If there are decisions that have been waited for with bated breath, then, the David Ndii decision (herein referred to as the BBI 2) is one of them, coming second after the Presidential election petition in 2017. When Judges of the Court of Appeal sat to deliver their judgment on the 20 August 2021, not only was the country watching, but East Africa, Africa and the world was watching and looking forward to hear which way BBI. And roar the court of appeal deal, making the Kenyan Judiciary join the likes of the South African Constitutional Court and Indian Supreme Court as leading proponents of the ideals of transformative constitutionalism in the Global south.
BBI 2 is an appeal that arose from BBI 1, where the High Court declared the BBI project unconstitutional, null and void. Simply, on 9 March 2018, President Uhuru Kenyatta and former Prime Minister Raila Odinga, hitherto sworn political nemesis, decided to publicly bury the hatchet in a move to quell post-election turmoil and unite the country into two. This culminated in a handshake that birthed the Building Bridges Initiative (BBI), which then metamorphosed into 72 proposed constitutional amendments, which move the High Court declared unconstitutional on various far-reaching grounds.
Judges as Guardians of the Constitution
In Pre-2010, the Kenyan Judiciary was considered a sort of extension of the Executive, where the Judiciary seemed to legitimize the Executive’s excesses in a lot of instances. These were the days when some judges (some point fingers at the likes of Justices Sanjeev Sachdeva and Norbury Dugdale) viewed themselves as praise singers of the status quo. Put differently, these were times when judicial aloofness and flattery of the Executive were the order of the day. As a result, Kenyans lost confidence in the Judiciary.
The post-2010 constitutional dispensation thus does not countenance the judicial mindset that existed pre-2010. It persuades judges to be guardians of the Constitution, insisting on the Judiciary being an equal arm of government. This then assures Kenyans that when they feel to be let down by the Parliament, County Assemblies and the opposition (as is happening in Kenya), the Judiciary must do something to rescue the constitution when prayers are placed before it.
In BBI 2, the Court of Appeal clearly appreciated this role and the new judicial mindset. The Court of Appeal appreciated that the Judiciary must act as a democratic enclave, to protect democracy, to check political power and to protect human rights. The separate opinion of Court of Appeal Judge Justice Patrick Kiage captures this as follows:
Moreover, those charged with interpreting and giving effect to the Constitution cannot shut their eyes to, or be indifferent to or, worse, evince a hostility towards the rule of law, human rights and fundamental rights. The Constitution commands judges to be active participants in those causes and it behooves us to constantly introspect and deliberately push forward the rule of law and human rights project.
It would be a serious dereliction of duty, productive of deleterious results, were those charged with the solemn duty of advancing these causes to be found wanting through carelessness or inattention, thereby either stalling or reversing them. To me, stringent urgings for judicial restraint where the rule of law is under threat and human rights are abused are totally antithetical and anathema to the plain constitutional interdict.
Where these matters are concerned, fealty to the judicial oath demands, nay commands, conscious activism. We do not become judges to subvert the plain and uncompromising edict to advance the rule of law and human rights. To my mind, that the Constitution very deliberately calls me to be warrior for the rule of law and human rights and to be both faithful and fearless in the cause.
To me, there is only one path that commends itself consistently with conscience and fealty to the constitutional command:
I must defend it and keep its fortifications firm and effective. I must stand up for the Constitution heeding the words of the hymn: “where duty calls or danger, be never wanting there.”
Court of Appeal President Justice Daniel Musinga’s introductory paragraphs are also instructive. In Part, the Judge holds that:
4] The Judiciary has been given constitutional mandate to arbitrate political, social and economic disputes amongst the people or among the three arms of government. It is required to do so by way of diligent and honest interpretation and application of the Constitution and the laws of the country.
On her part, Justice Hannah Okwengu viewed the Court’s duty as follows:
187. As custodians of the Constitution, we Judges have also risen to the challenge to protect the Constitution from unconstitutional amendments. Ultimately, regardless of the outcome of this appeal, all the parties have won because the Constitution has won. The spirit and purport of the Constitution remains alive.
Essentially, the Court of Appeal appreciated that there can be no bending the law to suit the joined hands of the President and the former Prime Minister. Additionally, the Court of Appeal appreciates that the Judiciary should declare the superiority of the Constitution without any hesitancy.
Rejection of the Passive Virtues
Passive Virtues is a term coined by Alexander Bickel who argued that Judges must avoid adjudicating hard Constitutional questions by limiting themselves to safe cases. According to Bickel, by playing safe judges would remain political neutrals, avoiding the wrath of the Executive. Bickel identifies the passive virtues that can be relied upon by judges to include Justiciability (standing, ripeness and mootness) and the Political Question doctrine.
In BBI 2, these passive virtues were raised by the Appellants in a bid to overturn the BBI 1 by the High Court. The Appellants argued that the questions raised in BB1 were political questions and unripe for determination. Put differently, the appellants argued that the questions posed in BBI were better left for the political players and not the Court.
Further, the Appellants argued, the questions were premature and therefore not ripe for determination. However, the Court of Appeal rejected these claims in their entirety.
Justice Daniel Musinga (Para 408-414) considers the powers of the High Court under Article 165 of the Constitution as expansive, reasoning that the court is mandated to determine the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution and the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
The questions before the Court touched on the interpretation of the Constitution and were not merely political questions and thus fell under the jurisdiction of the Court. The learned Justice Musinga hence holds in part that when litigants come to court and claim that any person, whether from the executive or legislative arm of the government is violating or threatening to violate the Constitution, judges must look into the matter and decide one way or the other.
On Ripeness, Justice Musinga considers Articles 22 and 258 and holds that the two provisions have killed and buried the doctrine of ripeness. This is because the provisions allow any person to approach the Court when there is a threat to the Constitution or Bill of Rights. The inclusion of the word ‘threat’ was a recognition that a person need not wait for the actual violation but can approach the Court on an apprehension of violation.
In conclusion, Justice Musinga holds that:
414…Had the learned judges declined to assume jurisdiction on account of the principles of justiciability, mootness and ripeness, they would have violated their respective oaths of office which they individually subscribed to.
On her part, Court of Appeal Judge Justice Rose Nambuye (Para 139-142) similarly rejects the contention and holds that the Constitution of Kenya 2010 grants the Court the power to adjudicate disputes founded on complete and incomplete breaches. In case of the BBI instance, there was a threat to the Constitution and rights, a state of affairs which required not a political decision but a judicial one, to decide on the existence or otherwise of the breach.
To me, this is superior logic coming from the Court.
Firstly, the 2010 Constitution removed the shackles of inhibition in the name of ripeness and liberalizes the standing doctrine. Put simply, Kenyans need not wait until the Constitution is shredded for them to approach the Court, but are mandated to approach the Court even at the sight of dangerous hands. The Anglo-Saxon doctrines and colonial heritage can no longer hold fold and must be buried forever and their ghosts never allowed to resurrect.
Interpreting a Transformative Constitution: The Place of History and the Values of the Constitution
The Appellants’ main claim in rejecting the application of the Basic Structure Doctrine in Kenya was that the Constitution had not provided for it and the Constitution at Chapter 16 anticipated amendments, and therefore one cannot introduce a foreign doctrine to Kenya (See Court of Appeal Judge Justice Fatuma Sichalle’s dissenting opinion). The Appellants further claimed that one cannot invoke the ‘spirit of the constitution’ when there are clear and explicit provisions.
To my understanding, the contention to be between formalism (associated with the Positivist school of thought) and value-laden interpretation. For positivists, they approach the judicial process as a mechanical task. On the other hand, a value-laden interpretation appreciates that our constitution is not merely a structural one which only disburses power to various arms of government but that it appreciates and reflects ‘the country’s own history and experience, historical economic, social, cultural and political realities and aspirations that are critical in building a robust patriotic and indigenous jurisprudence for Kenya’. The modes of interpreting are a bit different. It is on this basis that Justice Dikgang one time invited judges to a new way of doing things, a new place of jurisprudential creativity.
When interpreting constitutional provisions, the Constitution (Article 259) calls judges to go beyond the mere letters of the law. This means that a constitution cannot be interpreted in isolation but judges should always consider context, which includes a consideration of the history of the country. Supreme Court Judge Justice Njoki Ndung’u while dissenting in the Presidential Petition (2017) stated that
‘History is a great revealer of the intent. Events inspire laws and public resources and at the heart of these laws and processes are shortcomings to be remedied, crises to be averted , needs to be met , and a nation to be efficiently and effectively governed’
Taking cue from this message, judges of the Court of Appeal retreated to history so as to clarify some of the Constitutional provisions and to avert the strangling of the 2010 Constitution. A reading of the 1089 paged judgment makes one think that he or she has attended a class on constitutional history of Kenya.
Justice Daniel Musinga considers the history of constitutional making and amendments in Kenya and uses this as the basis to declare that the Basic Structure Doctrine applies in Kenya so as protect the Constitution from hyper-amendments (para 275-327, See also Justice Gatembu Kairu para 36-39). Justice Hannah Okwengu also considers the history as summarized in BBI 1. The learned Judge is of the view that Chapter 16 of the constitution, which provides for the amendments, must be understood along those lines:
 As noted in the judgment of the High Court and the respective submissions that were made before us, the history of Kenya in regard to amendment of the Constitution is replete with abuse of the amendment provisions and a hyper-amendment culture that resulted in the mutilation of the former Constitutions. In truth, the amendments culminated in dismemberment of the original Constitution. It is in that context that Chapter 16 of the Constitution was made and must be understood.
(See also Court of Appeal Judge Justice Francis Tuiyott’s view at Para 8 that a history of the making of the current Constitution gives colour to the text of the provisions of Chapter 16 on amendments).
Using flowery lingo, Justice Patrick Kiage summarizes Kenya’s constitutional history, from which he rejects a formalist interpretation of the Constitution:
The Constitution was not the product of an immaculate conception. Rather, it was the product of a rich experiential milieu of legal, social and political interaction more particularly captured in numerous historical accounts of trial and ultimate triumph, including in the Final Reports of the Constitutional Review Committee and the Committee of Experts. Any court interpreting the Constitution must perforce be alive to the historical background if it is to do justice to the text of the Constitution. Anything short of that would be drab, dry and skeletal at best, lacking the pulsating animation of a living document possessed of a spirit and ethos.As if fully aware of the easy slide to dry formalism in construction, an obsession with text and lexical renderings, oblivious to history and context, the Constitution itself provided the keys to its construction in explicit terms.
The interpreter must have the purposes, values and principles of the Constitution ever in mind as he undertakes the task. What is called for is a purposive, value-laden and principled approach to constitutional interpretation as opposed to a narrow, neutral and ultimately neutered formalism…
In much the same way as new wine cannot be stored in old wine skins, it would be totally illogical to try and squeeze a transformative Constitution within the suffocating strait jacket strictures of formalistic or positivistic interpretation. I have no difficulty whatsoever following the fresh and expansive interpretive path blazed for us by the apex court in several pronouncements
Personally, I consider the endorsement of innovative tools of interpretation as a win for the people of Kenya. It is a reiteration that constitutional interpretation has gone above ‘word worship’ or ‘verbal mania’. Today, judges are willing and ready to go beyond the written word in order to protect the Constitution from dismemberment.
To Plagiarize Robert Kagan’s words, decisions of courts often ‘are like volcanic eruptions, reshaping the landscape of political and administrative action, usually in small ways but occasionally in large ones’. The impact of BBI 2 will definitely be the latter, teaching us that the judiciary acts as a ‘walled garden’ of constitutionalism, rule of law and human rights. BBI 2 tells the executive that for as long as it acts within the Constitution, it has a powerful ally in the Judiciary but if it oversteps, the Judiciary becomes a ready and willing foes as defender of the rule of law.
Comparatively, the impact of the decision is not limited to our borders alone. Like River Nile which flows across various nations, the decision will travel to other jurisdictions and become a guiding precedent. To Comparative Constitutional scholars, the decision is a good fodder and a contribution form the Global South on transformative Constitutionalism.
Read part 2 of this 4 part series tomorrow.