Constitutional Amendment and Dismemberment in Kenya

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—Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin

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Yesterday, the Court of Appeal of Kenya announced its highly-anticipated judgment on the Building Bridges Initiative Constitutional Amendment Bill (BBI). The Court of Appeal largely upheld the High Court’s ruling, holding that the BBI violates the basic structure of the Constitution.

Among the seven judges on the Court of Appeal, at least four referred to the concept of “constitutional dismemberment” in arriving at their collective conclusion that the BBI exceeds the authority of amending actors, as reported by journalists at The Saturday Standard (Robert Abong’o and Too Jared) and The Star (Oliver Mathenge).

Justice Daniel Musinga, President of the Court of Appeal, observed that “any amendment that alters the constitution fundamentally is not an ordinary constitutional amendment. It amounts to the dismemberment of the constitution.”

Justice H. M. Okwengu seized on the “distinction between amendment and dismemberment or change and remaking of a constitution.”

Justice Patrick O. Kiage described the BBI as “effectively dismembering the constitution, blasting so huge a hole in it as to pulverize, and essentially create a new Constitutional order.”

And Justice S. Gatembu Kairu stressed that the BBI is permissible “provided the amendments proposed do not amount to dismemberment.”

In this short post, I discuss the conceptual foundations of constitutional dismemberment in the context of this historic judgment.

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First, some context. The BBI is a mega-constitutional amendment bill that sought to transform the Constitution of Kenya. It runs 45 pages in total, contains 74 amendment articles, and includes two Schedules appended to the main text.

The BBI proposed to amend virtually every major part of the Constitution: Chapters Two, Three, Four, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen and Sixteen of the Kenyan Constitution, as well as the Third Schedule to the Constitution.

It is no exaggeration to say that the dozens of amendment articles in the BBI would have affected almost the entirety of the Constitution, effectively leaving none of the existing Constitution unchanged either expressly or by implication.

The Court of Appeal accordingly concluded that the BBI amounted to a dismemberment of the Kenyan Constitution.

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But what exactly is a constitutional dismemberment, and how does it differ from a constitutional amendment?

A constitutional amendment, properly defined, is a constitutionally-continuous change to higher law. It is a change whose content and form are consistent with the existing design, framework, and fundamental presuppositions of the constitution. A constitutional amendment entails unbroken unity with the constitution being amended, and therefore continues the constitution-making project in line with the existing design of the constitution. An amendment may improve on the constitution’s design where necessary or useful to align expectations about how it should function. An amendment may alternatively fix a constitution’s design flaws when they are discovered. An amendment may also restore a constitution’s earlier meaning or it may reform the structure of government. But in all cases, an amendment must cohere with the constitution. An amendment must never push the boundaries of the constitution any further than its outermost limits.

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The Court of Appeal concluded that the BBI exceeded the boundaries of the Constitution of Kenya. It was not an amendment, properly understood. It was a constitutional dismemberment.

A constitutional dismemberment entails a fundamental transformation of the constitution’s core commitments. Constitutional dismemberment alters the identity, the fundamental rights, or the structure of the constitution. It intends deliberately to disassemble one or more of a constitution’s elemental parts. It can occur suddenly in a big-bang moment or gradually by erosion or accretion. To use a rough shorthand, the purpose of a constitutional dismemberment is to unmake and remake the constitution.

The point is that a constitutional dismemberment is a far-reaching alteration that is incompatible with the existing framework of the constitution. It exceeds the boundaries of what we define as an amendment and it endeavors to set the constitution and the country on a new course.

We have seen amending actors around the world pass constitutional dismemberments that defy the basic structure of the constitution. From Brazil to Turkey, from Albania to Japan, from Colombia to Greece–efforts to dismember the constitution are quite common, and sometimes courts have intervened to defend the integrity of the constitution. As we saw yesterday in Kenya.

We can now explain why the Court of Appeal described the BBI as a constitutional dismemberment. The BBI tried to override the fundamental features of the Constitution using the ordinary procedures of constitutional amendment. But changes as far-reaching as the BBI cannot be made using ordinary amendment procedures. Yet that is precisely what amending actors proposed to do with the BBI. And that is a significant part of the reason why the Court of Appeal declined their appeal.

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There will be more to discuss about the Court of Appeal’s ruling when it is released in full-text. For now, it is useful to situate the Court’s conceptual understanding of a constitutional dismemberment as a contrast to the idea of a constitutional amendment.

Suggested Citation: Richard Albert, Constitutional Amendment and Dismemberment in Kenya, Int’l J. Const. L. Blog, Aug. 21, 2021, at: http://www.iconnectblog.com/2021/08/constitutional-amendment-and-dismemberment-in-kenya.