This article is mainly structured round three important propositions.
Laws can be unconstitutional
If an Act of Parliament was passed saying that there were to be new constituencies and their locations were specified in the Act, both provisions would be clearly unconstitutional. The Constitution specifies how many constituencies, and it says how changes are to be done – and they are not done by an Act of Parliament.
Sometimes a whole Act has been held unconstitutional. More often, just a few specific sections. This has happened many times since 2010.
A bit of the Constitution cannot (generally) be unconstitutional
It is deliberately not easy to change the Constitution. But if a Bill goes through all the procedural hoops, it can be done. And once that is done, new provisions become part of the Constitution, old ones may be removed, and some will have been changed partially.
The courts have made it clear that they cannot hold that any provision in the Constitution is unconstitutional. It is their job to apply all provisions of the Constitution. They like to quote the Uganda Court of Appeal. “The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other,”
But if the BBI Bill is passed, the new provisions about 70 constituencies would clearly be against the spirit of the Constitution – because that emphasises the need to move increasingly towards equality of vote, and decisions about constituencies were intended to be done by the IEBC, and specifically not by politicians.
But this 70-seat exercise is obviously more of a political exercise, and one related to 2022. If that were not the case, it could all have been left to the exercise to be conducted by the IEBC after the next election.
But I would not say there would be a real contradiction in the Constitution. If there is a general rule in the Constitution it must be followed. But if a particular provision applies a different rule for a specific situation, the courts will apply that. So here – generally boundaries (which means also which counties will get new constituencies) would be a matter for the IEBC. But now for these specific 70 constituencies, the IEBC is told which counties to put them in. There is no confusion.
Similarly, in general the IEBC has to finish any such exercise a year before elections. But a provision in the BBI Bill says that that rule will not apply to the boundary exercise for these new constituencies. Again no problem of understanding what the law is.
The Bill cannot of course make the practically impossible possible. We must bear in mind that the process is quite complex, must have public participation, and very many things have to be done months before the elections, such as nominating candidates.
If the IEBC simply cannot do what is necessary in time for August 2022, I suggested in an earlier article that a court might say that necessity dictates that this constituency delimiting exercise be postponed till after the election, rather than that the elections must be postponed.
It is not desirable to have constitutional provisions that do not seem to be entirely consistent or clear in something. But making sense of them is something the courts do all the time. And if they are confronted with possibly confusing provisions they will do it again. But time will be short, and court cases are rarely quick.
Maybe some changes can’t be made to the Constitution
Some changes are made harder to achieve than others. While some can be made by Parliament, others need a referendum as well. I am not talking about the possible referendum if Parliament rejects the BBI Bill, which would refer the whole Bill back to the people.
I am talking about the list of constitutional changes that cannot be done (by any means) without a referendum. The Constitution drafters noted that politicians are prone to change constitutions to remove, or reduce the effectiveness of, certain provisions intended to protect democracy, human rights and accountability.
So they wanted it not to be possible to extend the President’s term of office, reduce the independence of the Judiciary, reduce the powers of Parliament, restructure devolution, or diminish human rights or the constitutional values (like participation and accountability) without a referendum and the support of a majority of those who voted.
Many of the BBI changes will need a referendum of this type, sometimes for reasons that are not the central concern of the whole BBI. We don’t seem to need one because a Prime Minister would be appointed, but because the powers of Parliament would be expanded to include appointing him or her.
It is not clear whether abolishing county women reps would need a referendum (does this affect the sovereignty of the people - maybe) or adding a lot of new MPs to Parliament, whom we shall pay for, or allowing the President to appoint ministers from Parliament.
Some people have argued that even a referendum should not be enough to make certain major changes. Maybe a radical shift in 'unconstitutional constitutional amendments' in this sense – because they are changes to the basic structure of the Constitution. This idea is particularly a development of the Indian courts. But what is part of the basic structure is not too clear, even in that country.
And I am not sure how far Kenya should follow the Indian courts on this. In India it is too easy to change the Constitution, and not a single change in that Constitution would need a referendum. Their basic structure doctrine cures that flaw in the Constitution to some extent.
But Kenyans voted for a Constitution that already protects certain provisions by the referendum requirement — is it right to assume some other, unidentified, provisions are even more protected? We could argue that the constitution makers made a decision: some changes just needed Parliament and some needed a referendum. They did not say that some things could not be changed at all, or only by some specially rigorous process (some constitutions do require a full-scale review process for changes to be made).
So, even if we do have an idea of 'unconstitutional constitutional amendments' does it mean that those things could not be done at all? I think not. What it could be taken to mean is that really fundamental changes would require a formal constitutional review process, with civil education, public participation, systematic consideration of drafts, maybe even a constituent assembly or at least a national constitutional conference.
To make it impossible to change a constitution is to invite revolution and possibly destruction of the whole constitution.
On the other hand, some changes should be impossible: like abolishing Parliament entirely.
This whole matter is before the courts.
Whatever the outcome, I would not think that introducing 70 new seats in specified counties would be an unconstitutional amendment or one needing an elaborate review process, even if the IEBC’s role is constricted.
Sideshows
The problem – or one problem – with this whole debate is that it does not focus adequately on the real issues. Parliamentarians have noted some serious matters of real substance. They have concerns about equity among counties, because of the share of counties that need catch-up assistance to achieve equality. They are worried about the reductions of the functions of the National Police Service Commission – making it largely pointless.
But many issues that should worry Kenyans are not really of concern to politicians. They don’t care how many MPs we have, or apparently whether it really makes sense to allocate 35 per cent of national revenue to the counties.
Unfortunately the media, too, focus on politics in the sense not of what is of benefit to Kenyans but what is of benefit to which politicians. Who allies with whom (and thus 2022) is more important (maybe marketable) than what is good for the country.
(Edited by V. Graham)
