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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
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