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Politicians have for years amended the Constitution for selfish interests

By Demas Kiprono | August 26th 2021

Demas Kiprono. [File, Standard]

Last week, the Court of Appeal upheld the view of the High Court and the individuals and organisations that challenged the Building Bridges Initiative. By a promising majority, the judges emphasised that in interpreting the Constitution, one must use a purposive, contextual approach that seeks to promote the letter and spirit of the Constitution. They argued for wholistic interpretation, not textualist obsession.

Only Lady Justice Sichale held that the Constitution should be interpreted first and foremost from what the text expressly provides, and that very little regard should be placed on academic constructions such as basic structure - which she viewed as a foreign idea.

I support the court's approach because it recognised past mischief that the political class has perpetrated through “legal” amendments since independence. They recognised and invoked their role as judges in protecting the power of the sovereign people of Kenya from such mischief even when the political class justified the amendments by invoking the interests of the people.

Justice Patrick Kiage highlighted these problematic amendments that transformed Kenya from a parliamentary democracy at independence to the all-powerful and unaccountable executive.

In 1966, the political elite used national unity and nationalism as an excuse to scrap the upper houses of Parliament and regional governments. The Senate and regional governments were abolished without any meaningful input from the people.

The political class was unanimous that for Kenyans to be united, they needed a powerful central government to cater for everyone’s needs. In reality, they concentrated too much power at the centre and led to decades of marginalisation of regions considered not to be in line with the president.

Another purely partisan move was the 1975 constitutional amendment that gave the president power to pardon a person found guilty of electoral malpractice, thus allowing that person to run for political office. This whole amendment fiasco was meant to give President Jomo Kenyatta a tool to save the political career of his friend and ally Paul Ngei. Again, there was no input from the people.

The biggest blow to democracy was the landmark 1982 amendment that introduced de jure “single-party” system by inserting Section 2A, which by law forced every person to articulate their political aspirations and ideology through Kanu and nothing else.

Civic space, human rights and democracy severely suffered at the stroke of a pen, yet Kenyans were not seen as necessary constituents to warrant input and views on these fundamental shifts in the social contract.

As such, the Court of Appeal judges were convinced that in as much as constitutional amendments were provided for under articles 255, 256 and 257, the over 70 changes were not to be construed as amendments. They were far-reaching and fundamental changes meant to upend, derogate and replace the 2010 order.

Therefore, the people needed to be involved through a more immersive process entailing public participation, collection of views, civic education and a referendum, which they found were not done.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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