Lesson from BBI for rulers; people are always supreme

The two years, 2020 to 2022, will be etched in history as the period when the people stood up and refused to be shackled by the enslaving yoke of their rulers.

The people refused to shoulder the burden of dynastic leaders who run roughshod over everyone and everything to achieve their objective of perpetual rule with impunity and disregard of the rule of law.

The battle to protect the constitution is a living proof that the people have the power to defend it from destruction.

As the people struggled to meet the cost of living amid rising fuel prices, high electricity bills, expensive food, unaffordable medical care, and steep school fees, there was a group that – behind closed doors – made other plans.

This group, elite politicians led by President Uhuru Kenyatta, decided that what the people needed at a time when the economy had collapsed, was a new constitution disguised as 74 amendments through the Building Bridges Initiative (BBI).

Not even presidents Jomo Kenyatta and Daniel Moi attempted such travesty during their 15 and 24 years reigns respectively. The amendments to the independence constitution effected in the 39 years were 38. President Kenyatta sought to effect 74 alterations destroying fundamental features of the constitution in one swipe.

Inconsequential

To President Kenyatta, the people were inconsequential. He was Wanjiku – the People – a plea he desperately made in his defence in court. His resolve to overhaul the constitution through BBI initiative “reggae” – as they christened it – was unstoppable.

President Kenyatta procured support of has-been political elites set to benefit from the new order comprising an expanded Executive, subjugated Parliament and emasculated Judiciary. At the apex was an eternal imperial President recycled amongst dynastic families. Banal therefore, was the unashamedly adopted recital, “nobody can stop reggae”.

President Kenyatta forgot, nay ignored, the basic tenet that amendment of the constitution and/or its repeal is a people-driven process. Equally, he forgot that the Prince, once ascended to the throne, ceases to be one of the people. BBI was far from a people-driven initiative. This dispositive premise ran through the decisions of the High Court, Court of Appeal and Supreme Court.

Applicability of the basic structure doctrine in Kenya was rejected by the majority, six to one of the Supreme Court in its final disposition overturning the judgment of the Court of Appeal. This finding notwithstanding, the basic structure of the constitution remains a formidable bulwark. This is justified for the following reasons.

Final disposition

First, despite the majority’s final disposition, five judges acknowledged that there is a distinction between amendment of the constitution and its repeal or dismemberment.

Second, three judges held that courts can review proposed amendments to establish whether they amount to repeal of the constitution by stealth.

Third, three judges found that where proposed amendments amount to repeal, the four-step process set by the High Court and affirmed by majority in the Court of Appeal: civic education; public participation and collation of views; constituent assembly debate; and referendum; must apply.

The Supreme Court’s holdings summarised above are a plausible settlement for now, the BBI aggression having been held at bay. Curiously, the Chief Justice avoided addressing the pivotal distinction between amendment and repeal of the constitution and eluded the four-step process.

The basic structure doctrine is like the full body armour donned by Roman knights. The armour covered every part of the body. In addition, a knight was armed with a lance, sword, dagger, bow and arrows.

Without knights, however, the best of armour and weaponry are inept. In battle, armour may be breached but what ultimately stops the adversary is the knights’ determination. Comparably, without the people, legal tools deployed to protect the constitution would be ineffective.

Proposed amendments

The three courts are in accord that the people are central to amendment or repeal of the constitution. The courts reaffirmed the place of the people in the initiation, formulation, propagation and approval of proposed amendments to the constitution. They decreed that participation of the people must not only be robust but meaningful and manifest.

The people’s challenge of BBI in court proceeded with the confidence that sovereign authority belongs to them. It is given to leaders to exercise only in the best interest of the people. It is never to be abused or usurped.

The people succeeded, not because of the armour of the basic structure doctrine, but the acknowledged proposition that the constitution – the social contract – is a document of their creation, improvement or replacement.

It is expected that there shall never again arise a president so determined to destroy and dismember the constitution that the people must retrieve and deploy the armour that is the basic structure in defence. For if the ruler performs and obeys the social contract between him and the people, the people will always be supreme.

The writer is a former president of the Law Society of Kenya.