Executive in Constitutional Amendment Processes in Kenya

[****Draft****] What is the Place of the Executive in Constitutional Amendment Processes in Kenya? - By Eugene Otieno Owade1 January 31, 2023 In terms of the place of the Executive in the constitutional amendment process, the President is required to assent to any constitutional amendment or legislation passed by the National Assembly (NA) and Senate under Article 256(3)(a).2 It can also be argued that the President in their capacity as a citizen has the power to refer the proposed amendment to the Supreme Court for a determination of its conformity with the Constitution under Article 38 (on political rights) and Article 258 (provides standing or locus standi for any person to present a petition to a court of law regarding the actual or perceived violation of the Constitution of Kenya 2010). The High Court of Kenya in the David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020 (BBI 1)3 held that the President did not have powers to initiate constitutional amendments. This position was also reiterated by the Court of Appeal in BBI. 4 Unlike the post-2010 constitutional amendment dispensation, the pre-2010 process had an active participation of the Executive, for instance, President Mwai Kibaki led the “Yes” referendum campaigns in 2005.5 Further, the practice after promulgation of the Constitution has largely been through Parliament, including the Constitution of Kenya (Amendment) Bill, 2018, No. 4 of 2018 by Aden Duale that was focused on realizing the two-thirds gender principle through top-up seats at the county level. The key constitutional amendment proposal was the Constitution of Kenya (Amendment) Bill 2020 (BBI) which sought to inter alia address the need for inclusivity through power sharing. However, the process was largely politicized by the “Tanga tanga” faction of Jubilee I 1 Eugene Otieno Owade is a Legal Researcher and Lawyer at Prof Ben Sihanya & Co. Advocates, and holds a Bachelor of Laws (LLB) Degree from the University of Nairobi Law School. This draft was developed as a thinkpiece in the context of Kenya’s debates for reform in 2022-2023 under the Kenya Kwanza Government vis-à-vis the proposals in the 2019 and 2020 Building Bridges Initiative (BBI) Reports. 2 Ben Sihanya (2021) “Amending the Constitution of Kenya 2010 post 2017: Interests, Process and Outcomes,” in Jill Cottrell Ghai, Yash Pal Ghai and Emily Kinama (eds) (2020) Katiba 2010: Achievements and Challenges, Katiba Institute, Nairobi, 77-80, at https://katibainstitute.org/download/katiba2010-achievements-andchallenges/# (accessed 17/1/2023) 3 David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020, at https://www.afronomicslaw.org/sites/default/files/pdf/BBI%20Consolidated%20Judgment%20%20Final%20Version%20-%20As%20Delivered.pdf. 4 Independent Electoral and Boundaries Commission & 4 others v Ndii & 312 others; Ojwang & 4 others (Amicus Curiae) (Petition E291 of 2021 & Civil Appeal E292, E293 & E294 of 2021 (Consolidated)) [2021] KECA 363 (KLR). 5 Walter Menya (2018) “'No’ camp concedes referendum defeat,” Daily Nation, Nairobi, 5/8/2010, at https://www.nation.co.ke/Kenya-Referendum/-/926046/971494/-/n98rgpz/-/index.html (accessed 19/1/2023). Page 1 of 5 Government.6 The process culminated in the Supreme Court stalling the BBI process on grounds that the President could not initiate constitutional amendment. From the above discussions, it is clear that the only viable route through which the Executive can be involved in constitutional amendment processes is through the popular initiative or parliamentary route. The Executive cannot initiate any amendments to the Constitution 2010. This assignment notes that Kenya is largely a pure presidential system with the President (as Head of the Executive) holding significant powers and influence over the National Assembly, given that by Kenya’s political history, the President often has the majority numbers in Parliament, wherein Professor Ben Sihanya acknowledged and argued that “…a pure presidential system in Kenya is not appropriate. The Bomas Draft I on the cohabitation or power sharing between the President and Prime Minister provides a useful model that can be adapted.” Therefore, constitutional amendment proposals are not entirely “evil” or influenced by selfish interests. Indeed, the motive behind constitutional amendments must not only be in the public interest, but the same must be premised on the law and practice.7 Some of the critiques against President Ruto’s proposal were raised by the Law Society of Kenya (LSK) Chairperson Mr Eric Theuri who argued that Kenya has “…..a system of government that is largely presidential, and the president comes from the coalition that forms the majority and there is another coalition that forms the minority. That is the structure that we picked for this country. You cannot therefore introduce the leader of the opposition. That amendment in itself does not conform to the current constitutional structure that we have. It should not even be discussed in Parliament.”8 This statement was correct upto the point where the LSK Chair noted that “It should not even be discussed in Parliament” which is an incorrect position since Article 256 provides for selfexecuting provisions for any proposed amendments that touch on the provisions under Article 255 of the Constitution. The correct position therefore, is that such an amendment proposal can be taken through Parliament, however, it must be subjected to a referendum by the IEBC before the President assents to it. Thus, in terms of the legality of the proposed Office of the Official Leader of Opposition, it would depend on the nature of the proposal as subjected to the test under Article 255 to Ben Sihanya (forthcoming 2023) “Constitution Making, Amendment, Construction, Translation, Interpretation, and Implementation in Kenya and Africa 2010: Interests, Process and Outcomes,” in Ben Sihanya (2023) Constitutional Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya. 7 Ben Sihanya (2021) “Why Benin and Kenya Need the Space to own their Constitutional Development,” March 2, 2021, Ventures Africa, at https://venturesafrica.com/why-benin-and-kenya-need-the-space-to-owntheirconstitutional-development/ (accessed March 3, 2021) 8 Njoki Kihiu (2022) “LSK Rejects Ruto’s Proposed Constitutional Amendments, Terms Opposition Leader Slot Impractical,” Star, December 15, 2022, at https://www.capitalfm.co.ke/news/2022/12/lsk-rejects-rutosproposed-constitutional-amendments-terms-opposition-leader-slot-impractical/ (accessed January 17, 2023). 6 Page 2 of 5 confirm its compliance with the Constitution. Where any dispute arises, then the High Court would be the primary avenue to litigate the legality of such a proposed amendment. Procedure of Executive’s Amendment of the Constitution As discussed above, the viable route for amending the Constitution of Kenya 2010 would be through the parliamentary route as outlined under Article 256 of the Constitution. The amendment process requires a two-thirds majority vote in the National Assembly and Senate, and the approval of at least 24 county assemblies. The initiative to amend the Constitution can come from the National Assembly, the Senate, or a petition signed by at least one million registered voters. It is important to note that the Constitution of Kenya 2010 also provides for public participation in the constitutional amendment process. This means that any proposed amendment should be widely consulted on and debated in the public sphere, and the views of the people should be taken into account. This is the premise upon which Article 255 of the Constitution is grounded: to safeguard the core constitutional provisions which define the architecture of the Constitution of Kenya, 2010 from dismemberment through hyperamendments as was the case during President Moi’s era. Such entrenched provisions include where the proposed constitutional amendment relates to changing the terms of the office of the President, the independence of constitutional commissions and offices under Chapter 15 of the Constitution, and where such amendment relates to interfering with the territory of Kenya. Where such amendment relates to the provisions under Article 255, the Constitution itself instructs the President in the following manner: “(a) the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct, within ninety days, a national referendum for approval of the Bill; and (b) within thirty days after the chairperson of the Independent Electoral and Boundaries Commission has certified to the President that the Bill has been approved in accordance with Article 255 (2), the President shall assent to the Bill and cause it to be published.” This two-tier system demonstrates the role of the President as being more facilitative and tilted towards safeguarding public interest as opposed to pushing for self-interest. In context, from the decisions of the Supreme Court and the Court of Appeal in BBI, the President has no active role in the initiation, except assenting to passed constitutional amendment bills. The Constitution is also silent on what happens if incase a sitting President refuses to assent to a constitutional amendment bill passed by Parliament.9 9 Okoth-Ogendo, Hastings WO. "The politics of constitutional change in Kenya since independence, 196369." African Affairs 71.282 (1972): 9-34. Page 3 of 5 Public participation The involvement of the citizens or Wanjiku in referendums on constitutional amendment is a direct exercise of sovereignty under Article 1(2) and (3) of the Constitution. Public participation10 is also one of the fundamental national values and principles under Article 10 of the Constitution. This is the premise upon which the Supreme Court of Kenya (SCORK) distinguished the role of the President in constitutional amendment processes. The SCORK argued that “the president cannot initiate constitutional amendments or changes through popular initiative under article 257 of the constitution…” hence the popular initiative route under Article 257 of the Constitution was a preserve of citizens, and not political institutions like Parliament and the Executive.11 Furthermore, the Constitution provides for the participation of citizens across its entire architecture with state institutions only exercising delegated sovereign power. This is related to the fact that these institutions have a responsibility to safeguard public trust and public interest. For instance, while acknowledging the necessity of the citizenry in constitutional amendment through the Parliamentary route, Article 256(2) of the Constitution directs Parliament to “….publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill…” This was also acknowledged by Court of Appeal Judge Okwengu in her dissent at paragraph 76 where she noted that both parliamentary and popular initiatives must be citizen-centric and this can be realized “through public participation, and are the ultimate determinants through the referendum process on whether the amendment is carried.” Conclusion From the analysis above, indeed a constitutional amendment can be proposed by the President through the parliamentary process under Article 256 of the Constitution 2010 to entrench the Office of the Leader of Official Opposition. If anything, the proposal is outside the ambits of Article 255 and 257 which provide for entrenched clauses and amendment by popular initiative, respectively. Additionally, it is also worth mentioning that the country's political landscape is dynamic and ever-changing, and the position of the Executive and any proposed constitutional amendments would be subject to the balance of power between the different branches of government and political parties at any given time. Therefore, consensus should be sought in a manner that upholds the values and principles of the Constitution. 10 Saunders, Cheryl. "Constitution-making in the 21st century." International Review of Law 2012.1 (2012): 4. Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others, Petition 12, 11 & 13 of 2021 (Consolidated). 11 Page 4 of 5 References Books and Book Chapters Ben Sihanya (2021) “Amending the Constitution of Kenya 2010 post 2017: Interests, Process and Outcomes,” in Jill Cottrell Ghai, Yash Pal Ghai and Emily Kinama (eds) (2020) Katiba 2010: Achievements and Challenges, Katiba Institute, Nairobi, 77-80, at https://katibainstitute.org/download/katiba2010-achievements-and-challenges/# (accessed 17/1/2023) Ben Sihanya (forthcoming 2023) “Constitution Making, Amendment, Construction, Translation, Interpretation, and Implementation in Kenya and Africa 2010: Interests, Process and Outcomes,” in Ben Sihanya (2023) Constitutional Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya. Okoth-Ogendo, Hastings WO. "The politics of constitutional change in Kenya since independence, 1963-69." African Affairs 71.282 (1972): 9-34. Saunders, Cheryl. "Constitution-making in the 21st century." International Review of Law 2012.1 (2012): 4. List of Cases Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others, Petition 12, 11 & 13 of 2021 (Consolidated). David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020, at https://www.afronomicslaw.org/sites/default/files/pdf/BBI%20Consolidated%20Judgment%20%20Final%20Version%20-%20As%20Delivered.pdf. Independent Electoral and Boundaries Commission & 4 others v Ndii & 312 others; Ojwang & 4 others (Amicus Curiae) (Petition E291 of 2021 & Civil Appeal E292, E293 & E294 of 2021 (Consolidated)) [2021] KECA 363 (KLR). Newspaper Articles & Publications Walter Menya (2018) “'No’ camp concedes referendum defeat,” Daily Nation, Nairobi, 5/8/2010, at https://www.nation.co.ke/Kenya-Referendum/-/926046/971494/-/n98rgpz/-/index.html (accessed 19/1/2023). Ben Sihanya (2021) “Why Benin and Kenya Need the Space to own their Constitutional Development,” March 2, 2021, Ventures Africa, at https://venturesafrica.com/why-benin-and-kenyaneed-the-space-to-own-theirconstitutional-development/ (accessed March 3, 2021) Njoki Kihiu (2022) “LSK Rejects Ruto’s Proposed Constitutional Amendments, Terms Opposition Leader Slot Impractical,” Star, December 15, 2022, at https://www.capitalfm.co.ke/news/2022/12/lskrejects-rutos-proposed-constitutional-amendments-terms-opposition-leader-slot-impractical/ (accessed January 17, 2023). Page 5 of 5