Dismemberment
Violation of the basic structure of the constitution was another key jurisprudential highlight arising from the Kenyan BBI Appeal Case. Issues that the court sought to demystify were the illegality of constitutional amendments clothed in a veil of ‘will of the people’ whereas behind the veil, the will of the political class manifested. While distinguishing between a constitutional amendment and a constitutional dismemberment, this court observed that any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment, it amounts to the dismemberment of the constitution and should be treated as such. Then, what exactly is a constitutional dismemberment? The Court of Appeal concluded that any action that seeks to exceed the boundaries and powers of the Constitution is not an amendment but a constitutional dismemberment. If anything is to go by, it entails a fundamental transformation of the constitution’s core commitments while altering the identity, the fundamental rights and the structure of the constitution in a manner that has not been authorized by the same constitution. Put differently, the Appellate Court submitted that any intention to deliberately disassemble one or more of a constitution’s elemental parts should be treated with caution as its impact would certainly be detrimental to a people, their constitutional pilgrimage and the very dignity attached to their constitution.
As a wind of change for constitutionalism in Africa, the Kenyan Constitutional amendment judgment is definitely an instant classic of transformative constitutionalism. The judgment is not only a landmark decision from the perspective of comparative constitutional law; it also changes the future landscape of constitutionalism in Africa and has started gaining momentum in other African Constitutional law courts as metamorphosed jurisprudence. In Zimbabwe, the Constitutional Court has already declared a presidential constitutional amendment for extension of tenure of the Chief Justice unconstitutional and other courts across Africa might follow.
Jan Maina is a Lawyer and an Advocate of the High Court of Kenya, he is also a scholarly writer in areas of Constitutional law and Public International law; he is also a DAAD and TGCL Alumni.
[1] Kenyan court rejects disputed bid to change constitution, <https://www.aljazeera.com/news/2021/8/20/kenyan-court-rejects-disputed-bid-to-change-constitution>
[2] Uganda enacts law ending presidential age limits, < https://www.aljazeera.com/news/2018/1/2/uganda-enacts-law-ending-presidential-age-limits>
[3] Egypt: Constitutional Amendments Entrench Repression < https://www.hrw.org/news/2019/04/20/egypt-constitutional-amendments-entrench-repression>
[4] Turkey’s constitutional reform: All you need to know, < https://www.aljazeera.com/features/2017/1/17/turkeys-constitutional-reform-all-you-need-to-know>
[5] Kenyan court rejects disputed bid to change constitution, < https://www.aljazeera.com/news/2021/8/20/kenyan-court-rejects-disputed-bid-to-change-constitution>
[6] Kenyans in fear of police ‘death squads’ < https://www.bbc.com/news/world-africa-36733808>
