Court allows professors Charles Fombard and Migai Akech to join BBI case

The Court of Appeal has allowed two law lecturers to join the Building Bridges Initiatives (BBI)  legal battle as friends of the court during the hearing of four appeals filed a High Court judgment that blocked a plan to change the Constitution.

A three-judge bench allowed Prof Charles Manga Fombard from Pretoria and Prof Migai Akech (Kenyan) to join the case and help the court determine the issues in dispute, in a ruling that is a big blow to the respondents popularly referred to as the Linda Katiba movement.

The two law experts are against some findings of the High Court, such as the declarations that the Constitution has a basic structure and that some parts are unamendable.

In a ruling delivered by Justices Daniel Musinga, Roselyne Nambuye and Fatuma Sichale, the court directed the two law experts to present their respective briefs in the proceedings by way of written arguments limited to 30 pages each.

The documents should be filed and served by 9am Tuesday.

"Considering the public importance of these appeals, it is in the interest of justice that all the opposing views are well considered before the court makes its determination, one or the other," said the judges.

Any of the respondents desirous of filing responses to the arguments by the two scholars will be at liberty to do so within 24 hours.

Since some of the respondents had opposed the joinder of the scholars on claims that they are not impartial in the dispute, the appeallate court said it was necessary that they be given an opportunity to advance their arguments for the court's consideration in order to settle the question of their perceived bias.

"After all, the Court is not bound by their views," said the court.

Hurdles against people's power

In their separate court papers, the two scholars argue that the High Court erred and misapplied the applicability of the basic structure doctrine and eternity provisions in the Constitution.

They will make submissions on the constitutionality of the BBI-Constitution of Kenya Amendment Bill (2020) that proposed 74 amendments. They will also make arguments on the several aspects of the process that led to the Bill being advanced to a popular initiative.

They will further submit arguments on limits to the amendment powers set out in Article 255 -257 of the Constitution.

Prof Akech, in his brief, says the High Court introduced hurdles against the people's power to amend a Constitution.

He says the court made this difficult, cumbersome and expensive by ruling the amendment process should involve four steps, including making of a people's constituent assembly.

The associate professor of law at the University of Nairobi School of Law also says that contrary to the High Court finding, the 2010 Constitution was the outcome of a political settlement.

Hence, he says, the amendment should be open to the people and their representatives through similar settlements particularly given that the settlements may need to be renegotiated from time to time.

"Political settlements on Constitutional reform or amendment initiatives should be encouraged. It is difficult to justify a claim that the people cannot amend the provisions of the Constitution that in significant aspects was the outcome of a political settlement," says Prof Akech.

He argues that the proposal to amend the Constitution should be open to the people to either endorse or reject through a referendum.

"The courts should therefore view political compromises such as the Building Bridges Initiative (BBI) and the resulting Constitution of Kenya Amendment Bill 2020 from this perspective," he says.

Prof Akech explains that "the Bill seeks to amend the Constitution to address important governance challenges on which Kenyans remain divided, particularly the system of government, which contributed significantly to the divisive Presidential elections of 2013 and 2017".

Vagueness

Prof Fombard says that the High Court introduced Constitutional vagueness by declaring that the Constitution has a basic structure, which meant there are unamendable sections.

He says the vagueness could set a precedent that is dangerous to the survival of the Constitution, constitutionalism and the law of law. Further, the adoption of the basic structure doctrine may see conflict among the three arms of government.

"Adoption of the basic structure in Africa could, in some situations, create a gridlock which may provoke unnecessary conflict and a temptation to alter the Constitution through extra constitutional means," says Prof Fombard.

He says courts should focus on strategies to enhance the constitutional amendment procedure provided for in the Constitution rather than "taking a leap into the unknown world of India's basic structure doctrine and its imponderables".

"Such judicial adventurism is counterproductive to the positive strides made in many countries such as Kenya and South Africa to interpret the Constitution in a progressive manner, " says Prof Fombard.

Among the arguments and perspectives he intends to introduce in court are theoretical and practical problems of judicial imposition of the Basic Structure doctrine.

He is a professor of law and head of the African Comparative Constitutional Law unit, Institute for International and Comparative law in Africa (ICLA), faculty of law university of Pretoria.

AG's response

The Attorney-General, through lawyer Maurice Ogosso, was not opposed to the joinder of the two scholars, noting they will provide the court with additional information and perspectives that will assist in determining the appeals.

"The applicants have demonstrated their specialised knowledge and expertise in the subject matter before the court, that will enrich the decision-making process. To this end, the Attorney-General supports the joinder of the proposed amicii, (friends of the court)" says Mr Ogosso.

Also not opposed to the joinder was the BBI National Secretariat, President Uhuru Kenyatta's handshake partner Raila Odinga, the Speaker of the National Assembly and the Senate.

The four were all in agreement that both lecturers will provide the court with additional information and perspective that will assist in determining these appeals.

They also said both lecturers have demonstrated their specialized knowledge and expertise in the subject matter before the court and will enrich the decision making process.

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