Uhuru’s own goal: How President’s hand in campaign bungled initiative

President Uhuru Kenyatta seems to have scored an own goal in his quest to amend the Constitution through the Building Bridges Initiative (BBI). 

This is after the Supreme Court held yesterday that his involvement was illegal.

The judges found that the Constitution of Kenya (Amendment) Bill, 2020, was unconstitutional. They argued that the President cannot initiate the process through the popular initiative route, which, they said, is reserved for ordinary citizens.

The ruling dealt a huge blow to Mr Kenyatta and Azimio La Umoja flagbearer Raila Odinga, who had sought to expand the executive and end the winner-take-all attitude of electoral politics through constitutional amendments. 

The judges also declared the second schedule of the Bill that had proposed the creation of 70 constituencies illegal. 

Realisation of the blunder of the President’s involvement, including gazettement of the Building Bridges to Unity Advisory Task Force and use of official seal in the documents, came too late as Attorney-General Kihara Kariuki’s attempt to disassociate him from the process proved futile.

Just like the High Court and the Court of Appeal, the Supreme Court found that the Executive fingerprints were on the entire process from the setting up of the task force, the formation of the steering committee to the formulation of the Bill.

“My analysis of Article 257 indicates that a popular initiate is a direct exercise of power. It is a means of direct democracy that can only be exercised by people, not their representatives. State organs have no right to activate a popular initiative. The President was not envisaged as an initiator of a popular initiative,” Chief Justice Martha Koome said. 

Justice Mohammed Ibrahim noted: “The President is barred from being a promoter or initiator of a popular initiative to amend the Constitution.” 

On the AG’s argument that the President has rights like any other citizen to make political choices, Justice William Ouko said the Head of State enjoys special status in law.

Popular initiative

“The President cannot run with the hare and hunt with the hounds… Although the BBI national secretariat does not disclose its ancestry, its family tree, its gene cannot be concealed; the grandfather is the task force, its father is the steering committee appointed by the President.” 

The judge said limiting the rights of the President is not a violation of his constitutional rights. The AG had claimed that Suna East MP Junet Mohammed and former Dagoretti North MP Dennis Waweru were the promoters of the campaign.

The court said the popular initiative amendment route was conceived and designed to serve as a citizen-driven process. The judges cited official documents, such as the gazette notices bearing the Coat of Arms, which demonstrated the involvement of the Executive.

The impressions refused to go away even at the launch of the signature collection campaign in support of the Bill on November 25, 2020, which was presided over by the President.

An attempt by Mr Kariuki to detach the Executive from the Bill suffered another setback when it was disclosed that public officers were asked to supervise the collection of signatures from government employees. 

A group of Kenyans opposed to the process tabled a December 1, 2020 letter from the State Department for Sports Principal Secretary Joe Okudo to Sports Kenya Director-General Pius Metto.

The PS gave Mr Metto the signature collection forms and asked him to order his staff to fill in and sign appropriately. The judges said it would be an abuse of the process if the popular initiative route was open to the Executive, State institutions and the political class. 

The court also found that the second schedule of the Bill on creation of 70 constituencies was unconstitutional as there was no public participation. 

Though the court allowed most of the issues raised in the appeals by the AG, the Independent Electoral and Boundaries Commission (IEBC) and President Kenyatta, this cannot revive the BBI.

Having locked out the President and public officers from the popular initiative route, were any citizen to take up the matter, it can only be done after the elections.

Amend the constitution

But there was a small win for the promoters of the BBI as judges held that the basic structure doctrine is not applicable in Kenya. The doctrine emerged from India in 1793 and has not attained wider global acceptability.

The Supreme Court said the constitution is self-executing in dealing with any threat of any possibility of abusive amendments as witnessed in the pre-2010 era.

“Basic structure doctrine is not applicable in Kenya. The High Court and Court of Appeal erred in holding that the Constitution has a basic structure. They arrived in an erroneous finding. No provision is unamenable,” said Justice Mohamed Ibrahim.

To amend the constitution, the judges said the four sequential steps—civic education, public participation, constituent assembly debate, and a referendum—are not necessary as pronounced by the lower courts.

The removal of basic structure doctrine opens up the Constitution for amendment, which had been closed for scrutiny by the High Court and the Court of Appeal, both citing unchangeable and protected clauses. 

Another win was the finding that there was public participation with respect to the BBI Bill, save for the second schedule. 

For Mr Kenyatta, the judges said no civil proceedings can be instituted against the President during his or her tenure in office as regards violating the Constitution.

“The intention of Article 143(2) is to protect the President from civil proceedings during his tenure in office for acts or omissions connected with the office,” the court said. 

IEBC also won on the finding that, under Article 10 and 257 (4), it was not obligated to ensure that the promoters of the BBI complied with the requirements for public participation.

It also won on the finding that it had the needed composition and quorum to verify signatures the BBI promoters collected in support of the planned referendum.

Welcomed the verdict

Although Paragraph 5 of the second schedule of the IEBC Act fixed the quorum at five commissioners, the court said, this cannot override the Constitution that puts the composition at the minimum of three members.

On the interpretation of Article 257(10) and whether or not it requires that all specific proposed amendments to the Constitution be submitted as separate and distinct referendum questions, the court said the issue was not ripe for determination.

Deputy President William Ruto and Orange Democratic Movement leader Raila Odinga differed on the implications of the verdict, as the two frontrunners in the race to succeed President Kenyatta sustained exchanges on an issue they have constantly disagreed on during campaigns. 

Addressing rallies in Wajir and Lamu, the DP said the collapse of BBI marked the end to “political conmanship.” He challenged the President and Mr Odinga, whom he dubbed ‘the Handshake brothers’, and the promoters of the BBI, “to apologise to Kenyans ...for wasting our four years.” 

But Mr Odinga welcomed the Supreme Court verdict. He insisted, however, that all was not lost citing the acknowledgment of the sovereignty of the people to amend the Constitution. 

“I note that the BBI process has been upheld”, as were “the contents of the Bill itself... save for the provisions of the Second Schedule. What has been faulted is the role that the state is said to have played at the commencement of the popular initiative.”

“We shall deliberate on the way forward and decide on a future course of action that protects the interests of all those who voted to see the amendments come to light,” Mr Odinga said. 

The verdict that derailed an attempt to amend the supreme law to create new executive posts, including that of Prime Minister and two deputies, will complicate power-sharing talks for the two main coalitions, raising the stakes for the running-mate slot. 

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