The Court of Appeal is today set to determine whether the High Court was correct in declaring that President Uhuru Kenyatta has no legal authority to spearhead amendments of the Constitution through a popular initiative.
In the legal battle pitting some private citizens against the government, the second highest court will also determine whether the President can be sued in his personal capacity for pursuing such an initiative, which the High Court ruled was a violation of the Constitution.
The appeal involves the sweeping constitutional changes – popularly known as the Building Bridges Initiative (BBI) – which were shot down by a five-judge bench of the High Court on May 14.
In his reaction to the loss, the President and ODM leader Raila Odinga described the judgment as an “attempt to stop the will of the people” while Deputy President William Ruto welcomed it, saying “there is God in heaven who loves Kenya immeasurably”.
Among the notable changes that President Kenyatta and his allies wanted to achieve through the BBI is expansion of the Executive, to bring inclusivity and curb cycles of election violence.
BBI proponents blame the election chaos on the existing electoral system of winner-takes-all. But critics of the expanded Executive cite a high wage bill, and see the move as a bid to retain President Kenyatta in government as prime minister, since he cannot seek a third term in 2022.
The constitutional change drive, which the High Court declared null and void, was born of a political truce between President Kenyatta and his political nemesis Raila Odinga in March 2018. The BBI has dominated Kenyan politics since then.
President Kenyatta filed a personal appeal against the judgment, possibly to save himself from litigations on the alleged violation of the Constitution.
Other appellants were the government, through the Attorney General, the electoral commission, the BBI secretariat and ODM leader Raila Odinga, and cross-appellants Charles Kanjama and Omoke Morara.
Also to be determined this morning is whether the President and public officers who directed or authorised the use of public funds for the BBI constitutional amendment should be ordered to refund the monies so used.
In the appeal, the President was defended by Attorney-General Kihara Kariuki, who argues that any Kenyan, including the Head of State, has a right to initiate changes to the Constitution.
“It was wrong for the High Court judges to make a finding that public officers cannot participate in a popular initiative process for the amendment of the Constitution and can only propose constitutional amendment proposals through Parliament and that the popular initiative was the preserve and monopoly of private citizens without reference to any specific provision of the Constitution to support it,” the AG, through Solicitor General Kennedy Ogeto, said when he appeared before a seven-judge bench of appeals.
However, the group of private citizens and civil society opposed to the BBI defended the High Court judgment and argued that President Kenyatta should have surrendered his powers and authority to his deputy William Ruto, to allow the President to initiate amendment of the Constitution through a popular initiative as a civilian or private citizen.
They said the President also had the option of using the office of the Attorney-General and Majority Leader in the National Assembly and Senate to push for the constitutional amendments he desired through the Legislature.
The other argument that the Court of Appeal will be deciding is whether questions on apportionment and delimitation of the 70 new constituencies to 28 counties proposed in the BBI were political disputes which the High Court had no powers to address.
According to the Attorney General, questions such as how to treat areas that have exceeded the permissible margin of deviation in relation to population and the number of registered voters are not legal matter, but a political one. He said the dispute ought to have been settled in a political forum not legally.
However, the opponents said the BBI proponents had no powers to go the extreme end of allocating the proposed constituencies to 28 counties. They said the allocation and delimitation of boundaries is the mandate of the Independent Electoral and Boundaries Commission (IEBC).
They questioned how the BBI proponents arrived at the number of 70 new constituencies and allocated them to the 28 counties without a review of the current constituencies by the elections agency.
The High Court had found the distribution of the constituencies amounts to an impermissible extra-textual amendment to the Constitution by stealth.
In contention is also whether the Constitution of Kenya has a basic structure, which can only be amended through the exercise of a primary constituent power of the people.
The BBI Secretariat co-chairman Dennis Waweru and Mr Odinga argued that the theory of ‘Basic structure’ of a constitution is a foreign concept that cannot be imposed on Kenya.
“The court cannot read into and impose any such foreign concepts and ideologies and theories into the Constitution of Kenya, 2010. The court ought not to blindly invoke and apply foreign constitutional doctrines, theories or concepts as invited by the petitioners,” they stated.
But the opposing side, led by economist David Ndii, an ally-turned-foe of Mr Odinga, defended the High Court finding that amending the Constitution requires recreation of the conditions, and the four-step procedure, involved in the founding of the 2010 Constitution.
The steps include civic education, public participation, the convening of a constituent assembly, and eventually, a referendum.
The judgment by Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka was a big blow to the BBI constitutional amendment push.
The other main question in the appeal is whether the Constitution envisages the possibility of a Bill to amend the Constitution by popular initiative to be in the form of an omnibus Bill, or must specific proposed amendments be submitted as separate and distinct referendum questions.
In addressing this question, the High Court had ruled that Article 257(10) requires all the specific proposed amendments to be submitted as separate and distinct referendum questions to the people on the referendum ballot paper and to be voted for or against, separately and distinctly.
"The Constitution of Kenya Amendment Bill under consideration contains at least 74 proposed amendments to the Constitution. A faithful reading of Article 255(1) of the Constitution yields the conclusion that each of the proposed amendment clauses ought to be presented as a separate referendum question. This not only avoids confusion, but it also allows the voters to decide on each presented amendment question on its own merit," said the judges.
For example, a voter might be persuaded that Clause 50 of the Amendment Bill, which proposes to amend Article 203 of the Constitution to increase the percentage of funds allocated to county governments from 15 per cent to 35 per cent is good.
However, the same voter might be similarly persuaded that Clause 10 of the Amendment Bill creating 70 additional constituencies and allocating them to specific counties while directing the IEBC on the apportionment criteria is unconstitutional and ill-advised.
Also to be determined is if the electoral agency, with only three commissioners, could conduct a referendum.
Opponents of the BBI Bill defended the High Court's finding that though the IEBC had the minimum number of commissioners set by the Constitution to remain legal, it had no quorum for the conduct of business. The court said the quorum for the IEBC to conduct business is five commissioners.
Focus is also on the High Court's finding that there was no adequate legislative framework in place to guide constitutional amendments through a popular initiative, and the inadequacy was fatal to the BBI process.
The High Court found that at the time of the launch of the Constitutional of Kenya Amendment Bill, 2020 and the collection of endorsement signatures, there was no legislation governing the collection, presentation and verification of signatures, nor was there a legal framework to govern the conduct of referenda.
It was declared that the absence of legislation or legal framework rendered the attempt to amend the Constitution through the BBI Bill flawed.
