When high courts in Kenya and Zimbabwe made two significant rulings against constitutional changes in their respective jurisdictions last week, many people failed to grasp the huge import of these outcomes: that Africa’s judiciary and legal systems are stronger than they are often given credit for by the naysayers.
Time and again, African leaders have been accused of “capturing” the judiciary in order to maintain their stranglehold on the levers of power.
But a dramatic 48 hours last week in Kenya and Zimbabwe laid to waste that notion.
Africa is building judiciary systems that promote, protect and defend the interests of the majority, that strictly adhere to the principle of separation of powers, and that uphold constitutionalism over political expediency.
On May 13, Kenya’s High Court ruled that President Uhuru Kenyatta’s push to change the constitution was illegal.
Just two days later, while the world was still digesting the turn of events in Kenya, the High Court in Zimbabwe reversed President Emmerson Mnangagwa’s decision to extend Chief Justice Luke Malaba’s tenure of office by a further five years.
Both rulings while celebrated by opposition parties, their handlers and civil society groups that are instinctively anti-government as slaps in the faces of the ruling elite.
But what many critics are not seeing is that these rulings were indicators of increasingly strong African institutions and the commendable building of solid legal and governance structures that are tamper proof.
In Kenya, that country’s parliament had approved the proposed constitutional changes that had been dubbed the Building Bridges Initiative (BBI). The proposed constitutional amendments were the biggest since Kenya adopted its new constitution in 2010.
The bill sought to re-introduce the positions of a prime minister and two deputy prime ministers, as well as that of leader of the opposition in parliament. Those behind the changes said they were concerned with enhancing national unity, tackling poverty and instituting sustainable land reforms.
Other proposals include:
- Creating 70 new electoral constituencies, which would increase the country’s legislature to 360 members. Part of the changes to the legislature incorporated an affirmative action formula meant to meet a two-thirds’ gender rule embedded in the 2010 constitution;
- Creating an independent judiciary ombudsman, meant to investigate and prosecute complaints against judicial officers; and
- Several measures to protect the economy, including protecting intellectual property rights, supporting businesses, and promoting science and technology in production.
At the launch of the bill on November 25, 2020, President Kenyatta said the initiative would deal with the issue of election violence and unite Kenyans.
“The need for change of our constitution has been with us for some time. It has been evident in the never-ending threat of post-election violence; in the growing feelings that its design lacks inclusivity; and that it promotes unfair and skewed representation, and unfair distribution of national resources,” he said.
But last Thursday, the Kenyan High Court said President Kenyatta had not followed the proper procedure in his bid to change the constitution. The court ruled that the changes could only be initiated by citizens and not the president.
“A popular initiative to amend the constitution can only be started by the people not by the government,” the judges said. “The constitutional amendment bill is an initiative of the president and the law clearly states that the president does not have the constitutional mandate to initiate constitutional changes by popular initiative. Civil suits can be filed against the president for violating the Constitution.”
The court said President Kenyatta had “failed” to safeguard the constitution, adding that he failed on integrity and leadership test.
“In reality, BBI was president’s initiative which is contrary to Article 257 of the Constitution. The taskforce that morphed to a steering committee was an unlawful and unconstitutional outfit. It was invalid from the beginning,” said the judges.
“While efforts of uniting the country is to be lauded, in his responsibilities he cannot initiate any move to amend the constitution contrary to the constitution. It is not in his power.
“Amending so as to incorporate public views defeats the purpose of the Bill. The Assemblies cannot hijack the process and amend. It would lose meaning of a popular initiative. The public views should be on guiding the assemblies. They should swallow or spit the Bill wholly.”
Zimbabwe had its own fair share of drama a few days later when on May 15 the High Court dismissed as null and void President Mnangagwa’s extension of the Chief Justice’s term of office.
President Mnangagwa had extended Justice Malaba’s term last week under the recently passed Constitutional Amendment Act Number 2. The amendment gave the president the power to appoint judges without going through a public interview process, but the move was challenged by a group of lawyers and individual citizens.
Justice Malaba, who had just turned 70, was due for retirement, and the president, using the new amendments, extended his tenure by five years.
“The extension of term provided by Section 186 of the Constitution doesn’t apply to him even though Constitutional Amendment Number 2 seeks to override 328. In view of the decision that we have reached, Honourable Malaba ceased being a judge and Chief Justice at 0000hrs on May 15, 2021,” the High Court ruled.
The judges said there was need for a referendum to determine whether or not the citizenry agreed with the constitutional amendments.
As in Kenya, the government in Harare is appealing against the ruling.
The fact that the governments are appealing the rulings, rather than ignoring them, is in itself another indicator that the rule of law is alive and well.