The media have – unsurprisingly – tended to concentrate on the actual rulings of the court, or aspects that have attracted their particular curiosity.
Those of you who listened to the judges delivering their judgment will remember that the first issue covered was the background to the Constitution.
The court scrupulously avoided pointing any finger of blame – as we might do, identifying the first President, his family and community as beneficiaries of the early post-Independence constitutional developments.
WHY WE NEEDED NEW CONSTITUTION
The first striking thing the court brought out was that Kenya needed a new Constitution because of what had happened to its first (and second) Constitutions. To take some of the court’s language: "The 1963 Constitution had been amended many times and stripped of most of its initial democratic and social justice protections."
"The system of government was personalised with heavy reliance on patronage, the resources of the State were plundered through massive corruption, the Police was used as a force of oppression, judicial independence had been severely curtailed and the Judiciary was subordinated to the Executive, and many communities suffered discrimination and marginalisation."
The court was stressing not just how Kenya came to be governed, but how it happened. The methodology was not by simply ignoring the Constitution (although it must be said it was ignored frequently) but particularly by changing it.
To add a little to the court’s comments: it is true that the making of the 1963 Constitution was hardly a people-driven process. But it was not a bad Constitution. However, the process of amendment of the document was driven by a president and his associates who wanted always to strengthen their own power, and weaken the position of anyone who might oppose them, whether by devolution of power, political action, or legal (like the judges).
We may never have reached the extreme of dictation achieved in Uganda when President Obote was able to tell MPs that the Constitution they had just compliantly passed could be collected from their pigeonholes as they left the House. But Kenya’s was not much more participatory and certainly did not involve the public in any way. In fact, the old Constitution did not allow MPs much say – they could only say ‘Yes’ or ‘No’ to the whole amendment package, not make changes to it.
To return to what the court said: it was underlining that protecting a Constitution against ill-thought out and ill-motivated amendment is vital.
HOW WE GOT A NEW CONSTITUTION
By way of contrast, the processes by which we got the 2010 Constitution were extremely participatory. The court points out that various civil society organisations, both religious and secular, were very active in the agitation for a return to multi-party democracy, which was achieved in 1991.
And they continued during the 1990s, the extent that by the time former President Moi set up a formal constitution process in later 2000, there was already a civil society process: the People’s Commission. The court relates how Yash Ghai insisted that these two bodies must be merged, before serious official work on a new constitution could begin.
And when that work did start it was highly participatory. The court highlights this by referring to the first Act of Parliament (1997) which spoke of facilitating "the comprehensive review of the Constitution by the people of Kenya" [court’s emphasis].
The court added, "It is clear that the design of the constitution-making process under the Constitution of Kenya Review Act, 1997 conformed to a 'home-grown' process by laying an institutional framework for consultation with ordinary Kenyans and by requiring extensive deliberation among drafters. The Act as designed prevented both parliamentary and presidential interference and put a lot of emphasis on broad public participation at every stage of the process."
And the court identified as key the stages in the process carried out by the Constitution of Kenya Review Commission as the law required: civic education; research, studies and seminars, defining the issues,listening to the people, writing the report and draft bill and debating the report and recommendations.
The next stage was the Bomas National Constitutional Conference – a form of constituent assembly that adopted the draft constitution.
The court outlines all the various ups and downs the process encountered: politician takeovers,; defeat in a referendum, revival because of the 2007-08 post-election violence, the Committee of Experts,success in a second referendum and final promulgation of the Constitution [the President displaying the new document to the people of Kenya (of whom about half a million were physically
HISTORY RELEVANT TO COURT DECISION
The main use to which the court put this historical analysis was in its endorsement of the idea that some aspects of the Constitution cannot be changed by ordinary amendment processes. The court is saying that having gone through this whole, complex and participatory, process of getting a new Constitution, the people were not setting it up to be changed in fundamental ways by any less people-centred process.
This is what you will read about in the media as the ‘basic structure’ idea. At one point the court says, "Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments" – showing the relevance of the history of constitutional amendments.
They later said, "Kenyans intended that the essence of the constitutional order they were bequeathing themselves in 2010 would only be changed in the exercise of Primary Constituent Power" [this means civic education, public participation, Constituent Assembly plus referendum].
The most direct relevance of this conclusion is that the court held that, among the provisions that can only be amended through a process of real people’s sovereign power, are those about how parliamentary constituencies can be changed.
And for a change in the Constitution to take that power away not only from the IEBC but from the people — who must be consulted and have the power to get IEBC decisions reviewed by the High Court, and for whose benefit the whole process of making constituency boundaries is to be conducted — was going too far.
So the BBI Constitution Amendment Bill proposal to create 70 new constituencies and allot them to named counties and hurry the process to ensure it was effective for 2022 could not be permitted.
The court’s historical analysis has a broader significance in this case, however. While the basic structure issue is about whether you can change the Constitution (other than through a very people-intensive process), much of the rest of the case is about the nature of the popular initiative.
This is the alternative to the traditional way of amending the Constitution, which is to take the matter to Parliament, making sure - as far as possible - that Parliament gives it thorough consideration and is really decided that this is the right thing to do.
The key to the nature of the popular initiative lies not only in the way it works (a million signatures, plus half the counties plus Parliament) but in its name. ‘Popular’ initiative means people’s initiative.
And its very presence in the Constitution fits very well with the High Court’s analysis and emphasis on the way the Constitution came about. It fits well also with the notion that the people would not leave amendment to the politicians, which lies at the base of the court’s basic structure concept.
The court held that the President had no business sponsoring a change in the Constitution using the popular initiative. That is hijacking the process reserved for the people (the court did not use the word ‘hijack’ in this context, we must say).
CONCLUSION
This why and how of the 2010 Constitution of Kenya is a key element in its interpretation, from the perspective of the court, not some sort of peripheral adornment. Article 259(1)(a) requires a purposive approach to interpretation: to have in the forefront of the court’s mind what the Constitution was designed to achieve.
Jill Cottrell Ghai is a director at Katiba Institute. Yash Pal Ghai chaired the Constitution of Kenya Review Commission
(Edited by V. Graham)