The Kenyan Supreme Court writes a new chapter in the history of the rule of law in Africa

"The Honorable Willy Mutunga" by Ford-Foundation is licensed under Creative Commons by 2.0.

Editors’ Note: This post constitutes part of a blog series on the Building Bridges Initiative (BBI) in Kenya, through which President Uhuru Kenyatta attempted to introduce the Constitution of Kenya (Amendment) Bill, 2020. Among the various reforms proposed therein, the bill introduced a new post of Prime Minister which, it has been speculated, is a role that President Kenyatta could seek should he lose the presidency. The bill was opposed on the basis of its constitutional validity and traversed the Kenyan courts, finally reaching the Supreme Court. A split bench of the Supreme Court held that the bill was irregular and unlawful because the constitutional requirement of public participation was not satisfied through the process of the bill’s introduction. This series seeks to provide a global perspective on the significance of the Kenyan Supreme Court’s judgment, and features contributions from legal experts and practitioners reflecting on the judgment and its implications for Kenya’s legal landscape. The series is being sponsored and organised jointly with the ICONnect blog, and all posts will appear on both blogs.

Dr Stefanie Rothenberger, head of the Konrad Adenauer Stiftung’s Rule of Law Programme for Anglophone Sub-Saharan Africa, reflects on the Kenyan Supreme Court’s recent decision on the Building Bridges Initiative with Dr Willy Mutunga, the former Chief Justice of Kenya.

It is just before Easter, and I am in an Italian restaurant in the centre of Nairobi, sitting across from Willy Mutunga, a thoughtful man with a wealth of experience, calm, friendly eyes, and an alert gaze.

You can tell at once that Willy Mutunga has seen a great deal in his lifetime – a dedicated campaigner for democracy and justice who was a political dissident in the years of President Moi’s dictatorship and who was imprisoned back then, only to become, many years later, the first Chief Justice and President of the Supreme Court of Kenya under Kenya’s new Constitution of 2010.

Our conversation quickly turns to a topic which has been a recurring subject in my work for months, and which has dominated political debate in the country for almost three years. On 31 March 2022, the Supreme Court of Kenya delivered its eagerly awaited verdict on the controversial Building Bridges Initiative (BBI), one of Kenyan President Kenyatta’s most important political projects during his second term in office.

Initiated after the famous “handshake” between political arch-enemies Uhuru Kenyatta and Raila Odinga in March 2018, the BBI was touted as a reform project to promote national unity, accompanied by serious interventions in the Kenyan Constitution. Yet, rather than building bridges, the BBI seems to have since divided the country.

When the Kenyan High Court declared the BBI unconstitutional and thus “null and void” in May 2021, the country held its breath for a moment. The first-instance ruling by the five-judge bench of the division responsible for constitutional petitions at the High Court in Nairobi came as a surprise, particularly in how unequivocal it was – a spectacular and unprecedented legal ruling against the government.

The Supreme Court’s verdict halted the BBI but did not declare it “null and void”, which is why opinions are currently divided on the decision. Irrespective of the current analysis and discussion of the final judgment, the Supreme Court has undoubtedly delivered one of its most significant rulings against the Kenyan government since the annulment of the presidential election in 2017, and thus provided further impressive evidence of judicial independence in Kenya and the region.

Willy Mutunga moves his glass aside and furrows his brow. Many Kenyans, he counters, would probably consider my opinion on the ruling too optimistic, and take a much more critical view. For many people, the Supreme Court’s judgment fell short of expectations and was effectively a wasted opportunity.

His comment does not come as a surprise to me, as debate has been raging for days about why the Supreme Court deviated from the lower courts’ rulings in key respects. A closer look at the judgments reveals a fair amount about Kenya’s judicial culture and the fundamental challenges facing justice systems in the region.

“The pressure the Supreme Court had to withstand from all sides can only be imagined. Some experts have described the judgment as pragmatic and politically astute. The relationship between the judiciary and the executive in Kenya is not an easy one.”

Willy Mutunga has experienced first-hand what it means when the political elite undermine a constitution until it is unrecognisable, until it has all but disintegrated. He talks about how Kenya’s Independence Constitution of 1963 was robbed of its rule-of-law structures by countless reforms, until by the early 1980s the country had in practice become an autocratic, one-party state; this is known in Kenya as a culture of “hyper-amendment”. Other countries in the region, such as Uganda and Tanzania, have had similar experiences.

From the early 1990s, after the reintroduction of multi-party democracy, Mutunga was himself involved in the processes to draw up a new constitution, which were initiated primarily by a strong citizens’ movement opposed to the Moi regime. It was not until some years later, in 2010, that the Constitution was adopted.

Willy Mutunga explains the Kenyan people adopted an exemplary constitution due to the painful experiences of the preceding decades, a constitution which guarantees a stable democratic system and the protection of human rights. Accordingly, the High Court interpreted the Constitution in its historical context and found that the Kenyan people intended to adopt a constitution whose core is protected and cannot be amended.

The Kenyan Constitution is unique primarily because of the process by which it was produced, which included broad public participation, something which was taken extremely seriously. The Constitution of Kenya Review Commission set up in 2000 organised countless public consultations across the entire country, and in its final report, whose conclusions fed into the Constitution adopted by referendum in 2010, the Commission discussed in detail the wishes and fears expressed by the public regarding every single topic.

As a result of this remarkably inclusive process, the Kenyan people identify strongly with the Constitution, and its roots go deep. The BBI proceedings were about defending precisely these achievements of a constitution based on the will of the people, Willy Mutunga tells me.

I ask him whether, in his view, the Basic Structure Doctrine is more of a foreign and thus “un-African” legal concept. He immediately says that this is not the case, and spontaneously comes up with a wonderful translation into Kiswahili: nguzo, the pillar.

In contrast to the lower courts, the Supreme Court declared that the Basic Structure Doctrine is not applicable, finding instead that the articles on constitutional amendment contained in the Constitution offer sufficient protection against abusive encroachments on the foundations of the Constitution.

Ultimately, the Supreme Court draws the line elsewhere and much earlier in the process. It finds that there was a significant procedural error in how the entire BBI process was conducted. The crux of the matter is that the process, which took the form of a Popular Initiative, was according to the Supreme Court initiated by the President himself. This was held to be incompatible with his constitutional function in giving final approval to the law after the referendum has been held.

The Supreme Court also distanced itself from the criticism of the lower courts that the BBI process lacked citizen participation, among other things because the BBI reports were only published online and were not available in Kiswahili.

All in all, the Supreme Court’s judgment does in fact differ – in some respects considerably – from the rulings of the lower courts. Nonetheless, the outcome of the proceedings should be seen as a success. While it is true that BBI could indeed be revived, as it failed primarily due to procedural issues, the Supreme Court put a clear stop to the current initiative and thus acted as a constitutional check on the executive.

The pressure the Supreme Court had to withstand from all sides can only be imagined. Some experts have described the judgment as pragmatic and politically astute. The relationship between the judiciary and the executive in Kenya is not an easy one.

Nonetheless, the judiciary in Kenya is resolutely and in some cases courageously asserting its position, as the various BBI judgments have surely proven once again. Some courts in the region are doing the same as the Kenyan courts: take, for example, the annulment of the 2019 presidential election by the Supreme Court of Malawi, or the 2021 decision by the High Court of Zimbabwe declaring that the President’s arbitrary extension of the tenure of the incumbent Chief Justice was unconstitutional. One can only hope that this will develop and consolidate a trend for the future in sub-Saharan Africa.

The restaurant has emptied; we are the last remaining guests. After all of this information, facts and background, what I want to ask is: what is Willy Mutunga’s final view of the judgment, what does it mean for the future, and am I right in my own assessment?

For a moment we are silent. He looks pensive, as though he has to arrange several complex thoughts. We should ultimately see the judgment for what it is, he says finally and with emphasis: evidence of judicial independence and loyalty to the Constitution, delivered in difficult circumstances, and at the same time a major victory for the people of this country. We should celebrate the judgment and not be over-critical, as we Kenyans often are, he tells me.

He talks of a process that is taking place one small step at a time, which requires patience and a sense of proportion, and in which the judiciary is increasingly gaining in stature. The judgment will resonate across the region, he tells me, and could be a source of inspiration and encouragement for courts in other countries.

All of the criticism notwithstanding, the judgment will send an important signal that the government will have to consider its actions more carefully in future. Undoubtedly, he says, the people’s trust in the judiciary has been strengthened. However, he adds, the road ahead is still a long one, and it will be a rocky one at times, but undoubtedly also a hopeful one.