This archive report was first published on 23 August 2021.
Kenya's Constitution at a Crossroads ¶
As Kenya's Constitution turns 11 years old, a recent Court of Appeal decision has sparked intense debate over its amendment process. The ruling, which blocked proposed changes to the Constitution, has left experts divided on how to interpret its implications.
According to the Court of Appeal, the President is not an ordinary citizen and cannot directly lead a push to amend the Constitution. This means that public officers may not be in a position to push for similar changes.
For anyone looking to change the Constitution, it will be mandatory to take proposed changes to the public and invest heavily in educating them on the implications. This has sparked concerns that even minor adjustments to the Constitution will have to go through rigorous and expensive processes of civic education, public participation, and the convening of a constituent assembly before being subject to a referendum.
On August 13, 2021, the Court of Appeal ruled that President Kenyatta, Raila Odinga, the BBI secretariat, and the IEBC did not follow the right procedures in moving to amend the Constitution. The decision has now split legal and governance experts on how to interpret it.
Some experts believe the Court of Appeal only defined the rules of amending the Constitution, while others argue that the seven judges made it more difficult for Kenyans to make changes to the document.
"It is impossible to comply with the steps outlined by the court. When Kenyans adopted Article 10 of the Constitution on principles of governance, they knew who politicians are. They (politicians) can hide behind a member of the public and call a proposed amendment by popular initiative," said Danstan Omari, a prominent lawyer with experience in constitutional matters.
However, another lawyer and governance expert, Adrian Kamotho Njenga, believes that the Court of Appeal simply clarified what the Constitution already provides for in the event that Kenyans want to make changes to the document.
"The court has not raised the threshold, only that there is a distinction between amendment and overhaul. If you want to do something that is significant to the overall structure of the Constitution, then you must go through the full process. Similar to what was done to bring in the 2010 Constitution," he said in a phone interview with the Nation.
As the debate continues, one thing is clear: the Court of Appeal's decision has sent shockwaves through Kenya's governance and legal communities, leaving experts to grapple with its implications for the country's Constitution.
