BBI expert: Making it hard to change constitution could provoke violence

“A state without the means of some change is without the means of its conservation.”

Two weeks ago, the High Court delivered a monumental judgment in which it decided, among other things, that the Basic Structure Doctrine is applicable to Kenya and “protects certain fundamental aspects of the Constitution of Kenya 2010” from amendment through the use of the amendment power, which the Court terms the secondary constituent power or the constituted power.

The protected aspects are the Constitution’s Preamble, the Eighteen Chapters, Six Schedules, Land and Environment, Leadership and Integrity, Public Finance and National Security. According to the Court, the people can only amend these aspects of the Constitution using their sovereign constituent power and not merely through a referendum.

As the Court sees it, the exercise of the people’s constituent power (that is, the power to establish the constitutional order) entails four mandatory procedures, namely: civic education, public participation and collation of views, constituent assembly debate and a referendum. Further, the Court concludes that certain provisions of the Constitution are “eternity clauses” and consequently insulated from any amendment at all.

However, the Court does not indicate which provisions of the Constitution are eternity clauses, only stating that this determination will be based on a court’s “fact-intensive determination”. Nevertheless, the Court acknowledges that some provisions of the Constitution can be amended through the stipulated procedures as long as they do not change its basic structure.

On the basis that the people can only amend the basic structure and eternity clauses of the Constitution using their constituent power, the Court then determined that the process culminating in the Constitution of Kenya Amendment Bill 2020 (the BBI Bill) was unconstitutional. Having made this determination, the Court deemed it unnecessary to interrogate the BBI Bill. Accordingly, the Court faulted the process that produced the BBI Bill because it did not entail the use of the four procedures that the Court claims are mandatory.

This article contends that the Court’s formulation and application of the Basic Structure (or Unconstitutional Constitutional Amendments) Doctrine will undermine democracy in Kenya if it is not overturned. It fails to strike an appropriate balance between ensuring the stability of constitutional norms and the need to adapt these norms and their institutional manifestations to cater for the changes in the life of the nation. While constitutions should not be easy to amend, amending them should not be arduous either.

CHANGE IS INEVITABLE

Should a constitution ever be amended? If not, why shouldn’t a constitution be amended? If so, why should a constitution be amended and to what extent? And who gets to decide whether or not, when, and the extent to which, a constitution can be amended?

These are the questions at the heart of the Unconstitutional Constitutional Amendments (UCA) Doctrine, which holds that some constitutional amendments are unconstitutional because they undermine core principles in an existing constitutional order. The Doctrine asserts that a constitutional amendment that is enacted in accordance with the procedures stipulated in a constitution can nevertheless be unconstitutional because it violates some explicit or implicit extra-constitutional principles.

The concern of the Doctrine is that constitutional amendments can, and have often been used, to undermine commitments to constitutional democracy. That governments can use such amendments to hold on to power when they should not, or strengthen their power, or remove or undermine constitutional checks on their power, or overturn limits on their term in office, or even prevent themselves from being ousted from power.

Electoral majorities can also use constitutional amendments to oppress minorities. These are real concerns, and the Doctrine can help to check the abuse of the constitutional amendment power, thereby safeguarding a democracy by ensuring the stability of its governance arrangements and the protection of vulnerable groups.

At the same time, it must be appreciated that change is inevitable. Existing institutions should, therefore, be open to adaptation. A constitution that is frozen risks becoming irrelevant to the lives of the people and may provoke violent changes through revolutionary means if it cannot be amended or if its amendment procedures are overly cumbersome. We should, therefore, appreciate that constitutions are “time and place-specific”.

In addition, no generation has the right to impose its values on later generations, for whom a constitution needs to reflect their current predicaments and preoccupations. It, therefore, becomes necessary to balance the considerations of constitutional stability and change.

BALANCING WITH STABILITY

But how should a polity go about ensuring this critical balance? The typical balancing method is for a constitution to establish procedures for its amendment that either make it easy or difficult to amend. Thus, “flexible constitutions” are those that are easy to amend because they can, for example, be amended through the use of the ordinary legislative process. Conversely, “rigid constitutions” are those that are difficult to amend because they can only be amended through the use of special procedures.

These include a supermajority or special majority in the legislature, the involvement of various institutions in the amendment process, or approval by an absolute or special majority of voters in a referendum, or combinations of such special procedures. A constitution can also establish a tiered amendment procedure, by which it provides different amendment rules for different parts.

Using these special procedures, such constitutions demand exacting demonstrations of popular will to amend their fundamental principles, thus raising the costs of dangerous forms of constitutional change. Through devices that establish several veto players in the amendment processes, these constitutions, therefore, seek to prevent the enactment of partisan and regressive amendments.

Some constitutions, such as the Constitution of Germany, go further and expressly protect certain provisions from any constitutional amendment. On this approach, these constitutions create “eternity clauses”, meaning they are entrenched (that is, immune from amendment) for a period of time or for eternity. In yet other cases, constitutions may explicitly empower courts to review the substance of constitutional amendments and determine whether they violate fundamental constitutional principles.

In Kenya’s case, Article 255(1) of the Constitution of 2010 protects certain provisions by stipulating special procedures for their amendment. The provisions are the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values and principles of governance, the bill of rights, term of office of the President, the independence of the Judiciary and the Chapter 15 Commissions and Independent Offices, the functions of Parliament, the objects, principles and structures of devolved government, and the provisions on the amendment of the Constitution.

Arguably, these provisions constitute the basic structure or fundamental principles of this Constitution. To amend them requires adherence to fairly rigid procedures, including two-thirds approval by members of each House of Parliament, public participation, consideration and approval by County Assemblies if the proposed amendment is a popular initiative, and approval by an absolute majority of voters in a referendum.

FLAWS IN RULING

The Court’s articulation and application of the Unconstitutional Constitutional Amendments Doctrine can be faulted for three reasons. First, the court casts the basic structure and the eternity clauses of the Constitution so expansively that it will be extremely difficult for the people to amend most of its provisions.

Second, the Court erroneously asserts that the Constitution has eternity clauses, without specifying what these are. The result is that it fails to balance the competing considerations of constitutional stability and change since, according to the Court, the Constitution’s basic structure and eternity clauses can only be amended through the exercise of the Primary Constituent Power.

Third, the Court bases its articulation and application of the Doctrine on a selective, erroneous and disingenuous reading of the history of the making of the Constitution of Kenya 2010.

According to the Court, the basic structure of the Constitution comprises its Preamble, the Eighteen Chapters, Six Schedules, Land and Environment, Leadership and Integrity, Public Finance and National Security. According to the Court, these provisions of the Constitution can only be altered or modified by the People using their sovereign Primary Constituent Power and not merely through a referendum. As the Court sees it, the exercise of the People’s Sovereign Constituent Power entails four mandatory procedures, namely civic education, public participation and collation of views, Constituent Assembly debate and a referendum.

Contrary to the decision of the Court, however, a textual reading of the Constitution indicates that it only protects the provisions stipulated in Article 255(1) as its fundamental principles. Further, the Constitution does not expressly immunise any of its provisions from amendment. It envisages that any of its provisions can be amended by the people exercising their amendment power, either by themselves through a popular initiative or by their representatives, provided an absolute majority of voters approve the amendments in a referendum.

Had the drafters of the Constitution intended to entrench provisions other than those stipulated in Article 255(1), or to immunise any provisions from amendment, they would have done so expressly. In the absence of such preclusion, the people should be able to amend any provision of the Constitution following the prescribed procedures. The drafters addressed the issue of constitutional amendment procedures, which explains why Article 255(1) stipulates various fundamental principles and how they can be amended. This precludes the possibility of courts establishing additional implied hurdles to constitutional amendment.

Casting the basic structure as expansively as the Court does and protecting virtually the entire Constitution from amendment would frustrate necessary democratic constitutional change. For example, many Kenyans agree that the winner-take-all institutional model for the Presidency that is embodied in the Constitution of 2010 is divisive and does not serve us well. It needs to be replaced by a model that is better suited for ethnically divided societies such as ours.

The Court’s expansive application of the Doctrine will prevent much-needed constitutional amendments, thereby cutting off any avenue for the people to contribute to shaping how they are governed. It risks transforming the courts into policymakers, allowing them to opt among different policies by approving or refusing an amendment to the Constitution.

We should view constitutional amendments as a necessary continuation of the dialogue initiated by the writers of a constitution. From this perspective, amendment procedures are necessary to allow constitutions to adapt to pressing needs, lived experiences and new ways of thinking. Above all, such procedures constitute a recognition that the people have the power and the right to alter their constitution.

Indeed, amendment procedures are a peaceful alternative to revolutions, which are often violent. They are a device for channelling revolutions through legal means. A people that are unable to change a constitution may resort to violent means of forcing change. For this reason, practicable amendment procedures are necessary because they ensure a constitution’s continuous existence and effectiveness.

Issa Mahat is an advocate of the High Court and a former member of the team of experts that worked on the BBI Draft. Email [email protected]

Edited by T Jalio