Kenya’s Court of Appeal has rejected a government bid to make fundamental changes to the constitution in a new blow to President Uhuru Kenyatta, who had initiated the controversial proposals.
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.”
Later on appeal, a seven-judge bench of the Court of Appeal, with Musinga J presiding upheld the High Court ruling.
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.
Building Bridges Initiative (BBI)
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.
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.”
On appeal to the Court of Appeal, President Uhuru Kenyatta argued that his proposed modifications to the 2010 constitution would help end repeated cycles of election violence, a hot-button issue that has divided the political elite.
Kenyatta argued that the constitutional overhaul would promote power-sharing among competing ethnic groups and was not intended to deny anyone the presidency.
The proposed amendments would have created 70 new constituencies and establish several powerful new posts: a prime minister, two deputies and an official leader of the parliamentary opposition.
But in the judgment on Friday, the Court of Appeal upheld the decision of the High Court to find the three-year quest by President Kenyatta and Mr Odinga to amend the Constitution through the BBI as unconstitutional.
The judgment, in which the second highest court was heavily critical of President Kenyatta and the Independent Electoral and Boundaries Commission, stated that the BBI bill was unconstitutional and usurped the people’s sovereign power.
The seven-judge bench also issued a permanent injunction restraining the IEBC from processing the Bill or subjecting it to a referendum. The Bill had already been approved by parliament.
The judges also upheld the High Court’s finding that the President has no authority to promote amendment of the Constitution through a Popular Initiative and that he can be sued in respect to his actions or omissions in the constitution.
“The popular initiative cannot be used by the government or the people’s representatives. Popular initiative is for ordinary Kenyans,” said the judges.
The judges also threw out contentions by the government and the BBI secretariat that the Kenya’s Constitution does not have a basic structure.
“Civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution,” said the judges.
They held that the popular initiative cannot be used by the government or the people’s representatives.
“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,” stated the court.
It was also found that 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 whether the initiative as submitted by the Building Bridges Secretariat is supported by the requisite number of registered voters in accordance with Article 257(4) of the Constitution.
President Kenyatta partially won after the court set aside declarations made by the High Court against him.
The appellate court overturned the High Court declaration that the President had contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.
The amendments, however, were partly designed to tame Ruto’s political ambitions to succeed Kenyatta by making it possible to weave an alliance against him, according to anti-graft campaigner John Githongo.
Kenyatta and Deputy President William Ruto have fallen out, and they and their supporters are at odds over the proposals.
Ruto has been campaigning vigorously to inherit Kenyatta’s Kikuyu voting bloc in the central region – and some there have embraced his message.
Ruto’s Kalenjin ethnic community teamed up with Kenyatta’s Kikuyu in the last two elections to defeat former Prime Minister Raila Odinga from the Luo, another large ethnic group.
The first sign of the break-up came in March 2018, when the president introduced his old rival, Mr Odinga, as the third partner in the union.
After the 2017 election, Mr Odinga, who was also in a polygamous union in the National Super Alliance (Nasa) with three other partners, had launched a wave of protests complaining that the poll was not free and fair.
Concerned that protests would undermine the delivery of election pledges in his final term in office, President Kenyatta reached out to Mr Odinga and the two men shook hands in public as a declaration of peace.
Slowly, Mr Ruto started drifting away from his partner of five years, complaining the marriage was too crowded.
Today, the strain between the presidential couple is displayed openly.
They avoid one another. Their body language speaks of a cold marriage and a frozen bed.
Mr Ruto feels betrayed by President Kenyatta, who has not kicked him out because it could make things even messier.
When the two joined forces, they had an unwritten 20-year prenuptial agreement, in which Mr Ruto would back Mr Kenyatta to serve as president for two five-year terms.
After that Mr Kenyatta would reciprocate by supporting his deputy to win the presidency in the 2022 election and he too would serve two terms, totalling 10 years.
But in January 2021 the president gave the clearest declaration yet that the deal was dead. The president noted that only members of two communities have occupied the top seat in Kenya – the Kikuyu and the Kalenjin.
Mr Kenyatta is Kikuyu, Mr Ruto is Kalenjin while Mr Odinga comes from the Luo community, which has long complained about being excluded from power.
In Kenya political marriages are hardly based on ideological convergence – they just bring together different ethnic kingpins whose main interest is state power and an unlimited access to national largesse.
Mr Ruto does not buy the argument that the Kalenjin cannot rule again or that he cannot unite, once more, with the elusive Kikuyu.
He’s on the political war path now, with frequent trips to central Kenya to woo the Kikuyu.
The breakdown of Kenya’s presidential marriage has come at a big cost. The home is broke.
Friday’s ruling allows the electoral process to follow its planned timetable – subject to any appeal to the Supreme Court, the country’s highest.
But it means the nation’s key political leaders may have to rethink their strategies to build alliances before the vote, analysts said.