In our context, it is the state - not the Constitution - that is eternal

The five High Court judges who ruled against the 2020 BBI Constitutional Amendment attracted attention partly because their ruling was more than a simple judgment on constitutional issues.

Besides declaring the BBI unconstitutional, they raised issues that are relevant beyond Kenya. They stressed concepts such as ‘basic structure’ and ‘eternity’ clauses that are not specified in the Constitution, but are inherent in application. 

Depending on the geopolitical entity, whether empires or kingdoms on one side or states as derived from Westphalian logic, the issue of ‘eternity’ or ‘basic structure’ is relative. In general, empires are not eternal and can expand at the expense of others or contract by shedding off imperial baggage.

The state, however, has a perpetual element in it that includes limited ‘sovereignty’ as accepted by the neighbours and those far, thereby making it ‘eternal’. What is eternal, therefore, is the state rather than what is in it. For the state to operate, it creates basic structures which include documents called constitutions, which in turn create governments as tools of running the ‘eternal’ state.

Kenya has challenges on what is eternal. It was a British imperial creation in consultation with Italy and Germany and borders could change whenever imperial whims dictated. This British creation started as what Joseph Chamberlain termed an imperial real estate for settlers before it turned into a colonial state with trappings of basic structures that included documents called constitutions.

Since the documents lacked longevity, a rhythmic pattern emerged in which perceived crises made constitutional adjustments urgent only for new urgency to emerge. This happened because the implementers had faith in the eternal state but not in the constitutional documents they treated as tools of political expediency and convenience. 

The pattern of constitutional changes within an eternal Kenya continue in post-colonial times. There were, for instance, the 1966 turncoat amendment to fix party hoppers and the 1968 constitutional changes to deal with potential trouble makers and restrict electability to party memberships. The 1982 amendment made it impossible for Jaramogi Oginga Odinga to start a political party. 

When Mwai Kibaki proclaimed the 2010 Constitution, there was short-lived euphoria before new demands emerged. It had gone through the 1997 IPPG constitutional band aid, was subjected to Yash Pal Ghai’s panel beating, the attempted polishing at Bomas, and rejection at the 2005 Orange/Banana Referendum that birthed the Orange Democratic Movement.

The 2007 elections were indictments on the constitutional beliefs in that players preferred chaos over what the document said because they had little faith in the Constitution. Chaos led to the 2010 Constitution but it, too, lost relevance in the 2013 and 2017 elections with new demands. The constitutional court nullified the BBI constitutional proposals, the 2020 Constitution Amendment Bill, supposedly because it violated ‘basic structure’ and ‘eternal’ clauses of 2010 Constitution.

The novelty of the ‘eternal’ clauses is the assumption that constitutions are eternal. The rhythmic pattern of constitutional changes in Kenya, however, makes that assumption questionable since what is demonstrably ‘eternal’ is the state, not the constitution. Influential players lacking faith in constitutional documents undermine claims of eternal clauses.