LIMITATIONS ON CONSTITUTIONAL AMENDMENT IN EXTREME CONDITIONS: THE KENYAN CASE

LIMITATIONS ON CONSTITUTIONAL AMENDMENT IN EXTREME CONDITIONS: THE KENYAN CASE

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Limitation on Constitutional Amendments in extreme conditions: The Kenyan case

Abstract

A closer examination of Kenya’s constitution reveals that the provisions were designed to make it nearly impossible for the amendment process during the state of emergency period. Scholars opine that the driving factor is aimed at forbidding the political players from amending the constitution in the heat of the moment to spur nationalism which at times may be geared towards exploiting the crisis. This essay emanates from the work of leading constitutional law scholars Professors Richard Albert and Yaniv Roznai. From it, the essay seeks to explain Kenya’s position concerning the constitutional amendment in times of emergency in its transformative constitutional dispensation with a focus on the history of the state of emergency in Kenya and what may have informed the current safeguards in the constitution.

Introduction

A state of emergency is a situation in which a government is given the authority to enact policies that it would not normally be allowed to enact for the safety and protection of its citizens. It can also be defined as a government declaration that results in the suspension of some functions of executive, legislative, and judicial powers, alerting the public to change their usual behavior, or instructing government agencies to put emergency preparedness plans into action.

Kenya’s experience with a state of emergency is limited to the one that was declared in October 1952 during the Mau Mau rebellion and the Shifta war of 1963-1967. The declaration of a state of emergency in Kenya has been characterized by massive human rights violations such as detention without trial, torture, cruelty, loss of property, inhuman or degrading treatment or punishment, and restriction of freedom of movement within concentration camps to mention but a few.

State of emergency in Kenya

Pre-independence Kenya

Kenya's emergency powers date back to 1895 when it became a British Protectorate under the Imperial British East Africa Company (IBEACO). Throughout this time, the commissioner, and later the Governor, had broad powers on emergency powers, particularly over the detention and deportation of dissidents. It is worth noting however, that the Governor-General then, required the approval of two-thirds of Members of the Legislative Council to issue an emergency order. The approval had to be granted within a week. The state of emergency was supposed to last of two months unless renewed by the Legislative Council.

It is correct to say that emergency powers during this period were primarily used against Africans. Nationalists, in particular, questioned discriminatory and repressive colonial policies. To that end, it is clear that the state of emergency had found a new purpose: to quell the suppression perpetrated by Kenyan nationalists. The emergency clause was never intended to save a state's life. As a result, the role of emergency powers during the struggle for independence can be seen to have been geared towards perpetuating and sustaining an unpopular order for a large portion of the population who were Africans.

Post-Independence Kenya (1963-2010)

Kenya embarked on a drastic but eventful restructuring of the emergency powers in place three years after gaining independence. The executive branch of government justified the restructuring by claiming that it was critical to maintaining statehood during times of calamity and danger, such as wars. The governor-general was required to have two-thirds support to declare a state of emergency in pre-colonial Kenya, and the same was replicated in the independence constitution. Furthermore, the word "emergency" was deleted from the independence constitution; while enacting the Preservation of Public Security Act (PSA), Parliament went even further, deleting the word "emergency," with then-Attorney General Charles Njonjo arguing that it was "unnecessary and misleading." After all, it seemed that the political class, specifically the executive arm, was uneasy with the powers granted by the constitution to Parliament to check excesses and prevent abuse during a state of emergency.

The executive was also victorious in its pursuit to amend Section 29 of the independence constitution in 1965. The amendment to this provision meant that the executive would only need a simple majority to declare a state of emergency, rather than the two-thirds that was previously required. This, in essence, was the beginning of the executive's onslaught on the constitution in their pursuit of lesser checks on the state of emergency declarations by making it easier for them to declare a state of emergency it so.

Parliament went even further, extending the period during which authorized declarations of emergency could be issued. It should be noted that the independence constitution empowered the Governor-General to declare a state of emergency if the Legislative Council was adjourned, prorogued, or dissolved (unauthorized declaration). However, this was to last no longer than seven days unless Parliament was summoned and the declaration was duly sanctioned, in which case the state of emergency could last up to two months before expiring. Both periods were extended as a result of this amendment; the period for unauthorized declaration was increased from seven to twenty-one days, while the authorized time frame from Parliament was increased from two to three months. An important and symbolic factor informing this amendment was the Shifta War that occurred during the tumultuous secessionist activities in the former North Eastern Province.

Post-2010: The New Dispensation

The Kenyan constitution asserts that the state of emergency may only be declared by dint of Article 132 (4) (d) of the constitution. The said provision defines the President's function, which includes declaring a state of emergency. To that end, Article 58 of the constitution pronounces that a state of emergency may only be declared if the country is threatened by war, invasion, general insurgency, disorder, natural disaster, or another public emergency. Article 58 (1) (b) posits that the declaration ought to be very necessary to meet the circumstances for which it was declared.

Before going into a detailed analysis on the constitutional position with regards to the emergency amenability of Kenya’s constitution, it is vital to interrogate why the framers made it difficult for the executive to have an expressway to amend the constitution in such unprecedented times. The wording of Article 58 (2) reveals that the original intent of the constitution's framers envisaged a scenario in which the Head of State, in declaring a state of emergency, would not undertake anything that would bring disrepute to the state. Such actions that the framers sought to cure include for example repealing old legislation and enacting punitive legislation for security or personal gains, enforcing martial law, or abusing the state office he occupies.

To that effect, it is fair to state that the drafters envisaged the role of the President in such trying times to be the preservation and protection of the country and the assurance that the constitutional order remains in place, even in the face of adversity. Core reasons that must have informed the framers of the constitution of Kenya include:

Preservation of Constitutional Order

Indeed, those who fail to learn from history are doomed to repeat it. History has shown that constitutional amendments in emergency periods can sometimes result in a "constitutional revolution." When the government declared a state of emergency in North Eastern Kenya on December 28, 1963, security forces were given the authority to detain people for up to 56 days without charge. Furthermore, they had the authority to seize the property of communities allegedly in retaliation for acts of violence, as well as to restrict the right to assemble and movement. A 'prohibited zone was established along the Somali border, and the death penalty was made mandatory for unlicensed firearms possession. There were also "special courts" set up with no guarantee of due process. The human rights violation that occurred during the Shifta War was unimaginable.

The state of emergency in North-Eastern Kenya lasted for five years. During this period, the government of the day introduced numerous amendments to the constitution aimed at mutilating the constitution to consolidate power. In 1964, an amendment aimed at weakening the regional government by repealing levying revenue aimed at making the regional governments dependant on central government sailed through. Next, Parliament amended the approval of the state of emergency by a simple majority. This amendment served as a curtain-raiser to detention without trial. The last bite of the straw was when the state of emergency powers was removed from Parliament and handed to the President which in essence marked the start of detention without trial.

Such terrible events must have informed the framers of the constitution of Kenya to make amenability of the constitution in difficult spells near impossible. The fear among the framers was that in such periods, the democratically elected President acts as a benign dictator expected to steer the country to safety. If his powers are left unchecked, the said benign dictator may exploit the afforded vacuum to transform his rule into a malevolent dictator as was the case during the Shifta war of 1963 to 1967. In such times, the malevolent dictator will be unbound by the set laws in place in terms of the duration of the state of emergency, his primary mandate, and, the existing legal framework aimed at guiding the nation-state in such a period.

Protection of Human Rights guaranteed under the Bill of Rights

Human rights are an essential component of a state's existence. The primary goal of recognizing and protecting human rights and fundamental freedoms, according to Kenya's constitution, is to preserve the dignity of individuals and communities, as well as to promote social justice and the full realization of all human potential. During the 1952 declaration of the state of emergency, it was discovered that over 300,000 Kikuyu had either been killed or forcefully disappeared. It was never known what the 'official' figure was for the number of Kikuyus’ who died. To addition, the Kikuyu, Meru, and Embu tribes were expelled from their ancestral lands and forced to live in Native Reserves that were rocky and subject to soil erosion.

The atrocities committed by the independent government during the Shifta secession war are another turning point as to why the framers of the constitution saw it wise to make it difficult to amend the constitution in a period of crisis. During the war, the Kenyatta government, as explained earlier used extra force to suppress the rebel forces. The government enforced dusk to dawn curfew, they could detain an accused for a period of fifty-six days without trial. The government of the day also maimed and killed many during the war with families of the victims discounting the harrowing torture their kin went through.

The Kenyan constitution posits that fundamental rights are those, which are inherent in human beings, meaning that they are available to them regardless of nationality, place of residence, sex, nationality, ethnic origin, color, religion, language, or any other status. The constitution lays down the procedures for any acts of restriction of rights and fundamental freedoms under Article 24. As such, individuals' freedom as enshrined in the Bill of Rights shall not be restricted except by law, and only to the degree that the restrictions are reasonable and permissible in an open and democratic society anchored in human dignity, equality, and freedom. Notably, Article 58 (State of emergency) (6) (a) (ii) defines that any piece of legislation enacted due to a pronouncement of a state of emergency needs to be consistent with the Republic's commitment under international law as appropriate to a state of emergency. Furthermore, even after a pronouncement of a state of emergency, it is clear in Article 58 (7) that any declaration or legislation enacted or any other action undertaken should not allow or authorize the indemnification of the State, or any individual concerning any illegal deed or omission. Hence, the state or any individual who commits violations and abuses of rights should face the due process of law.

The checks in the constitution are in place because from the history of the existence of Kenya as a nation, we have had occasions where at times our leaders have made wrong choices while responding to aggression. We have learned from history that leaders, in such trying times will not hesitate to sacrifice civil liberties in the name of fighting aggression aimed at fostering peace. In fact, and perhaps what is more annoying, the said leader will gain tremendous popularity for the "decisive actions" taken to combat the aggression. By having emergency limitation mechanisms in place, the constitution powers other organs notably the judiciary, the legislature, and human rights-based organizations to check political and human rights decisions that might be abused by the government of the day. In essence, the constitution puts "breaks" to such impulsive rashness.

Question on whether the President can declare a state of emergency in Kenya?

As earlier mentioned, the Preservation of Public Security Act (PPSA), which came into effect in 1960 is still the law governing the declaration and operationalization of the state of emergency in Kenya. While it is an undeniable fact that the constitution empowers the President to declare a state of emergency, it is evident that the President is powerless given the fact that Parliament is yet to amend the PPSA in line with the current constitution of Kenya. This position is also expressed by Jill Cottrell Ghai who acknowledges that the 2010 constitution is a huge departure from the independence constitution. The reason for so is that, first, unlike the independence constitution, the 2010 constitution has an elaborate system of checks and balances on the declaration and the execution of a state of emergency by the executive arm of government. Second, the current constitution under Article 58 has provided safeguards aimed at protecting the sanctity of the life of the constitution Kenya can borrow a leaf from South Africa, from where its constitution has borrowed heavily. South Africa had Emergency Powers Act before its current constitution was passed in 1966. After the promulgation of the new constitution, they passed a new law in line with their constitution, something Kenyan Parliament appears not to have even thought of.

Steps the constitution of Kenya has taken to control emergency powers

Professor Yaniv Roznai and Professor Richard Albert outline three mechanisms aimed at constraining constitutional actors in periods of emergency. The scholars mention; judicial review, self-destruction trigger, and sunset-escalating rules as the core mechanisms. The constitution of Kenya, which is transformative has incorporated all three mechanisms to ensure maximum checks on the powers of the executive during the emergency period. I will proceed to explain their application.

Judicial Review of emergency amendments

As per our constitution, the Supreme Court, Kenya's Apex court is charged with the mandate of deciding the validity of the state of emergency declaration by the President in line with Article 132 (2) (d). At the same time, the court has the mandate to determine the validity of any extension of the state of emergency including the enacted legislation during this period, and to make sure it is in line with Kenya's international obligation and, other actions are taken to mitigate the adversity. The constitution also gives the Supreme Court power to determine the validity of the limitation of rights and fundamental freedoms affected by the executive during this trying period of a nation's life only to the extent that the limitations of the said rights and freedoms are of necessity to that period in time.

Unlike other countries where the courts are only given powers to check the procedural correctness of the declared state of emergency, in Kenya, the Supreme Court has the power to determine whether both procedural and substantive aspects are satisfied. In determining a matter brought before it regarding the constitutionality of a state of emergency, limitation of a particular right during this period, or administrative action taken by the executive, the court will depend on several factors including but not limited to, firstly, the grounds which the court is given powers to invalidate an amendment, commonly referred to as the jurisdiction of the court. Secondly, the facts surrounding the dispute in question be it an amendment to an act or actions by the executive, and whether the said actions are necessary to protect the populace in addition to being properly tailored to achieve the set objectives.

The lingering question, given the powers granted to the Supreme Court by the constitution, is whether the executive can obey an order invalidating an extension of the state of emergency, declaring a particular amendment or legislation illegal, or declaring government administrative actions unconstitutional, null and void? Admittedly, it is true that the Judicial Review of the executive actions can at times lead to the court going astray, this scenario has been cured by the framers of the constitution, and as such the Supreme Court cannot be accused of going over-board. This is because the constitution not only grants the court to review and determine the procedural correctness of the actions of the executive and the legislature but also the substantive, or contents of government actions. That said, Prof Yaniv Roznai and Richard Albert observe that the courts are very much unlikely to exercise their powers to invalidate an emergency amendment or unconstitutional government administrative action since, they like one of the core actors will "rally around the flag" during the nations trying times. Going against the executive and the legislature in such times is likely to fuel constitutional crisis more so if the President disagrees with the rendered decision thus disregarding the decision of the court.

Self-Destructing trigger

The term synonymously refers to a scenario where the government through the legislature is permitted to amend the constitution and enact legislation to respond to the dire crisis then after a specified period, the said amendment ceases to exist automatically. As I have mentioned before, the history of a Kenya as a nation broadly was a focal point of reference visible in Article 58. The framers must have studied the events in the Shifta War of 1963 where the legislature passed various constitutional amendments which in turn entrenched abuse of power and restricted constitutional rights and freedoms even after the lapse of the state of emergency period. To cure this, the framers inserted Article 58 (2). Here, the constitution commands that a state of emergency declaration and any other necessary legislation enacted or any other administrative action by the government shall only be effective if applied prospectively and not longer than fourteen days. The fourteen-day period applies when the President takes it upon himself to declare a state of emergency without being sanctioned by Parliament.

Article 58 (3) permits the National Assembly to extend the state of emergency in the event they deem it fit. In coming up with the resolution, the National Assembly must publicly debate the motion and if agreed by at least two-thirds of the members, the first extension of not more than two months is effected. The subsequent extensions call to extend the state of the emergency period must be adopted through a cote of at least three-quarters of all members of the National Assembly.

Escalating sunset rules

The distinction between this rule and the self-destruction trigger as explained by Professor Yaniv Roznai and -Richard Albert is that unlike the self-destruction trigger, which naturally at the lapse of the set period repeals the emergency amendment, the escalating sunset rule does not automatically repeal the emergency amendment. Rather, this rule imposes a higher threshold to extend its application. The constitution of Kenya best captures this rule in Article 58 (4) which provides that subsequent extensions before the National Assembly require the support of at least three-quarters of all members for a state of emergency to be gazetted as legal binding law for the next sixty days. The end of that period triggers the escalating sunset rule. This rule authorizes constitutional actors to extend the Expedited Process Amendment for another sixty days, but only if the legislature meets a higher threshold than it took to create the amendment. The constitution of Kenya stipulates three-quarters of all members of the National Assembly to be the highest test of passage.

Conclusion

The rich history of this country has been a very strong reference point when constitutionalism is in question. This essay has shown how it is important to have constitutional safeguards to ensure that the executive arm of government does not have a freeway during difficult times in our history as a nation. The absence of checks and balances as highlighted during the 1952 pre-independence state of emergency and the 1967 Shifta War has proved one thing; that the constitution must have a constraining mechanism to avert human rights abuse and abuse of power.

The drafters of the Kenyan constitution responded by entrenching provisions that made it difficult to amend the constitution. The Bill of rights is one of those provisions. This is meant to uphold the sovereignty of the people of Kenya and shield a key pillar of the constitution from arbitrary alteration by any person or any authority without full participation and endorsement of the people of Kenya. The constitution of Kenya provides for strengthened independent and functional institutions, including and, especially the Judiciary, and the Legislature. These critical institutions are no longer susceptible to executive manipulation. Further, there is a growing international recognition of the interdependence between the promotion of human rights and the realization of good governance. Kenya must move in tandem with the emerging global culture of human rights protection and best governance practices.