BBI ruling a sign of judicial independence in Kenya?
On May 23, 2021, a special five-judge bench sitting at the High Court of Kenya at Nairobi declared unanimously that the Constitution of Kenya (Amendment) Bill, 2020 was unconstitutional. The High Court’s judgment, argued journalist and commentator Ferdinand Omondi, “is arguably the most significant ruling by Kenyan courts since President Uhuru Kenyatta’s election win was nullified in 2017.”
Notably, the government has appealed the ruling of the High Court and the case is now before a seven-judge bench of the Court of Appeal, with Musinga J presiding. The Court of Appeal is expected to deliver its verdict on August 20, 2021.
Importantly, the judicial decision and subsequent reactions from the Kenyan political class, civil society, and institutional actors appeared to shed light on the changing political environment within the country as well as the continuing strengthening of democratic institutions, especially at the national level.
THE ‘HANDSHAKE’ AND THE BUILDING BRIDGES INITIATIVE
The Constitution Amendment Bill 2020 was an outcome of the Building Bridges Initiative (BBI)—an effort by Kenyatta and political rival Raila Odinga, the leading contenders for the presidency in 2017 and their supporters. The BBI was expected to generally improve governance and prevent future post-election violence like that of the aftermath of the 2017 elections.
Indeed, in March 2018, Kenyatta and Odinga publicly declared that they had decided to put aside their political differences and come together through a “handshake.” As magnanimous and patriotic as this political gesture may have appeared to many observers, especially since it “brought calm and a sense of relief” to Kenyans following the extremely contentious 2017 presidential election, another interpretation is that this was essentially an effort to ensure the continued political relevance of Kenyatta and Odinga. In fact, many cynics view the truce with suspicion, arguing that this rapprochement could place Kenyatta, who is constitutionally barred from standing for a third term as president in 2022, in a position to assume the role of managing the country behind the scenes with a puppet president in post-2022 Kenya.
Importantly, while the handshake may have cooled political temperatures, it did not resolve the feelings of alienation and marginalization that continue to consume some ethnolinguistic groups that are suspicious of the central government and believe that it is either unwilling or unable to deal effectively and fully with issues of extreme poverty and underdevelopment, inequality, inequities in the distribution of income and wealth (particularly land), ethnic animosity, and other problems that have relegated them to the political and economic margins.
THE CONSTITUTIONAL AMENDMENT BILL
The Kenyatta-Odinga handshake led directly to the production of the Building Bridges Initiative (BBI), whose main objective was to thoroughly investigate nine issue areas that were deemed by Kenyatta and Odinga to be critical to the creation of “a united nation for all Kenyans living today, and all future generations.” Among the BBI report’s wide-ranging series of recommendations are institutional reforms for significantly restructuring the country’s institutions, particularly its constitution, and reintroducing a hybrid system of government that will include power-sharing between a president and a prime minister, with members of the Kenyan Parliamenteffectively allowed to serve as part of the Cabinet.
If implemented, the proposed BBI reforms will likely undermine the country’s institutions of governance. They will also threaten judicial independence, eliminate opportunities for the formation of an effective opposition to government, severely erode Kenyan democracy, pervade any efforts to adhere to the rule of law, and make it extremely difficult to build the types of national ruling coalitions that can advance the interests of all Kenyans, instead of those of specific ethnolinguistic factions. In response, five political activists have challenged the process before the High Court.
THE HIGH COURT RULES ON WHO CAN INITIATE AMENDMENTS TO THE CONSTITUTION
In May of 2021, the five-judge bench struck down the proposed amendment, declaring that “the President does not have authority under the Constitution [of 2010] to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or through Popular Initiative under Article 257 of the Constitution.” In other words, an amendment must emerge from the ordinary citizen and not the president, as required by the basic structure doctrine.