2Oth May 2024
INTRODUCTION
The case The Attorney General and Others v David Ndii and Others Petition No 12
Of 2021
(Consolidated Petition Nos. 11 & 13 Of 2021) (Hereinafter
referred to as ‘Davd Ndii case’) has been immensely celebrated in the recent
years, indeed it is landmark judgment for it expounds upon significant
principles and concepts relating to constitutional law. the subject matter in
the case in casu was on the amendment
of the Kenyan Constitution. On the other hand, the case of Law Association of Zambia and Chapter One Foundation v the Attorney general
(2020 ZMCC 4) brings to light similar significant principles to the David
Ndii case that have relevant application to Zambian Constitution law.
On the aforementioned basis, this piece of writing will attempt to provide a profound discussion on the various constitutional principles and concepts as espoused by thse case of the Attorney General and others v David Ndii and others (hereinafter referred to ‘the David Ndii Case’), it will further attempt to provide a comparative analysis on the Zambian case of Law association of Zambia and Chapter One Foundation v The Attorney General (2020 ZMCC4).
THE SUPREME COURT FOR KENYA
THE
ATTONEY GENERAL AND OTHERS v DAVID NDII AND OTHERS PETITION NO 12 OF 2021
(CONSOLIDATED PETITION NOS. 11 & 13 OF 2021)
(The David
Ndii Case) Brief Facts
The genesis can be traced to the
outcome of the 2017 presidential elections. Following the initial and recurrence
presidential elections in 2017, His Excellency Hon. Uhuru Kenyatta, the
President of Kenya at the time embarked on uniting a divided Nation, which led
to the reconciliation famously known as the ‘Handshake’ between him and Hon.
Raila Odinga, the then leader of the opposition coalition, on 9th March, 2018.
What followed from this is that the president initiated a public initiative
which was constituted through various committees whose primary aim was to
substantially amend the Constitution.
It is against this background
that the respondents commenced an action against the appellants in the courts
below challenging the constitutionality of the process which resulted in the
amendment bill and the contents thereof. Suffice to note that the legal issues
raised in the High Court and the Court of Appeal were exactly the same that
were under contention in the Supreme Court.
LEGAL ISSUES RAISED
1. Whether
the basic structure doctrine was applicable in Kenya as far as amendments of
the Constitution are cornered?
Under this head, the respondents in
the courts below argued that the basic structure doctrine which promotes the
idea that certain provisions of the Constitution are unamendable, does apply in
Kenya and more fundamentally they claimed that the doctrine has universal
application. The appellants relied on the Indian case of Kesavanada Bharati v State of
Kerala (1973 AIR SC 1461).
2. Whether
an amendment to the Constitution through a popular initiative could be
originated by a private citizen?
Under this head, the appellants were
aggrieved by the Court of Appeal’ ruling that state actors, in particular the
president cannot initiate an amendment to the Constitution. The argued that
every citizen regardless of their status must be accorded the latitude to
initiative and promote an amendment process to the Constitution by a public
initiative.
3. Whether
civil court proceedings could be instituted against the President or a person
performing the functions of the office of the President during their tenure of
office? Under this ground, it was asked whether the president could be
subjected to civil court proceedings where he/she is alleged to have breached
provisions of the Constitution
4. Whether
the Court has jurisdiction over issues that are not yet enacted into law? Under this head, the appellants contended
that the courts had no jurisdiction to hear the petitions on the grounds that
the issues raised were not justiciable since the amendment process was still
ongoing and some of the issues were either res
judicata or sub judice.
HOLDING
In reference to the first legal
issue, the Supreme Court held that the basic structure doctrine is not a
doctrine so as to suggest its universal application. The basic structure is not
a universal accepted principle and thus the Supreme Court for Kenya was not
bound by it, essentially the basic structure doctrine does not apply to
Kenya.
The Supreme Court was not
persuaded by the case of Kesavanada Bharati v State of Kerala (1973
AIR SC 1461), which guided that the basic structure doctrine protects
arbitrary amendments to the Constitution that alter or dismantle the core or
fundamental structure and appearance of a Constitution, and as such certain
fundamental provisions are basically unamendable; they could only be amendment
by primary constituent powers (powers that directly flow from the people)
through 4 basic steps namely: (i) Civic
Education (ii) Public participation and collation of views (iii) Constituent
Assembly Debate and Consultation (iv) Referendum. The courts below endorsed this position. The
Supreme Court however, held that the power to amend the Constitution solely
rests upon the citizenry therefore, it is them who must choose how to amend a
Constitution. The Supreme Court further
mentioned that in order to protect fundamental provision in a Constitution from
being arbitrary altered, there is need to provide for a robust and rigid
process of amendment. It is this idea that the basic structure seeks to
achieve, however, the Supreme Court held that it is unnecessary to follow the
basic structure and the four steps it promulgates because the Kenyan
Constitution itself already provides for unambiguous and rigid processes of
amending the Constitution.
The Supreme Court stated as follows in
paragraph [1803]:
“This
balance was achieved by clear, unambiguous, and distinct ‘tiered’ design model
codified in Chapter Sixteen. It is generally accepted that one of the ways to
address the problem of abusive constitutional amendments is the constitutional
design, which would include the ‘tiered’ amendment procedure. This design
combines the values of rigidity and flexibility, applying different procedures
of amendment for different provisions of the Constitution. See David Landau and Rosalind Dixon’s, Tiered
constitutional Design, 86 GEO. WASH. L. REV. 438 (2018).”
In paragraphs [1804-1806] the
Supreme Court exemplifies how rigid and complex the amendment process is
designed, and this design is aimed to safeguard the Constitution from arbitrary
alterations. In paragraph [1807] the Supreme Court states as follows:
“In
view of the explicit, long, complex and in most cases unpredictable process of
amending the Constitution, it can be said that there are no implied
constitutional limitations by which the Constitution should not be amended in
any way. There are sufficient safeguards to ensure that those provisions
ring-fenced in Article 255(1) are secured against unwarranted amendments…”
Essentially, the Supreme Court
held that the procedures of amending the Constitution envisaged under Article
255(1) of the Kenyan Constitution adequately safeguarded the Constitution
itself therefore, there is no need to implement the additional procedures
stimulated by the basic structure.
In reference to the second legal
issue, the Supreme Court reaffirmed that in Kenya, the Constitution can only be
amended through two means; either (i) through parliament as provided under
Article 256 or (ii) by a public initiative as provided under Article 257. the
people exercise the primary constituent powers when amending the Constitution
through a public initiative mechanism and secondary constituent powers when
amending the Constitution through elected parliamentarians. Therefore, primary constituent powers must be
exercised directly by the ordinary people and the court stated that no stretch
of imagination would make the president an ordinary citizen. A public
initiative is meant to be instituted and promoted by the ordinary people
themselves as it from them powers to amend the Constitution is drawn, the only
means the president might be seen to promote an amendment to the Constitution
is through the parliament mechanism.
Making reference to the third
legal issue, the Supreme Court held that president is clothed with immunity
against civil and criminal proceedings. The Supreme Court stated at page 919 of
its judgement to the effect that:
“The
extent to which the President’s immunity extends is in respect to official
actions while in office for which no civil proceedings can be brought against
him in his personal capacity, in his name. The President’s actions while in
office are actions of the State and not personal.”
However, the court further made
mention that immunity that the prudent enjoys is not absolute, individuals who
are aggrieved by the exercise of the president power may institute an action by
which they should name the Attorney General.
Regarding the fourth legal issue, the Supreme Court
mentioned that the doctrine separation of powers demands that the three organs
of government must perform the functions constitutionally required of them
therefore, the judiciary must not usurp the powers of given to the Legislature
or Executive. The Supreme Court in paragraph [673] made reference to the case
of Wanjiru Gikonyo & 2 Others v.
National Assembly of Kenya & 4 Others, Petition No. 453 of 2015; [2016]
eKLR where it was stated that:
“…courts
and judges are not advise-givers. The court ought not to determine issues which
are not yet ready for determination or is only of academic interest having been
overtaken by events. The court ought not to engage in premature adjudication of
matters through either the doctrine of ripeness or of avoidance. It must not
decide on what the future holds either.”
The substratum of the above is that the court must refrain
from adjudicating on issues that are not yet amenable to adjudication, examples
of such are matters that are not yet law. however, the Supreme Court
nevertheless held that the High Court and indeed the Supreme Court had jurisdiction
to adjudicate over the bill to amend the Constitution despite it not being law,
relief was taken in Article 165 (3)(b) of the Kenyan Constitution which reads:
“(3)
subject to clause (5), the High Court shall have –
(a)………
(b)
jurisdiction to determine the question whether a right or fundamental freedom
in the bill of rights has been denied, violated, infringed or threatened.”
The above provision vests the
courts with jurisdiction to adjudicate over a bill that would potentially
infringe the Constitution in relation to the bill of rights, further, the
Supreme Court demonstrated that the courts have jurisdiction to adjudicate over
unconstitutional processes of amending the Constitution itself.
SIGNIFICANCE AND APPLICATION
(i)
The Basic Structure Doctrine:
The Supreme Court was at pains in
addressing the basic structure doctrine and its connotation. Basically the
basic structure doctrine refers to the unamendable nature of certain provisions
of a Constitution, the doctrine propounds the idea that every Constitution is
founded upon basic or key features that cannot be altered as ordinary
provision. The doctrine was first espoused in the famous case of Kesavanada
Bharati v State of Kerala (1973 AIR SC 1461). Which guided that the
basic structure doctrine protects arbitrary amendments to the Constitution that
alter or dismantle the core or fundamental structure and appearance of a
Constitution, and as such certain fundamental provisions are basically
unamendable; they could only be amendment by primary constituent powers (powers
that directly flow from the people) through 4 basic steps namely: (i) Civic Education: where the citizens
are educated on the effects of the proposed amendments (ii) Public participation and collation of views, where the general
public participate in the process which may include but not limited to:
participating in polls, workshops etc.(iii)
Constituent Assembly Debate and Consultation, where public debate and
discussions are conducted and considered
(iv) Referendum, which will serve as platform on which the citizens will
either accept or reject the proposed amendments.
However, the Supreme Court
rejected the application of the doctrine in Kenya. One of the reasons to that
effect is the ambiguity that surrounds the identification of which provisions
in the Constitution can be regarded as so fundamental that they are basically
unamendable seeing all provisions in the Constitution are essentially as
important as the other. Another reason is that the Court held that the
rationale behind the basic structure doctrine which is to safeguard the
Constitution from arbitrary amendments had been achieved by the established
rigid mechanisms of amendment in the Constitution itself, therefore, it
presented no need to find recourse to the basic structure doctrine.
(ii)
Presidential Immunity
Presidential immunity general
speaking refers to the protection accorded to the president from the
institution of any civil or criminal proceedings against them. The Supreme
Court profoundly guided that the president enjoys immunity for actions done
during his/her tenure in office and this immunity extends to persons acting as
president i.e. during the time they act as president. However, the president
does not enjoy absolute immunity as that would hoist the president or the
holder of the presidency above the Constitution. On that basis, though the
president cannot be challenged in their personal capacity, persons aggrieved
with the actions of the president may institute actions against the state.
Why this is so is that
essentially, the president during their tenure as president is deemed to be
acting on behalf of the state and therefore being an agent of the state is it
the state through the Attorney General who must be sued. The rationale behind
presidential immunity inter alia is so as to prevent the president to be
subjected to potential unnecessary litigation.
(iii)
Manner and Form Doctrine
The national assembly is vested with the mandate and powers
to enact legislation and this extends to making changes to the Constitution.
However, the legislature in discharging their mandate must conform to the
stipulated laid down procedures that the Constitution outlines, this is
referred to the manner and form doctrine. The doctrine provides that the procedural
aspect when amending the Constitution must be adhered to otherwise the process
would be unconstitutional. Although express mention was not made in relation to
the doctrine, but the
Supreme Court’ declaration that
the Bill was unconstitutional for inter alia lack of abiding to the stipulated
procedures of amending the Constitution as outlined in the Constitution
suggests that the manner and form doctrine applies to Kenya and ought to apply
in every county in relation to the Constitution
(iv)
Sacred Nature of the Constitution
The Constitution is often said to
be a living document and forms the foundation of ever country, therefore,
unwarranted and superfluous tampering of the Constitution often leads to a
breakdown of a nation which inevitably leads to ciaos. On that basis, the
Supreme Court made it clear that any threats to a Constitution must be
addressed in the soonest time as possible, the courts must not only be
concerned with the constitutionality of a law but also the constitutionality of
a process and substance of proposed law more so if it allegedly threatens the
fundamental or substantive provisions of the Constitution (Emphasis is
mine).
In the same breath, it is crucial
to understand that the Doctrine of
Ripeness dictates that the courts must not be concerned with issues that
are not ready to be adjudicated upon, and one such example are issues that are
not yet enacted into law. on this account the courts must not pronounce
themselves on issues that are not law, issues that are simply of public
discussion or debate, issues that are speculative and ‘neither here nor there.’
Therefore, strict adherence to this rule would mean that the Supreme Court
erred to have adjudicated over the amendment Bill as a Bill is not law,
however, it is important to restate that the Constitution is a sacred, living
document that any slight tampering of it may lead to disorder. It is on this
basis that the author submits that as the Supreme Court properly guided, as an
exception to the Doctrine of Ripeness,
the courts may have latitude to adjudicate over contentious issues that have
culminated into a mature stage such as in the form of a Bill, that allegedly
threaten the fundamental or substantive provisions of the Constitution.
Fundamental or substantive provisions of the Constitution would mean an
instance where a Bill seeks to amend fundamental provisions like the Bill of
rights, presidential powers, finance, elections or the Bill seeks to make
overwhelming changes to the Constitution.
(v)
Doctrine of Ripeness
This point has been discussed in the above
paragraph.
THE CONSTITUTIONAL COURT FOR ZAMBIA
LAW ASSOCIATION OF ZAMBIA AND CHAPTER ONE
FOUNDATION V THE ATTORNEY GENERAL (2020 ZMCC 4).
(Herein
Bill 10 Case) Brief Facts
The
genesis of this case lies in the initiation, signing, publication and tabling
of the Constitution of the Zambia (Amendment) Bill No 10 of 2019 (hereinafter
referred to as Bill No 10) before the national assembly, by the
respondent.
LEGAL ISSUES RAISED
1. Whether
or not the process leading to the introduction of Bill No 10 before the
national assembly offended the basic structure doctrine?
Under this ground, the petitioners argued that the Republican
President’s, the Attorney
General’s and the National Assembly’s
decisions respectively to initiate, sign and table the Bill in National
Assembly contravened Articles 1(2), 8, 9, 61, 90, 91 and 92 of the Constitution
as the process through which it birthed did not take into account the national
values and principles: was not consultative or inclusive and touched the basic
structure of the Constitution.
2. Whether
the Constitutional Court for Zambia has the jurisdiction to intervene when the
questions raised pertain to a Bill, which is proposed legislation and not yet
law.
Under this ground, the
petitioners argued that the Constitutional court had jurisdiction to adjudicate
on an issue relating to the constitutionality of a Bill it the said Bill
offended the basic structure or where the process offends that set out in the
Constitution.
HOLDING
In reference to the first legal
issue, the Constitutional court wasted no time in dismissing the ground. At
pages 10-11 the Constitutional law observed:
“in
determining this question, we stated that the 1st and 2nd
petitioners have sought declarations based on provisions of the Constitution,
in particular, Articles 8,9,61 on national values and not yet been enacted into
law, the same cannot be challenged”
Essentially, the Constitutional
Court held that articles 8,9 and 61 cannot be relied upon when challenging the
legality of a Bill because the national values envisaged in the said articles
had not been given their practical effect so as to attain the status of law. in
relation to Articles 90,91 and 92, the Constitutional Court was not satisfied
by the petitioner how the whole process of the Bill had offended the said
Articles.
In reference to the second issue, the Constitutional Court
began by reading out Article 128 of the Constitution from which it draws its
jurisdiction from, at page 15 observed that:
“as
can been seen from the provisions of Article 128, the Constitution Court has
very wide jurisdiction subject to Article 28. However, although the
jurisdiction is extensive, it is still limited by the Constitution itself in
Article 128. Therefore, as a creature of the Constitution, the Constitution
Court can only exercise the jurisdiction and power to it by the Constitution.”
The Constitutional Court went on to state that nothing
within Article 128 or any provision in the Constitution that gives the Court
Jurisdiction to question the contents of a Bill or declare it unconstitutional.
The court further made reference to Article 131 at page 361 of the Draft Final
Report of the Technical Committee (which was a committee constituted to
formulate a draft Constitution for consideration) dated 30th
December, 2013 which reads:
“(1)
….
(2) where the Constitution Court considers that
a challenge of a Bill, under this Article is frivolous or vexatious, the
Constitutional Court shall not decide further on the question as to whether the
Bill is or will be, inconsistent with this Constitution but shall dismiss the
action.
(3) where the Constitutional Court determines
that any provision of a Bill is, or will be, inconsistent with any provision of
this Constitution, the Constitution Court shall declare the provision
unconstitutional and inform the Speaker and the President
(4) clauses (1),
(2), and (3) shall not apply to a money Bill or a Bill containing only proposals for amending this Constitution or the
Constitution of Zambia Act. (emphasis is mine)
(5) ………….”
It is made clear by clause (4)
above that the drafters of the Constitution did not intend to clothe the
Constitutional Court with jurisdiction to adjudicate on issues relating to
contents of a Bill to amend the Constitution.
Furthermore, the Constitutional
Court in obiter observed that the court is vested with jurisdiction over a
Bill, which is proposed legislation, if the issues relate to compliance with
the procedure of amending the Constitution as provided by Article 79 of the
Constitution itself.
Citing the case of Godfrey
Miyanda v The Attorney General (1983 Z.R 78 SC) at page 25 paragraph (43), the
Constitutional Court stated:
“…this
Court is not completely devoid of jurisdiction to intervene, as appropriate,
when alterations to the Constitution offend the formal procedure set out for
constitutional amendments.”
It further held:
“Thus,
we re-assert our holding in the Godfrey Miyanda case that this Court would be
on firm ground to declare unconstitutional, proposed amendments or amendments
to the Constitution where there has been an infraction of Article 79 which
prescribes the amendment process to be followed by parliament.”
Essentially, the Constitutional
Court held that the only instance in which they Court will have jurisdiction to
scrutinize a Bill (which is proposed legislation) is where the questions raised
relate to the Bill offending the procedure spelled out in Article 79 of the
Constitution
SIGNIFICANCE AND APPLICATION
(i) The
Basic Structure Doctrine
The basic structure doctrine
refers to the unamendable nature of certain provisions of a Constitution. The
doctrine propounds the idea that every Constitution is founded upon basic or
key features that cannot be altered as ordinary provision or provisions that
cannot be offended when amending a Constitution. In casu, the petitioners argued that the process leading to the
introduction of Bill No 10 before the national assembly offended Articles 1(2),
8, 9, 61 of the Constitution which provide for national values. According to
the petitioners, the National Values play an integral part in a democratic
state like Zambia, as they reaffirm the power vested in the people of Zambia
therefore, they form part of the basic structure of the Constitution which
cannot be flouted when amending the Constitution.
However, the Constitutional Court
having had the occasion to in depth consider and guide whether the basic structure
doctrine applies to the Zambian Constitution did not really address the
question to any measure of reasonable satisfaction. The Constitutional Court
was quick to dismiss the case on the basis that it lacked jurisdiction to the
review the contents of a Bill. Considering whether the cited Articles form part
of the basic structure of the Constitution would have invited the Court to
delve into the contents of the Bill. To this regard the Constitutional Court
cited with approval the Kenyan case of Mohamed
Abdi Mahamud v Abdullaho Mohamed & 3 Others [2018 eKLR 1] in which the
Supreme Court observed:
“…
and, a Court’s jurisdiction is not a matter of procedural technicality but one
that goes to the root of the Court’s adjudication process, if a Court lacks
jurisdiction to entertain a matter, it downs its tools”
Basically, the Constitutional
Court was reluctant to address further issues when it found that it lacked
jurisdiction in the matter itself. The author submits that the Constitutional
Court would however, have taken the opportunity to provide legal clarity on the
subject, the Basic Structure Doctrine is a highly contested constitutional law
concept in respect of its application, therefore, the Court would have done us
a service if it satisfactorily guided on the subject.
(ii)
Manner and Form Doctrine
The National Assembly is vested
with the mandate and powers to enact legislation and this extends to making
changes to the Constitution. However, the legislature in discharging their
mandate must conform to the stipulated laid down procedures that the
Constitution outlines, this is referred to the manner and form doctrine. The
doctrine provides that the procedural aspect when amending the Constitution
must be adhered to otherwise the process would be unconstitutional.
On account of the foregoing, the procedure to amend the
Constitution of Zambia I well spelled out by Article 79 of the Constitution and
clearly put, AN ENACTED BILL IS ILLEGAL IF ITS ENACTMENT OFFENDED THE PROCEDURE IN ARTICLE
79. (Emphasis is mine). Therefore,
the Constitutional Court was on firma terra when it held that the Court has
jurisdiction to intervene when proposed legislation seems to offend the Article
79. This affirms the application of the manner and form doctrine to Zambia.
(iii)
The Court’s Jurisdiction over a Bill
Simply put, the courts have
jurisdiction to intervene and declare a Bill unconstitutional if the process
taken to its enactment offends key procedures as outlined in Article 79 of the
Constitution. The court does not have jurisdiction to delve into the contents
of a Bill. This is so even where there is clear provision in a Bill that
clearly are unconstitutional, the courts in that case will have to wait for the
Bill to be enacted into law and then declare those provisions unconstitutional.
In the case in casu, the
Constitutional Court stated that the petitioners failed to prove how Bill 10
offended the procedure in Article 79 of the Constitution, and it declined the
petitioners’ invitation to delve into the contents of Bill 10.
(iv)
Parliament Enjoys Exclusive Cognizance Over its
Internal Affairs.
Parliament as in independent arm
of Government is mandated to enact laws so long as they are in compliance with
Article 79 of the Constitution. Hence, the courts cannot interfere with conduct
of the internal affairs of parliament when it is exercising its constitutional
mandate to legislate. This aspect is vital if the concept of separation of
powers is to be effected, as the judiciary would be usurping the power of the
legislature and assume the role of law maker and law interpreter if they courts
are allowed to intervene in law making process whenever possible.
SUMMATIVE COMMENTARY
The case David Ndii and the Bill
10 case bring out significant constitutional law principles with rich
application to constitutional law in Kenya and Zambia respectively. The
similarity of the cases stems from the facts: both cases involved petitions to
declare a Bill to amend the Constitution unconstitutional, while in the David
Ndii case the Supreme Court declared the Bill unconstitutional on the basis
that it offended procedures set out by the Constitution itself, the
Constitutional Court in the Bill 10 case order no such declaration on account
that the procedure set out by the Constitution of Zambia was not offended.
It is important to note, in the
David Ndii case, the Supreme Court not only declared the Bill unconstitutional
on account of procedural irregularity, but also because certain provisions in
the Bill clearly violated the Kenyan Constitution. By doing so, the Supreme
Court delved into the substance of the Bill. The Court did so on the basis that
threats to the Constitution need to be addressed at the soonest possible time,
even though that might be a justifiable rationale, the author opines that courts
must be wary when operating on such a basis so as not to usurp the powers of
the legislature. Indeed, the legislature’s mandate to legislate may be
compromised if the Courts take up an inherent jurisdiction to interfere in the
lawmaking process. However, In the Bill 10 case, the Constitutional Court
directly rejected the preposition that Courts must have jurisdiction to delve
into the substance of a Bill, the Court only considers whether the process is
constitutional and not whether the provisions in the Bill are
constitutional.
In summation, the David Ndii case
is rich with constitutional law principles that were discussed, the Supreme
Court discussed the following principles: (i) the basic structure doctrine,
(ii) Presidential Immunity, (iii) manner and form doctrine, (iv) sacrosanctity
of the Constitution and the (v) Doctrine of Ripeness. The Bill 10 case brings
out the following principles that the Constitutional Court discussed: (i) the
manner of form doctrine and (ii) the basic structure of doctrine (iii) the
Court’s jurisdiction over a Bill and (iv) parliament enjoys exclusive
cognizance over its internal affairs
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