Kenya’s High Court says changing the constitution is illegal

President Uhuru Kenyatta's critics have called a political move designed to check his deputy, whom he has fallen out with publicly.

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Kenya’s High Court says changing the constitution is illegal www.africanpolicy.com

Kenya’s High Court ruled a drive-by President Uhuru Kenyatta to change the constitution was illegal, stopping a move critics say was designed to check his deputy, whom he has fallen out with publicly.

Parliament already passed the proposed amendments – popularly known as the Building Bridges Initiative – which mark the biggest change to the East African nation’s government structure since a new constitution was adopted in 2010.

However, issuing a ruling on several challenges lodged by various parties, a five-judge bench of the court said on Thursday that Kenyatta used a constitutional provision reserved for citizens to initiate the changes, making the process illegal.

“The constitutional amendment bill is an initiative of the president and the law is clear that the president does not have the constitutional mandate to initiate any constitutional changes through popular initiative,” the court said in its ruling.

As a result “civil proceedings can be instituted against the president for violating the constitution, by initiating its amendment,” the judges added.

“The president cannot be both player and umpire in the same match,” said Jairus Ngaah, one of the judges.

Power-sharing

The government, which wants to hold a referendum after Kenyatta signs the bill into law, said it will appeal the ruling.

Kenyatta says the bill promotes the sharing of power among competing ethnic groups to reduce cyclical election violence and is not targeting anyone.

It will create 70 new constituencies, return the role of cabinet ministers to elected members of parliament, and create several powerful new posts: a prime minister, two deputies, and an official leader of the parliamentary opposition.

Kenyatta-Odinga cooperation

Kenyatta initiated the changes with the backing of former prime minister Raila Odinga after the two made peace in January 2018 following a divisive presidential election the previous year in which the president beat Odinga.

The rapprochement isolated Kenyatta’s deputy, William Ruto, who wants to succeed his boss when he steps down next year after serving the two constitutionally allowed five-year terms.

The constitutional amendments are partly designed to tame the political ambitions of the Kalenjin ethnic group’s Ruto, by making it possible to cobble together an alliance against him, said John Githongo, a prominent anti-graft campaigner.

“It is very clear that some of these alignments are to sideline him,” he said.

Ruto’s allies have loudly opposed the constitutional changes bill in parliament and outside.

“I don’t think we have a constitutional problem in Kenya… The biggest problem in Kenya is an economic problem,” Ndindi Nyoro, a pro-Ruto parliamentarian, said on the local Citizen TV.

The next presidential election will be held in 2022 and Kenyatta, having served two terms, is not eligible to stand again.

Ruto said the constitutional reform will create a system allowing Kenyatta and Odinga, respectively Kikuyu and Luo, the two main ethnic groups in the country, to share power.

What did the judges say?

In a four-hour televised ruling, they said President Kenyatta had violated the constitution by initiating a process that ought to have been started by ordinary citizens.

They also ruled that the BBI constitutional committee, a body created by the president, was illegal, adding that Mr Kenyatta had failed the leadership and integrity test.

They warned that the president could be sued in his personal capacity.

The court also said that the five million signatures collected by the BBI task force to support the initiative did not make it a citizen-led process.

“A popular initiative to amend the constitution can only be started by the people, not by the government,” the judges said.

The declaration creates the grounds for the president to be impeached, but it is unlikely that parliament, which had already passed the bill, would dare to challenge President Kenyatta.

What are the BBI proposals?

The initiative proposes the creation of a prime minister post, at least 70 new constituencies, and an affirmative action clause that could create up to 300 new unelected members of parliament.

President Kenyatta and Mr Odinga argue that the proposed constitutional changes will end the winner-take-all structure of Kenyan politics, which is often followed by deadly violence.

But some argue that the current constitution which was promulgated in 2010 was a product of consensus and had served the country well despite relentless attempts by politicians to undermine it.

It was a product of the political crisis after the 2008 post-election violence which killed more than 1,500 people and forced hundreds of thousands from their homes.

What has the reaction been?

The judges stopped “a creeping coup by a kleptocracy that was trying to entrench itself in power,” activist Okiya Omtatah, who first challenged the initiative in court, told African Policy.

“The courts have asserted the rule of law. Kenya is a constitutional democracy where the executive and parliament have limited power. Whatever they do outside the confines of the law is null and void,” he said.

He added: “The public good is contained in the law, so if you want to do anything let us do it according to the law.”

The president of the Law Society of Kenya shared a video of himself dancing, with a Twitter post saying: “Reggae has been stopped.”

The BBI initiative had been dubbed reggae, with its supporters adopting Lucky Dube’s song “nobody can stop reggae” as a rallying call.

However, Paul Mwangi, who was part of the BBI secretariat, said the High Court ruling was “pure politics”.

“It was the court literally descending into the political arena to push an agenda that had nothing to do with the legal issues which were there,” Mr Mwangi told Focus on Africa.

“We are going to appeal all the way to the Supreme Court if necessary and we are confident that they will see that these were not legal issues being decided,” he added.

What is the political impact?

The ruling is a huge blow to Mr Kenyatta who had staked his legacy on it.

So high were the stakes that MPs were allegedly given $1,000 (£700) bribes, to back it in parliament, a member of the national assembly told African Policy.

Even though the attorney general has indicated that the government would appeal against the High Court ruling, legal observers say a favourable outcome is unlikely.

Mr Kenyatta has had a contentious relationship with the judiciary since the Supreme Court annulled his election four years ago, forcing a rerun. At the time, he warned that he would “fix” the courts.

He has ignored several court orders in the last few years and some have speculated that he might do the same after Thursday’s judgement.

The ruling is also a huge blow to Mr Odinga, a doyen of Kenyan politics for the last four decades.

For a politician who has defied huge odds in the past, the judgement is likely to be his biggest political setback yet, as he had planned to use the BBI wave to launch his fifth presidential bid in elections due next year.

But one man who is celebrating the development is Deputy President Willian Ruto, who has been sidelined by Mr Kenyatta since he started working with Mr Odinga.

Mr Ruto, who also plans to run for president, had opposed the BBI initiative.

He tweeted after the ruling: “There is God in heaven who loves Kenya immeasurably.”

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