Experts split on how to interpret appellate court’s decision on BBI

When Kenya’s Constitution turns 11 years old this Friday, there will be more debate than celebration over the document’s provisions, following the Court of Appeal’s decision to block proposed changes, even as Solicitor-General Kennedy Ogeto moves the judicial decision to the highest court in the land.

As it stands, the Court of Appeal’s decision exactly one week before the Constitution’s 11th anniversary is now a rulebook on how to amend the Constitution.

Going by the judgment, the President is not an ordinary citizen and cannot directly lead a push to amend the Constitution. The decision means that public officers may not be in a position to push for similar changes.

And for anyone looking to change the Constitution, it will be mandatory to take proposed changes to the public and invest heavily in educating them on the implications.

Mr Ogeto confirmed to the Nation that his office is awaiting the Court of Appeal’s full judgment and the case proceedings, which will be used to ask the Supreme Court to make a final declaration on the matter.

The proposed amendments, called the Building Bridges Initiative (BBI), were led by President Kenyatta and ODM leader Raila Odinga. The duo formed a secretariat to drive the proposed amendments, and appointed Martin Kimani and Paul Mwangi to lead the team.

Sued to block amendments

Activists Jerotich Seii and David Ndii sued to block the amendments, and succeeded at the High Court. The BBI secretariat, President Kenyatta, Mr Odinga, Attorney-General Paul Kihara Kariuki and the Independent Electoral and Boundaries Commission (IEBC) were listed as respondents.

Last Friday, the Court of Appeal ruled that President Kenyatta, Mr Odinga, the BBI secretariat and the IEBC did not follow the right procedures in moving to amend the Constitution, and the decision has now split legal and governance experts on how to interpret it.

Mr Kenyatta had argued that he was not behind the proposed amendments, as that was the role of the BBI secretariat. But the courts have ruled that the publishing of gazette notices and other acts by the President show that there was direct Executive involvement in the botched amendment process.

Some experts believe the Court of Appeal only defined the rules of amending the Constitution, while others argue that the seven judges made it more difficult for Kenyans to make changes to the document.

And while experts debate the meaning of Friday’s decision, Mr Ogeto insists that his appeal to the Supreme Court is not about the proposed changes backed by Mr Kenyatta and Mr Odinga, but an attempt to have a final interpretation of three issues that the judges pronounced themselves on.

Basic structure

The Solicitor-General feels that the highest court in the land needs to determine what makes up the basic structure of the Constitution and draw the line on the President’s role in amending the document.

Mr Ogeto added that the Supreme Court also needs to determine whether the President can be dragged to court in his individual capacity, something that the Court of Appeal answered in the affirmative last Friday.

Danstan Omari, a prominent lawyer with experience in constitutional matters, argues that the seven judges last Friday in essence held that the Constitution cannot be amended, but only interpreted, largely by the courts.

Mr Omari believes that if the Court of Appeal decision is left to stand, even minor adjustments to the Constitution will have to be taken through rigorous and expensive processes of civic education, public participation, and the convening of a constituent assembly before subjecting the proposals to a referendum.

Politicians’ tricks

“It is impossible to comply with the steps outlined by the court. When Kenyans (adopted) Article 10 of the Constitution on principles of governance, they knew who politicians are. They (politicians) can hide behind a member of the public and call a proposed amendment by popular initiative,” he said.

“The judgment means that the Kenyan Constitution can never be amended. It can only be interpreted to give meaning to the prevailing situation and circumstances.

“Simply, we must live with it the way it is. It will always be interpreted according to the generation that is alive at that time. The Court of Appeal told Kenyans that if there is any grey area in the Constitution, bring it to us.”

But another lawyer and governance expert, Adrian Kamotho Njenga, believes that the Court of Appeal simply clarified what the Constitution already provides for in the event that Kenyans want to make changes to the document.

He argues that it is still possible to amend, and even overhaul, the Constitution but the law must be followed to the letter.

Misleading the public

He adds that individuals who prefer using shortcuts to make changes to the Constitution are misleading the public in claiming that the Court of Appeal has made it impossible to amend the document.

“The court has not raised the threshold, only that there is a distinction between amendment and overhaul. If you want to do something that is significant to the overall structure of the Constitution, then you must go through the full process. Similar to what was done to bring in the 2010 Constitution,” he said in a phone interview with the Nation.

Mr Njenga holds that President Kenyatta, Mr Odinga and the BBI secretariat should have done more research on the legal processes of amending the Constitution long before the amendment bill was tabled in the county and national assemblies.

 Lawyer Bernhard Kipkoech Ng’etich said the Court of Appeal has ensured that a small group of individuals will not be able to force through constitutional amendments going forward.

“Blatant abuse of State machinery to force constitutional amendments will come a cropper. The common man has been placed at the centre of constitutional review, with emphasis on civic education, collection of views and a people-driven referendum,” he said.

“The court has indirectly directed parties to build more consensus in constitutional amendment in future.”

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