Last Friday, Kenya’s Court of Appeal upheld a May judgment by the High Court blocking a government bid to make fundamental changes to the country’s constitution. The ruling marks a setback to President Uhuru Kenyatta’s legacy-building project and is certain to shift the political landscape a year before the country’s general election.
The appeals court upheld the high court’s verdict that the Building Bridges Initiative, or BBI—which aimed to amend the 2010 constitution by, among other things, creating the offices of prime minister, two deputy prime ministers and a leader of the opposition as well as increase the number of seats in parliament—could only be initiated by parliament or a popular initiative. “The president does not have authority under the Constitution to initiate changes to the Constitution,” Court of Appeal President Daniel Musinga said in a judgment issued at the end of a televised session that lasted more than 10 hours.
The BBI originated from an agreement, famously known in Kenya as “the handshake,” between Kenyatta and opposition leader Raila Odinga after their intensely disputed presidential election in 2017. More than 10 years after the promulgation of Kenya’s current constitution, the BBI judgment has been described by many observers as the most significant ruling by Kenyan courts since the nullification of Kenyatta’s initial reelection victory four years ago, and arguably in the brief history of the constitution to date. (Kenyatta went on to win the court-ordered rerun election that Odinga boycotted.)
The debate over the constitutional reforms has dominated Kenya’s politics in the more than three years since the landmark agreement between Kenyatta and Odinga, and it is closely linked to the jostling for the race to succeed Kenyatta, who is set to step down from the presidency next year. Kenyatta had argued that the initiative was a means of resolving long-existing political and constitutional debates, while making politics more inclusive and ending Kenya’s winner-take-all system that has lent itself to repeated cycles of electoral violence. But critics saw, among other things, a Vladimir Putin-style backdoor attempt by Kenyatta to cling to power via the prime minister’s office, and they condemned what they regard as the scaling up of an exclusionary politics that has entrenched a narrow and unresponsive political class. Thus, they see the rejection of the initiative by Kenya’s courts as a win for citizen-led democracy.
“The judgment is a further reminder to ordinary Kenyans that they are sovereign, no matter the manipulation and abuse of process by the ruling elite,” Jerotich Seii, a Kenyan humanitarian and one of the petitioners who successfully challenged the constitutionality of the Building Bridges Amendment Bill of 2021, told me. “Power will always lie with the people, and it is our responsibility to protect the Constitution, which is our ultimate rulebook for the correct governing of Kenya.”
In speaking with Kenyan legal scholars and practitioners, activists, academics, political figures and ordinary citizens about the BBI judgment and other related issues, two things became clear. First, there is a broad consensus that this ruling is certain to reverberate for many years, and possibly decades, to come. Second, the popular reaction to the ruling reflects the degree to which Kenyans regard the 2010 constitution, warts and all, as a civic document that should not be tampered with by self-interested political elites.
“The judgment speaks to the strength and resilience of the 2010 Constitution,” Dudley Ochiel, a Kenyan lawyer with the Nairobi-based Katiba Institute and also one of the litigants in the case, told me. He noted that there have been multiple attempts by Kenyan lawmakers to amend the constitution, but the BBI was the most significant, as it brought together the country’s two most potent and historically antagonistic political forces, in the form of Kenyatta’s ruling Jubilee Party and Odinga’s opposition Orange Democratic Movement. “This ruling makes it easier to block future attempts by politicians to amend the constitution. To do so, you must go back to the people in the form of a constituent assembly.”
Ken Opalo, a professor at Georgetown University’s School of Foreign Service, told me that the ruling is a triumph for constitutionalism and judicial independence in Kenya, which he argues is a product of the Kenyan legal community’s high levels of professionalization, as well as of an institutional structure that gives lawyers a significant say in the appointment of judges. “The demonstrated independence of the judiciary has given rise to all manner of progressive public litigation like the BBI cases,” Opalo added. “The rulings from these cases are setting precedents that will move the needle a great deal in entrenching constitutionalism in Kenya.”
Opalo further noted that the BBI would have created a “Big Five” group of offices of state that would have made it possible to cobble together broad-based coalitions across Kenya’s ethnic groups. But there again, critics fear an intensified monopoly on political power by dynastic elites and their cronies, as well as a bloated executive and parliament that many Kenyans already believe costs too much money to run. With the courts striking down the proposal, only the position of deputy president will now be retained. By reducing the number of offices available to bargain with in return for political support, that will almost certainly complicate alliance-building ahead of the election.
The political ramifications of the ruling are considerable, with Deputy President William Ruto, who opposed the BBI and is regarded as a frontrunner to succeed Kenyatta, seen as the most immediate beneficiary of the judgment. Ruto, whose disputes with Kenyatta are well known, casts himself as a populist “hustler” standing against ethnic politics and the dynastic Kenyan ruling class, of which Kenyatta is a product. For Opalo, Ruto is the clear frontrunner for the 2022 presidential election, although he noted it is unclear whether the anti-Ruto camp will unite or remain divided ahead of the 2022 poll. “The probability of an outright Ruto victory in the first round is a lot bigger than zero than most people like to admit,” he concluded.
Regardless of the implications for electoral politics, though, it is fair to say that the rule of law, judicial independence and constitutionalism scored a big win in one of Africa’s largest democracies.
West Africa
Nigeria: Armed bandits attacked the premises of the Nigerian Defence Academy in the northwestern state of Kaduna in the early morning hours on Tuesday. Two officers were killed during the raid, while another who was kidnapped by the bandits was later confirmed dead. Several other NDA personnel were wounded.
The attack on the military facility comes amid heightened insecurity in Nigeria’s northwest, with Kaduna state at the epicenter of a wave of kidnappings that have targeted hundreds of schoolchildren and residents, as well as motorists along the expressway linking Kaduna with Abuja, Nigeria’s capital.
North Africa
Algeria: In the latest development in ongoing tensions between the two North African neighbors, Algeria has severed diplomatic ties with Morocco, marking the lowest point of bilateral relations between the two countries since the 1970s.
Algeria said the move was due to “hostile actions” on Morocco’s part, with Foreign Minister Ramtane Lamamra laying out a list of grievances, some of which, like allegations of Moroccan support for Algeria-based separatists and the dispute over the Western Sahara region, go back decades. Others, like allegations of espionage and Morocco’s diplomatic ties with Israel, are more recent.
Central Africa
Chad: Hissene Habre, a former Chadian dictator who was convicted in 2016 of crimes against humanity by a Senegalese court, died Tuesday at the age of 79. Habre died in a hospital in Dakar, Senegal, where he was serving a life sentence handed down by the special court that tried him.
Habre came to power in a 1982 coup, only to be deposed eight years later by Idriss Deby. He was the first African former head of state to be convicted of crimes against humanity by another country’s courts, in a trial seen as a new model for justice on the continent.
Southern Africa
Zambia: Hakainde Hichilema, the winner of the 2021 Zambian presidential election, was sworn in as president after an election victory hailed as a triumph over authoritarianism and democratic backsliding.
Hichilema took the oath of office Tuesday before thousands of his supporters gathered at the Heroes Stadium in Lusaka, Zambia’s capital, sporting the red and yellow regalia of his United Party for National Development, or UPND. The ceremony was attended by other African heads of state, including Tanzanian President Samia Suluhu Hassan and Malawi’s president, Lazarus Chakwera.
Hichilema defeated former President Edgar Lungu in a landslide, winning by almost 1 million votes in his sixth attempt at the presidency.
East Africa
Uganda: The first group of Afghan refugees fleeing Taliban-controlled Afghanistan has arrived in Uganda. 51 people evacuated from Afghanistan landed in a chartered flight in Entebbe, where they were received by the U.S. ambassador to Uganda. The refugees will be granted temporary asylum in Uganda until they are resettled in a third country.
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Chris O. Ogunmodede is an associate editor with World Politics Review. His coverage of African politics, international relations and security has appeared in War on The Rocks, Mail & Guardian, The Republic, Africa is a Country and other publications. Follow him on Twitter at @Illustrious_Cee.
