Equality, the Family, and Unpaid Domestic Work: The Judgment of the Kenyan High Court in MW v AN

In an interesting judgment delivered earlier this month, the High Court of Kenya at Nakuru held that the housework and care-work performed by a female spouse (the plaintiff) entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage. The facts of MW v AN were that the parties were married in 1990, separated in 2003, and divorced in 2011. The dispute centred upon the fate of a house constructed at Nakuru. While the house was registered in the name of the male spouse (the defendant), the plaintiff argued that she had taken out extensive loans to finance the purchase of the land and the construction of the house. Moreover, despite having a job herself, she had been the sole care-giver in the family. The defendant, for his part, argued that not only had he bought the plot on his own, but had also been providing financial contributions towards the upkeep of his wife.

Matheka J observed that Section 6(7) of the Matrimonial Property Act of 2013, matrimonial property “vests in the spouses according to the contribution of either spouse towards its question, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” In Echaria v Echaria, it had been held by the Court of Appeal that where there was a “substantial but unascertainable contribution” by both parties, a default rule of equal division would apply. The question, of course, turned upon the meaning of the word “contribution.”

In this context, Matheka J observed that “contribution” would have to include not only tangible financial contribution, but also the “unseen” contribution of housework and care-work. In paragraph 38, she observed:

This other part of mothering, housekeeping and taking care of the family is more often than not not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be a tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job … hence for a woman in employment who has to balance child bearing and rearing this contribution must be considered. How do we put monetary value to that process where a woman bears the pregnancy, gives birth, and takes care of the babies and where after divorce or separation she takes care of the children single handedly without any help from the father of the children … Should this court take this into consideration when distributing matrimonial property where the husband as in this case is left in the matrimonial home where the wife rents a house to provide shelter for herself and the children? I think it should count, especially where the husband has not supported the raising of the children, has not borne his share of parental responsibility.

Furthermore, this would have to be determined by evidence:

It is time that parties took time to give evidence, sufficient enough to support the value to be placed on the less obvious contribution. It is unfair and unjust for one party to be busy just making their money (the ‘seen’ income) while the other is doing two or three other jobs in the family whose income is ‘unseen’ and then claim this other one did nothing. This attitude is so entrenched we still hear women especially who are housewives say: sifanyi kazi (literally I do not do any work) simply because they do not leave the home to go earn money elsewhere. (paragraph 39).

Consequently, Matheka J held that notwithstanding the fact that the matrimonial property was registered in the name of the husband, the maximum “equality is equity” would apply, and that consequently “the property be valued, sold and each party have 1⁄2 share of the proceeds of the sale.”

The judgment of Matheka J is important because of the explicit recognition it gives to “unseen” and unpaid housework, within the context of domestic relationships; as has been well established by now, across the world and across societies, within the institution of the family, the burden of such work is gendered in nature (see, e.g., The Second Shift) – and often, unseen and unpaid domestic work by the female spouse is what “frees up” the male spouse to enter the labour market and engage in the kind of financially remunerative work that, ultimately, results in (for example) matrimonial property being bought with “his” money, and therefore registered in his name. Thus, departures from traditional notions of property are essential in order to do justice in and within the institution of the family.

It is important to contextualise this judgment, both within the framework of Kenyan and comparative law. In Kenya, the default position used to be (as in many other countries) that only financial contributions were to be taken into account in calculating respective shares in the matrimonial property upon dissolution of marriage. Explicitly seeking to change this, the Kenyan Constitution of 2010 contained Article 45(3), which – borrowed from CEDAW – states that “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.” In her book, Equality in Kenya’s 2010 Constitution (2021), Dr. Victoria Miyandazi notes that the intention behind Article 45 was, inter alia, to address “harmful practices such as … unequal claims to matrimonial property upon divorce.” (see pg 42) In Agnes Nanjala Williams vs Jacob Petrus Nicholas Vandergoes, the Court of Appeal directly applied Article 45 between two private parties to mandate an equal division of assets between the spouses, even in the absence of a statutory framework (“horizontal application of rights”).

This position, however, was arguably overruled by the Matrimonial Property Act of 2013, which required judges to take into account the relative contributions of the spouses (as indicated above), but also explicitly specified that the word “contributions” included “domestic work, childcare, and companionship.” The Matrimonial Property Act was challenged in Federation of Woman Lawyers on the basis that the displacement of the 50% rule in favour of “non-monetary contributions” would restore the gendered inequality within marriage, based on the difficulty of calculating non-monetary contributions. This challenge, however, was rejected by the Court.

In that context, the judgment in MW v AN is important, as it essentially restores the position of the default equality rule where there is evidence of “non-monetary contribution”, and allays fears that judiciaries that might not have entirely broken out of patriarchal norms will use the vagueness of the statutory clause to devalue housework or care-work.

Furthermore, this is a position that has been advanced by progressive courts across the world. Perhaps the most outstanding example is New Zealand, where the Property Relations Act of 1976 established a presumption of equal sharing at the time of dissolution, and specifically provided that financial contribution was not to be treated as weightier than non-financial contribution. In numerous judgments interpreting the Property Relations Act, the New Zealand courts have interpreted it with a few towards fulfilling the statutory purpose of achieving the “equal status of women in society”, holding, for example, that wherever the provisions of the Act were ambiguous, the default presumption would be in favour of the property being matrimonial/joint (and therefore, subject to equal division).

Indeed, Matheka J’s language is also remarkably similar to a 1992 judgment of the Colombian Constitutional Court. In Sentencia No. T-494/1992, the Constitutional Court was considering the eviction of a widow from the matrimonial home; the widow’s non-monetary contributions had not been taken into account in determining whether or not she had a legal interest in the home. The Constitutional Court noted that such a position would have the effect of “invisiblising” domestic work, and deepen inequalities within social relations. The Court went on to question the “artificial” distinction between “productive” and “non-productive work”, and noted that refusal to factor in unpaid domestic work would violate the Colombian Constitution’s guarantee of equality and non-discrimination.

The judgment of the Kenyan High Court, thus, joins a global constitutional conversation of how institutional inequalities within the family may be judicially redressed; and it also, I submit, advances the goals of Article 45(3) – itself a fascinating constitutional provision. For these reasons, it deserves careful study by students of comparative constitutional law.


Guest Post: Analysing the Constitutionality of the Reverse Onus Clause in the UP “Love Jihad” Law

[This is a guest post by Shamik Datta and Ishika Garg, and first appeared on the Proof of Guilt blog. It is cross-posted here with permission.]


In February, 2021, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021(Hereinafter “the Law” or “the Uttar Pradesh Law”) was passed by the Uttar Pradesh State Assembly. Section 3 of the Uttar Pradesh Law lays down the offence punishable under the legislation, and reads as: 

“No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such a conversion”

In relation to this offence, the contentious Section 12 of the Law crafts a reverse onus clause. The clause reads as follows: 

“The burden of proof as to whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage, lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such person.”

A reverse onus clause can be understood as one that places the burden of proof upon the accused once the prosecution establishes certain foundational facts. In the absence of such a clause, the onus would be on the prosecution to show that the conversion was coercive. However, in the present case, this clause would require the accused to prove that the conversion was consensual, as long as the prosecution establishes the basic foundational fact of the occurrence of the act of conversion. In this post, the authors shall analyse the constitutionality of this clause by subjecting it to the four-fold test laid down by Justice Gupte in his separate opinion, in the case of Shaikh Zahid Mukhtar v. State of Maharashtra  [(2017) 2 AIR Bom R 140]. In doing so, the authors shall rely on various judgements that have upheld the constitutionality of reverse onus clauses in other statutes. 


An analysis of the clause, through Justice Gupte’s four-fold test.

Justice Gupte laid down the four-fold test to scrutinise the constitutionality of reverse onus clauses, on the anvil of the fundamental rights of equality and liberty enshrined under Article 14 and 21 of our Constitution (Paragraph 213, Pages 231-232). The four conditions stressed upon were as follows –

  1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance of facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
  2. Does the proof of these balance of facts involve a burden to prove a negative fact?
  3. Are these facts within the special knowledge of the accused?
  4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

We shall now examine the clause through each prong of this test. 

The first condition of the test requires the prosecution to establish certain basic foundational facts which must have a rational connection with the presumed facts, in a way that makes the latter highly probable. This presumption of ‘balance of facts’ (considering the probative connection between the basic facts and the presumed facts) is a prerequisite for presuming the guilt of the accused. In the landmark case of Noor Aga Khan v. State of Punjab [(2008) 16 SCC 417], the Supreme Court upheld the constitutionality of Sections 34 and 54 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The presumption of guilt only arises, when the prosecution proves certain foundational facts, which would shift the burden on the accused to rebut this presumption. 

This crucial requirement of proving foundational facts was reiterated in Dharampal Singh v. State of Punjab [(2010) 9 SCC 608] and Bhola Singh v. State of Punjab [(2011) 11 SCC 653]. The evidence presented by the prosecution must have probative value, which essentially means that it must sufficiently point towards the conclusion that the accused committed the crime. Only when the prosecution satisfies this standard can it be considered just for the accused to displace such presumption of guilt. In the context of NDPS, this standard of proving initial facts would be satisfied once the prosecution established that firstly, there was contraband and secondly, that the same was in the conscious possession of the accused. Similarly, in the recent case of Justin @ Renjith v. Union of India, the Kerala High Court stressed on the importance of necessitating the prosecution to prove certain foundational facts such as the age of the victim, and the occurrence of the alleged incident, in order to uphold the constitutionality of the reverse onus clause in the Protection of Children from Sexual Offences Act, 2012

Contrary to this requirement of establishing basic facts, the Uttar Pradesh Law presumes the guilt of the accused without the establishment of a probative connection between the basic facts and the criminalised act of religious conversion. This is because the only foundational fact to be established in the present case is that of there having been a conversion. In our view, this fact alone is not sufficient to establish a probative connection in this regard. To better understand the problem associated with shifting the burden of proof under the Law without the establishment of a probative connection, we must turn our attention towards the numerous instances where the Law has been misused. From these instances, it becomes clear that even in cases where the conversion took place with the consent of the ‘victim’, the accused has had to face an FIR lodged by the family members of the converted person, or a third party. When such is the ground reality, one must question the absence of proving the non-consensual aspect of conversion from the ambit of the basic foundational facts. The mere fact of there having been a conversion, without establishing the non-consensual nature, cannot suffice to establish the probative connection between the facts and the criminalised act under the Law. Therefore, the Law does not rationalise the connection between the basic and presumed facts and hence, does not fulfil the first condition laid out in the four-fold test.

In P.N. Krishna Lal v. Govt. Of Kerala [1995 Supp (2) SCC 187], the Supreme Court recognised that the casting of burden of proof on the accused cannot be allowed when such presumption is raised in relation to the proof of negative facts. Building on this, the second condition of Justice Gupte’s test enquires whether the aforementioned ‘balance of facts’ involves a burden to prove negative facts. The Uttar Pradesh Law criminalises conversion via ‘misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage’. Section 2(a) of the Law defines ‘allurement’ as:

Allurement means and includes offer of any temptation – (i) any gift, gratification, easy money or material benefit either in cash or kind. (ii) employment, free education in reputed school run by any religious body; or (iii) better lifestyle, divine displeasure or otherwise.

In the present case, the negative fact to be proved by the accused is that no allurement occurred due to their actions. Broad terms like ‘allurement’ and ‘any temptation’, once alleged by the prosecution, require an analysis of the mind of the victim at the time of the commission of the offence, on the basis of whether the party actually felt ‘tempted’ by the actions of the accused. Even if the test of preponderance of probabilities is applied, it is unthinkable how the accused can reasonably or fairly be expected to disprove this subjective feeling of temptation, once alleged by the prosecution. Such a burden imposes an unreasonable standard of proving negative facts on the accused. 

On this account, the Uttar Pradesh Law also fails the third condition of the test which requires the balance of facts to fall within the special knowledge of the accused. As argued by the authors, the proving of negative facts does not lie within the special knowledge of the accused in the kind of situations dealt with by the Law. As emphasised in Justin @ Renjith v. Union of India, Parliament is justified in reversing the burden of proof in context of aspects which lie exclusively within the domain of the accused’s knowledge. This case is distinguishable in the present discussion, as it deals with sexual offences committed under the Protection of Children from Sexual Offences Act, 2012. The rationale for such justification was based on the fact that there may not be any eye witness to the incident committed. However, this rationale cannot be deemed to apply in a fool-proof manner in the context of religious conversions, and the authors argue that no other comparable justification is present either. 

It is undisputed that the reversal of burden of proof can only be allowed in those cases where it is evident that there exist certain special facts within the knowledge of the accused, which he can prove or disprove easily. Knowledge, or mens rea, is imputed to the accused in cases such as those of possession of firearms, where mere possession leads to presumption of a harmful purpose [Shaikh Zahid Mukhtar v. State of Maharashtra, (2017) 2 AIR Bom R 140]. However, merely proving the basic foundational fact that a religious conversion took place, cannot be deemed to be in furtherance of a harmful purpose. This is because in multiple cases of religious conversion, it has been noted that the accused had the consent of the converted person, which is not an offence punishable under the Uttar Pradesh Law. The mere proof of conversion does not lead to a presumption that the act was in furtherance of an unlawful, let alone a harmful purpose. Thus, the standard for imputing knowledge to the accused is not satisfied in the present case. With this in mind, the Uttar Pradesh Law fails to fulfill the third condition of the test. 

This leads us to the fourth condition of the test, which enquires whether the burden of proving innocence will subject the accused to any hardship or oppression. In addition to the distress mentioned above, there is also a psychosocial aspect to be considered. In India, religious conversions are widely associated with social stigma and seen as ‘immoral’. This leads to the viewing of the accused as a ‘wrong-doer’, even when the conversion is performed with the consent of the converted person. This situation is further exacerbated when the Law is misused extensively by the prosecution. The justification of reverse onus clauses in light of ‘easier convictions’ cannot be accepted as a higher conviction rate could only increase the possibility of wrongful convictions. A conviction under a reverse onus clause does not necessarily signify guilt, and may just be the undesired result of the accused not being able to satisfy the high standard of proof he is burdened with. An example of the possibility of such wrongful convictions is found in a recent case, where the government explicitly admitted that it did not possess the requisite evidence to prosecute two Muslim men accused of converting a Hindu woman. The woman supported the men, stating that her husband had wrongfully tried to frame them because they supported her when she faced domestic violence from her husband. In all such cases, the hardship faced by the accused is evident and it is clear that the Law does not meet the fourth condition of the test. 

Conclusion

When assessing the validity of Section 12 of the Law, ignoring the inextricable link between constitutional and criminal law would be a grave mistake. The above analysis of the reverse onus clause under the Law, leads to the conclusion that the Law fails to meet the criteria of the four-fold test. Moreover, the rationale behind the law of curbing ‘unlawful conversions’, cannot be justified when analysed in comparison to reverse onus clauses in other statutes, whose constitutionality has been previously upheld by the court. In light of these considerations, the authors believe that the reverse burden of proof clause needs to be reconsidered. 

Affirmative Action as a Remedy for Dispossession: The Judgment of the Ugandan Constitutional Court

On 19 August 2021, the Constitutional Court of Uganda handed down an interesting judgment in United Organisation for Batwa Development in Uganda v The Attorney-General. The case concerned the rights of the Batwa, an indigenous community in South-West Uganda. The Petitioners argued that over a long period of time, spanning many decades, the Batwa had been systematically dispossessed of their lands, first by the colonial government, and then by the actions of the government of Uganda. This constituted a breach of their constitutional rights under the 1995 Constitution of Uganda (such as the rights to life, equality, and a set of social, economic and cultural rights), and triggered a range of remedies, ranging from financial compensation to recognition of the right to access traditional forest land.

There are two features of this judgment that repay careful study. The first is the extent of evidence that the Petitioners brought on record to demonstrate the historical ties of the Batwa community with the land in question. This evidence took the form of individual testimonies, combined with expert analysis submitted by way of affidavit (see pgs 20 – 32 of the judgment); this expert analysis included material from the colonial archives, which demonstrated how the colonial government had displaced the Batwa in order to create game reserves. The Respondents were unable to rebut this evidence, arguing only that as of date, the Batwa were not located on forest land, and their access to it was limited to procuring some forest produce. As the Court recognised, that, of course, was a non-sequitur, because the displacement was historical.

From a legal point of view, it is the second feature that is particularly interesting. The Court located the remedy within Article 32 of the Ugandan Constitution, which provides for affirmative action:

Notwithstanding anything in this Constitution, the State shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.

The Constitutional Court held that the text of Article 32 indicated an affirmative obligation upon the government to undertake affirmative action measures, tailored to two requirements: first, it must be established that the claimant group is marginalised (call this the “entitlement” requirement); and secondly, that the nature of the measure must be such that redresses these structural imbalance (call this the “fit” requirement). In the present case, on the basis of the evidence before it, the Court found that it was beyond cavil that the Batwa had been – and continued to be – a marginalised group. This fulfilled the entitlement requirement, and thus triggered an obligation upon the State to introduce affirmative action measures.

In other words, therefore, the Court held that a generic affirmative action provision in the Constitution created a right in favour of marginalised groups, and vested in them the standing to approach the Court for enforcement. This is as it should be; however, it is also important to note that a generic affirmative action guarantee (as in Article 32(1) of the Ugandan Constitution) is nothing more than the principle of substantive equality, expressed in more concrete terms. Logically, therefore, what the Ugandan Constitutional Court accomplished through Article 32(1) ought, in theory, to be accomplished in Constitutions that do not have a specific affirmative action guarantee, but nonetheless subscribe to a theory of substantive equality. More to the point, in the Indian context, this shows once again how the Indian Supreme Court’s repeated statement that “there is no right to reservation” is entirely at odds with its simultaneous jurisprudence that the Indian Constitution guarantees a right to substantive equality. It is illogical to hold, on the one hand, that there is a right to substantive equality, while also holding, on the other, that people who have been deprived of this right have no remedy for it.

Back to the issue: the Ugandan Constitutional Court then went on to hold that the tailoring of affirmative action measures could not be undertaken purely through evidence by way of affidavit. It was a fact-intensive enquiry. Under Article 137(4) of the Ugandan Constitution, it was open to the Constitutional Court to refer a matter to the High Court “to investigate and determine the appropriate redress.” Availing of this provision, the Constitutional Court directed the High Court to expeditiously hear evidence and determine the matter, keeping in mind that affirmative action measures put in place “do not expose the Batwa people to further exploitation, are practically effective, and are enjoyed by all the Batwa people.” (pg 46)

It is of particular significance to note that upon finding that a State obligation of affirmative action was triggered, the Constitutional Court did not remand the matter to the government, to devise an appropriate affirmative action programme; instead, it remanded the matter to the court below, to hold (what appears to be) a trial on the issue.

Now if you look at Article 32(2) of the Ugandan Constitution, which immediately follows the affirmative action provision, it is provided there that “Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to clause (1) of this article.” This formulation is a familiar one in the context of comparative constitutional law: rights that require structural or institutional solutions to implement are often followed by a sub-clause that delegates their implementation to the legislature (see e.g., Article 17 of the Indian Constitution, prohibiting “untouchability”). It is therefore noteworthy that the Constitutional Court nonetheless held that the crafting of affirmative action measures was a judicial task, to be undertaken after judicial consideration of evidence. In this, the judgment is somewhat reminiscent of the Indian Supreme Court ruling in NALSA v Union of India, which specifically held in favour of affirmative action for the transgender community, and the concrete form that it would take (enforcement, of course, ran into hurdles).

Consequently, the judgment sets down the crucial principle that: (a) under the Constitution’s generic affirmative action principle, it is open for groups to directly approach the Court as rights-bearers, and trigger an obligation upon the State to fashion an affirmative action programme; and (b) if the claimants are successful in meeting the entitlement requirement, then the remedy will be judicial in nature, i.e., the Court will hear evidence and determine affirmative action remedies that meet the “fit” requirement. Taken together, these principles represent a highly progressive approach to affirmative action, which firmly grounds it as a right, that can be enforced by claiming specific remedies, which can be granted even where the government chooses to drag its feet and not fashion an appropriate affirmative action scheme. Of course, this approach comes with its own risk: as has been seen around the world, the exclusion of the government from the task of fashioning social welfare schemes, and the transposal of that power to the judiciary, can bring with it its own set of pathologies. Given that, students of comparative constitutional law may be particularly interested in following these proceedings through the High Court, where the question of the appropriate affirmative action scheme will be debated in the coming weeks.

Guest Post: The New Pension Rules 2021 and the Freedom of Speech of Government Employees – II

[This is Part Two of a two-part series by Harsh Jain and Eeshan Sonak. Part One may be found here.]


On 31st May 2021, the Central Government notified an amendment to Rule 8(3A) of the Central Civil Services (Pension) Rules, 1972, that restricts retired officials in intelligence/security related organizations from critically commenting on issues relating to current policy that fall within the ‘domain’ of the organizations they served. Failing to seek prior clearance could result in the withdrawal or withholding of the official’s pension. Rule 8 of the CCS Pension Rules relates to officials’ “pension subject to future good conduct.” Previously, ‘good conduct’ meant that the official must not be convicted of a serious crime by a court of law, or be found guilty of grave misconduct. The explanation to the rule clarifies that grave misconduct would mean the disclosure of a secret obtained while holding office under the government, as mentioned in Section 5 of the Official Secrets Act, 1923. The amendment is an attempt to transgress these accepted restrictions, and punish retired officials who use their expertise to criticize the government and point out the flaws in its governance.

In the previous part of this article, we have argued depending on the nature of their work, the government can, in the interests of discipline, efficiency, and confidentiality, impose certain reasonable restrictions on its employees above and beyond those applicable to other citizens. However, what constitutions ‘reasonable restrictions’ is left open for the courts to adjudicate depending on the facts and circumstances of each case. We now argue that the amendment imposes an unconstitutional restriction to free speech for it is unreasonable, disproportionate, vague,  and overbroad. But before moving into these arguments, we wish to make two preliminary submissions that shall have a bearing on the rest of our arguments.

Firstly, pension is not a bounty, charity or a gratuitous payment, but an indefeasible right of every employee. It not an ex-gratia payment that depends on the sweet will of the employer, but a staggered form of payment for the past service rendered. Such was the view taken in D.S. Nakara v. Union of India (1982).

Secondly, restrictions on free speech must pass a higher threshold of reasonability vis-à-vis other rights. Justice Nariman in Shreya Singhal v. Union of India (2015), noted that “restrictions on freedom of speech must be couched in the narrowest possible terms.” Justice V.S. Deshpande, writing extra-judicially, discussed how the liberal wing of US Supreme Court judges advocated a doctrine that the freedom of speech and expression is preferred to the less important rights such as the right to property. According to them, a restraint on the freedom of speech and expression is prima facie unconstitutional unless the state can justify it. The Supreme Court of Colombia has also held that any limitation on freedom of expression “is presumed to be suspect, and therefore must be subject to a strict constitutional analysis” (see also a report by the Special Rapporteur for Freedom of Expression by the Inter-American Commission on Human Rights). Justice Deshpande was of the firm view that these principles are applicable in India as well.

On the subject of the constitutionality of the New Pension Rules, 2021: the Indian jurisprudence when it comes to the Article 19 rights of government employees is clear. Any restrictions of the Article 19(1) rights of government officials must pass the test of reasonableness laid down in Articles 19(2) to 19(6). As we have argued previously, the threshold of reasonableness for restrictions on the rights of government employees might be lesser than that of ordinary citizens and must be decided by the courts depending on the facts and circumstances of each case. It is our submission that the new amendment to Section 8(3A) of the Central Civil Services (Pension) Rules, 1972 does not pass the test of reasonableness laid down in Article 19(2).

In Sakal Papers v. Union of India (1961), the Supreme Court held that the State cannot place restrictions on the freedom of speech and expression in the general interest of the public. Free speech restrictions are permissible only on any of the eight subject matters contained in Article 19(2). Further, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia (1960), the Supreme Court held that the restriction must have a ‘proximate’ or ‘imminent’ connection with one of the grounds under Article 19(2). This ‘proximity’ test was strengthened in Shreya Singhal v. Union of India (2015), where the Supreme Court struck down Section 66A of the Information Technology Act by distinguishing between ‘advocacy’ and ‘incitement’ and holding that only the latter could be constitutionally prohibited (more on the proximity test here).

The unamended Rule 8(3A) which was introduced by way of an amendment in 2008, prohibited the publication of materials without prior clearance only when it related to subjects that might affect the sovereignty and integrity of India, the interests of the State, relations with a foreign State, or might lead to incitement of an offence, i.e., most of the recognised grounds in Article 19(2). The amended Rule 8(3A), however, restricts publication of any material which might fall under the domain of the official’s organization, including any expertise or knowledge gained by virtue of working in that organization. Such a restriction goes beyond the subject matters specified in Article 19(2).

Furthermore, it goes against the doctrine of proportionality. The Supreme Court, in cases like Modern Dental College v. State of Madhya Pradesh (2016) and K.S. Puttaswamy v. Union of India (2018), endorsed a four-limb test of proportionality conceptualised by Aharon Barak, the former President of the Supreme Court of Israel. According to the test, a measure restricting a constitutional right must, first, have a legitimate goal; second, it must be a suitable means of furthering the goal; third, there must not be any less restrictive but equally effective alternative; and fourth, the measure must not have a disproportionate impact on the rights holder. It is the third limb or the “least restrictive measure” test that is of relevance in the present context. It requires that the State assess all possible alternatives and use the least restrictive method in pursuance of its goals. The State must factually demonstrate with evidence that the alternatives do not achieve the goal in a more effective manner than the restriction it proposes or else the restriction would be ruled unconstitutional (previously discussed here). A similar standard was used by the Supreme Court in Internet Mobile Association of India v. Reserve Bank of India (2020).

The purported aim of the amendment to Rule 8(3A) was to prevent sensitive information from being put in the public domain by retired intelligence/security officials. As discussed earlier, the unamended rule already prevented the publication of any material pertaining to the security of the State, relations with a foreign State, interests of the nation, etc. Such a limited restriction balanced the right to freedom of speech and expression of the officials and the social importance of effectively restricting such a right. The new rule puts a blanket restriction on the publication of any material within the domain of an official’s organization. The State must factually demonstrate with evidence that the new rule protects sensitive information more effectively than the alternative previously in place. In case it fails to do so, the rule must be held to be unconstitutional for being disproportionate.

The amendment also suffers from the vices of vagueness, overbreadth, and of producing a chilling effect. As was held in Chintaman Rao v State of MP (1950), “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In State of Bombay v. F.N. Balsara (1951), the Court struck down sections of the Bombay prohibition law that criminalized “frustrating or defeating the provisions of the Act” by, inter alia, noting that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” This is believed to be the origin of the vagueness doctrine and also the first time the Supreme Court gave a nod to the concept of overbreadth (see more on the roots of vagueness here).

Similarly, in Kartar Singh v. State of Punjab (1994), the Court held that “laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” and said that if the provisions are not clearly defined, the enactment is void for vagueness. Furthermore, the Supreme Court has incorporated the concept of ‘chilling effect’ into Indian jurisprudence through cases such as Kameshwar Prasad, Khushboo v. Kanniammal (2010), and most recently in Shreya Singhal, where it applied all the three doctrines of vagueness, overbreadth, and chilling effect to strike down Section 66A of the IT Act. It said: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total… therefore, [it would] have to be struck down on the ground of overbreadth.”

The newly amended rule fails to precisely define the expression “domain of the organization” and gives it an open-ended definition: “including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.” As was the case with Section 66A, the amendment is likely to be misused in selectively censoring any opinions that portray the government in bad light. Alternatively, it would result in self-censorship of retired officials as, in the words of Lt. Gen. H.S. Panag (retd.), “which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored?

An article written by Siddharth Varadarajan that interviews retired officials captures the sheer overbreadth of the new rules. Varadarajan writes that the amendment would prohibit former R&AW officials from writing on foreign policy, or former Intelligence Bureau officials from writing on communal violence or mishandling of internal security issues or even domestic politics since the IB’s domain includes those. Retired officials, by their years of experience, are best suited to comment on policy matters and convey this information to the general public. They are equipped with the requisite knowledge to call out the government’s mishandling of issues or to suggest ways of improvement through open letters. The amendment prohibiting them from expressing themselves on areas in which they have special expertise is clearly hit by the test of overbreadth.

For these reasons, the courts must recognize that the amendment is unreasonable, disproportionate, vague, and overbroad, and must therefore declare it to be unconstitutional.

Guest Post: The New Pension Rules 2021 and the Freedom of Speech of Government Employees – I

[This is a guest post by Harsh Jain and Eeshan Sonak.]


In an earlier post on this blog, Gautam Bhatia discussed in depth the right to free speech of government employees. The post was written in 2016 in the backdrop of a proposed change to the All India Service (Conduct) Rules, 1968, which would prohibit government officials from ‘criticising’ the government on social media. Five years later, we now see an amendment to the Central Civil Services (Pension) Rules, 1972, which goes even further in its effect: it prohibits retired officials in intelligence/security related organizations from publishing anything that falls within the ‘domain’ of the organization they served. A failure to seek prior clearance can lead to an official’s pension being withheld or withdrawn.

In this article, we present a challenge to the constitutionality of the amendment on the anvil of Article 19(1)(a), by examining whether, and to what extent, it is permissible to place greater restrictions on the freedom of speech and expression of retired officials vis-à-vis other citizens. To do so, we trace the decisions of the Supreme Court on the constitutional rights of government employees, and somewhat differ from Bhatia in our conclusion.

Bhatia writes that “in its relationship with its employees, the government assumes two faces: as an employer, with the power to enforce discipline and unity, and as the State, which must respect fundamental rights. The scope of government employees’ rights to freedom of expression and association, therefore, depends upon which of those faces the courts have considered to be the dominant one, and to what extent.” While adhering to this framework, we argue that unlike the narrative of a vacillating Supreme Court presented by Bhatia, its decisions can be read as being consistent in substance and reasoning, though questionable in their conclusions.

Constitutional Rights of Government Employees

The Supreme Court decided on the validity of terms of service that restrict government employees’ rights for the first time in P Balakotaiah v. Union of India (1957). A few railway employees, who had been terminated for engaging in “subversive activities” by organizing a general strike in association with communists, challenged their termination before the Supreme Court as a violation of their fundamental right to form associations. A Constitution Bench of the Supreme Court upheld their termination and stated that the orders of termination:

… do not prevent them from continuing to be communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Article 311, no infringement of any of their constitutional rights.” As Bhatia puts it, the underlying premise behind the Supreme Court’s refusal to invoke Article 19(1)(c) was that  “since there is no antecedent fundamental right to government employment, the government is free to make employment conditional on the requirement that employees do not associate with communists.

Five years later, in 1962, two Constitution Benches of the Supreme Court took a radically different approach from Balakotaiah. In Kameshwar Prasad v. State of Bihar the Court struck down a rule that prohibited government servants from participating in demonstrations or strikes concerning their conditions of service. The Court noted that entering government service does not disentitle a person from claiming the freedoms guaranteed to every citizen, and therefore, any restriction on Article 19(1)(a) or (c) would have to satisfy the reasonableness test under Articles 19(2) or (4) respectively. It held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the rule was overbroad and hence, void. Similarly, a few months later in O.K. Ghosh v. E.X. Joseph, the Supreme Court struck down a rule prohibiting government servants from joining associations not recognized by the government.

However, in 1998, a two-judge bench of the Supreme Court yet again changed tack. In M.H. Devendrappa v. Karnataka Small State Industries, the Court upheld the dismissal of an employee on the basis of a rule which prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation.” The Court reasoned that “a rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a).” To this extent, as Bhatia notes, it is an incorrect position of law as the Supreme Court, in Bennett Coleman v. Union of India, abandoned the “object and form” test for the violation of fundamental rights in favour of the “effects” test.

Bhatia then goes on to discuss how the Court in Devendrappa wriggled out of the difficulty when faced with the “conflicting precedents” in Balakotaiah and Kameshwar Prasad/O.K. Ghosh. Describing the complexity involved, Bhatia says that “Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotaiah, and were then themselves incorrectly interpreted by Devendrappa, giving us, at the end of the day, an initial Constitution Bench decision and a later two-judge bench decision on one side, and two Constitution Bench decisions in the middle on the other.”

It is this part of Bhatia’s criticism that we disagree with, for reasons that will shortly become clear. To clarify, we do not seek to defend Balakotaiah or Devendrappa, and in fact, believe – as Bhatia points out – that they are strewn with glaring errors. Instead, we seek to focus on those aspects of the judgments that lie at the very core of the constitutional rights of government employees and argue that Kameshwar Prasad and Balakotaiah are not entirely “conflicting precedents” and that there is scope to reconcile them when looking at their core aspects. Amidst the numerous differences in reasoning and conclusions, there runs a commonality that is consistent through all four judgments. The following three principles consistently emerge from them:

  1. Government employees cannot be said to form a class apart to whom the rights guaranteed by Part III do not, in general, apply.
  2. Depending on the nature of their work, duties they are required to discharge, and information they are privy to, reasonable restrictions above and beyond those applicable to other citizens may be placed on Government employees in the interest of discipline, efficiency, and confidentiality.
  3. The question as to what constitutes ‘reasonable restrictions’ is subjective, and is left open for the courts to determine on a case-by-case basis.

So far as the first principle is concerned, Kameshwar Prasad (para 18) and O.K. Ghosh (para 11) unequivocally say in no uncertain terms that government servants can claim fundamental rights. We believe that this principle is also implicit in Balakotaiah and Devendrappa. Balakotaiah took the view that the appellant’s rights under Article 19(1)(c) have not been infringed since they can continue to be communists or trade unionists, but they have no fundamental right to be continued in employment by the State. Whatever be the correctness of this view, there is, arguably, a tacit recognition that the State cannot infringe upon the fundamental rights of government employees.  

Now coming to Devendrappa, we believe that its emphasis and repeated re-iteration of the second principle impliedly affirms the first principle. Devendrappa focuses on the reasonableness of the restrictions and says:

Proper exercise of rights may have, implicit in them, certain restrictions. The rights must be harmoniously construed so that they are properly promoted with the minimum of such implied and necessary restrictions. In the present case, joining government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduce necessary for the proper discharge of functions as a government servant. That code cannot be flouted in the name of other freedoms. Of course, the courts will be vigilant to see that the code is not so widely framed as to unreasonably restrict fundamental freedom. But a reasonable code designed to promote discipline and efficiency can be enforced by the government organisation in the sense that those who flout it can be subjected to disciplinary action.

Contrary to Bhatia’s claim that the Court in Devendrappa tried to wriggle out of the difficulty of “conflicting precedents,” it highlighted Kameshwar Prasad and O.K. Ghosh as shining examples of how the courts have made sure that the impingement on the fundamental rights of Government employees is minimal. It concluded that “a proper balancing of interests of an individual as a citizen and the right of the State to frame a code of conduct for its employees in the interest of proper functioning of the State, is required.In our opinion, this iteration alone captures all three principles that we culled out.

Kameshwar Prasad and O.K. Ghosh also advance a similar proposition. Kameshwar Prasad says that “if the rule had confined itself to demonstrations of a type which would lead to disorder, or which would fall under the other limiting criteria specified in Article 19(2) the validity of the rule could have been sustained.” This means that government employees may have special rules or restrictions as long those restrictions fall within Article 19(2). If certain actions by government employees may lead to disorder, which if done by ordinary citizens would not lead to the same, then those rules can be sustained under a 19(2) enquiry. Kameshwar Prasad then goes on to give specific two instances where such rules would be sustained: that of an income tax officer mandated to maintain secrecy of documents under the Income Tax Act and an election officer mandated to do the same under the Representation of the People Act. The Court held that rules regulating the use of information obtained by such employees in the course of their duties by virtue of their official position do not infringe the right to free speech.

Bhatia argues that the very narrowness and specificity of these examples directly contradict the broad interpretation that Devendrappa placed upon Kameshwar Prasad, namely that “fundamental rights challenge could be avoided on the ground of requiring proper discharge of duties by government servants.” We believe that Devendrappa did not hold that a fundamental rights challenge could be avoided on this ground, but that it would have to be tested on a different threshold of ‘reasonableness’ by taking into consideration the interests of discipline, efficiency, and confidentiality in the discharge of their duties.

Similarly, O.K. Ghosh also held that “there can be no doubt that government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst government employees and their efficiency may in a sense, be said to be related to public order.” It added, however, that “a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct.” In the particular facts of that case, the Court struck down the law as unconstitutional holding that “it is difficult to see any direct or proximate or reasonable connection between the recognition by the government of the association and the discipline amongst, and the efficiency of, the members of the said association.”

Thus, the first two principles establish that owing to the nature of their work, which may entail consuming sensitive information, government employees can be subjected to stricter regulations vis-à-vis other citizens. It is also established that these regulations must be ‘reasonable’ in line with Article 19(2). What is left unanswered is the question of what constitutes ‘reasonable restrictions.’ We believe that it is this question that the courts have answered inconsistently, if at all. Balakotaiah did not undertake any reasonability enquiry and went too far in holding that the government can terminate its employee even for the proper exercise of her fundamental right. Devendrappa too, in our opinion, erred in upholding the dismissal on the ground of proper functioning of the government organisation. In contrast, we believe that Kameshwar Prasad and O.K. Ghosh reflect the correct exposition of law. Regardless, an undeniable observation that arises from this analysis is that the courts have adopted different standards of reasonability when testing the constitutionality of the law or when applying it to different cases.

Hence, we conclude that what constitutes a reasonable restriction in the special circumstances of government employees is left undecided. It is up to the discretion of the courts to determine whether a restriction is reasonable after considering the particular factors of a given case like the nature of employment and the extent to which the law restricts one’s fundamental right. It is this subjectivity that we grapple with in the next part of this article, where we present a challenge to the constitutionality of the amendment to the Central Civil Services (Pension) Rules, 1972. We call this amendment the ‘New Pension Rules, 2021’ because of how drastically it expands the requirement of good conduct after retirement; so much so that it is not a stretch to say that it introduces a new code in itself for availing pension.

However, before we proceed to discuss the New Pension Rules, there remains unaddressed one last argument by Bhatia: the doctrine of unconstitutional conditions. Bhatia places the incipience of this doctrine into Indian jurisprudence in the case of Re Kerala Education Bill (1958). The doctrine prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights (discussed in greater depth in another post by Bhatia; available here). Bhatia argues that this pronouncement impliedly overruled Balakotaiah because though there is no antecedent right to government employment, making one’s employment conditional upon her abstaining from exercising her constitutional rights to free speech and association would no more be permissible.

While we agree that the reasoning advanced in Balakotaiah would not stand the test of the unconstitutional conditions doctrine, we believe that it is important to clarify that this doctrine cannot be held as absolute, and is itself subject to implied limits of reasonable restrictions. Since the unconstitutional conditions doctrine originated in the United States, let us see some of the US Supreme Court decisions relating to this doctrine.

Professor Emeritus Thomas McCoy of Vanderbilt University discusses the limitations and proper application of the unconstitutional conditions doctrine. He says that if a restriction is reasonably necessary for the effective performance of the contract, the unconstitutional conditions doctrine will not apply, and the court will uphold the contractual restriction on speech. For example, a position with the Central Intelligence Agency is routinely conditioned on an individual’s acceptance of significant restrictions on her freedom to speak about classified information to which she will have access. In Snepp v. United States (1980), the Supreme Court upheld the speech-restrictive condition in the CIA employment contract saying that the unconstitutional conditions doctrine will not apply since such restrictions are essential to the effective performance of the CIA agent’s duties. Similarly, in Rust v. Sullivan (1991), the Court refused to apply the doctrine holding that a government employee engaged in family counselling using government-specified speech, contractually agrees to forego the advocacy of her own viewpoints during the counselling time. However, the Court has also ruled that the Government cannot discourage unfavourable speech unrelated to contract performance. In Elrod v. Burns (1976), the Court held that a city government cannot offer employment as a police officer on the condition that the employee refrains from making speeches in her spare time that are critical of the mayor’s political views.

In India as well, secrecy and non-disclosure are essential requirements of certain positions. Kameshwar Prasad itself gives two such positions: income tax officers and election officers. Thus, we see that it is permissible to restrict free speech to the extent it involves classified information. Therefore, the doctrine of unconstitutional conditions does not affect the application of the three principles we culled out as commonalities in all four judgments.

(Part Two to follow.)

Guest Post: The Case for Judicial Review of Legislative Process

[This is a guest post by Dhananjay Dhonchak.]


Introduction

Recent writings surrounding the functioning of the Parliament and the passing of contentious legislation have, to an extent, focused their attention towards the government’s blatant misuse of parliamentary provisions. However, critique has often centered around either the government’s propensity to rule in an authoritarian manner and the complicity of the Presiding Officer, or around the unconstitutional outcomes such legislation brings. As a result, solutions have only emphasized either reforming the post of the Presiding Officer or asking the Court to strike down the legislation on grounds of unconstitutionality. In this article, I argue that legislation can bring about unconstitutional results not only because of its content but also because of the manner in which it is passed. In doing so, I identify adherence to the law-making process and the legislative procedures associated with it as a democratic and constitutional value to be protected in and of itself, independent of whatever outcome it brings. I argue that the power of judicial review must be exercised by constitutional courts to protect this democratic value.  

Judicial review in the traditional sense is understood as protecting constitutional rights from legislative action. In this sense, it is primarily substantive and does not look into the process of law-making. However, judicial review of the legislative process examines the validity of a statute on the basis of whether the legislative procedures were followed or not. Thus, a law may be constitutionally valid in the traditional sense and may not infringe on any Fundamental Rights illegally, but still be invalidated. A statute invalidated on such a basis may still be enacted again provided it is done in a proper manner. .

The need for a judicial review of the legislative process

Such robust use of judicial review can be an effective strategy to keep political leaders in check. India has a particularly troubled history when it comes to political leaders complying with the legislative procedure. For example, one of the first acts of the Indian Parliament- The First Amendment- was marred by questions of procedural impropriety. Critics had pointed out that a Provisional Parliament which was indirectly elected by the people should not have the authority to amend the Constitution especially when it concerns Fundamental Rights. Tripurdaman Singh, in his book ‘Sixteen Stormy Days has described the amendment as a ‘constitutional travesty’ that has left the constitution as an embarrassing monument that represents ‘an ideal of legality and procedural conduct regularly ignored by state and society alike.’ More contemporary examples of procedural infirmities plaguing the passing of legislations include the effective abrogation of Article 370 and the Farm Bills.

Both of these laws were passed by blatantly violating procedural rules, or important ‘secondary rules’. Borrowing from Hart, secondary rules are those rules which govern the method of how primary rules- which grant rights or impose obligations on citizens- are to be made, changed or extinguished. With Hart’s model in mind, I argue that the parliamentary procedures are an embodiment of certain secondary rules which provide validity to any statute. These procedures distinguish the rules made by the Indian Parliament from mere ‘orders’ of a man with a loaded gun. Thus, when a Bill is passed using a voice vote when there is clear dissension in the parliament, the normative value that this Bill carries is significantly reduced. This has drastic consequences for the democratic culture of our country and undermines the institutional integrity of the Indian Parliament.

Parliamentary procedures are inextricably linked to producing a democratic result. For example, bicameral passage of a Bill ensures that elected representatives on behalf of the citizens properly discuss a law before enacting it. Similarly, Direction 20B of the Rules of Procedure, which was violated when the Jammu and Kashmir Reorganisation Act, 2019 was passed, ensures that members get at least two days to familiarise themselves with a proposed Bill before voting on it. Thus, the democratic principle of deliberation is safeguarded to some extent through such procedures. It would be a fair objection to make that imputing a requirement of deliberation on the Indian Parliament is futile because more often than not this requirement is flouted due to the incompetence of the legislators to carry out any meaningful debate. It is also practically impossible to provide a quantitative cap on the number of hours a Bill must be discussed to realise this principle of deliberation. However, the principle of deliberation, regardless of whether it has been meaningfully realised or not, continues to remain an ideal to be followed and finds expression in the parliamentary procedures. Thus, when the procedure is violated by executive scheming, the Parliament not only falls short of the ideal but attacks the very basis of the ideal itself. This strikes at the very root of Indian democracy.

Locating judicial review of the legislative process in Indian Constitutional Law

A reading of Article 122(1) of the Constitution would make us believe that since legislative actions are immune from review by the Courts on account of procedural irregularity, there is no scope for the kind of judicial review proposed in this article. However, as highlighted here, adjudication by Indian Courts indicates a strong propensity to intervene in legislative actions when the said action or irregularity impugns on a constitutional requirement.

For example, in Puttaswamy-II, the Supreme Court was faced with a question of whether the designation of a particular Bill as Money Bill by the Speaker is open to review by the Courts. The Court held that a mere “irregularity of procedure” is different from a “substantive illegality” which occurs when there is a violation of an ‘essential constitutional condition’. The Court held that the ‘decision of the Speaker certifying the Bill as Money Bill is not only a matter of procedure, and subject to judicial review.’ Thus, for the Court an ‘essential constitutional condition’ was one which was expressed in a provision of the Constitution i.e Article 110(1) which lists out what constitutes a Money Bill. However, there may be certain features of the Constitution which do not find a place in any express provision and yet their violation is seen as a violation of the Constitution. Surely then, these basic features would be understood as ‘essential constitutional conditions’.

The Court in Kesavananda Bharati held the principle of ‘Rule of Law’ and ‘Democracy’ to be a part of the basic structure of the Constitution. As explained above, violations of procedure undermine the democratic character of the Indian state. Further, the principle of Rule of Law as understood in its most basic sense is governance through a set of rules and procedures which bind even the powerful executive as different from governance based on the whims and fancies of the sovereign. Thus, I can safely argue that the passage of a statute which arbitrarily violates established parliamentary procedure also violates the principle of Rule of Law. By placing procedural violations in the context of the principles of ‘Rule of Law’ and ‘Democracy’, constitutional courts in India can invalidate the ‘results’ of such infirmities i.e the Acts which they produce, on the grounds of violating the basic structure of the Constitution. Here, the Court is not invoking a specific constitutional provision as was done in Puttaswamy-II to evaluate a procedural infirmity. The Court is categorising the basic features of the Constitution as ‘essential constitutional conditions’ that may be violated if certain parliamentary procedures are violated.

This is not to say that all procedural requirements of the Parliament automatically become part of the basic structure. The Court will have to carry out a case specific analysis, keeping in mind the procedure violated and the content of the enacted statute to come to the conclusion that the basic structure has been violated.

Elsewhere, Sindhu and Narayan, while arguing for the proportionality test to be the default standard of judicial review, have explained how the Indian Constituent Assembly wanted to build a constitutional system similar to Mureinik’s ‘culture of justification’- one where legality of governmental action is derived from the reasoning behind the exercise of that power. According to them, judicial review guided by the proportionality standard serves to sustain this culture of justification where ‘rights are considered foundational’ and any ‘abuse of power by elected officials is checked by the Courts’.

To add to this, an understanding of ‘abuse of power by elected officials’ is complete only if both rights violations as well as violations of procedural norms fall within its ambit. The logic or rationale behind a statute is undermined at the very basic level if a fundamental procedural norm is violated to enact it. This is because the first level of inquiry or ‘justification’ regarding a statute and its impact on Fundamental Rights is only made possible with the premise that the statute was validly enacted. As explained earlier, this premise may not hold true in every case which makes it crucial for the Courts to examine the process of law making.  Violations of procedural norms would be inconsistent within a ‘culture of justification’. The model of judicial review proposed in my article does not undermine the argument and model proposed by Sindhu and Narayana but supplements and adds to it. Moreover, any advocate of judicial review and its ability to invalidate unfair infringement of Fundamental Rights must necessarily concern themselves with the process of law making.  As argued before, violations of procedure strike at the very core of the principle of Rule of Law which itself is rooted in Article 14 of the Constitution i.e., a Fundamental Right.

Thus, it is possible to locate judicial review of the legislative process within the Indian Constitution through recent adjudication by the Courts and the basic structure doctrine; and also, from a more theoretical lens which underpins the purpose that judicial review is supposed to serve in Indian Democracy, i.e., sustain a culture of justification.

Conclusion

As Prof. Khaitan has highlighted, constitutionalism may be undermined by a series of incremental and systemic assaults. In the face of such attacks, an expansive judicial review as suggested here, may in practice mean very little to safeguard democratic governance and may actually become a way of validating the procedural infirmities of India’s Parliament. For example, in Puttaswamy-II, even though the Court proceeded to review the constitutional propriety of designating the Aadhar Act as a Money Bill, it ultimately decided in favour of the government. Such a validation by a court of law would seriously undermine the efforts from civil society to highlight the decay that the India Parliament has undergone since independence. Therefore, the purpose of this article is not to suggest an all-expansive solution to protect democracy in India. It is limited to identifying the power and competence of the judiciary to review infirmities in legislative process.

The Kenyan Court of Appeal’s BBI Judgment – IV: Thirsting for Sunlight/Some Concluding Remarks

There is a story about how, for the longest time, the poetic perfection of The Iliad confounded scholars. How could Homer both be the first of the epic bards, and the most accomplished? Foundational works are tentative, exploratory, sometimes stumbling, searching for an assurance that they are doomed to never realise. That privilege is reserved for later works, which build upon the foundation and reach the pinnacle.

The mystery was ultimately resolved when it was deduced that Homer was not the first – or even (in all probability) one – person, but part of an entire oral tradition of epic composition (a lesson, perhaps, that whether artist, judge, or lawyer, acts of creation are always collaborative). Yet the point remains: when we consider work that has taken on the burden of a beginning, we should hold it to the standards of a beginning. Not every question will be answered, not every resolution will satisfy, not every path be taken to its logical destination. But without a beginning, there will be nothing to take forward.

I’d like to think of the BBI Judgment in the words of Christopher Okigbo’s poem, Siren Limits: “For he was a shrub among the poplars/ Needing more roots/ More sap to grow to sunlight/ Thirsting for sunlight…” In the years to come, constitutional jurisprudence may put down stronger roots, and more sap may flow that takes it to sunlight, but here is where the beginning is.

In that spirit, in the first section of this post, I raise a couple of questions that future courts may be called upon to answer. These are in addition to some of the issues discussed in the previous posts, which have also been left open by the judgment(s) (constitutional statutes, referendum questions, identifying the exact elements of the basic structure etc.)

Two Questions

Making the Constitution Too Rigid?

A stand-out feature of both the High Court and the Court of Appeal judgments – as we have discussed – has been that, for the first time in basic structure history, the doctrine has been held not to constitute a bar on amendments, but to require the replication of the Constitution’s founding conditions. This, it is argued, provides a safeguard against a possible juristocracy, where the Courts stand as barriers to the people’s will, thereby leaving a revolution or a coup as the only options.

To this, the counter-argument – mentioned in Sichale JA’s dissenting opinion – is that the judiciary nonetheless remains a gatekeeper, as it will decide when a proposed amendment violates the basic structure and therefore needs to go through the rigorous four-step “re-founding” procedure. This becomes problematic, because if Article 257 is meant to empower the common person – wanjiku – to initiate a constitutional amendment process, then placing the constitutional Courts as a set of Damocles’ swords, that might at any point fall upon that process, cut it short, and demand its replacement by the far more onerous re-founding procedure, can hardly be called empowerment. After all, is it fair to expect wanjiku to approach the constitutional court every time, to check in advance, whether Article 257 should apply to a proposed amendment, or whether preparations should commence for nationwide civic education, a constituent assembly, and so on?

I suspect that it is for this reason that more than one judge in the majority did try to define the basic structure with a degree of specificity, gesturing – in particular – to the ten thematic areas set out in Article 255(1) of the Constitution (we have already seen that this argument suffers from the problem that in that case, the text explicitly allows for those provisions to be amended following specific procedures). Ultimately, however, the Court of Appeal judgments could not reach a consensus on this point. The upshot of this is that it is likely that the Kenyan courts – more than courts in other jurisdictions – will be faced with litigation that will specifically require them to identify what constitutes the basic structure.

That said, however, I believe that the concern is somewhat overstated. One thing that comes through all of the Court of Appeal judgments is a clear sense that constitutional amendment is a serious endeavour. The stakes – permanent alteration of the Constitution – are high. In such a circumstance, is it that disproportionate to have the constitutional Courts involved at the stage of vetting the amendment, simply on the question of which procedural channel it should proceed into? After all, there are jurisdictions where pre-legislative scrutiny for constitutional compliance – whether by a constitutional office such as that of the Attorney-General, or even by a court – exists. And one can easily imagine how the Kenyan courts can develop norms to minimise the disruption that this will cause. For example, the point at which one million signatures are collected and verified, could become the trigger point for judicial examination of whether the initiators should proceed to the next steps under Article 257, or whether the four-step re-founding process applies. Note that this need not be an automatic trigger: the requirement that someone has to challenge the process can remain, but the courts can develop norms that will expedite such hearings, discourage appeals on the specific question of which procedural channel a particular amendment should go down, and so on. The judiciary’s role, then, would remain a limited one: simply to adjudicate whether the proposed amendments are of such import that they need the deeper public participation envisaged in the four-step re-founding process, or whether Article 257 will do. The task will obviously be a challenging one, but not one that is beyond the remit of what courts normally do.

De-Politicising Politics, and the Perils of Vox Populi, Vox Dei

There is an argument that both through the basic structure doctrine, and through its interpretation of Article 257, the Court evinces a distrust of politicians and political processes, and a (consequent) valorisation of litigation and the judicial process; that the effect of its judgment is to make the Constitution too rigid, and effectively impossible to amend; and that, if we look at Article 257 closely, it was always meant to be a joint effort between politicians and the People, because the threshold barriers that it places – one million signatures and so on – require the institutional backing of politicians to start with. It is further argued that this is not necessarily a bad thing, as (a) even historically, the 2010 Constitution of Kenya was the product of political compromise, and not the outcome of pure public participation that the High Court’s judgment made it out to be; and (b) there is no warrant to demonise politicians and politics as tainted or compromised, or at least, relatively more tainted and compromised than litigation and adjudication.

To this, there is an added concern: judgments that claim to speak in the name of the People invariably end up flattening a plural and diverse society, with plural and diverse interests, into a single mass with a single desire – which only the Court is in a position to interpret and ventriloquise. This, then, turns into the exact top-down imposition of norms and values that the doctrine of public participation is meant to forestall.

While I believe that the Court of Appeal did not make either of the two mistakes indicated above, I do think that the argument is a powerful one, and requires the judiciary to exercise consistent vigilance (primarily upon itself). A reading of the High Court and Court of Appeal judgments, to my mind, makes it clear that the Constitution Amendment Bill of 2020 was executive-driven (indeed, it would be a bold person who would go against the unanimous finding of twelve judges, across two courts, on this). But it is easy to imagine messier, and less clear-cut situations. What happens if, for instance, an amendment proposal emerges from a set of people, and then a political party or a charismatic politician takes it up, uses their platform to amplify it, and ultimately helps to push it over the one-million signature mark? A point was made repeatedly that politicians are part of The People; now, while the distinction between the two was particularly clear in the BBI Case, what happens when it is not so, and when it becomes much more difficult to definitively say, “this proposed Amendment came from the political elite, and not from the People?” Is the answer judicial deference? But if it is deference, wouldn’t it simply allow powerful politicians to use proxies, as long as they did it more cleverly and subtly than the protagonists of the BBI?

The difficulty, I believe, lies in the fact that when you say that Article 257 is a provision for The People, you run into a host of very difficult challenges about who are the People, who are not the People, when is it that the People are acting, and so on. The intuitive point that the High Court and the Court of Appeal were getting at is a clear and powerful one: Article 257 envisages an active citizenry, one that engages with issues and generates proposals for amendments after internal social debate – and not a passive citizenry, that votes “Yes” or “No” to a binary choice placed before it by a set of powerful politicians. And while I believe that that is the correct reading of Article 257, it places courts between the Scylla of short-circuiting even legitimate politics, and the Charybdis of stripping Article 257 of its unique, public-facing character.

I think that the only possible answer to this is continuing judicial good sense. Given the issues it had to resolve, I think that it is inevitable – as pointed out above – that the BBI Judgment would leave some issues hanging. But for me, this is not a weakness of the judgment, or a reason to castigate it: I think that there are certain problems that simply can’t be resolved in advance, and need courts to “make the path by walking.”

The Grammar of Power

Stripped down to the essentials, Constitutions are about power: who holds it, who can exercise it, who can be stopped from wielding it; when, how, and by whom. Constitutions are also full of gaps, of silences unintended or strategic, of ambiguities planned and unplanned. Interpretation, thus, is often about the balance of power: resolving the gaps, silences, and ambiguities in ways that alter power relations, place – or lift – constraints upon the power that institutional actors have, and how they can deploy it. When Robert Cover writes, therefore, that “legal interpretation takes place in a field of pain and death”, we can slightly modify it to say that “constitutional interpretation takes place in a field of power.”

At its heart, I think that the BBI Judgment is about power. The issues that span a total of 1089 pages are united by one common theme: the judges in the majority believe that the Constitution acts as a barrier against the concentration of power, and as a channel for its dispersal. Why require referendum questions to be grouped together by unity of content? Because doing so will constrain the power of institutional actors to force unpalatable choices upon people in all-or-nothing referenda. Why interpret Article 257 to exclude public office holders from being initiators? Because to hold otherwise would divest power vested in the public, and instead, place it in the hands of a political executive claiming to directly “speak for the People”. Why insist on contextual public participation for the Article 257 process? Because without granular participation, even a “People-driven process” will not be free from centres of power that dominate the conversation. Why insist upon fixing the IEBC quorum at five, and for a legislative framework to conduct referenda? Because independent Fourth Branch Institutions play a vital role in checking executive impunity on a day-to-day basis, in a way that courts often cannot. And lastly, why the basic structure, why this form of the basic structure? Because the power to re-constitute the Constitution is the most consequential of all powers: institutional actors should not have it, but nor should the courts have the power to stop it. Thus, the articulation of the primary constituent power, and its exercise through – primarily – procedural steps.

And I think that it is here that we find the most important contribution of the High Court and the Court of Appeal judgments to global constitutional jurisprudence. Reams have been written by now about the “Imperial Presidency”, and the slow – but inevitable – shift, across the world, towards concentration of political power rather than its dispersal. Examining the High Court and Court of Appeals judgments through the lens of power, its structures and its forms, reveals a judiciary that is working with constitutional text and context to combat the institutionalisation and centralisation of power, to prevent the Constitution from being used as the vehicle of such a project, and – through interpretive method (see the third post in the series) – to try and future-proof it from ever being so used. It is too early to know if the effort will succeed. The sap and the roots are now the responsibility of future judgments, if sunlight is to be reached, and not just thirsted for.

The Hydra and the Sword: Parting Thoughts

There are moments in one’s life when you can tell someone, with utter clarity, that “I was there when…” For my part, I will always remember where I was, and what I was doing, when, during oral arguments before the Court of Appeal, I heard Dr. Muthomi Thiankolu’s ten-minute summary of Kenyan constitutional history through the allegory of the Hydra of Lerna. It ended thus:

“If you drop the sword, My Lords and My Ladies, we have been there before. When the courts drop the sword of the Constitution, we had torture chambers. We had detentions without trial. We had sedition laws. It may sound, My Lord, that I am exaggerating, but the whole thing began in small bits.”

I remember it because by the end, I was almost in tears. It took me back to a moment, more than four years ago, when I stood in another court and heard a lawyer channel Justice William O. Douglas to tell the bench: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

The chronicle of events that followed those words does not make for pleasant reading. But as I heard Dr. Thiankolu speak of an era of executive impunity – an impunity enabled by a judiciary (with a few exceptions) that saw itself as an extended arm of the executive – what struck me was not how familiar (detentions without trial!) his examples sounded, but that he spoke of them in the past tense. And on the 20th of August, as judge after judge in the Court of Appeal read out their pronouncement, it seemed that an exclamation point was being added to those arguments: the past really had become a foreign country.

One person’s past is invariably another person’s present. But the present sometimes overwhelms us with its heaviness. It creates an illusion of permanence that forecloses the possibility of imagining a future where this present has become the past. We cannot bootstrap ourselves out of such moments: we need someone to show us the way, or to show us, at least, that a way exists.

And so, perhaps the great – and intangible – gift that the Kenyan courts have given to those stuck in an interminable present, is a simple reminder: it needn’t always be like this.

The Kenyan Court of Appeal’s BBI Judgment – III: The Fourth Branch/IEBC

If you were to draw one of those Venn Diagrams that are so popular as internet memes these days, for the BBI Judgment, the Independent Electoral and Boundaries Commission [“IEBC”] would be at the centre. Established under Article 88 of the Constitution (see here), the IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation (see Article 88(4)). In the BBI Case, the IEBC was involved in a range overlapping issues: one of the grounds for challenging the Constitution Amendment Bill was that by directly altering constituencies, it took away the prescribed function of the IEBC; and furthermore, since the IEBC plays an important part under Article 257, its own conduct during the Popular Initiative came under scrutiny. Let us take some of these issues in turn.

The Constitution Amendment Bill and the IEBC

Recall that one of the features of the Constitution Amendment Bill was the creation of seventy new constituencies, allocated to twenty-nine counties. This had been invalidated by the High Court, on the basis that the independence of the IEBC and its constitutionally guaranteed role of delimitation was itself a part of the basic structure. Agreeing with this analysis, Musinga (P), in his lead judgment (with which Gatembu Kairu JA agrees), frames the issue as one of political gerrymandering (paragraph 292) (thus implicitly agreeing with Respondent’s counsel during oral arguments, where it had been pointed out that constituencies are essentially sources – and terrains – of political and resource patronage). This point is strengthened by the fact that the criteria in the Second Schedule to the Constitution Amendment Bill to determine the manner of increase of constituencies were different from the criteria set out in Article 89.

This, coupled with the fact that the Second Schedule to the Constitution Amendment Bill would essentially set up two parallel – and conflicting – power centres with respect to delimitation (without deleting Article 89(2)) allow Musinga J to hold that in any event, the creation of additional constituencies via amendment is unconstitutional (paragraphs 416 – 417; see also Nambuye JA, paragraph 150).

The deeper rationale for this is provided in Kiage JA’s opinion. Kiage JA notes:

the protective role of independence commissions over the sovereignty of the people is of critical and vital importance and can only be attained by a jealous and uncompromising assertion, exercise and defense of their independence. I apprehend that it is independent commissions alongside the Judiciary which must police and patrol the lines of delegation of the sovereignty of the people to Parliament and the legislative assemblies in the county governments, the national exercise and the executive structures in the county governments, and the Judiciary and independent tribunals. Independent Commissions are charged with duty of vigilantly and keenly ensuring that the State organs to which sovereign power is delegated maintain the stance of delegates accountable to their principals, and remain always the servants of the people. (pg 187)

These comments chime with a growing trend in comparative constitutionalism, which is the recognition of “Fourth Branch Institutions” as crucial guarantors of constitutional democracy. Information Commissions, Elections Commissions, Ombudspersons (such as, for example, South Africa’s Public Protector or India’s Comptroller and Auditor General), are examples of such bodies. Their importance lies in the fact that as far as certain fundamental rights are concerned, their effective realisation is impossible without a kind of institutional mediation. The right to vote, for example, needs an election commission to be realised; similarly, the right to information needs an information commission; and so on. Consequently, the independence of such bodies is an integral feature of the complete fulfilment of the right itself, and insofar as issues such as the membership and functions of those bodies are to be determined by legislation, such legislation must (a) be framed so as to ensure that the right is actually realised, and (b) once framed, attains the status of a “constitutional statute.” While a range of these issues were, of course, not before the BBI Court, Kiage JA’s observations – specifically about the role of commissions in ensuring accountability – gesture towards a recognition of the constitutional status of Fourth Branch institutions, and all that such recognition entails.

Kiage JA’s observations are also a response to Sichale JA’s dissent. As the High Court had held, amending Article 89 itself was permissible as long as the procedures under Articles 255 – 257 were followed. Thus, hypothetically, the total number of constituencies could be increased via a procedural amendment. However, the manner in which this increase took place would have to be such that the independence of the IEBC in matters of delimitation (which constitutes a part of the basic structure) was not compromised. Thus, the issue with the Constitution Amendment Bill was not that it sought to increase the number of constituencies, but that it sought to cut the IEBC out of the process altogether.

Sichale JA then argues that a mere increase in the number of constituencies does not amount to a “delimitation” exercise. With respect, this argument appears to play upon a distinction without a difference: the seventy new constituencies will not be created out of a vacuum. They must necessarily be carved out of existing constituencies, thus – ipso facto – altering boundaries and in effect (even if not formally) becoming an exercise in delimitation. It is this that the majority finds must require the independent assessment of the IEBC before any increase in the number of constituencies is effected. Indeed, Tuiyott JA grasps precisely this point when he notes that:

Further, section 1(2) identifies the counties where the additional seventy constituencies will be located. In doing so, delimitation in respect to these 70 constituencies is in a sense pre-set without the involvement of IEBC as they are already allocated to counties set out in the schedule. (paragraph 234)

The IEBC: Questions of Process

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds: an absence of quorum, the absence of an adequate legislative framework, the absence of mechanisms for voter registration, and so on. On almost all the counts, the IEBC was found wanting, both at the High Court, and at the Court of Appeal. By a majority, the Court of Appeal affirmed the High Court’s findings that:

  1. That the minimum quorum requirement for the IEBC to carry out its functions was five members (an understaffed IEBC, following a spate of resignations, did not meet this). This finding required the Court to engage with two potentially conflicting precedents on this point (Katiba Institute and Isiah Biwott); it was ultimately held that the judicial invalidation of a prior attempt to amend legislation and bring down the quorum meant that, as per law, the quorum stayed at five (but see Tuiyott JA’s opinion for the same outcome, albeit with different reasoning).
  2. That, prior to the Popular Initiative, the IEBC had failed in its obligation to demonstrate continuing voter registration, which would have ensured that there was a sufficient degree of correspondence between those who were entitled to vote, and actually registered voters.
  3. That the task of the IEBC under Article 257 was not simply a head-count of the million votes, but a basic level of verification as well (based on the IEBC’s own previous documents). The IEBC, however, failed to put into place a mechanism for verification; and the Administrative Procedures that it did put into place failed the threshold requirement for such secondary legislation (including, for example, that of public participation).
  4. That there did not exist an adequate legislative and regulatory framework for the conduct of referenda (the provisions in the Elections Act were unfit for purpose, especially considering the seriousness of a referendum under Article 257).

The analysis here concerned detailed engagement with Kenyan statutory and administrative law. Upon this, I am not qualified to comment, noting only that I found Tuiyott JA’s opinion the most granular and instructive (although his reasoning departs from the majority in certain respects). However, there are two larger public law points that I want to briefly flag. The first is the Court’s insistence that the importance of referenda required, in essence, the strictest possible compliance by constitutional authorities. When you survey global constitutional jurisprudence, you find two approaches. One is what may be called a “leeway” approach: that the undertaking of complex administrative tasks requires play in the joints, and that therefore, upon challenge, a Court will allow the State to get away without strict compliance with law, as long as there is substantive compliance (a theory familiar, perhaps, from contract law). The other, however, is closer to criminal law: that it is the precise importance of the issues at stake that require any deviation from the established procedure to be treated with great seriousness. Across the Court of Appeal’s judgments, the point that a an amendment to the Constitution is a matter of paramount importance. Consequently, issues such as quorum – which would appear to be minor procedural flaws that should not vitiate an exercise of scale – attain the same degree of gravity as the exercise itself, and cannot be lightly brushed aside.

The second point ties in with the first half of the post, and brings us back to the point of constitutional statutes. It is interesting to note that the Court of Appeals is pellucidly clear on the point that the implementation of the Popular Initiative required the enactment of a legislative scheme (although the High Court did hold – and Tuiyott JA affirms – that for something like Article 257, the legislature’s failure to act should not be held against the People, and that consequently, a procedure that is constitutionally compliant will still pass muster). This comports with the view that certain fundamental rights are incomplete without legislative instantiation, and raises a host of interesting questions about how statute and Constitution are to be read together, when that legislation does come into existence. It has been argued by scholars that constitutional statutes are a kind of “super statute”, their status somewhere between ordinary law and constitutional law. Indeed, the precedent in Katiba Institute, involving the striking down of the attempt to reduce quorum – as discussed above – is a good example of how, once a legislative scheme does exist to instantiate a set of rights, certain kinds of clawback, or regression, will not be treated as a simple legislative amendment, but an actual constitutional violation (see here). (And this is why I respectfully disagree with Tuiyott JA’s argument that even when the revised Quorum provision was struck down in Katiba Institute, the older one did not revive; Musinga (P)’s reasoning that the older provision stays in force is closer to the theory of constitutional statutes).

For example, suppose that tomorrow Kenya enacts a Referendum Act, which follows the Court of Appeals judgment and prescribes a “unity of content” approach towards the framing of referendum questions. Now suppose that a future Kenyan Parliament decides to amend that Act to allow for a “lumping” of questions a la BBI. The theory of constitutional statutes will allow a Court to strike down such an amendment on constitutional grounds. The argument will be that once a statutory framework has been established to instantiate a certain constitutional right, it is not open to Parliament to retrogress and once again bring the legal position to that of non-compliance from compliance.

Of course, none of these questions were before the Court of Appeals. I believe, however, that the theory of constitutional statutes forms an unarticulated major premise of the Court’s findings on adequacy of legislative framework. It will therefore be exciting to see whether, in a future case where the question is front and centre, the the concept attains full articulation.

Conclusion

The BBI Appeals also considered a range of other issues, such as Presidential immunity, the question of service upon the President, the role of County Assemblies, the inclusion of the Kenyan National Union of Nurses, cross-appeals, and many others. I read these findings with great interest, and learned a lot from reading them, but their specificity precludes further analysis on my part.

This brings to an end the three-part substantive examination of the BBI judgment. I will – tomorrow – write a concluding post reflecting on some of the lingering questions, as well as what, perhaps, what comparative constitutional jurisprudence could learn from the Kenyan Courts.

The Kenyan Court of Appeal’s BBI Judgment – II: Understanding the Popular Initiative

Article 257 of the Kenyan Constitution is one of the most interesting constitutional provisions that I’ve seen. Titled “Amendment by Popular Initiative”, it sets out ten steps for amending the Constitution, which ostensibly begin with the collection of one million signatures of registered voters, and end with a referendum. In between, there is the involvement of the representative organs (Parliament and County Assemblies) as well as a fourth-branch institution (the Independent Electoral and Boundaries Commission, or the IEBC). If each of these ten steps is completed – with its mixture of direct and representative democracy, and the participation of independent constitutional bodies – the Constitution stands amended by Popular Initiative.

As the Constitution Amendment Bill 2020 was going down the Popular Initiative Route, Article 257 was at the heart of much of the litigation, both before the High Court, and the Court of Appeal. Out of the twenty-one thematic issues framed in paragraph 50 of Musinga (P)’s lead judgment, I counted six that were directly about the interpretation of Article 257, and a few more that were ancillary. For the sake of simplicity, I propose to analyse three issues here.

  1. While the “promoters” of the BBI initiative were Mr Dennis Waveru and the Hon. Junet Mohammed, it was strongly urged that the actual force behind the initiative were H.E. President Uhuru Kenyatta and the Hon. Raila Odinga. This then led to a mixed question of fact and law: on fact, who was actually behind the initiative; and on law, if it was the President, then does Article 257 contemplate a situation where the President sets the popular initiative process in motion?
  2. The Constitution Amendment Bill contained seventy-four proposed constitutional amendments. Does Article 257 allow for this kind of a “package deal” to be put to a referendum, or does it require each proposed amendment to be put to the People in a separate referendum?
  3. What are the standards of public participation contemplated by Article 257, and did the BBI process meet those standards?

According to the Disposition, the Court of Appeal (i) unanimously held that the President was behind the BBI initiative, and that this was unconstitutional; (ii) by a 4-3 majority, held that separate amendments need not be put to the People as individual referendum questions; and (iii) did not specifically pass any orders on the third issue. Let us now consider each in turn.

Top-Down or Bottom-Up?

On the issue of who really was behind the BBI initiative, the findings are fairly straightforward. The lead judgment of Musinga (P) traces the chronology as follows: the “handshake” between H.E. President Uhuru Kenyatta and the Hon. Raila Odinga; the establishment, by the President, and through a formal gazette notification, of the BBI Taskforce; the establishment, also by the President, and also through a formal gazette notification, of the BBI Steering Committee; and the coming-into-being of the Constitution Amendment Bill 2020 as an annexure to the Steering Committee Report. Musinga (P) therefore holds:

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President. (paragraph 312)

During proceedings before the Court of Appeal, Appellants had nonetheless argued that the BBI Taskforce and the BBI Steering Committee were distinct from the BBI Secretariat, a voluntary alliance of political parties, and from where the actual promoters of the initiative under 257 (Mr. Waveru and Hon. Mohammed) came from. Musinga (P) rebuts this point by noting that constitutional amendment proposals were clearly within the terms of reference of the BBI Steering Committee (paragraph 321), evincing a clear intention to start the process under Article 257. Thus:

Considering the way the Amendment Bill was developed and processed, it cannot pass muster as a popular initiative. The Bill came into being after “the President and Commander –in-Chief of the Defence Forces” appointed the BBI Taskforce which prepared a report and presented it to the President, who in turn set up the BBI Steering Committee that eventually drew up the Bill. It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative. (paragraph 325)

We find similar analysis in the other judgments (see Nambuye JA, paragraphs 66 – 71; Okwengu JA, paragraph 136, 154 – 158; Kiage JA, pgs 101 – 107, 118 – 121; Gatembu Kairu JA, paragraph 83; Sichale JA, pgs 67 – 69; Tuiyott JA, paragraphs 66 – 78, for a particularly detailed examination of affidavits).

Musinga (P) then affirms the High Court’s historical analysis, according to which a clear distinction was drawn between amendments initiated “by the People”, and those initiated by the “political elite”, with the BBI falling clearly within the latter category. A perusal of the CKRC Report reveals that the entire purpose of what eventually become Article 257 – and its passage through multiple draft Constitutions through the 2000s – was to release the amendment process from parliamentary monopoly, and provide an avenue whereby the public could be involved, not just at the end of the process (through a referendum), but at the point of initiation.

Now, what of the argument that the President could nonetheless initiate the process “in his capacity as a private citizen”, exercising his own constitutional rights? Here, Musinga (P) affirms the High Court’s conceptual analysis, noting that the Kenyan Constitution itself recognises the distinction between representative and direct democracy; consequently, a provision that expressly contemplates the latter process cannot be usurped by representative organs (paragraph 348). Other judges agree (see Nambuye JA, paragraphs 99 – 101; Okwengu JA, paragraphs 110112, and also paragraph 152, noting that the President cannot “temporary remove his executive mantle”; Kiage JA, pg 108 – 110; Gatembu Kairu JA, paragraphs 77 – 81, Sichale JA, pgs 69 – 72; Tuiyott JA, paragraphs 49, 52 – 55).

I want to make two further points here. The first is that during oral arguments, Appellants pointed out a situation where the President’s agenda would be stymied by an opposition-dominated Parliament (the famous “veto points”, to borrow a term from American Presidentialism), leaving them no choice but to take their case to the People directly. Article 257 facilitated this. This argument is acknowledged by Kiage JA, but his response is, essentially, “too bad, the Constitution doesn’t allow for that.” I think, however, that Kiage JA does indeed answer this question, but as part of his basic structure analysis (see previous post). In his analysis of comparative constitutional history, Kiage JA notes how the “Imperial Presidency” came to dominate African constitutionalism after the first wave of decolonisation in the 1960s, and he goes on to argue that the 2010 Kenyan Constitution is a response – inter alia – to the pathologies of the Imperial Presidency. This is a crucial point, because the arguments in the context of Article 257 reveal the stakes here. As multiple Justices note, the text of Article 257 does not specifically bar the President from initiating or promoting the popular amendment process. The question then becomes, how do you resolve this constitutional silence? Now if you think of the Presidential system as set out under the 2010 Constitution as empowering the President against the kind of veto-points that one finds in the United States, then the Appellants’ arguments would be persuasive; however, if you think that the 2010 Constitution was meant – inter alia – to check the Imperial Presidency, then ambiguities and silences should be resolved in favour of veto points and against expanded Presidential power. As is clear, this debate goes right to the fundamental premises of the 2010 Constitution – its “basic structure”, one might almost say! And consequently, which side one takes on this will have implications beyond this judgment, in future litigation concerning Presidential and executive powers. None of the judgments in the Court of Appeal squarely address this point, and so, arguably, it remains open.

My second point involves a debate (of sorts) between Okwengu JA and Tuiyott JA on this point. In her analysis of the legality of the BBI Steering Committee itself, Okwengu JA appears to suggest that had the Steering Committee simply floated some proposals on constitutional amendment, and had those proposals then been taken up by ordinary citizens, the process under Article 257 may have been kicked off validly. This, however, raises a concern that I had indicated in my earlier post about the High Court judgment: even a ruling clarifying that neither the President nor any other State organ can initiate or promote the process under Article 257 will leave open the possibility of doing an end-run around the Constitution through clever use of proxies. Interestingly, this danger is specifically recognised by Tuiyott JA. In paragraph 60, Tuiyott JA notes that:

That said, the process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation. (paragraph 60)

Tuiyott JA therefore spends the next eighteen paragraphs minutely examining the evidence on record, including – in particular detail – the affidavit of Mr Waveru, where he himself conceded links between the BBI Secretariat, Taskforce, and Steering Committee, to demonstrate that what was happening here was indeed “an enterprise of the State actor.” This is promising: I suspect that, given the Court of Appeal’s ruling, in the future, the use of proxies – only more subtly and cleverly than the somewhat ham-fisted attempt in this case – to circumvent Article 257 is a non-trivial possibility. In such cases, Tuiyott JA’s detailed consideration of evidence indicates how the judiciary may examine this issue.

The Referendum Questions

Recall that the High Court had held that in a proposal for amending the Constitution that goes to a referendum, the proposed amendments must be submitted as separate and distinct questions, and not as a “package deal”. There are many rationales for this, two of which are succinctly summarised by Nambuye JA (paragraph 121). First, the binary, up-down nature of referenda makes them particularly unsuitable for the simultaneous determination of multiple issues, especially where citizens may have different views on those issues. By forcing a “package deal” vote, actual public preferences are thus seriously distorted. Secondly – and relatedly – the “package deal” allows the State to throw in “sweeteners” to make undesired changes more palatable. Suppose I offer to buy you ice-cream for a week if – and only if – you allow me to whack you in the face, your affirmation of my “package deal” doesn’t actually signify that you want to be whacked in the face – especially when the two “offers” are entirely unrelated.

On this point, Musinga (P) – whose opinion appears to be controlling (but see below) – adopts a textual reading that is somewhat (in my submission) at odds with the tenor of the rest of his judgment. He notes that under Article 257, what is required to be submitted to the People is a “Bill”, not a “question” or “questions”. The modalities of how this is to be done lies exclusively within the domain of the IEBC (paragraph 398). Note, however, that the textual point is not quite as clear-cut as all that. As Nambuye JA notes – in a very clear exposition of the argument (paragraphs 121 – 132) – the Article 257 differs from, say, the Article V of the United States Constitution, which uses the plural “amendments”, while Article 257 uses the singular “an amendment.” (see also Kiage JA, pgs 175 – 176) There, is therefore, at least a plausible textual argument for the proposition that the Article 257 process refers to a single amendment and therefore, by definition, excludes omnibus bills that offer up multiple amendments.

Now, on all other points, the Justices in the Court of Appeal – including Musinga (P) – consistently hold that wherever there is textual ambiguity or silence, an interpretation that strengthens public participation is to be preferred over one that does not. In this context, it is hard to argue with Nambuye JA’s observation in paragraph 128, that:

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand. (paragraph 128)

I respectfully submit, therefore, that on this issue, Musinga (P) departs from his own consistent interpretive methodology. Furthermore, and somewhat bafflingly, shortly after his analysis, he nevertheless goes on to say “that notwithstanding, it is improper to lump together 74 proposed constitutional amendments in a Bill” (paragraph 399) Evidently, therefore, Musinga (P) is entirely cognisant of the problem with “package deals” – and indeed, around sixty paragraphs before, he himself identifies the problem with this package deal:

Some of the proposed amendments are rather superfluous, and strictly speaking they ought not to have been proposed as constitutional amendments by the promoters. At best, they could only be proposed as statutory amendments but were intentionally included in the Amendment Bill and appropriate statutory amendment Bills drawn by the to act as sweeteners to coax voters into supporting the proposed constitutional amendments. (paragraph 336)

He goes on to describe these amendments (tax breaks, loan exemptions etc), and immediately after, notes:

These are definitely very good and appealing proposals, but anchoring them on the Constitution of Kenya (Amendment) Bill, 2020 that also proposed very far reaching alterations of the basic structure of our Constitution was a clever bait to entice the populace, and particularly the young registered voters, who are the majority, to support the Amendment Bill, without proper civic education on all the contents of the entire Bill. (paragraph 338)

But this “clever bait” is surely as much an end run around Article 257 as is the President standing behind the figures of Mr. Waveru and the Hon. Mohammed to initiate the BBI process! Thus, this makes Musinga (P)’s finding on the issue of separate referendum questions even more baffling. I wonder, though, if an answer is to be found in paragraph 400. There, Musinga (P) notes:

I do not therefore agree with the learned judges that what is to be subjected to the referendum is a question or questions, it is the Amendment Bill, but the people are to approve or disapprove of the Bill by answering a question or questions as framed by the IEBC and approved by Parliament. (paragraph 400)

This – I would submit – is a bit of a walk-back, because here Musinga (P) does become prescriptive about the form that the Amendment Bill should take, notwithstanding the IEBC. Now, realistically, it is hard to imagine how anyone might lump together 74 amendments into a single question, unless one takes the absolutely blatant route of listing out all the amendments and ending it with a single question: “Do you agree, yes/no?” What Musinga (P) seems to be saying here is that the referendum can be a single referendum, on a single Bill, but within that, the People should have a chance to vote on separate questions separately (this possibility of a multi-option referendum as solving the “Hobson’s Choice” at issue is indicated by Kiage JA, although he declines to make a finding on it, given that there is no Referendum Act in existence yet (Kiage JA, pg 179).

There is, however, a further issue that now arises. The Disposition notes that the High Court’s finding on multiple/single question referenda has been overruled by a 4-3 majority. The three in the minority are said to be Nambuye JA, Okwengu JA, and Kiage JA. I have referred to the views of Nambuye and Kiage JJA above, and Okwengu JA says that she agrees with Kiage JA.

Now, first of all, Tuiyott JA in his opinion does not return a finding on this issue: he says that there was no “live controversy” in the instant case, as the IEBC had not yet determined the manner and form in which it would frame the reference questions (paragraph 251). To start with, this already means that – even if we read Musinga (P)’s opinion as going against the Respondents, there is no majority for the proposition that multiple issues can be lumped together in a single bill.

Complicating matters further, Gatembu Kairu JA, in his consideration of the issue, has this to say:

…[the voter’s] choice, in my view, is rendered nugatory, inoperative, and inconsequential if the voter is called upon to vote on an omnibus draft Bill, that contains a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in this case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution. (paragraph 156)

He then says:

The argument made for the respondents on the principle of unity of content or single subject matter, that Constitutional amendment through a referendum should deal with only one main issue, is one I find most attractive and persuasive. (paragraph 157)

And he then says:

Ultimately, it seems to me that to put a single binary question or multiple question is a matter to be informed by the nature of amendment proposed. It may well be that certain proposed amendments may require separate and distinct referendum questions to be framed. What in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in this case. (paragraph 159)

Gatembu Kairu JA thus seems to adopt a middle ground, where it is possible to have thematic amendment bills, where the several questions relate or are part of the same theme, thus leading to “unity of content”. It is easy to imagine examples: say, for instance, the restructuring of a regulatory body, where it wouldn’t make sense to treat the amendments separately. This determination, it is clear, must be on a case to case basis. Gatembu Kairu JA makes this explicit when, in his summary, he says that he is not overruling, but qualifying the High Court’s orders on this point by adding the phrase “subject to the nature of the amendment” (paragraph 197); but what is also clear is that Gatembu Kairu JA – along with the three other judges in the minority – is unambiguous on the point that the lumping together of unrelated amendments into an Omnibus Bill is not merely improper, but unconstitutional.

As, however, there is nothing in the overall Disposition on this, we will have to see what the future holds.

Public Participation

The final issue that I want to consider in this post is the scope of public participation under Article 257. Public participation as a constitutional value is one of the outstanding features of the Kenyan Constitution, explicitly set out under Article 10, and subject to interpretation in a number of judgments such as Kiambu County Government v Robert N. Gakuru. Public participation under Kenyan Constitutional law has both procedural and substantive elements: transparency, adequate time, accessibility, and so on.

The requirements of public participation are somewhat challenging to articulate in the abstract, and are therefore best understood through application. In the majority judgments, the following aspects come through: (a) that copies of the Amendment Bill were posted online only in English, despite Kiswhaili being both the national and an official language (Musinga (P), paragraph 333); that there was no indication that civic education about the amendments had been undertaken (Musinga (P), paragraph 335; Nambuye JA, paragraph 84; Okwengu JA, paragraphs 122 – 128;); that the time gap between when the Bill was published in local newspapers and its approval in County Assemblies, as well as at other stages of the process, was much too short to allow for any reasonable public participation; (Musinga (P), paragraph 339; Kiage JA, pgs 135 – 137). Importantly, a majority of the bench also holds that the burden of demonstrating public participation lies upon the State, as – in accordance with the law of evidence – it has the requisite information on that point. To this I would only add: to the extent that public participation is a constitutional value under Article 10, the argument that an amendment process (for example) is not constitutionally complete until public participation has been affirmatively demonstrated, is a powerful one. Beyond the law of evidence, thus, there is a constitutional reason why the burden of proof should be upon the State.

There is, however, something of a split in the bench when it comes to the stages at which this obligation exists, and the intensity to which it exists. This split reveals something of an internal tension within Article 257. On the one hand – as almost all the Justices note – public participation is particularly vital especially in the context of Article 257, given that it is an instance of direct democracy; on the other hand, given that Article 257 is meant to be initiated by the People, ordinary people (small-p) will invariably lack the resources that will allow them to conduct public participation at a national scale, at the stage of collection of signatures. This tension is articulated by Kiage J, when he notes that:

I must express my unease, brought out quite poignantly by Mr. Karori in his address to us, that it would be to place an onerous, and well-nigh impossible burden on promoters of a constitutional amendment by popular initiative, to expect them to go the whole hog captured in the above excerpt before they can properly collect the signatures. It seems to me, with respect, that the requirements stated by the judges must be present before or as at the time the voters finally make their decision on the proposed amendments at the referendum failing which the mandatory requirement for public participation will not have been met, with fatal consequences to the proposed amendment. I am of the view, however, that the elements of public participation stated must per force be understood to form a spectrum or a continuum which is incremental in character. (pg 130; see also Tuiyott JA, paragraph 209).

Similarly, Gatembu Kairu JA notes that:

For it might appear that by one hand, Wanjiku is given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle is then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. (paragraph 88)

Gatembu Kairu JA, however, proposes a different solution. While Kiage J would simply hold that the requirement of public participation – in all its rigour – applies at the final (referendum) stage, Gatembu Kairu JA holds that in an individual case, it would be “open” to Wanjiku to claim a lack of resources (a claim that would not be open to the IEBC, when it gets involved in the process).

I respectfully submit that Gatembu Kairu JA is correct. It is true that the burden of public participation is one that should be borne by the State – or State organs – and not by wanjiku. However, this is where we come right back to the elegant design of Article 257, which accommodates the involvement of the People, of County Assemblies, of Parliament, and of the IEBC. Consequently, would it not make sense for the requirement of public participation – in all its rigour – to be applicable corresponding to the stage at which State organs get involved? This, in my respectful submission, would resolve the tension within Article 257.

Conclusion

The structure and design of Article 257 gives rise to a range of fascinating questions, many of which came to be answered by the Court of Appeal. These include the difference between top-down and bottom-up amendment, with the Court affirming that, viewed in its history and context, Article 257 precludes an executive-driven process. These also include the manner in which a popular initiative may be crystallised into a referendum question (or questions), with a clear majority of the Court holding that “omnibus Bills” that have no “unity of content” are outside the scope of Article 257. And these further include the extent to which the obligation of public participation applies to a public-initiated directly democratic process. Here, the Court affirms that it is clear that in this case – given that it was executive-driven in any event – the obligation has not been discharged; it remains open, however, what standards will apply when – in the hypothetical future – a 257 process is genuinely wanjiku-driven.

I think that some of the ambiguities and tensions in the judgment(s) reflect the challenges of interpreting what is, undoubtedly, a complex provision, and also the fact that these questions are coming up for the determination for the first time, in a relatively young Constitution. Faced with these challenges, the judges of the Court of Appeal, in my respectful submission, have done important, pioneering work (as have the judges in the High Court). It now remains to be seen how future benches take some of these principles forward, and build on them.

The Kenyan Court of Appeal’s BBI Judgment – I: On the Basic Structure

On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya in David Ndii v Attorney General (see here), where a bill (the Constitution Amendment Bill of 2020), containing seventy-four proposed amendments to the 2010 Kenyan Constitution (see here), had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions (Articles 255 to 257). Previously on this blog, I had discussed the High Court’s judgment (here), and arguments before the Court of Appeal (here). As in those previous posts, my usual caveats apply for this one too: while I will do my best to engage with this judgment – and the constitutional system in which its embedded – on its own terms, and in all humility, I nonetheless write as an outsider, with all the limitations that that subject position carries with it.

Introduction

The Court of Appeal’s judgment comes in at a formidable 1089 pages, with all seven judges writing separate opinions. Very helpfully, however, the Court has also provided a disposition (here), that sets out eighteen findings along with the bench-split on each issue. This immediately obviates any confusion about what the judgment is, and leaves us free to focus on the Court’s reasoning. In brief: on almost all significant issues, with fluctuating majorities, the Court of Appeal upheld the judgment of the High Court, and affirmed the finding that the Constitution Amendment Bill 2020 was unconstitutional.

In the following series of posts, I propose to analyse the Court of Appeal’s judgment(s), thematically. I will begin with the issue of the basic structure. As the disposition indicates, the Court held that the basic structure doctrine is applicable in Kenya (6-1), that it provides an implied limitation upon the amendment process set out in Articles 255 – 257 (5-2), and that the basic structure can be altered only through an exercise of primary constituent power – i.e., a recreation of the conditions under which the Constitution was founded, which include a four-step process of civic education, public participation, Constituent Assembly Debate, and a referendum (4-3).

Amendment or Repeal: The Heart of the Issue

I will begin with the judgment of Kiage JA, as – in my reading – on the issue of the basic structure, it is the “lead judgment”. Kiage JA’s analysis of the basic structure issue is found between pgs 5 – 98 of his judgment. At its heart, Kiage JA’s argument is a straightforward one, and follows the logic of basic structure judgments across the world, namely that (a) there is a distinction between “amendment” and “repeal”, and (b) repeal can either be express, or implied. The latter form of repeal can take place through a set of amendments that are fundamentally inconsistent with the Constitution as it stands. At pg 83, thus, he notes that “amendments always presuppose the existence of the constitution with which they must be consistent, and which they cannot abolish.

In my analysis of the arguments before the Court of Appeal, I had pointed out that the Appellants’ reliance on Article 1(1) of the Kenyan Constitution was counter-productive, as the words of that article – “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” – presuppose the existence of this Constitution; amendments that amount to implied repeal, however, are no longer operating within the framework of “this” Constitution. This is the argument that effectively forms the basis of Kiage JA’s acceptance of the basic structure doctrine: that, just like a house no longer remains a house if you knock down its foundations and pillars (as opposed to merely redecorating it), this Constitution no longer remains this Constitution, if your amendments are such that alter its identity.

Direct Democracy under Articles 255 and 257: The Kiage JA/Okwengu JA/Sichale JA Debate

Now, while this argument is a persuasive argument for adopting the basic structure doctrine per se, in the Kenyan case there is an added wrinkle. And that is that the ten “core” themes set out under Article 255 already require a referendum in case they are to be amended; and furthermore, a “popular initiative” under Article 257 also requires public participation and a referendum. For this reason, the core of the Appellants’ case before the Court of Appeal was that the concerns that the basic structure doctrine sought to address had already been addressed within the Kenyan Constitution: by having a mix of representative and direct democracy in its amendment provisions, the framers of the Kenyan Constitution – and, by extension, the People – had provided for an eventuality where any amendment to the basic structure could not be accomplished solely by the representative organs, and would have to go to the People.

Indeed, if we study the dissenting judgment of Okwengu JA*, we find that it is precisely this argument that she finds persuasive. In paragraph 76 of her judgment, Okwengu JA notes that:

This means that the popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried. (paragraph 76)

Okwengu JA then goes on to note that the “basic structure” of the Kenyan Constitution has already been identified in Article 255 – through the setting out of ten thematic areas that require a referendum if they are to be amended – and a specific process for its alteration (involving the People) has been set out:

That is to say that the framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. This is a clear indication that in regard to amendments, the Constitution of Kenya, 2010 is explicit and self-sufficient. (paragraph 82)

We find something similar in the dissenting judgment of Sichale JA. Sichale JA finds particularly persuasive the Appellants’ argument that what distinguishes India from Kenya is that Article 368 of the Indian Constitution limits the amending power to a (representative) Parliament, while Articles 255-257 of the Kenyan Constitution explicitly envisage a role for the People (pg 29). She then goes on to note that the scheme of Articles 255 – 257 specifically respond to the pathologies identified in Kenya’s past, and their solution is found within the text itself:

Indeed, the 2010 Constitution was informed by Kenya’s dark past and its citizenry were determined “Never Again” shall we have a Constitution that can be amended at will. In the formulation of the 2010 Constitution, a conscious effort was made to ensure that we do not have hyper-amendments. (pg 37)

This is, thus, a powerful argument – commanding the acceptance of two Justices – and one that deserves a response. And in Kiage JA’s judgment, we find three responses: conceptual, historical, and theoretical. Conceptually, Kiage JA points out – taking forward the argument set out above – that by definition, if you want to replace the Constitution instead of amending it, you must go outside of the Constitution and not within it (what the High Court referred to as the primary constituent power) (pg 59). Historically, Kiage JA endorses the High Court’s historical analysis of the detailed public participation that went into the making of the Kenyan Constitution, as well as the desire to avoid hyper-amendments, but he also goes further: he locates a core pathology of post-colonial African constitutionalism as that of excessive centralisation of power within the figure of the President (this is crucial for another aspect of the appeal, which I will deal with in a future post) – and how this centralisation of power enabled various Presidents to shrug off constitutional checks and balances through the process of amendments:

It is a sad blight on Africa’s post-independence experience that no sooner did the nations gain independence than the power elites embarked on diluting and dissolving all restraints on power and authority, a blurring and final obliteration of checks and balances and a concentration of power in the Presidency. They did this principally through facially legal and constitutionally compliant changes to their constitutions. (pg 53)

Kiage JA goes on to argue that Kenyans were entirely aware of this “in their search for a new constitutional paradigm” (pg 53), and that this found reflection in the CKRC Report. Crucially, Kiage JA then uses this argument to segue into his third point, which is a democratic-theoretical point: relying upon the work of Yaniv Roznai and others, he argues that by themselves, referenda can be top-down, imposing a set of pre-decided choices upon a passive population. The fact, therefore, that Articles 255 and 257 contemplate a referendum is not sufficient justification to argue that the the reason why the basic structure doctrine exists in the first place has been adequately addressed within the Constitution itself: “an effective bulwark against abusive constitutionalism therefore seems to me to be, on the authorities, one that entails more as opposed to less people involvement.” (p. 96)

We are now, therefore, in a position to reconstruct the essence of Kiage JA’s argument: first, that amendment and repeal are two different things; secondly, that therefore, constitutional alterations that fall in the latter category amount to reconstituting the Constitution, and must be taken to the People exercising primary Constituent power; and that thirdly, the existing provisions for direct democracy and referenda under Articles 255 to 257 lack the extent and guarantees of public participation that would – in light of Kenyan constitutional history – be sufficient safeguards against abusive constitutionalism. Thus, the High Court’s finding regarding the basic structure doctrine and the four-step participation process is correct and ought to be upheld.

The Analysis of the Other Judges

Now, what of the other judges? In large part, they agree with Kiage J’s analysis (see the analysis of Nambuye JA, paragraphs 62 – 65; Kairu JA, paragraphs 32 – 55; Tuiyott JA, paragraphs 25 – 34). Some additional points are added by Musinga (P). The analysis of Musinga (P) begins at para 272 of this judgment. Musinga (P) agrees with the basic point that “any amendment that alters constitutional fundamental values, norms and institutions cannot pass as an amendment, it is in the nature of dismemberment” (paragraph 285). He then spends substantial time on illustrations: in particular, he focuses on the proposed addition of a judicial ombudsman to the Constitution, a Presidential appointee whose presence, he argues, constitutes an “ingenuous and subtle claw back to the independence of the Judiciary.” (paragraph 288). He undertakes a similar analysis for changes in the legislature, which seek to convert Kenya from a Presidential to a hybrid-Presidential system, and to the controversial issue of delimitation, where he finds that the proposed amendments attempt to take away the determination of this question from an independent constitutional body (paragraph 292).

Interestingly, Kairu JA – while agreeing with the High Court’s historical analysis and finding on the basic structure – differs as to the application of the doctrine. He finds – along with Okwengu JA on this point – that the basic structure has already been identified by the Constitution, via the ten thematic areas of Article 255(1). He then holds that while these provisions may be amended (following their stipulated process), there is a complete bar on their “dismemberment”. This actually brings Kairu JA’s finding very close to the classical (or, shall we say, Indian) version of the basic structure, and – incidentally – cuts the majority in favour of alteration of the basic structure via the four-step exercise of primary constituent power, to a wafer-thin 4-3.**

The Identification of the Basic Structure

One final point: the disposition does not specify the question of what constitutes the basic structure of the Kenyan Constitution. And by my count, there is no clear majority on this point. Out of the six judges who agree that the Kenyan Constitution does have a basic structure, a plurality of three (Okwengu, Kairu, and Tuiyott JA) hold that the basic structure is to be found under the ten thematic areas of Article 255; two Justices (Musinga (P) and Kiage JA) agree with the High Court that the enquiry is to be undertaken on a case to case basis; and Nambuye JA does not express an opinion on this point.

As historians of the basic structure doctrine will know, there is something almost deliciously fitting about this.

Conclusion

The Kenyan Constitution’s amendment provisions are singular in their detail, the obvious care with which they have been crafted, and the attention that has gone into their design. There is a reflective mix of representative and direct democracy, and the articulation of a hierarchy of norms within the Constitution – two classic features of the global basic structure doctrine. Despite this, five judges at the High Court and five out of seven at the Court of Appeal ultimately found that despite all this textual detail, there exists an additional, implied limitation upon the amending power, in the form of the basic structure doctrine.

For the reasons that I have provided in my previous analysis of the High Court judgment, and for the reasons above, I believe that both Courts are correct on this point. It is important to note that the singular Kenyan amendment provisions have called forth a singular solution: departing from global basic structure doctrine, neither the High Court nor the Court of Appeal has held that any provision of the Kenyan Constitution is unamendable per se; but rather, even the basic structure can be amended, subjected to procedural and procedural/substantive constraints that aim to replicate the participatory character of its founding.

But at the end of the day, I believe that the two Courts are correct for an even simpler reason: the very existence of the BBI and the Constitution Amendment Bill. The fact that this case came to Court at all shows that notwithstanding the care with which Articles 255 – 257 were crafted, it was still possible for to push through far-reaching constitutional changes, via a top-down elite political pact, while still staying within the formal constraints of the Constitution.

Now of course, the counter-argument will be that all the two judgments have actually achieved is replaced the elite political pact with gatekeeping by a judicial elite (and indeed, we find echoes of this fear in Sichale JA’s dissent). To this, only one answer can be made: that if future judicial decisions on this point reflect the clarity of reasoning and self-awareness exhibited by these two judgments, then fears of a judicial capture will likely not come to pass; but that, of course, is something that only time will tell. In this sense, the basic structure doctrine is a bit like HLA Hart’s famous rule of recognition: nothing succeeds like success.


* I here go by the disposition, which holds Okwengu JA to be in dissent on this point; note, however, that it is not quite as clear cut, as Okwengu JA does hold that there is an “implicit” prohibition upon amendability running through the Constitution; amendments that go against its “spirit and purport”, as articulated by the Preamble, will be unconstitutional. It would seem to me that this puts Okwengu JA closer to the concurring camp than to the dissenting camp.

** But here again, there is a doubt about whether the disposition accurately reflects the judgment. In paragraph 59, Kairu JA does appear to affirm the High Court’s sequential four-step process for changes that amount to abrogation of the basic structure. In my analysis above – as with Okwengu JA – I have gone by the disposition, as that is – ultimately – the formal view of the Court. Perhaps unsurprisingly, however, an actual reading of seven different opinions throws up several points of contention with respect to any attempt to harmonise all these holdings into one set of orders!