Kenya’s Court of Appeal on Friday rejected a government bid to make fundamental changes to the constitution, in a new blow to President Uhuru Kenyatta who had initiated the controversial proposals.
A seven-judge panel confirmed an earlier High Court ruling that the way the reforms were introduced was illegal, a decision that will shift the political landscape with less than a year before the country goes to the polls.
Kenyatta had argued that the initiative would make politics more inclusive and help end repeated cycles of election violence in the East African nation, a hot-button issue that has divided the political elite.
Court president Daniel Musinga issued the judgment after more than 10 hours of a televised session.
“The president does not have authority under the constitution to initiate changes to the constitution,” he said.
“A constitutional amendment can only be initiated by parliament… or through a popular initiative,” he said, also announcing that Kenyatta could be sued in a civil court for launching the process.
The proposed reforms came about following a rapprochement between Kenyatta and his erstwhile opponent Raila Odinga and a famous handshake between the two men after post-election fighting in 2017 left dozens of people dead.
The so-called Building Bridges Initiative (BBI) notably aimed to restructure the current winner-take-all electoral system, by expanding the executive and parliament to more evenly divide the spoils of victory.
But it was seen by critics as a way to enable Kenyatta — who is barred from running for president again in the August 9 vote — to remain in power by creating the post of prime minister.
Friday’s ruling allows the electoral process to follow its planned timetable — subject to any appeal to the Supreme Court, the country’s highest.
But it means the nation’s key political leaders may have to rethink their strategies to build alliances before the vote, analysts said.
With its diverse population and large ethnic voting blocs, Kenya has long suffered politically motivated communal violence around election time, notably after a 2007 poll when more than 1,100 people died.
– Moral victory? –
The proposed amendments to the 2010 constitution were approved by parliament in May and were then due to be put to a referendum.
But just two days later, the Nairobi High Court ruled they were illegal as the president did not have the right to initiate the process.
Kenyatta had criticised the decision as “an attempt to stop the will of the people” and his government appealed.
Supporters of the initiative argued it would improve fairness in the electoral system and help curb violence, but critics warned it could undermine the country’s democratic institutions.
BBI detractors also said it would further burden a country struggling under a $70-billion debt mountain and push up parliament’s already sky-high wage bill while creating more opportunities for patronage and corruption.
The reforms called for the creation of the posts of prime minister and two deputies, as well as an official opposition leader, and the expansion of parliament with 70 new constituencies.
Kenyatta’s pursuit of the reforms with Odinga, a four-time presidential contender, has spurred speculation that he may seek to become prime minister in a power-sharing arrangement since he cannot run for president again after two terms.
Odinga suggested on Twitter he would not appeal Friday’s ruling, although others could decide on further action. “But we feel that we have to move on.”
Kenyatta had initially anointed William Ruto — who has served as his deputy since 2013 — as his successor but the pair fell out several years ago after the president moved closer to Odinga.
“God, our heavenly Father has come through for Kenya & stopped the coalition of the known, the mighty, & the powerful from destroying our constitution,” tweeted Ruto, one of the leading opponents of the BBI.
In another landmark ruling in 2017, the Supreme Court had annulled Kenyatta’s election victory after Odinga claimed fraud, but he went on to win the rerun.
Nic Cheeseman, a professor at the Britain’s University of Birmingham said that under BBI, politicians would have been trying to form various alliances by promising people new jobs.
“It might be more difficult to manage those alliances going into the election if BBI isn’t on the table and if those new positions haven’t been created,” he added.