Duncan pic 1

 Duncan M. Okubasu
 Advocate, High Court of Kenya and Lecturer, Public Law, Moi University

The invigoration of judicial review in light of the 2010 Constitution has thrust the Kenyan judiciary at the centre stage of virtually all political intrigues- 2021 was not exceptional. It is thus problematic to faithfully document “developments” by separating constitutional from purely political ones because any political issue finds itself in court as a constitutional matter. The outcomes of these cases, are themselves indeed developments, and for sure legion decisions are handed down every year since 2010.  While most of these ‘developments’ are often widely known- because all decisions of courts are published online through “KenyaLaw”, less is often said about the context in which they are made.

One of such “contexts” is the relationship between courts and political institutions which was at the peak of deterioration in early 2021.  On several occasions, the retired Chief Justice Maraga had issued press releases lamenting a host of interventions or absence thereof by the Executive that has impinged not only on the smooth working of courts but also their adjudicatory authority.[1] This relationship has provided what can be justifiably seen as the extra-legal context for projecting the evolution of politics and constitutional practices. In this vein, I highlight two important events in 2021 and their underlying contexts.

First are the consternations associated with the advice by the retired Chief Justice to the President to dissolve Parliament.[2] Kenya’s 2010 Constitution contains a clause on “Consequential legislation” [article 261], which gave a timeframe to Parliament for the enactment of pieces of legislation intended to implement various constitutional provisions. The article provides for its own enforcement mechanism, which is that if Parliament fails to enact the legislation, any Kenyan can petition the High Court for declaratory orders that can lead to the dissolution of Parliament by the President upon the advice of the Chief Justice if the orders of the High Court are ignored. While Parliament has, since 2010, enacted most of the required legislation, there has been particular reluctance on the part of Parliament to enact legislation required to implement the (in)famous, 2/3 gender rule. This is a requirement that no more than 2/3 of persons in elective or appointive positions should be of the same gender.

After legion litigation at the High Court, and a petition to the Chief Justice, an advice was ultimately issued in late 2020 for the President to dissolve Parliament. The President did not act on the advice, citing- in an interview in France, fresh litigation on the constitutionality of the advice. Several petitions were indeed filed at the High Court seeking an injunction to prevent the President from acting on the advice and were heard in 2021. The consolidated cases are now pending at the Court of Appeal, following a stay of proceedings order issued in respect of High Court proceedings. The orders, forestalled delivery of the High Court judgment which was due. It is noteworthy to observe that the advice to the President was issued at a time when the Chief Justice, as well as the Judicial Service Commission (JSC), had decried “budget cuts” by Parliament a fact that one can speculate, may have informed the advice as well as the context against which the High Court decisions was to be delivered, had it not been stayed. While as pointed out, the cases are pending at the Court of Appeal, the substratum of the proceedings percipiently assumed different refraction in May 2021 when Martha Koome was nominated and appointed as Kenya’s first female Chief Justice.

In the same month of May 2021, another development ensued- or rather took a different turn. This was the rejection of attempts at constitutional amendment by the High Court.[3] The political settlement between the President- Uhuru Kenyatta- and the former Prime Minister- Raila Odinga, had birthed proposals for constitutional reforms to inter alia, create the office of the Prime Minister, convert Kenya to a semi-parliamentary system, and so forth. A comprehensive assessment of the issue demonstrates that the main aim of the amendments was to expand the executive to accommodate as many political elites as possible in a bid to win the 2022 General Elections. A five-judge bench found in favour of the Petitioners that the amendments were unconstitutional because they, among other things, offended the basic structure doctrine and also that the President could not invoke the popular amendment route to secure an amendment to the Constitution. In the main, the court found that the amendments, needed to be affected through the exercise of “primary constituted constituent power” which was almost akin to fresh constitution-making. The state organs against whom the decision had been made, as well as the BBI Secretariate, lodged appeals to the Court of Appeal. The majority of the judges affirmed the decision of the High Court, thereby effectively thwarting the attempt at constitutional change in 2021. The Supreme Court is to decide on the propriety of the decision of the Court of Appeal in 2022.

What most people know about the High Court and Court of Appeal judgments is that any attempt by President Uhuru and former Prime Minister Raila Odinga (through the Building Bridges Initiative) to amend the Constitution ahead of the 2022 elections was thwarted by the courts. But there may be more to that, especially when the context in which the decisions were made is taken into account. First, when the Judicial Service Commission (JSC) submitted its memorandum to the Building Bridges to Unity Advisory Taskforce in August 2019, it downplayed constitutional amendment, especially those relating to “Divisive politics”, “Inclusivity” and “Lack of National Ethos.”[4]  In the assessment of the JSC, some of the issues had been “exhaustively dealt with…” by previous commissions of inquiry, and as such constitutional amendments were unnecessary. The JSC recommended a change of policies or legislative interventions in the place of constitutional amendments. Also, the Chief Justice had led the JSC to protest the institution of the Judiciary Ombudsman, which had been proposed by the BBI steering committee. It must be noted that the JSC is dominated by Judges of Superior Courts in Kenya. Second, there had been a standoff between the Chief Justice (and by extension the JSC) and the President over his refusal to appoint Judges following a recommendation by the JSC for their appointment. This refusal had particularly affected a number of High Court judges that had applied for and been recommended for appointments to the Court of Appeal. Two of the Judges whom the President had refused to appoint were part of the High Court bench that presided over the High Court BBI trial- Justice Odunga and Justice (Prof) Ngugi. One may imagine that the High Court simply used the opportunity to send a message to the President. The President appointed some of the judges that he had previously declined to appoint leaving out those that were part of the BBI trial court bench. When the matter went to the Court of Appeal again, one may justifiably state that the need to assert the “correctness” of the High Court decision, hence exonerate the two judges may have been a silent premise on whose account the High Court decision was affirmed.  It is argued that these contexts must not be completely ignored when thinking about constitutional developments in Kenya.

In 2022, the General Elections, are what to look up to and especially the Presidential election dispute – which is anticipated, as is customary. Also, the Supreme Court verdict on the BBI appeals as well as the Court of Appeal decisions on the Chief Justice’s advice on the dissolution of Parliament remains “developments” to watch out for.

[1]See e.g., David Mumbere, Kenya's CJ Maraga complains against budget cuts, 'disrespect' 4 November 2019 Africa News, available at https://www.africanews.com/2019/11/04/kenya-s-cj-maraga-says-judiciary-under-attack//  

[2] David Maraga, Chief Justice’s advice to the President on dissolution of parliament for failure to enact the gender rule, 22 September 2020 available at http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/

[3]Petition No. e282 of 2020 (Consolidated with Petition e397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021), David Ndii & others v Attorney General & others [2021] eKLR

[4] See Judicial Service Commission, The Memorandum of the Judicial Service Commission (JSC) to the Building Bridges to Unity Advisory Taskforce (BBI) August 2019, available at https://dc.sourceafrica.net/documents/119368-Memorandum-of-the-Judicial-Service-Commission.html