“Hooks”, “pillars” and “foundations” of constitutionalism: fundamental stature of Kenyan jurisprudence
By Professor Upendra Baxi
The High Court of Kenya which extends the basic structure doctrine is people-centered rather than state-friendly. It prescribes a constitutional follower and accountability over the executive and the legislature, even in a system providing for a referendum for ultimate constitutional change.
Two things are noteworthy in the recent ruling of five judges from the Constitutional and Human Rights Division of the High Court of Kenya. His unanimity in extending to Kenya a judicial doctrine as controversial as the basic structure of the constitution is striking; its relative brevity is also: 321 pages (of which almost half summarize the arguments of the lawyer). You have to watch Kesavananda decision (1973) of nearly 800 pages (approximately 420,000 words), preceded by 68 days of argument, which produces 11 separate judgments, in an ultra slim “majority” in a 6: 6: 1 decision!
As Kesavananda, it affirms the doctrine of the basic structure of the constitution and maintains that “categorical core values” are “therefore unamendable and cannot be altered by the exercise of secondary constituent power or constituted power”.1 Only the “people” can modify or redo the constitution by referendum “after four sequential processes, namely: civic education; public participation and collation of points of view ”and“ Constituent Assembly debate ”. The President of Kenya, even through the mechanism of the Building Bridges to Unity Advisory Working Group, cannot do this. Political initiatives, however wise and popular they may be, cannot circumvent the constitutional discipline of executive and parliamentary power.
Interestingly, instead of focusing primarily on questions of high political philosophy and jurisprudential theory, such as Kesavananda Memorably done, the High Court cited working-a-day sentences (celebrated in the title of this article) from a judgment by former Chief Justice Willy Mutunga (2013). He invoked a “clear obligation to provide firm and recognizable benchmarks on which lower courts and other institutions can rely, when called upon to interpret the Constitution.” It is in this context of judicial duty that the High Court invoked the idea of ”transformative constitutionalism” (not fully accessible to the Kesavananda forensic authors) to describe the “widely accepted” idea that the Kenyan Constitution is “a transformative charter”2.
The High Court declares that “the basic structure doctrine protects the central edifice, the basic structure and the values of the Constitution”. However, the constitutional amending power is valid as long as it does not “fundamentally tilt the basic structure”. Distinguishing the power of primary amendment (which belongs to the people) and the power of secondary amendment (conferred by the constitution on parliament), the Kenyan judicial discourse then completely skips the obscure discussion of “constituent” and “constituted” powers, mainly shaped by the Indian Supreme Court but also imposed by the specific language of the 24e Amendment.
However, the basic structure doctrine is not a fragile foreign import. Rather, it rests on the solid constitutional choices that the Kenyan people have made after decades of authoritarianism. Kenyans were, “every step of the way,” clear that “they wanted a Constitution in which mwananchi, Wanjiku, took center stage in debate and design ”.3 Kenyans made it clear that the ‘constitutional order’ they so painstakingly crafted in 2010 would only be ‘fundamentally changed or remade through a participatory and informed process about the need for informed public participation in the process. elaboration of the constitution ”.
The constitution “ensured that the laws governing the making of the constitution contained very detailed and specific requirements for four distinct processes:” civic education “,” public participation “,” debate, consultation and public discourse “and constitutional referendum”.
The Kenyan constitution was one in which Kenyans “have bequeathed themselves despite and, at times, against political and other elites”. The Kenyans therefore wanted their legacy not to be a toy of political power by “an incompatible interpretation, a technical subterfuge or by the power of amendment unleashed by stealth”.
These last three sentences are crucial. The Kenyan “basic structure” must not be stolen from the people by an “incompatible interpretation”. Obviously, the reference here is primarily to interpretation by the executive-legislative combination. Does this apply to decision interpretation? Can constitutional courts later set aside the limitation of the basic structure? What will happen to other types of interpretation – such as citizen interpretation?4
It should be noted that the Court, which qualifies certain provisions as “eternity clauses”, maintains that their “precise formulations and expressions” in the Constitution can only be affected by the exercise of the primary constituent power. An “exhaustive list of specific provisions of the Constitution”, says the Court, “is not recommended to be done in a vacuum”. A “factual determination” can only be made “after a proper analysis of the Constitution, its fundamental structure, its text, its internal consistency, the history of the clause and the constitutional history; and other non-legal considerations permitted by our Canon of principles of constitutional interpretation ”. An important term here is “non-legal” considerations; although the Court interprets this with the help of a few examples, the role and function of the extra-legal must always remain disputed ground. The “technical subterfuge” can be used by the political forces at play as well as by arbitration.
The executive can encroach on the people “by the power of amendment introduced stealthily”. Harsh words indeed; but there have been no others either, given the leadership of the “bridge building initiatives” by the Kenyan president, who has flouted the constitution in every way. The result is the judicial assertion of the basic constitutional structure against executive insurgency.
The difference between the Kenyan and Indian situation is that the former does not recognize referendums as providing means to change the pre-engagement of the constitution (eg isolation of basic human rights from power amendment under the constitution). The Kenyan High Court here is decidedly people-centered rather than pro-state. However, constitutions do not exclude friendly interpretations of the people, which at the same time can also be favorable to the state – at least in the sense that they are seen as preserving the integrity of representative institutions and processes and other constitutional institutions. .
The Indian situation illustrates this fairly well. The doctrine of parliamentary sovereignty over constitutional amendment, for example, prevailed for nearly two decades until the doctrine of basic structure and essential features was established by, and since, Kesavananda. Even so, Judge Yeshwant Chandrachud retrospectively validated all changes as being in accordance with doctrine. Since then, the Supreme Court has only explicitly overturned a handful of amendments, affirming what I later called the nation’s judicial and demosprudential co-governance.
In view of the constitutional requirement of enlightened representation, the High Court of Kenya insists that the power to amend or redo the constitution rests with the free people as a whole. This executive-legislative combination cannot claim primary transformative power. Common experience, however, indicates that while referendums can be mechanisms of direct democracy, they do not always strengthen democracy. These can produce “dictatorial” results as surely as the state, which claims the power to enact illegal constitutional amendments.
Violations of intent or effect, even of fundamental human rights enshrined in customary and treaty international law, are often the result of referendums. We may never be able without a trace of elitism that the “people” have voted arbitrarily, maliciously or perversely. However, forms of judicial co-governance manifest the abuse of power by the lightning rod of the discipline of the grassroots structure.
How well this democratic doctrine is doing in Kenya with a referendum system is still in the belly of the future. We can only say: Amen!
1This distinction was first offered by YanivRazani,Unconstitutional constitutional amendments: the limits of amending powers (Oxford Univeristy Press, 2017).
2The Court quoted Heinz Klug who considers an order “ambitious” to “overcome the aftermath of conflicts and the social conditions that have divided society”. Italso quoted Karl Klare, for whom transformational was “the enterprise of inducing large-scale social change through nonviolent political processes anchored in law” which is “benevolent” and deploys a constitution which is “social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural and aware of its historical context, its role and its transformative mission ”.
3Former President Moi once asked, “What does Wanjiku know about the Constitution?” This marked the birth of the name “Wanjiku” in Kenyan politics. lingua franca as a “generic reference to ordinary Kenyans”.
4See, Upendra Baxi, “Preliminary Notes on Transformative Constitutionalism” in Chapter 1, Oscar Vilhena, Upendra Baxi and FransViljoen (ed),Transformative Constitutionalism: A Comparison of the Apex Courts of Brazil, India and South Africa (Pretoria University Press, 2013).