Month: April 2022

Comforting the Comfortable and Afflicting the Afflicted: The Supreme Court’s FCRA Judgment

Gautam Bhatia6 Comments

In 2020, Parliament amended the Foreign Control (Regulation) Act of 2020 [“the FCRA Amendments“]. The FCRA is India’s umbrella law for regulating foreign donations to non-governmental organisations [“NGOs”]. The FCRA amendments did four consequential things:

  1. Section 7 of the FCRA was amended to prohibit “sub-transfers” – i.e., the transfer of funds from an FCRA-registered NGO to any other body or person (notably, this included transfers to other FCRA-registered bodies as well).
  2. Section 8 of the FCRA was amended to prohibit more than 20% of donated funds being used for administrative activities (the earlier cap was 50%).
  3. Sections 12 and 17A of the FCRA were amended to stipulate that FCRA funds could only be received in one branch of the State Bank of India at New Delhi.
  4. Section 12 was also amended to stipulate that those applying for an FCRA registration or renewal may be required to produce their Aadhaar number as proof of identification.

It can therefore be seen that the effect of the amendments was to make the legal regime under the 2010 Act stricter in various respects (with the corollary of making it harder for NGOs to function). These four amendments were challenged in various proceedings before a few High Courts. In the Noel Harper case, there was – initially – a more limited challenge to one of the amendments. However – in an increasingly common practice – the Supreme Court in its wisdom decided to stay most of the ongoing High Court challenges, and issue a comprehensive judgment (Noel Harper v Union of India) on the amendments instead. For anyone who has been following the recent career of the Supreme Court in cases involving the government – and especially the many cases decided by benches led by Khanwilkar J, who presided over this case as well – the judgment will come as no surprise: the amendments were upheld almost in their entirety.

An analysis of the judgment reveals that it is characterised by many of the regrettable features that have come to characterise Indian civil rights jurisprudence today. The Court begins by framing the issue in a way that is most favourable for the State, and least favourable for the citizen. Having framed the question thus, it then goes on to accept the State’s factual claims at face value, but does not extend the same courtesy to the citizen. Having done that, it then applies those parts of existing legal doctrine that favour the State, and ignores – or misrepresents – those parts that protect the rights of citizens. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review.

How does this happen in the Noel Harper case? Let’s start with the framing. In paragraph 21, the Court states that “there is no fundamental right vested in anyone to receive foreign contribution (donation) or foreign exchange; and that the purport of the Principal Act and the impugned amendments are only to provide a regulatory framework and not one of complete prohibition.” (emphasis supplied) At the outset, this then allows the Court to significantly devalue the rights claims at issue. The framing is also false: it is nobody’s case that the Constitution guarantees a “fundamental right to receive foreign contribution” (sic). What the Constitution does guarantee is a fundamental right to the freedom of association. The freedom of association is meaningless unless individuals who wish to form associations are able to access funds to carry out the activities for which they associate. When the State, therefore, passes a law that places significant burdens upon the ability of associations to access funding, the effect of such a law is to impinge upon the constitutionally guaranteed freedom of association.

None of this is particularly novel to Indian jurisprudence: to take just one example, in Sakal Papers v Union of India, the government’s Newspaper Act – which authorised the government to “regulate” the prices of newspapers according to the number of pages that they had – was struck down for violating Article 19(1)(a) of the Constitution. Going by the logic of the Supreme Court in Noel Harper, the question in Sakal Papers would have been thus: “is there a fundamental right to publish a newspaper of X length and price it at Y rupees?” Did the Supreme Court in Sakal Papers frame the question thus? No, because it chose to apply common sense instead: the effect of a price/page regulation is to impinge upon the freedom of speech and expression, and therefore requires to be tested on 19(2) grounds. Similarly, the effect of “regulating” (i.e., restricting) funding for associations is to impinge upon the freedom of association, and therefore requires to be strictly tested on grounds of proportionality.

Having thus framed the question to the disadvantage of the citizen, the blithe acceptance of the State’s factual assertions comes in at paragraph 23. In paragraph 23, the Court notes:

In due course of time, however, it was realised that the dispensation enunciated in the 2010 Act was also not yielding the desired result. This impelled the Parliament to amend the 2010 Act (vide 2020 Act) to make it more stringent and effective to subserve the cause and intent of the Principal Act — not only in regard to the modality of acceptance of foreign contribution in the prescribed manner but also making it imperative for the recipient of foreign contribution to utilise the same “itself” for the designated or specified purposes for which it was so permitted. 

This passage refers to the issue of sub-granting, which is now prohibited under amended Section 7. Put simply, the issue of sub-granting is this: small and grassroots NGOs do not often have the wherewithal to liaise directly with foreign donors (that are often big institutions), and receive funds. For this reason, these small NGOs often tie up with larger, more established national NGOs: the national NGO negotiates with the foreign grantor, and then passes on the grant to the smaller NGO. It is crucial to note that under the old FCRA regime, it was already a requirement that both the grantor and the grantee NGO would have to be registered under the FCRA, and therefore, both entities already existed within the regulatory regime. It is therefore entirely unclear – including from the Statement of Objects and Reasons that the Court extracts a few paras before – which part of the old regime “was not yielding the desired result”, thus necessitating a prohibition on sub-granting. Indeed, this entire paragraph is a complete non-sequitur: the Court goes from “subserving the cause and intent of the Principal Act” to “making it imperative for the recipient of foreign contribution to utilise the same “itself”” (prohibition of sub-granting) without any elaboration of the logical link between the two. I’d suggest that the reason for that is that there is no logical link between the two. Putting the word “itself” in “scare quotes” does not establish that logical link.

An attempt at establishing a logical link is then made in paragraph 26, where the Court reproduces the Statements of Objects and Reasons of the Act. In sum, it is the State’s case – according to the Court – that NGOs have been found to be “routing” money that has been sent to them to other sources, creating “several issues” bordering on “malpractices”, the creation of a “layered trail of money” where it is “difficult to trace the flow.” Notice that this entire paragraph is fact-free: there are a series of assertions without specifications or evidence, which the Court does scrutinise. Furthermore, specifically on the issue of sub-transfers, quite apart from evidence, the argument defies logic: if both the grantor and the grantee are already FCRA registered – that is, already subject to the regulatory regime under the Act – where is the question of “routing”, “layered trail(s) of money”, and “difficulties in tracing the flow”? Once again, no answer is forthcoming – because no answer exists. The non-answer is provided by the Court in paragraph 50, where it notes:

Accepting this argument would be completely glossing over the legislative intent for which the amendment has been effected. The legislative intent is to introduce strict dispensation qua the recipient of foreign contribution to utilise the same “itself” for the purposes for which it has been permitted as per the certificate of registration or permission granted under the Act by the Central Government. 

Once again, we have the same question-begging argument that the Court tries to gloss over by putting the word “itself” in scare-quotes. However, even if we were to accept this – that there was a legitimate purpose to requiring that only the donor NGO “itself” can use the funding it gets – there is a further constitutional threshold to meet: the test of proportionality. Under the test of proportionality, the State would be required to show – for example – that this kind of a prohibition is the least restrictive method for achieving the desired goal (i.e., adequate regulatory oversight of foreign funds), and that the extent of restriction is proportionate to the goal. Notably, the Court does not engage in a proportionality analysis at all, because it has already held – via its self-serving framing – that there is “no vested right to receive foreign funds.” (paras 55 – 68) The Court also ignores the argument from discrimination, on the basis that this ban on sub-grants specifically hits smaller and grassroots NGOs who cannot directly liaise with big donors, by stating that the law is “facially neutral.” Needless to say, this ignores entirely the law on indirect discrimination, which asks not whether the law is neutral “on its face”, but whether it has a discriminatory impact. Thus, we come to the third stage of this particular form of judicial-executive reasoning that has come to characterise the Court’s judgments of late: constitutional doctrine that is inconvenient to the State is simply ignored.

In the Court’s judgment upholding the vires of Section 7, therefore, we see each of the three steps mentioned in the beginning of this blog post: a founding (incorrect) assumption that benefits the State, acceptance of the State’s factual claims without scrutiny (even when those claims are facially illogical), and selective use of constitutional doctrine to the benefit of the State. The same issues are present – in a far more cursory fashion – in its analysis of the other impugned provisions. With respect to the mandate that all organisations must open their FCRA accounts in a specific branch of the SBI in Delhi, the Court notes that this is necessary because it provides “a complete and transparent check on the inflow and utilisation of foreign contribution towards a single point source on real-time basis.” The Court provides absolutely no reasoning with respect to how this specific restriction will solve the purported issue of “abuse” of the old regime (an initial requirement of reasoning), much less whether it is a proportionate restriction: it only repeats – multiple times – that the old regime was being abused, and that there is need for “strict” regulation “in the interests of the sovereignty of the country”. This form of reasoning might be suitable for WhatsApp forwards that we have all received about how foreign NGOs are ruining the country, but it is rather inappropriate for the highest Court in the country. The Court then notes:

A priori, opening of main FCRA account in the designated bank as per the law made by the Parliament in that regard, cannot be brushed aside on the specious argument of some inconvenience being caused to the registered associations. (paragraph 73)

There are, of course, echoes of the notorious “minuscule minority” line from Koushal v Naz here. Once again, though, the lack of knowledge of – or attention to – existing Indian constitutional jurisprudence is startling. When the effect of a law is to place a heavy burden upon the exercise of a constitutional right, then – under judicial review – the Court is required to subject it to proportionality scrutiny. The Court simply evades that obligation by framing it as an “inconvenience”, and therefore constitutionally irrelevant.

There is also a particular irony here, given that the State’s entire argument for requiring every FCRA-registered NGO to open its FCRA account in a designated branch of SBI Delhi is – in effect – its administrative convenience. It is reminiscent of the Peruvian President Óscar R. Benavides, who once notoriously said, “for my friends, anything; for my enemies, the law!” In this judgment, the Supreme Court likewise says, “for the State, any convenience; for the citizen, every burden.” In law school, we are taught that one of the functions of a Constitution is to put limits upon the power of the State, to secure the freedom of the individual. Increasingly, the Supreme Court is reversing that relationship: the purpose of the Constitution – according to the Court – is to constrain the individual, so that the there can be no check upon the power of the State.

For these reasons, this judgment is somewhat difficult to analyse: the “reasoning” part of it essentially consists of the Court repeating the State’s contentions, repeating how “national security” and “sovereignty and integrity” are important, repeating how there must be “strict regulation” of foreign funding, and concluding on the basis of the above that the amendments are valid. Analysing this judgment, therefore, is more a task of reconstruction than anything else: reconstructing the framing that the Court chooses to ignore, the facts that it chooses to gloss over, and the doctrine that it chooses not to apply. Indeed, it is not so much about analysing legal reasoning, but analysing the absence of it; in Noel Harper, it is the silences that speak the loudest.

But perhaps, a clue to decoding this judgment – to its multiple lapses of logic and evasions – can be found in paragraphs 53 and 54, where the Court notes:

Indubitably, foreign contribution is qualitatively different from foreign investment. Receiving foreign donation cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems. The question to be asked is: “in normal times”, why developing or developed countries would need foreign contribution to cater to their own needs and aspirations? Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens to achieve the goal by sheer dint of their hard work and industry. Indeed, charitable activity is a business. Receiving contribution within India to do charitable activity can be and is being regulated differently. It is not possible to have a similar approach relating to foreign contribution from foreign source. In short, no one can be heard to claim a vested right to accept foreign donation, much less an absolute right. 

We say so because the theory of possibility of national polity being influenced by foreign contribution is globally recognised. For, foreign contribution can have material impact in the matter of socio-economic structure and polity of the country. The foreign aid can create presence of a foreign contributor and influence the policies of the country. It may tend to influence or impose political ideology. Such being the expanse of the effect of foreign contribution coupled with the tenet of constitutional morality of the nation, the presence/inflow of foreign contribution in the country ought to be at the minimum level, if not completely eschewed. The influence may manifest in different ways, including in destabilising the social order within the country. The charitable associations may instead focus on donors within the country, to obviate influence of foreign country owing to foreign contribution. There is no dearth of donors within our country. 

This is what we call the proverbial slipping of the mask. The Court really really really dislikes foreign donors (as opposed to foreign investors, who – it is of course a well-known fact – never try to influence a sovereign nation’s laws and policies). It hates their guts. It thinks it is a sign of national weakness that individual citizens rely upon foreign donations for funding. Citizens must work hard, because ultimately work will set you free.

In their private lives, judges are of course free to have their prejudices, and hold whatever anti-NGO and anti-foreign funding views they want to. The problem is when these prejudices leak into judgments – as has clearly happened in this case. The relentless beating of the “national security” and “sovereignty and integrity” drums, the unseemly patting on the back of the State for making foreign funding more difficult to receive, and the open contempt for NGOs who do apply for FCRA registrations (“specious argument”) all make for very disturbing reading: it is the crystallisation of State prejudice into judicial prejudice, where – far from checking State abuse – the judiciary sees its primary role as the State’s cheerleader, enthusiastically applauding as it cuts down the rights of those ungrateful and undeserving citizens who don’t want to work hard enough and want to take foreign donations instead. In this brave new world, we don’t get constitutional rights unless we deserve them, and the Court will determine if we are worthy (sneak preview: most of us will not be).

The Kenyan Supreme Court’s BBI Judgment – III: On Referendum Questions, Other Implications and Untidy Endnotes

Gautam BhatiaLeave a comment

This is the third and concluding blog post about the Kenyan Supreme Court’s BBI judgment. Parts One and Part Two can be accessed here. In this post, I will end by examining some of the possible implications of the judgment of the Court, going forward.

Distinct and Separate Referendum Questions

Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.

A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.

In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.

The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.

But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!

It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open; and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments: as Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it. One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the President could or could not initiate a PI. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the PI. The same considerations apply to the issue of distinct and separate referendum questions.

Constitutional Gaps

On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.

The first issue had also been discussed by the judges in the superior courts below: in the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments; thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.

The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative: eighteen out of nineteen judges who heard this case agreed that the President cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the President’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future President might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies. At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future; and the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to Parliament, Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of State actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.

Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial Presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial Presidency is not so easy to contain: its “taming” will need more than one set of judgments, but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.

Conclusion: Shadow and Light

It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three blog posts reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions: I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (State power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.

Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.“

The Kenyan Supreme Court’s BBI Judgment – II: Public Participation, Direct Democracy, and the Popular Initiative

Gautam Bhatia1 Comment

In the previous post, we discussed the Kenyan Supreme Court’s BBI judgment, on the issue of basic structure and limitations upon the constitutional amending power. That discussion provides an ideal segue into the second major issue before the Court: the interpretation of Article 257 of the Kenyan Constitution, which provides for constitutional change through the “popular initiative.” Recall that other than the substantive challenge to the contents of the BBI Bill, another ground of challenge was that on a perusal of the record, His Excellency the President was the driving force behind the Bill (the High Court called him the “initiator”), going back to the time that he engaged in a “handshake” with his primary political rival at the time, the Hon. Raila Odinga. It was argued that Article 257’s “popular initiative route” was not meant for State actors to use – and definitely not for the head of the executive to use. It was meant to be used by ordinary people, as a method for bringing them into the conversation about constitutional reform and change. The High Court (5-0) and the Court of Appeal (7-0) (see here) agreed with this argument; the Supreme Court (6-1) did so as well, although it split (5-2) on the question of whether the President had, actually, been impermissibly involved with the popular initiative in this case.

The Long Shadow of the Imperial Presidency

At the outset, it is important to note that Article 257 does not explicitly bar the President from being a promoter (the technical term) or an “initiator” of a popular initiative (Ibrahim J, paragraph 784). Any restriction upon the President, in this regard, would therefore have to flow from an interpretation of the constitutional silences in Article 257.

How does the Supreme Court fill the silence? As with its analysis of the basic structure, the Court turns to history. Where the point of Chapter XVI was to provide internal safeguards against hyper-amendments, more specifically, Article 257 – as gleaned from the founding documents – came about as a response to the “Imperial Presidency”: i.e., the period of time under Kenya’s Independence Constitution, where power was increasingly concentrated in the hands of the President, and where the President was in the habit of simply amending the Constitution in order to remove impediments to the manner in which he wished to rule (Koome CJ, paragraph 243; Mwilu DCJ, paragraphs 463, 472; Wanjala J, paragraph 1046; Ouko J, paragraph 1917-1918).

This being the case, the Supreme Court holds, it would defeat the purpose of the popular initiative to let the President back in. The purpose of Article 257, according to the Court, is to provide an avenue for constitutional change to the People, as distinct from State organs (Mwilu DCJ, paragraph 491; Ibrahim J, paragraph 789; Lenaola J, paragraph 1537). In other words, the scheme of Chapter XVI – with its twin parliamentary (Article 256) and popular initiative (Article 257) routes – is to balance representative and direct democracy when it comes to constitutional change (Koome CJ, paragraphs 237 – 242; Mwilu DCJ, paragraph 480; Wanjala J, paragraph 1042; Lenaola J, paragraph 1535; Ouko J, paragraph 1900). That balance would be wrecked if Article 257 was to be converted from a bottoms-up procedure for constitutional change to a top-down procedure, driven by the President.

This is a particularly important finding, whose implications extend beyond the immediate case. Recall that the contest over the interpretation of Article 257 was – as so much else in this case – a contest over legal and constitutional history. While the challengers to the BBI Bill told the story of the imperial Presidency, its defenders told a different story entirely: for them, Article 257 was not about constraining the President, but about enabling them. The situation that Article 257 envisaged was one where a recalcitrant Parliament was stymying the President’s reform agenda; in such a situation, Article 257 allowed the President to bypass Parliament, and take their proposals directly to the People.

The contest, thus, was fundamentally about the relationship between power, Presidentialism, and the 2010 Constitution. Was the 2010 Constitution about constraining the imperial Presidency – or was it about further entrenching the power of the President vis-a-vis other representative organs? And thus, in answering the question the way it did, the Supreme Court not only settled the fact that the President could not initiate a popular initiative, but also laid out an interpretive roadmap for the future: constitutional silences and ambiguities would therefore be required to be interpreted against the President – and in favour of checks or constraints upon their power – rather than enabling their power. This is summed up in paragraph 243 of Koome CJ’s opinion, which demonstrates the reach of the reasoning beyond its immediate context:

In its architecture and design, the Constitution strives to provide explicit powers to the institution of the presidency and at the same time limit the exercise of that power. This approach of explicit and limited powers can be understood in light of the legacy of domination of the constitutional system by imperial Presidents in the pre-2010 dispensation. As a result, Chapter Nine of the Constitution lays out in great detail the powers and authority of the President and how such power is to be exercised. In light of the concerns over the concentration of powers in an imperial President that animate the Constitution, I find that implying and extending the reach of the powers of the President where they are not explicitly granted would be contrary to the overall tenor and ideology of the Constitution and its purposes. (Emphasis supplied)

Furthermore, in this context, Koome CJ’s endorsement of Tuiyott J’s opinion in the Court of Appeal (Koome CJ, paragraph 256) becomes particularly important. As Tuiyott J had noted, simply stating that the President is not allowed to initiate a popular initiative will not solve the issue; there are many ways to do an end-run around such proscriptions – for example, by putting up proxies (as arguably did happen in this case). What is thus required is close judicial scrutiny, and the need for a factual analysis that goes behind a proposed PI, in order to ensure that it is genuinely citizen-driven, and not a front for State actors (especially the President) (see also Mwilu J, paragraph 509, for some of the indicators, which she suggests ought to be addressed legislatively). Indeed, a somewhat more formal reading of the process (with respect) led to Lenaola J dissenting on this point, and finding that the President was not involved, as it was not he who had gone around gathering the one million signatures for the popular initiative). Thus, how well the judiciary can police the bounds of Article 257 is something only time will tell; in the judgments of the High Court, Court of Appeal, and now the Supreme Court, the legal standards – at least – are in place.

Public Participation

The Supreme Court unanimously found that the Second Schedule to the BBI Bill – which sought to re-apportion constituencies – was unconstitutional. Their reasons for doing so differed: a majority holds that there was no public participation; Mwilu J also holds that the amendment was not in harmony with the rest of the Constitution (paragraph 533) and Wanjala J says that it amounted to constitutional “subversion” (paragraph 1063), on the basis that it amounted to a direct takeover of the functioning of the Independent Electoral and Boundaries Commission – raising some of the basic structure issues discussed in the previous post. On public participation with respect to the rest of the BBI Bill, the Court split 4 – 3, with a wafer-thin majority holding that – on facts – there had been adequate public participation in the process thus far. In this context, it is important to note that CJ Koome – one of the majority of four – notes elsewhere that the most intense public participation – that is, voter education etc – occurs at the time of the referendum (which had not yet happened in the present case).

A couple of other points arise for consideration on the point of public participation. The first is that in a dispute about whether or not there was adequate public participation, who bears the burden of proof? On my reading, a majority of the Court holds that it is the State organs who bear the burden of demonstrating that there was adequate public participation (Koome CJ, paragraph 270, 311; Mwilu J, paragraphs 599, 604; Ibrahim J, paragraph 849; Wanjala J, paragraphs 1096 – 1097). The rationale for this is set out by Ibrahim J at paragraph 849:

With profound respect, as stated by Musinga, (P), the amendment of a country’s constitution, more so our Constitution, should be a sacrosanct public undertaking and its processes must be undertaken very transparently and in strict compliance with the country’s law.

This chimes in with the Court’s finding that the tiered amendment process under Articles 255 – 257 is an internal safeguard against abusive amendment; needless to say, if that interpretation is indeed correct, then within the scheme of Articles 255 – 257, constitutional silences should be interpreted in a manner that protects the citizenry from abusive amendments; one of the most important safeguards is public participation, and it there stands to reason that the burden of establishing it – especially where State organs are concerned within the scheme of Article 257 – should be on the State. In this context, it is interesting that other than repeatedly emphasising that Article 257 was an onerous, multi-step procedure whose very onerousness was designed to protect the basic features of the Constitution, Koome CJ is the only judge to both hold that the burden lay upon State organs, and to hold that the burden was discharged in this case.

The second point about public participation is the Court’s finding that it flows throughout the scheme of Article 257, with its specific character depending upon what stage the amendment process was at: at the promoters’ stage, at the stage of the county assemblies, at the stage of the legislature, and at the stage of the referendum. A majority holds – and I think correctly – that at the initial stage – the promoters’ stage – the burden is somewhat, especially given that this is the only stage where State institutions are not involved, and the burden falls upon the promoters, who are meant to be ordinary citizens. Given the contested facts in this case – which are discussed at some length in the separate opinions – it will be interesting to see how future judgments deal with the issue of public participation under Article 257, especially given the Court’s finding that it is this tiered amendment process that is meant to protect against abusive amendments.

The Quorum of the IEBC

Recall that a key question before the High Court and the Court of Appeal was whether the IEBC, working with three commissioners, had adequate quorum, notwithstanding the fact that the Schedule to the IEBC Act fixed the quorum at five. The High Court and the Court of Appeal held that it did not have quorum; the Supreme Court overturned this finding.

The reasoning of the judges on this point overlaps, and can be summed up as follows: Article 250(1) of the 2010 Constitution states that “each commission shall consist of at least three, but not more than nine, members.” This means that, constitutionally, a commission is properly constituted with three members. Any legislation to the contrary, therefore, must be interpreted to be “constitution-conforming” (in Koome CJ’s words), and read down accordingly (Koome CJ, paragraph 325 – 326, 336 – 337; Mwilu J, paragraph 661; Wanjala J, paragraph 1113; Ouko J, paragraphs 2060, 2070).

With the greatest of respect, textually, this is not entirely convincing. If I say to you that “you may have at least three but not more than nine mangoes”, I am leaving the decision of how many mangoes you want to have up to you; I am only setting a lower and an upper bound, but the space for decision within that bound is entirely yours. Similarly, what Article 250(1) does is set a lower and upper bound for Commissions and quorum, with the decision of where to operate in that space being left up to legislation (see Ibrahim J, paragraph 892). This point is buttressed by the fact that under the Transitional Provisions of the Constitution, it is stated that “Until the legislation anticipated in Article 250 is in force the persons appointed as members or as chairperson of the Salaries and Remuneration Commission shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.” I would suggest that this indicates that the appropriate body for implementing Article 250 is the legislature, and consequently, questions about quorum and strength ought to be left to the legislature (subject to general principles of constitutional statutes and non-retrogression, discussed here).

Conclusion

There were, of course, other issues in the judgment that I have not dealt with here: the question of Presidential immunity, for example. In this post, however, we have seen that the overarching finding of the Court – that the tiered amendment procedure under Articles 255 – 257 is meant to provide an internal safeguard against abusive constitutional amendments and hyper-amendments – necessarily informed its interpretation of Article 257 itself; in particular, in holding that the President cannot initiate a popular initiative, that the burden of demonstrating public participation lies upon the State, and that public participation is continuing process flowing through the several steps of Article 257. In the final – and concluding – blog post, we shall examine some of the other implications of this logic, in particular upon issues such as distinct and separate referendum questions.

The Kenyan Supreme Court’s BBI Judgment – I: On Constitutional Amendments and the Basic Structure

Gautam Bhatia4 Comments

On 5th April 2022, a seven-judge bench of the Kenyan Supreme Court delivered judgment in The Hon. Attorney General and Ors v David Ndii and Ors [“the BBI Appeal”]. The judgment marked the judicial culmination of the constitutional challenge to the BBI Bill, which had proposed seventy-four amendments to the 2010 Constitution of Kenya. Recall that the case came up in appeal from the judgments of – first – the High Court of Kenya, and then the Kenyan Court of Appeal, both of which had found the Bill unconstitutional for a variety of reasons. The Supreme Court, thus, was the third Court to hear and decide the issue; and over a period of one year, as many as nineteen judges heard and decided this case. The Supreme Court framed seven issues for judgment, which can be found in Martha Koome CJ’s lead judgment (paragraph 35), and the seven judges wrote individual opinions.

In the course of three blog posts, I propose to analyse the judgments in the following manner. In this first post, I will consider the issue of the basic structure. In the second post, I will consider the issue of the popular initiative to amend the Kenyan Constitution under Article 257, and some of the remaining points in the judgment(s). In the final post, I will examine some of the potential implications of the judgment(s), going forward (for example, on the issue of whether referendum questions for constitutional amendment must be distinct and separate). It is safe to say that, as with the judgments of the two other superior courts, the range and novelty of the issues before the Court mean that its verdict will be studied across the world for a long time to come.

On the Basic Structure: Introduction

Recall that the High Court (5-0) and the Court of Appeal (6-1) had both held that the basic structure doctrine was applicable in Kenya. In addition, both Courts (5-0 and 4-3) had also held that in concrete terms, this meant that any alteration to the basic structure of the Kenyan Constitution could take place only through an exercise of the People’s primary constituent power, which existed outside of the Constitution. The primary constituent power was essentially the power to make or remake a Constitution, and would therefore could only be done under the framework within which the 2010 Constitution had originally been drafted. This – according to both Courts – required a four-step sequential process: civic education, public participation, a Constituent Assembly, and a referendum. The correctness of these findings was at issue before the Supreme Court.

The formal disposition of the Court indicates that on this point, the judgments of the High Court and Court of Appeal were set aside by a 6-1 majority (Ibrahim J the sole dissent); that is, the Supreme Court rejected the applicability of the basic structure doctrine and of the four-step sequential process in Kenya, by a 6-1 majority. I believe, however, that a close reading of the seven opinions reveals a somewhat more complex picture, which I will now attempt to demonstrate.

Hyper-Amendments and Tiered Constitutional Amendment Processes

In addressing the question of the basic structure, several judgments of the Supreme Court begin at a common starting point: what was the specific historical mischief that the Kenyan Constitution’s amendment procedures (set out under Chapter XVI) were attempting to address? The answer: a culture of “hyper-amendments” to Kenya’s Independence Constitution. In the years after Independence, the old Constitution was often seen as an impediment by the Presidency, and as a result, a series of far-reaching amendments were passed that more or less entirely devalued its status as a founding charter (and invariably concentrated power in the office of the Presidency, at the cost of other State organs and the People (Ouko J, paragraph 1918, quoting Ghai/McAuslan). Upon Kenya’s return to multi-party democracy in the 1990s, and the eventual constitutional reform process, this culture of hyper-amendments was prominently in the minds of the People and of the drafters (see Koome CJ, paragraph 189 – 191; Mwilu DCJ, paragraph 521; Lenaola J, paragraphs 1415 – 1417; Oukuo J, paragraph 1802).

Up to this point, the opinions of the Supreme Court are in agreement with those of the High Court and the Court of Appeal. Drawing upon the historical record, the Supreme Court opinions then go on to argue that the Kenyan People therefore devised a solution to the problem of hyper-amendments, and constitutionalised it; in other words, the hyper-amendments were to be addressed by a solution internal to the 2010 Kenyan Constitution. This solution is to be found in Chapter XVI of the Constitution, and – in particular – in the tiered amendment process that it sets up. Article 255(1) of the Constitution “entrenches” certain provisions of the document. For these “entrenched” provisions, the amendment procedure is far more onerous than for un-entrenched provisions, requiring a referendum with certain conditions (Article 255(2)), in addition to (or complementing) the Parliamentary amendment route (under Article 256) or the popular initiative route (in Article 257). This tiered amendment process, according to the judges, thus creates a balance between constitutional flexibility and constitutional rigidity, and also “tames” the mischief of hyper-amendments (see Koome CJ, paragraphs 192 – 197; Ndungu J, paragraphs 1161 – 1162; Lenaola J, paragraph 1418; Ouko J, paragraph 1803).

Two conclusions follow from this, according to the Supreme Court. The first is that this history – and structure – of the 2010 Kenyan Constitution therefore distinguishes it from jurisdictions such as India (where the basic structure doctrine first gained judicial acceptance). In India, where Parliament possesses the plenary power to amend the Constitution, the basic structure doctrine arises as a judicial response in order to protect the Constitution from parliamentary abuse. However, what in India requires the basic structure doctrine, is already provided for in Kenya through the tiered amendment process; in other words, the tiered amendment process does the job that the basic structure doctrine is supposed to do (Koome CJ, paragraphs 217; Mwilu J, 401-402; Lenaola J, paragraphs 1439 – 1442, 1451 – 1453; Ouko J, paragraphs 1763 – 1781, 1811). And secondly, the tiered amendment process – and its history – demonstrates that the People – in their capacity as framers of the Constitution – intended to make the amendment process gapless. The three pathways provided for under Articles 255 – 257 are exhaustive, and for this reason, the High Court and the Court of Appeal were incorrect to introduce a “judicially-created fourth pathway” to amendment (Koome CJ, paragraph 200). Koome CJ also frames this another way, noting that the High Court and the Courts of Appeal failed to demonstrate what the lacuna was in Chapter XVI that necessitated the judicial creation of the four-step process (Koome CJ, paragraphs 200; Mwilu J, 406).

This snapshot, I believe, is an accurate summary of the reasoning of a majority of the judges in this case. To my mind, however, it also raises two interlinked issues, which – when scrutinised closely – somewhat complicate the final holding of the Court.

Amendment, Repeal, and the Basic Structure

It is, of course, entirely correct to say that the plenary power of parliament to amend the Constitution (as in India) is significantly distinct from the tiered amendment process under Articles 255 – 257; and, further, that this distinction is relevant when considering the question of the basic structure. However, it is equally important not to overstate the sequitur: it does follow from this – as I have argued previously – that the version of the basic structure doctrine as developed in India (i.e., a judicial veto over amendments) cannot be transplanted into the Kenyan context. However, this was not what the High Court and Court of Appeal did. Precisely because of the tiered structure of amendments under the Kenyan Constitution, the High Court and the Court of Appeal articulated a much more reduced role for judicial review: not a substantive veto over amendments (thus making every provision potentially amendable), but a procedural role to ensure that alterations to the basic structure could be done only through the primary constituent power.

Secondly – and connectedly – this flows from a conceptual point that is left unaddressed by the summary of the Supreme Court’s argument that I have provided above: the distinction between amendment and repeal (express or implied). The tiered amendment process, the onerous requirements under Article 257 to prevent hyper-amendments, and the balance between flexibility and rigidity ensure that as a practical matter, in most circumstances, the basic structure doctrine will not need to be invoked, because the Constitution’s internal mechanisms are far more effective for dealing with potential constitutional destruction (as opposed to, say, the Indian Constitution). The fact that the basic structure doctrine will almost never need to be imposed does not, however, address the point that it exists because of the conceptual distinction between amendment and repeal, and the fact that the Constitution – as conceded by Ouko J – “does not provide for its own replacement” (paragraph 1847).

Now, how do the judges of the Supreme Court deal with this point? Let us first consider the judgments of Ibrahim J (formally in dissent) and Dr Smokin Wanjala J (formally in the majority). Ibrahim J’s judgment is straightforward: he agrees with the High Court and the Court of Appeal on the distinction between amend and repeal, the primary constituent power, and the four-step sequential process (see, in particular, paragraphs 724 – 725). Let us now come to Smokin Wanjala J, because this is where things start to get interesting. Wanjala J objects to the abstract nature of the enquiry that has been framed before – and addressed by – the superior courts below (paragraph 1000). He notes:

Speaking for myself from where I sit as a Judge, and deprived of the romanticism of academic theorizing, it is my view that what has been articulated as “the basic structure doctrine”, is no doctrine, but a  notion, a reasoning, a school of thought, or at best, a heuristic device, to which a court of law may turn, within the framework of Article 259(1) of the Constitution, in determining whether, a proposed constitutional amendment, has the potential to destabilize, distort, or even destroy the constitutional equilibrium. (emphasis supplied)

But when you think about it, this is – essentially – the basic structure “doctrine” (or the “basic structure heuristic device” if you want to call it that), without being explicitly named as such: it is an interpretive method whose purpose is to prevent amendments that “destabilise, distort, or destroy the constitutional equilibrium.” Importantly, both here – and in his disposition – Wanjala J explicitly considers Article 259(1), which requires the Constitution to be interpreted in a manner that promotes its values and principles – as a substantive limitation upon constitutional amendments, in addition to the requirements of Chapter XVI. This is particularly clear from paragraph 1026:

In this regard, I am in agreement with the observations by Okwengu and Gatembu, JJ.A to the effect that a proposed amendment must pass both the procedural and substantive test. Where I part ways with my two colleagues is at the point at which they base their substantive test not on the constitutional equilibrium in Article 259, but on a basic structure (Gatembu, J.A–Article 255(1) and Okwengu, J.A–the Preamble). By the same token, I do not agree with the submission by the Attorney General to the effect that any and every proposed constitutional amendment would be valid as long as it goes through the procedural requirements stipulated in Articles 255, 256 and 257 of the Constitution. Courts of law cannot shut their eyes to a proposed constitutional amendment, if its content has the potential of subverting the Constitution. (emphasis supplied)

Now, with great respect, one may choose not to call something “the basic structure doctrine”, but the statement that a Court of law can subject constitutional amendments to judicial review on the question of whether its “content has the potential of subverting the Constitution”, one is doing what is generally understood to be basic structure review. It might be the case that its long association with the specific form taken in India has turned the basic structure doctrine into a bit of a poisoned chalice: in that case, there should of course be no problem in dropping the term, and simply stating that “constitutional amendments that subvert the Constitution are subject to judicial review.” And in his disposition at paragraph 1122, Wanjala J agrees that while the four-step sequential process will not apply to constitutional amendments, it would nonetheless apply to “seismic constitutional moments” when the People are exercising their primary constituent power.

We therefore already have a more complicated situation than what the final disposition of the Court suggests. That disposition suggests that a 6-1 majority rejected the basic structure doctrine. That is true, because Wanjala J does not believe that the basic structure doctrine is a “doctrine”. But we already have two judges who accept the distinction between constitutional amendments and constitutional repeal (or subversion), and accept that in the latter case, the primary constituent power (with its four-step process) will apply.

I now want to consider the opinions of Lenaola J and Ouko J. To their credit, both judges recognise – and address – the issue of constitutional amendment versus constitutional repeal. In paragraph 1464, Lenaola J states:

My point of departure with my learned colleagues is that the process presently in dispute was squarely anchored on Article 257 as read with Articles 255 and 256. I shall return to the question whether the Amendment Bill was in fact a complete overhaul of the present constitutional order or whether it was an amendment as envisaged by these Articles. Suffice it to say that, should the Kenyan people, in their sovereign will choose to do away with the Constitution 2010 and create another, then the sequential steps above are mandatory and our constitutional history will be the reference point (emphasis supplied).

Thus, in paragraph 1464, Lenaola J explicitly recognises the distinction between “a complete overhaul” and “amendment”, and also recognises that the 255 – 257 procedure only deals with the latter category. Indeed, his primary point is that the BBI Bill was not, as a matter of fact, a “complete overhaul”: in paragraph 1472, he asks “why would dismemberment take centre stage when the issue before the courts below was amendment?” And most definitively, in paragraph 1473, he quotes Richard Albert’s distinction between “amendment” and “dismemberment”, with approval (paragraphs 1474 – 1475); indeed, in the paragraph he quotes, Albert specifically notes that “a dismemberment is incompatible with the existing framework of the Constitution because it seeks to achieve a conflicting purpose” – lines very similar to Wanjala J’s articulation of constitutional “subversion.” There is, admittedly, something of an internal tension in Lenaola J’s opinion here: he appears, for example, to suggest later on that dismemberment necessarily requires formally enacting a new Constitution (see paragraph 1485). It is crucial to note, however, that this need not be the case: a Constitution’s structure and identity (the language used by Richard Albert, which Lenaola J cites with approval) can be “overhauled” by something as technically innocuous as changing a single sentence – or even a single word – in a single constitutional provision. For example, an amendment changing a polity from a multi-party democracy to a single-party State can be accomplished through a single sentence, but it is undoubtedly a constitutional dismemberment; another historical example is the Indian Supreme Court judgment in Minerva Mills, where the Constitutional amendment at issue had essentially made the Indian Constitution’s bill of rights non-justiciable, as long as the government stated that it was carrying out a social policy goal. This had been accomplished by amending a part of a sentence in a sub-clause of one provision of the Indian Constitution.

A very similar tension is present in Ouko J’s opinion. In paragraph 1838, he notes:

Therefore, it is true to say that it is the prerogative of the people to change their system of government, but only by the people’s exercise of their constituent power and not through the amendment procedure. And that is the difference between primary and secondary constituent powers, the former is the power to build a new structure by the people themselves and the latter, the power to amend an existing constitution. Today, under Chapter Sixteen, this power is exercised by the people and their elected representatives.

Once again, we see the distinction between “amendment” and – in this case – “building a new structure” or “changing the system of government.” This comes to a head in paragraph 1846, where she notes:

It ought to be apparent from the foregoing that, I must come to the conclusion that a constituent assembly is an organ for constitution-making. An amendment of the Constitution under Chapter Sixteen does not recognize constituent assembly as one of the organs for the process. This Constitution, like the former Constitution does not contemplate its replacement.

And in paragraph 1849:

Therefore, the question to be determined here is whether the proposed amendments would lead to such egregious outcome. That they had the effect of repudiating essential elements of the Constitution—concerning its structure, identity, or core fundamental rights—and replacing them with the opposite features; a momentous constitutional change.

Once again, with respect, one may choose not to call this “basic structure review”, but what is happening here seems awfully close to “basic structure review” when courts or scholars do call it that. As with Lenaola J, Ouko J’s primary discomfort appears to be with the Courts below having labeled the BBI Bill as akin to constitutional dismemberment. In paragraph 1858, he labels this as “overkill”; the point, however, is that this admits the principle: if indeed any kind of formal “amendment” was possible under Articles 255 – 257, then the question of substantively assessing the amendments themselves wouldn’t even arise; indeed, it doesn’t arise in Ndungu J’s opinion, which is very clear on the point that there is no constitutional alteration that is outside the scope of Chapter XVI.

Thus, we now have an even more complicated picture. Two judges out of seven (Ibrahim and Wanjala JJ) accept, in substance, the proposition that the four-step process applies to radical constitutional alteration that cannot properly be called an amendment. Two other judges (Lenaola and Ouko JJ) accept the principled distinction between constitutional “dismemberment” and “amendment”; Lenaola J appears to suggest that in the former case, you would need the four-step process, as it is akin to making a new Constitution, while Ouko J accepts Professor Akech’s amicus brief on the point that the four-step process was not, historically, how the 2010 Constitution was framed; it is only an “approximation.” Thus, we now have a situation where, in the disposition, six out of seven judges have rejected the applicability of “the basic structure doctrine”, but (at least) four out of seven judges have accepted that there is a conceptual distinction between constitutional “amendment” and “dismemberment”, the latter of which is outside the scope of Chapter XVI amendment processes (with three out of those four seeing space for the four-step process, and the fourth holding that it is an “approximation” of the founding moment).

What of the opinion of Mwilu DCJ? In paragraph 407, Mwilu J notes that:

In my view, whether a Constitution is amendable or not, whether any amendment initiative amounts to an alteration or dismemberment and the procedure to be followed is a matter that would be determined on a case to case basis depending on the circumstances.

After then noting the distinction between “amendment” and “alteration” (paragraphs 418 – 419), she then notes, at paragraph 421:

The court always reserves the constitutional obligation to intervene provided that a party seeking relief proves to the court’s satisfaction that there are clear and unambiguous threats such as to the design and architecture of the Constitution. (emphasis supplied)

While this is also redolent of basic structure language, Mwilu J later goes on to note that while constitutional alteration must necessarily be an “extra-constitutional process” outside the scope of Articles 255 – 257, the exact form it might take need not replicate the manner of the constitutional founding: it may be through the “primary constituent power” or through “any of the other mechanisms necessary to overhaul the constitutional dispensation.” (paragraph 437) It is not immediately clear what these other mechanisms might be. Mwilu J’s basic point appears to be that the mechanism by way fundamental constitutional alteration takes place cannot be judicially determined, as it is basically extra-constitutional. The corollary of this surely is, though, that to the extent that these fundamental alterations are sought to be brought in through the amendment process, they are open to substantive judicial review, as Mwilu J explicitly notes that those kinds of alterations “are not subject to referendum” under Article 255. In other words, Mwilu J’s problem appears to be not with judicial review of formal constitutional amendments in order to decide whether or not they are fundamental alterations, but with what follows: i.e., the judiciary deciding that, in case it is a fundamental alteration, that it must be done through the four-step test. But the only other alternative that then reconciles all these positions is for the judiciary to invalidate radical constitutional alteration that is disguised as an amendment via the 255 – 257 route; in no other interpretation does paragraph 421, which calls for judicial intervention when the threat is to “the design and architecture of the Constitution”, make sense.

Finally, what of Koome CJ’s opinion? While Koome CJ is clearest on the point of the tiered amendment process achieving the balance between rigidity and flexibility, her judgment does not address the distinction between “amendment” and “repeal.” In paragraph 226, Koome CJ notes that any amendment to the Constitution must be carried out in conformity with the procedures set out under Chapter XVI; but that leaves the question unaddressed – what if it is alleged that the impugned amendment is not an amendment, but an implied repeal? In her summary of findings, Koome CJ notes further that the basic structure doctrine and the four step process are not applicable under the Constitution (paragraph 360); this is true, but also in substantial agreement with the case of the BBI challengers: the basic structure doctrine does not kick in as long as the formal amendment is actually an amendment, and as long as we are within the existing constitutional framework. It only applies when we are no longer under the Constitution.

Conclusion

Formally, by a majority of six to one, the Supreme Court rejected “the applicability of the basic structure doctrine” in Kenya. However, as I have attempted to show, a close reading of the seven judgments reveals a more complex picture. Consider a hypothetical future situation where a proposed amendment to the Constitution is once again challenged before the High Court, on the basis that it is not an amendment at all, but implied repeal, or repeal by stealth, or constitutional dismemberment. When the High Court looks to the Supreme Court for guidance, it will find the following:

  1. A majority of six rejecting the applicability of the basic structure doctrine (from the disposition)
  2. A majority of five accepting the distinction between “amendment” and “repeal” or “dismemberment”.
  3. A plurality of three explicitly noting that this distinction is subject to judicial review (with two others not taking an explicit position on this).
  4. A plurality of three holding that in case an “amendment” is actually a disguised “repeal”, the four-step test will apply (with an equal plurality of three against it, and one – Koome CJ – silent, as she does not draw a distinction between amendment and repeal).

In such a situation, how will the High Court proceed? That, I think, is something that time will tell.

Two final remarks. I think that a close reading of Koome CJ’s judgment came close to resolving the bind outlined above, without explicitly saying so. In paragraph 205, she notes:

The jurisprudential underpinning of this view is that in a case where the amendment process is multi-staged; involve multiple institutions; is time-consuming; engenders inclusivity and participation by the people in deliberations over the merits of the proposed amendments; and has down-stream veto by the people in the form of a referendum, there is no need for judicially-created implied limitations to amendment power through importation of the basic structure doctrine into a constitutional system before exhausting home grown mechanisms.

Koome CJ dwells at length upon the extent and depth of public participation required under Articles 256 and 257, and effectively equated the process with the four step test, sans the constituent assembly: running through her judgment is a strong endorsement of the civic education, public participation, and referendum (after adequate voter education) prongs of the test. What this suggests is that it might be open to argue that the procedures for participation under Articles 256 and 257 do not codify the primary constituent power (because that is a conceptual impossibility), but reflect it. In other words, if you are following the procedures under Articles 256 and 257 (in the sense of deep and inclusive public participation, as set out in Koome CJ’s judgment, and we will discuss some of that in the next post), you are exercising primary constituent power, and therefore, fundamental constitutional alterations are also possible as long as public participation happens in all its depth. This, I would suggest, might reconcile some of the potential internal tensions within some of the judgments, and also essentially keep the High Court and Court of Appeal’s judgments intact, just without the Constituent Assembly.

Secondly, one thing that appeared to weigh with the Court was the fact that in the twelve years since 2010, there has been no successful attempt to amend the Kenyan Constitution, and all attempts – whether under Article 256 or Article 257 – have failed. This is true; however, what is equally true is that were the BBI Bill to succeed, we would go from no amendments in twelve years to seventy-four amendments in twelve years, making the Kenyan Constitution one of the most swiftly-amended in the world. If it is true, therefore, that the purpose of the tiered amendment structure is to find a balance between flexibility and rigidity, while also ring-fencing entrenched provisions, then this has certain inescapable conclusions for the interpretation of Article 257 – including the question of single or multiple-issue referenda. This will be the subject of the next two posts.