Constitutions are documents that create, organise, and constrain power. Constitutions also have gaps and silences. What happens when an exercise of power is challenged, and the Constitution appears to be silent? This question has been at the heart of many constitutional battles across jurisdictions. In its judgment last week in Azimio vs The President, the High Court of Kenya gave a clear answer.
The challenge was to a Gazette Notice issued by the President of Kenya, purporting to establish a “Commission of Inquiry” into the Shakahola Tragedy (a series of mass deaths occasioned by a religious cult). The Commission of Inquiry was to inquire into the facts, affix responsibility, recommend action, and to recommend broader legal and administrative reform that would prevent such tragedies from recurring. The source of authority for the Notice was, apparently, the 1962 Commission of Inquiry Act.
The Petitioner argued that the Gazette Notice usurped multiple powers and functions that the 2010 Constitution expressly granted to other offices. It usurped judicial power, which was the mandate of the Courts (especially as the Commission was to be headed by a judge). It usurped the power of identifying criminal responsibility and recommending criminal legal action, which lay with the independent National Police Service and the Director of Public Prosecution. It usurped Parliament’s power of oversight over the National Intelligence Service. It usurped the power of the independent Kenya National Human Rights Commission to inquire into human rights violations. And finally, it usurped the power of the Senate to constitute ad-hoc Committees that occupied a similar role.
In response, the Attorney-General relied upon the Commission of Inquiry Act, but also upon Article 129(2) of the 2010 Constitution, which stipulates that “executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” The Attorney-General argued that establishing a Commission of Inquiry was a part of the general executive authority vested in the President. The Attorney-General also relied upon Article 131(2)(e) which required the President to ensure the protection of human rights, and upon Article 132(4), which granted the President the authority to “perform any other executive function” provided under the Constitution, or legislation.
As is evident, however, none of these provisions specifically authorise the President to establish Commissions of Inquiry. When you add to this the fact that many of the functions that Commissions of Inquiry generally tend to perform have been vested in other bodies (whose independence from the executive has been especially guaranteed in the Constitution), an important interpretive question arises: if a specific power is not vested in the Executive, and incidences of that power have been vested in other bodies, can the Executive nonetheless claim that power by invoking its general executive functions? Or, to put it more abstractly, is the default constitutional baseline that the Executive/President has power unless specifically prohibited by the Constitution? Or is the baseline that the Executive/President does not have power unless specifically authorised by the Constitution?
In its analysis, the Court noted that the Constitution vested the power to investigate crime in the National Police Service, which had expressly been made independent; the executive was allowed to give directions to the NPS on matters of policy, but categorically not on the issue of investigation of a particular crime (only the DPP could do this). That being the case, the Court held that “it is difficult to see how the action of the President using the powers under the Commission of Inquiry Act can constitutionally confer the mandate of the police to investigate crime and purport to bestow it on a Commission of Inquiry.” (para 128) The Court held exactly the same on the issue of investigating human rights violations, noting that “by creating a Commission of Inquiry to “inquire into torture, inhumane and degrading treatment of members and other persons linked to the Good News’ the 1st Respondent had unilaterally seized the [National Human Rights Commission’s] explicit mandate and allocated it to a Commission of Inquiry he created.” (para 134)
What of the Attorney-General’s argument that the President was deploying his general executive power? The Court’s answer was clear and unambiguous:
The President should respect the specific mandate given to the Independent Offices and Commissions under the Constitution. He cannot create extra constitutional bodies to undertake that specific functions belonging to agencies created by the Constitution. He cannot use general powers to override specific powers. (para 136)
Additionally, the Court also struck down the provision in the Commission of Inquiry Act that authorised the President to unilaterally gazette anyone (including judicial officers) to head a Commission, holding it to be “a relic of the Imperial Presidency.” (paras 153-154)
I suggest that the judgment of the High Court is part of an evolving tradition in post-2010 Kenyan constitutional jurisprudence that understands one of the main purposes of the Constitution being to temper executive power. Indeed, the structure of the case – and the Court’s holding – closely followed one of the key issues in the landmark BBI Judgment: the issue of interpreting Article 257 of the Constitution. Recall that the question was whether the President could be involved with the initiation of a “Popular Initiative” to amend the Kenyan Constitution under Article 257. There, as here, Article 257 was silent on the point: it neither prohibited, nor authorised, Presidential involvement. There, as here, the State relied on the President’s general powers (in that case, his political rights) to source his legal authority. And there, as here, the Court rejected the argument. All three Courts that heard the BBI Case – the High Court, the Court of Appeal, and the Supreme Court – were unified in holding that one of the key bases of the 2010 Constitution was to check the Imperial Presidency. In practice, this meant nipping executive power creep in the bud by disallowing the invocation of general powers for that which was not authorised by the Constitution.
There is a deeper similarity between the BBI Case and the Commissions Case. In the BBI Case, the purpose of Article 257 was to allow the People to play the role of protagonists in the process of constitutional change. The problem, thus, was not just with the President attempting to do something the Constitution did not authorise him to do, but that in doing so, he was encroaching upon powers that the Constitution had devolved to other entities. In the Commissions Case, replace “the People” with “independent Fourth Branch Institutions,” and the issue is exactly the same. Indeed, even the nature of the arguments was similar: in the BBI Case, it was argued that the President should be allowed to invoke Article 257 in order to bypass a recalcitrant Parliament that was holding up key constitutional reforms, and go directly to the People. An almost identical argument is recorded in paragraph 26 of the Commissions Judgment: “that in opting for the appointment of a Commission of inquiry, the President was conscious of the fact that a Commissions of inquiry are free of many institutional impediments which at times constrain the operation of various arms of Government.” In rejecting this argument, both in the BBI Case and the Commissions Case, the Courts have affirmed that “institutional impediments” and “constraint” is the precise point of constitutionalism: that is just what “tempering power” means.
When we read the BBI Case and the Commissions Case together, then, we see the evolution of a constitutional tradition that understands the role of the 2010 Constitution to be about tempering power, and which specifically seeks to protect forms of power vested in other institutions, bodies, and the People from seemingly innocuous executive power-creep. The constitutional baseline is that the executive cannot rely on general executive powers, in the absence of specific authorisation, especially when the Constitution has granted that family of powers and functions to bodies that have been consciously made independent of the executive.
A final point, by way of aside: interestingly, many of the Fourth Branch Institutions were parties to the case, and supported the stand of the Attorney-General, arguing that was no encroachment into their domain. In other words, the Fourth Branch bodies appeared to be unwilling to defend their own powers, and it was left to the Court – and the Petitioner – to do so. While in this case the Court did do so, this might not be sustainable in the long term. There is perhaps, thus, still some way to go before these bodies become genuinely independent of the executive.
But for now, the Commissions Case is an important judgment that lies at the intersection of three pillars that form part of the architecture of the 2010 Kenyan Constitution: the separation of powers, independent fourth branch institutions, and the tempering of executive power. The High Court’s judgment has strengthened these three pillars, and in doing so, has reinforced the foundations of constitutionalism.