Kenya’s Supreme Court Rejects President’s Plan to Amend Constitution

NAIROBI, Kenya — Kenya’s top court on Thursday quashed an initiative by the president to amend the Constitution, dealing a major blow to a plan that could have cemented his ability to shape the country’s political future ahead of an election that will decide his successor.

The decision by the Supreme Court comes several months after two lower courts — the High Court and the Court of Appeal — both declared the initiative unconstitutional, on the grounds that Kenyan law did not allow a sitting president to initiate and promote amendments to the Constitution.

President Uhuru Kenyatta did emerge victorious on one front, however, when the Supreme Court said that the legal immunity afforded to the president meant that he could not be sued for contravening the country’s laws, overturning a decision in the two lower courts.

The initiative would have introduced a series of constitutional amendments that chiefly broadened the scope of the executive branch, adding new positions for prime minister, two deputies and a leader of official opposition. It would also have created 70 new constituencies, adding dozens of new lawmakers to a Parliament that already has 349 members, many of whom would have been appointed through patronage by political leaders.

On Thursday, the seven-judge bench delivered its decision to a packed courtroom in the capital, Nairobi, with many people across the country following the six-hour-long announcement of the ruling on television, radio or online.

“I endorse the findings of the two superior courts that the president ought not to be a player and an umpire in the amendment process,” said the chief justice, Martha Koome.

Mr. Kenyatta and his attorney general made no immediate comment on the ruling.

The Supreme Court delivered its verdict on Thursday in Nairobi.Credit…Agence France-Presse — Getty Images

The East African nation has had only four presidents since it declared independence from Britain in 1963. Mr. Kenyatta is the son of the nation’s founding father and first president, Jomo Kenyatta, who served for 15 years until his death in 1978. Kenya’s courts have in recent years increasingly served as a counterweight to the president, with the judiciary accusing him of flouting their decisions.

The verdict is expected to have a significant impact on the general election on Aug. 9 in which the deputy president, William Ruto, will face off against a former prime minister, Raila Odinga. Mr. Kenyatta, who has served as president for 10 years and cannot run again, has fallen out with his deputy, Mr. Ruto, and endorsed Mr. Odinga to become the nation’s fifth president.

The Supreme Court’s decision could strengthen the hand of Mr. Ruto, who had come out against the initiative as a waste of public resources in a nation facing mounting debt, poverty and biting drought.

As the court delivered its judgment on Thursday, Mr. Ruto said in a post on Twitter that nullifying the initiative “at this period of economic struggle in our nation is a big win” for millions of Kenyans.

The efforts to amend the Constitution were first introduced in 2018, when Mr. Kenyatta and Mr. Odinga reconciled after contentious 2017 elections that led to an outburst of deadly violence. The two leaders said the project, known as the Building Bridges Initiative, would introduce much-needed reforms and end the winner-take-all political system that inflames competition among ethnic groups for power and resources.

The Supreme Court’s decision could strengthen the hand of William Ruto, the deputy president, who is running for the presidency.Credit…Tony Karumba/Agence France-Presse — Getty Images

Yet from the beginning, the proposals received widespread criticism from legal and civil society leaders, who said Kenya, already saddled with debt, couldn’t afford an expanded legislature and executive.

Observers also pointed out that Mr. Kenyatta and Mr. Odinga championed the initiative as a way to create a broad coalition that would undermine Mr. Ruto’s presidential ambitions.

Many activists also saw the project as an attempt to water down the Constitution, passed through a 2010 referendum with an almost 70 percent majority, and viewed by many Kenyans as a progressive document that set the country on a new course. The amendments also created a position for a judiciary ombudsman appointed by the president, which the country’s former chief justice said would erode the judicial branch’s independence.

“The public interpreted this effort to change the Constitution as a backdoor attempt by the elite to claw back the power that was taken away from them by the 2010 charter,” said Murithi Mutiga, the program director for Africa at the International Crisis Group. “It was seen as arrogant, as a power grab and as a jobs-for-the-boys scheme.”

Three years after the proposal was first introduced, those concerns found backing in the courts last year.

In May, a five-judge bench declared the initiative “unconstitutional, null and void,” stating that Parliament and the people, not the president, had the authority to initiate changes to the Constitution. The judges also said Mr. Kenyatta had contravened the country’s governing laws and could be sued while in office.

In August, the Court of Appeal also rebuffed the government, noting that “the days of an unaccountable presidency are long gone” in Kenya.

Experts called the rulings from both courts a rebuke of Mr. Kenyatta, who clashed with courts in the past and even promised to “fix” the judiciary after the Supreme Court nullified his win following the 2017 elections. Mr. Kenyatta was later re-elected in a repeat election which the opposition boycotted.

The courts’ rulings also signaled to the political class that they weren’t above the law and that their “actions were subject to auditing” both by the public and the courts, said Waikwa Wanyoike, a Kenyan constitutional lawyer.

The rulings, he said, demonstrated “how potent the 2010 Constitution was and the fact that it had created not just in theory but practically some strong institutions and the evidence was in the judiciary.”

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