International law lays down four cardinal requirements for a new constitution and government to be regarded as valid or legitimate.
- There must occur an abrupt political change in the form of a coup d’etat or a revolution.
- Such political change must not have been within the contemplation of the existing constitution.
3.The change must destroy the entire legal order and replace it with a new one.
- The new constitution and government must be effective.
These requirements have become relevant to the Kenyan situation because it is clear from the views collected from the people that many desire to completely overhaul the constitution and the government. The draft constitutions of both the Constitution of Kenya Review Commission and the Ufungamano Initiative make it clear that a new legal order will be established.
Among the drastic changes to be made by the new constitution are the dismantling of the Presidential system of government, the creation of a different house of representatives and a senate, as well as a Supreme Court. It is also sought to devote the central government to create grassroots democratic institutions.
International Constitutional Law however denies Parliament the power to make such drastic changes to the Constitution. the legal philosophy is that the power given to Parliament to amend a constitution does not give it competence to destroy it. No Parliament has the power to change the basic features of the constitution. The constitution is superior to Parliament. Parliament cannot defile it.
To establish a new constitution, Parliament would have to repeal the old one. But by doing so Parliament would in effect cease to exist. A legal mechanism would have to be found by which Parliament would arise from the ashes of the old constitution to pass a new one. there exists a legal gap across which the life of Parliament cannot jump from an old constitution to a new one.
But even if a legal mechanism was found, or if we all closed our eyes to the legal gap, members of parliament have already taken an oath to protect and uphold the constitution under which parliament is currently constituted. Any act therefore by Members of Parliament to repeal the old constitution is an act of treason.
This act of treason could result in chaos if the military refused to support it. Every member of the armed forces has taken an oath under the old constitution to protect and uphold it. Their refusal could have grave consequences for the parliament that attempted to overthrow that old constitution. The Russian army during the reign of Boris Yeltsin once surrounded parliament accusing it of treason, bombed it and killed 170 members.
The introduction of a new constitution would require the military to take anew oath to protect and uphold the new constitution. The military would have to accept to join this bloodless coup against the old constitution. In this way, the act of treason by parliament would constitute the drastic political change necessary to overthrow the old constitution.
The people’s congress, however can easily result in chaos. Though it is supposed to act as a people’s revolution, it requires a united country with a common political objective. The best chance for such a revolution was 1993 and 2004 is possibly the worst possible time.
Proponents of the Bomas initiative are of the view that the National Delegates Conference represents the will of Kenyans and therefore is competent as a people’s congress. The Ufungamano Initiative, on the other hand disagrees. To them, only a national referendum can express the true will of the people sufficiently to represent a people’s congress.
Both initiatives however, do not address the issue of the majorities necessary to express the consent of the people of Kenya. Can 80 per cent majority, for instance, enforce its views on the constitution on a dissenting 20 per cent? What is the minimum amount of dissent that we can ignore and legitimately claim to have a successful people’s congress? And does the aggrieved minority have a right to secede or shall its consent be coerced. Both initiatives are also dogged by the requirement of the Review Act that the approved draft be taken back to parliament to be passed.
The legal question is whether Bomas, or the national referendum, can ignore this requirement and pass the constitution. Like in the case of Parliament, Bomas or the national referendum would occasion a legitimacy crisis if they were to breach the law that created them.
Also as in the case of Parliament, a People’s congress will not work if the military disagrees. As the last line of defence for the old constitution, the military can legitimately fight to endeavour to overthrow the old constitution. Without the consent of the military, overthrowing the old constitution can be a very risky venture.
The people of Kenya and the constitutional review movement are therefore in a legal dilemma. Either they contend with a less drastic alteration of the constitution or they chart out a legal blueprint by which legitimate and peaceful change will be achieved. Professor ash Pal Ghai, Professor Kivutha Kibwana and Mr. Francis Ole Kaparo need to urgently convene Kenya’s legal scholars to address this issue to pre-empt a grievous constitutional crisis.
Things Parliament cannot do
Although the constitution gives parliament the power to alter it, it is agreed in constitutional law that these powers are not absolute. Parliament has no right to legislate its whims. It must exercise its powers within particular parameters.
The Kenyan parliament has previously acted outside these parameters resulting in friction and chaos in the country. It begun by outlawing opposition parties and legislated KANU as the sole party. It also removed the security of tenure for holders of constitutional offices.
The people of Kenya agreed that this was an abuse of power and that parliament could not use its powers to amend the constitution contrary to the very values of constitutionalism. In amending the constitution, parliament must observe five rules.
- Parliament cannot amend the constitution in such ways as destroys democratic values. It cannot take away the right of the people to vote or overturn the rule of one man, one vote.
- Parliament cannot amend the constitution in a way as to destroy the rule of law. The requirement of due process is above any parliament.
- Parliament cannot destroy the people’s human rights. No constitutional amendment can take away the fundamental civil liberties we enjoy.
- Parliament cannot offset the separation and balance of power. Parliament lacks the competence to dismantle the other branches of government, the Executive and the Judiciary or to radically alter their nature.
- Parliament has no power to destroy the political ideals on which the constitution was made. Political ideas are the foundations of every constitution. No parliament has the power to alter them. If the constitution is based on a multiparty democracy, no parliament can amend the constitution to destroy that political ideal.
Lessons from other countries
- THE UGANDA CASE
On February 22,1966, the Prime Minister of Uganda pronounced to the county that he has taken over the Government of Uganda. He then commenced a process of taking over control in the country. He established a security council comprising Ministers allied to him. The Security Council became his cabinet and announced that all the executive powers of the country were now exercisable by the Prime Minister He then suspended the 1962 Independence Constitution which was still in effect in Uganda.
Two months later, the Prime Minister called all the Members of the National Assembly to an emergency meeting and asked them to enact another constitution. Ina resolution passed by the National Assembly, the members said:
“Where as in the interest of national stability, public security and tranquillity, the Prime Minister, on February 22, 1966 suspended the then Constitution of Uganda and took over all the powers of Government as a temporary measure.
Now therefore, we the people of Uganda hereby assembled in the name of Uganda do resolved that the constitution which came into being on October 9,1962, be abolished, and it is hereby abolished accordingly, and the Constitution now laid before us be adopted this day of April 5,1966, as the Constitution of Uganda, until such time as the Constituent Assembly established by Parliament enacts a constitution I place of this one.”
After the new constitution was created, oaths were administered on the Prime Minister, who was now made President, then on members of the Parliament, government officers and other officials of the state.
Every public officer had to swear an oath of allegiance to the new constitution.
The validity of the new constitution was challenged in Court of Appeal of Uganda. In their ruling, led by the eminent Ugandan judge Sir Udo Udoma, the court said a coup d’etat was recognised in international law as a proper and effective legal means of changing governments or constitutions in a country like Uganda which was politically and completely independent and sovereign.
The court found that since the change from the 1962 to the 1966 constitution was abrupt and marked by a coup d’ état, and that since its adoption the people had accepted the 1966 constitution, sworn allegiance to it and unanimously given obedience to it, it was now the new constitution of Uganda. The court therefore declared that the 1962 constitution was abolished and no longer existed nor formed part of the laws of Uganda.
- THE SOUTHERN RHODESIA CASE
Southern Rhodesia was a colony of the British Empire. The colonial government had been established in 1923 by a law of the Parliament of the United Kingdom followed in 1961 by a constitution made by the same Parliament. Under the 1961 constitution, Southern Rhodesia was to be ruled by a Governor appointed by HER Majesty the Queen of England who in turn appointed a Prime Minister as the head of government. The constitution could only be amended with the consent of the British Monarch.
On November 11, 1965, then Prime Minister Ian Smith and his ministers issued a declaration to the effect that Southern Rhodesia was no longer a colony of England but was now an independent sovereign state.
They also passed a new constitution and overthrew the 1961 constitution from England.
On the same day, the Governor of Southern Rhodesia also issued a statement and said: “The government has made an unconstitutional declaration of independence.
I have it in command from Her Majesty’s pleasure that, in the event of independence, Mr. Ian Smith and the other persons holding office as Ministers of government of Southern Rhodesia or as deputy ministers cease to hold office.”
“In accordance with these instructions, I have informed Mr. Smith and his colleagues that they no longer hold office. I call on the citizens of Rhodesia to refrain from all acts which further the objectives of the illegal authorities. Subject to that, it is the duty of all citizens to maintain law and order in the country and to carry on with their normal tasks. This applies equally to the Judiciary, the armed services, the police and public service”.
The Parliament of the United Kingdom responded by passing an Act which said:
“It is hereby declared for the avoidances of doubt that any instrument made or other act done in purported promulgation of any constitution for Southern Rhodesia except as authorised by an Act of Parliament is void and of no effect”.
The matter finally went to court where the validity of the 1965 constitution was debated. The court ruled that the legal tie had not been cut and Southern Rhodesia was still a colony of the United Kingdom. The courts declared the government of Ian Smith an “illegal government” and stated that the courts could not recognise it. The courts still owed their allegiance to the 1961 constitution.
One of the issues relied on by the courts was that the judges in Southern Rhodesia had never sworn an allegiance to the new constitution. Their appointment under the 1961 constitution remained and they owed their allegiance to it.
On the legality of the old constitution fighting the new one, the court said:
“If the legitimate government had been driven out but was trying to regain control it would be impossible to hold that the usurper who is in control is the lawful ruler, because that would mean that by striving to assert its lawful right the ousted legitimate government was opposing the lawful ruler.”
In short, until the new constitution effectively overthrows the old one, the old one remains valid and those fighting for the new one are committing treason against the old one.
- THE FIJI CASE
The Constitution of the Republic of Fiji Islands had been passed after a review process similar to the one in Kenya. A constitutional review committee had been established by Parliament and extensive public hearings had been conducted throughout the islands for a period of one year.
After receiving submissions, the Commission compiled a report which was taken o Parliament. Parliament formed five committees which discussed the report for six months. After the debate, the committees drafted the Constitution Reform Bill, which was debated for one month in Parliament and then passed unanimously. It was approved by Senate and given presidential assent.
Three years later, on May 19,2000, the government was overthrown by a group of armed insurgents led by one George Speight. Ten days later, the Commander of the Fiji army overthrew George Speight and took control of the country.
According to the Military leader, the new constitution had weakened the basic legal rights of the indigenous Fijian people and also created an “incomprehensible and unfair electoral system”. He said that the continuance of the new constitution threatened the peace because of the hostile reception by many indigenous Fijians who were unsophisticated and not equipped to adequately comprehend the niceties and technicalities of the constitution. The Military commander thus overthrew the new constitution.
The Court of Appeal for Fiji had this to say on the conduct of the Military commander: –
“Neither the constitution itself nor the necessity doctrine would permit a soldier I operational command of a country in crisis to abrogate or remove its supreme law. His sworn duty ids to uphold and protect the very constitution under which he had been appointed”.
“He was always the Military commander, acting in a national crisis with a duty to uphold the constitution and not to abrogate it, however much its abrogation may have seemed to him a good idea at the time. The very source of his power as military commander sprang from his appointment under the constitution, and he was and remained powerless to magic it away by a formal pronouncement… you do not protect a constitution by abolishing it”.
- THE INDIAN CASE
The powers of the Indian Parliament to amend the Constitution came up for debate in the Supreme Court of India in 1973. The argument was that as a full constituent body, Parliament could amend the constitution as it wished so long as it observed the conditions laid down for amending the constitution. The counter argument was that the constitution was a heritage from previous generations and while Parliament could amend it to serve the
current generation, it could not change it so that it lost its character for future generations.
The court held that while Parliament could amend the constitution to make changes so as to meet the requirement of changing conditions, it was not allowed to touch the foundation or the basic institutional pattern of the constitution.
In response to this ruling, Parliament then sought to amend the clause that dealt with amendment of the constitution so as to enlarge its powers to make changes. The new clause said:
“For the removal of doubt, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this constitution under this article.”
The clause also provided that no amendment of the constitution made under the article “shall be called into question I any court on any ground”.
The Indian Supreme Court was asked to determine whether Parliament had such ide powers in dealing with the Constitution. The Court told the Indian Parliament:
“Since the constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our constitution and therefore, the limitations on that power cannot be destroyed. Parliament cannot expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The don of a limited power cannot convert the limited power into an unlimited one”.