Okay, welcome everybody. I think we'll go ahead and get started. My name is Summit Bissaria. I'm the head of the constitution making program at international idea. We're happy to host this event on the basic structure doctrine and the implications of the Kenya judgment for constitution making together with the Africa network of constitutional lawyers. I will introduce the panel and then we'll get started. But before I do that, I would like to hand over to Yvonne Oyake, our partner at the African network of constitutional law lawyers for some words of introduction. Yvonne, over to you. Great. Thank you so much. And thank you to international idea for reaching out to us to organize this very timely discussion. As mentioned, I'm Yvonne Oyake, deputy secretary general of the African network of constitutional lawyers here to welcome you all to this timely discussion. I'm sure all of you, most of you are familiar with the African network of constitutional lawyers, but we are a regional association that brings together a variety of people and institutions that are interested in constitutional law and the development of democracy in Africa. And we aim to do a series of things including offering a space for exchange of information and ideas between members of the network and between the network, and other organizations, and also develop a constitutional and democratic conscience on the continent. This is through a series of partnerships and a series of activities and interventions and collaborations, including with international idea, the Conrad Adenau-Stifting Foundation, the faculties of law at the University of Stellenbosch, Cape Town, Botswana, Nairobi, and now Namibia. We have in a series of way, including conferences, the most recent one being the virtual one that we held with the University of Nairobi, and the upcoming one this year with the University of Namibia in Vintuck. We also do this through a series of regional and consultative meetings on various thematic areas and webinars, such as the one we have today. The one we have today is very robust in the discussion, very timely, hot off the heels of the handing down of the Supreme Court of Appeal judgment on the building bridges initiative. This discussion also follows up on some of the themes and ideas that came out of the conference that we recently held with the University of Nairobi, and ultimately, we're interested to see what the lessons are that can be learned from this experience, regionally and internationally. So, I would just like to thank once again international idea for their continued support and collaboration with the African network. I'd also like to thank our esteemed panelists and speakers. I'm sure that you have a lot on your plates and the fact that you took the time to share your knowledge and insights with us for this discussion is not taken for granted, and we appreciate you and we thank you. I would like to thank everyone who's joined in today to listen and contribute to this conversation. So I look forward to a very interesting discussion. I thank you, and welcome. Thanks Yvonne. So we have perhaps a uniquely qualified panel today we're very excited about that. Three of our speakers were invited by the Supreme Court to submit amicus briefs and the fourth speaker was involved in the drafting of the Kenyan Constitution. Lots of important and insightful presentations ahead I will introduce each speaker in turn. For those who follow law in Kenya, Professor McGuy catch needs no introduction, we'll say some brief words. Professor catch is perhaps Kenya's leading administrative law scholar and has published practice and consulted extensively in this area of law. He teaches at the University of Nairobi law school. He has also conducted extensive work in the policy field both within Kenya, where he drafted important guidelines for the judiciary and the office of the public prosecutor, but also at the regional level where he led the developments of the inaugural Africa governance report, which is the African unions policy publication on the state of governance in Africa. Professor catch is going to be speaking about the Supreme Court decision and the basic structure doctrine prof over you. You have 15 minutes. Thank you very much, summit I didn't know that I was going fast but anyway, let me try to confine myself to the 15 minutes. Thank you very much for inviting me to participate. Thank you very timely. And we are doing so, just having received a summary of the decision of the Supreme Court. We await the, the, the full decision tomorrow. So my remarks are going to be based on the work that I had done as amicus in in my to try and help the court to get the history right, because when I read the decision of the of the High Court. I was alarmed there was I was incredibly alarmed that they had gotten the history wrong. And so I submitted when, when, when the court of appeal to the decision of the of the High Court to the Court of Appeal I submitted an amicus brief to the Court of Appeal. Unfortunately the Court of Appeal made absolutely zero reference to my my amicus brief I think the only judge that made any reference to that brief was justice for Thomas each other. And unfortunately she was in the minority in that decision that again affirmed the decision of the of the High Court. So I figured, because the history for me is important and and the applicability of the basic structure doctrine turned on the history and I'll say why shortly because the applicability of the of the of the doctrine or so claimed the High Court turned on the history of the making of the Constitution of Canada 2010 it was important that we get the history right. So again I submitted this brief to the Supreme Court and I'm delighted that the judges of the Supreme Court agree with me. And as I was telling my colleagues in the panel just before we started the session. If you read the history right I think you could only come to one conclusion regarding the applicability of the of the basic structure doctrine in Canada. So let me explain. If you look at the decision of the High Court. They said that the basic structure was applicable to Kenya and that it protected certain fundamental aspects of the Constitution from amendment through the use of the amendment power. They also decided that the exercise of the people's primary constituent power entailed for mandatory procedures for mandatory and sequential procedures, namely civic education public participation and coalition, collation of views, a constituent assembly debate and a referendum. And in terms of interpretation in making those determinations they state they stated that they would be guided by a number of principles of interpretation that you find in the Constitution of Kenya. Number one, the nature of the Constitution. Number two, the history of the making of the Constitution. And so saying that the the the amendment powers should be interpreted given its nature and the history of its making and so critically the historical context and to quote the court was quote imperative for giving proper meaning and quote to the text of the Constitution. So, from that perspective, therefore, the applicability of the basic structure doctrine in Kenya from the, the high court perspective turned on the nature of the Constitution and in particular the history of its of its of its making. So, unfortunately, that history, or the high court's reading of the history was faulty for a number of reasons. And unfortunately, the Court of Appeal reproduced the same, the same mistakes of the Court of Appeal. So number one, the reading of the history by both courts was selective and contained all manner of errors and I'll explain. Number one, it failed both courts failed to recognize that Kenyans intended to make the procedure for amending the entrenched provisions in contained in chapter 16 now. So Kenyans intended to make those provisions more exacting, but nonetheless possible. So Kenyans were very clear that we don't want a hyper rigid constitution, but we don't want a hyper flexible constitution coming from a history in which it was always very easy to amend the Constitution and with dire consequences. And so the mistake that both courts made is failing to appreciate that the people never intended to make any of the provisions of the Constitution, practically, and amendable. And that is what both courts did when they insisted on those are historical form and official pages. In fact, if you look at the decisions of both courts, what they did was then introduced procedures for constitutional constitutional change that were greatly at variance with the provisions of chapter 16, but also greatly at variance with the history of the making of the Constitution of 2010. And so those four mandatory and sequential procedures are a historical. You don't find the menu in the Constitution. Again, they also ignored that the constitutional review process that was conducted under the auspices of the constitutional review act of 2008 so there were two, there were two processes for those that are not aware. So it was a process that was initiated by a constitutional review act or of 1997. That process came a cropper in 2005, when the people rejected the so called the work or draft constitution in 2005, work or because it was it was named after the then attorney general. So that failed when the people rejected it at a referendum and we can explain we can explore during plenary why why that failed. Come 2007 Kenya has a post election violence and then it is decided let's have a constitutional act of 2008 to revive the constitutional review process. And so this second process the second phase produces a draft constitution. And which is what went to the people in the referendum in 2010, this is the so called revised harmonized draft constitution. In fact, what what the courts at the the two courts the High Court and the Court of Appeal did, which was wrong, was to ignore the fact that the second review process under the auspices of the second review act of 2008 produced a draft that differed in material respect I would say fundamental respect from the bombers draft constitution bombers had proposed a parliamentary system of government for example. The revised harmonized draft now proposed a presidential system of government. And this is because in Naivasha, the town where the last meeting of the parliamentary of the constitutional review organs took place in Naivasha in 2010. The parliamentary select committee changed the system of government from parliamentary to presidential. The courts ignored that the courts also ignored the fact that although the people had ultimately proved the constitution of 2010 in a referendum. They did not deliberate on it in a constituent assembly, there was no constituent assembly in 2010. And so you ask where do the courts get in their first sequential procedures where do they get that requirement of the constituent assembly. Finally, also, they also fail to recognize a very critical fact and from from my perspective has implications for the applicability of the basic structure doctrine. They failed to recognize that the question of how a new constitution of Kenya would be amended was extensively deliberated upon. And it was resolved in phase one of the constitutional review process, the so called bombers process. But the question of how the constitution would be amended was never a content. If you look at all the drafts from the bombers draft into 2002 to the revised harmonized draft in 2020, they contain essentially the same provision on the amendment of the constitution. So chapter 16 remained the same across the various drafting in some it was, it was chapter 19, but the provisions remained essentially the same. And so the problem then at the Court of Appeal is that it then endorses these very selective and erroneous version of the of the history of the making of the constitution by the High Court, and it fails to interrogate. This is an example. So you get Kierge justice of appeal, saying for example, that, oh, I do not consider it necessary to go into a detailed analysis of the history of the making of the Constitution of Canada. But he contradicts himself when he says, Oh, but any court interpreting the Constitution must force be alive to the historical background, if it is to do justice to the text of the Constitution. And secondly, Kierge and the other judges then do not set out the historical background that they are alluding to. And so when I went to the Supreme Court, I thought, I mean, in submitting my amicus brief, I thought that it was vital that the Supreme Court carefully considers how the Constitution of Canada 2010 was made, given the history, formed the primary basis for the determinations of both superior courts on the applicability of the basic structure doctrine in Kenya, and its implications for the amendments of the Constitution of Kenya 2010. So they have mistakes that both courts make. And some of it, one of one, a critical one relates to the role of the political elite because we were told told that the Constitution was made by a ordinary person that it was not an elite constitution. But when you look at the organs of constitutional review in both phases of the process, political elites played a very critical role. In fact, we could never have had a constitution if the political elites did not agree. In fact, the second phase of the process was deliberately designed to facilitate political elite compacts, having it having been recognized recognized recognized from the failures of the first phase, that unless there was going to be a compromise among the political elites, we were never going to have a constitution. So again, the courts ignored the role of power dynamics or power relations in the making of constitutions, something that I have an interesting quote from Elliot Ballman, who says that good constitutions reflect both a consensus among the political elites that have to work with them, and the consent of the people who have to live with them. So in other words, in any good constitution making process you must have a compromise between elite compacts and popular sovereignty. Again, both courts, especially the Court of Appeal, denigrate the fundamental importance of the referendum as a downstream constraint on the political elite. In fact, I dare say that had this process, this process, the BBI, the Building Bridges Initiative Amendment process, had it gone through to the referendum. There was a very high possibility that the people could have rejected it. So why do the courts want to stop the people from exercising their sovereignty, so that they give their determination whether or not to agree with the political pact in the form of the BBI amendment bill. How much time do I have? You've got about five more minutes. All right. So that was one. And then if you look at in terms of the procedures. So if you ask again, I am faulting for sequential procedures. So if you look at the procedure the question. What you might ask is, in any constitution making process, do you really need both a constituent assembly and a referendum. And from my reading of the literature, I find that the question of whether you need both is contested among constitutional theorists. From that perspective, my conclusion is that you will find examples. So I'll give you examples in South Africa and Uganda in Tunisia. What you had were directly elected constituent assemblies being tasked with adopting the final constitutional text. And in those cases, a referendum was only included as an option of last result. In case the assemblies failed to adopt the texts by the required majority. My point being that it is the people who should determine how they wish to exercise their constitution power. It is not for the courts to tell them how they should exercise that power. And so it was wrong for both the High Court and the Court of Appeal to do that. Let me stop there. I think I've highlighted the major aspects for me that the High Court and the Court of Appeal that I thought it was vital that the Supreme Court pronounces itself on and I'm glad that the Supreme Court did. Thanks Prof. An excellent timekeeping and certainly did highlight some of the historical realities about how the 2010 Constitution came about and also the debates, both political and social that led to the draft and to the amendment provisions that we find in chapter 16. Next, it will be Professor Charles Fombad, whom I think everyone attending would be familiar with as one of the most prolific scholars on constitutionalism and comparative constitutionalism in Africa. He is professor of comparative constitutional law and director of the Institute for international and comparative law in Africa at the University of Pretoria in South Africa. He's written and edited more than a dozen books and over 150 articles and book chapters on constitutionalism in Africa. He sits in numerous editorial boards of prominent journals, and is also the organizer of the Stellenbosch annual seminars on constitutionalism in Africa. And as we mentioned at the outset he was amicus at both the Court of Appeal and Supreme Court during the BBI proceedings, and has published extensively on endurance and change in constitutional law in Africa. Professor Fombad will be speaking about judicial review of constitutional amendments in Africa, sort of taking us out of the direct Kenyan context and providing some regional reflections. Professor, over to you. Thank you very much. And let me thank the organizers for inviting me to be part of this important discussion. And as you pointed out, I'll be talking about judicial review of constitutional amendments in Africa, generally. Let me start by saying that there were two critical aspects of modern constitutionalism that African constitutional design has tried to deal with in the post 1990 revised for new constitutions. Was the entrenchment of provisions designed to ensure that judicial review of constitutionality of laws takes place, and other web provisions also designed to control the amendments of constitutions. Whilst the judicial review of constitutionality was designed to ensure that violations of the constitution are promptly sanctioned. Control of constitutional amendments aims to ensure that these constitutions, unlike those in the past, are not vulnerable to frequent casual and arbitrary amendments by opportunistic politicians. The Kenyan BBI case reminds us, if we need any reminder that the problem of frequent abusive and arbitrary changes of constitution in Africa has not gone away. The case also tells us what role the courts can play to curb this. Can all our African constitutional courts intervene in the manner that the Supreme Court and the courts in Kenya did. The main question that I want to briefly address in my short presentation is to examine the extent to which African constitutional courts would cuts having constitutional review powers are able to control and check against abusive amendments of constitutions on the continent today. And to be more precise, how effective is the legal framework for judicial control and review of constitutional amendments on the modern African constitutions. To respond to this questionnaire focus on three main enabling or disabling factors. The first one is the model of the constitution. The second, the powers given to the constitutional courts. And the third, I will look at some of the constraints within which these courts operate and I will end with some concluding remarks. So let me start with the issue of the model of constitutional review adopted. In terms of background, one can say that at independence, most African countries adopted the constitutional review mechanisms that are being used or imposed by the former colonial powers, often with some minor adjustments. For example, the British had formally adjusted the migrate principle to the realities of the written constitution and incorporated this into the constitutions they designed for their former colonists in Africa. Modern African constitutional design has three main models to choose from. The decentralized, the centralized, and the hybrid of mixed model. A 2014 study that examined the post 1990 rise to new constitutions of 54 countries in Africa, and here I exclude this Sahara Arab Democratic Republic showed that 36 of these constitutions that is 66.6% of them had adopted the centralized model. 15 of them, or 27.7% the decentralized model, and only one, if you appear, the mixed to hybrid model. Although the general trend then appeared to suggest that most countries have designed systems of judicial review very much along the lines of what they inherited at independence. There were a number of exceptions. For example, whilst all African countries with a civilian legal tradition had adopted the centralized model, not all Anglophone African countries adopted the centralized model. In fact, four of these countries, Sierra Leone, South Sudan, Tanzania, and Zambia had adopted the centralized model. There have been some significant changes since 2014 when this study was carried out. For example, the Chadian constitutional 2018 has now adopted the decentralized model and allows individuals to approach the Supreme Court that deals with constitutional matters. Although all the models have the advantages and disadvantages and time does not allow me to go into the details of this, it will suffice to point out that the decentralized model on balance provides a more effective means for checking against abusive constitutional amendments. Now let me go to the second issue that is the powers given to this constitutional courts. The ability of constitutional courts to check against arbitrary constitutional changes depends on whether such powers are being conferred on them explicitly or implicitly. An examination of the scope of the jurisdiction of modern African constitutional courts clearly brings out the differences between those operating within a centralized system and those operating within a decentralized system. For analytical purposes, a distinction could be made between the scope of grant of primary jurisdiction and that of grant of ancillary jurisdiction. The primary jurisdiction here refers to the powers that a constitutional court is typically created to exercise. This usually comprises three main powers. Firstly, the power of constitutional review in a very narrow sense, which refers to the former powers which a court has to strike down any piece of legislation or administrative action for violating the constitution. Secondly, the power to safeguard human rights and thirdly the power to resolve conflicts of competence between central and local government and between government agencies intercept. Generally, the primary jurisdiction conferred on constitutional courts in the decentralized system of Anglophone Africa is based on a combination of three main factors. It can be said that the common law courts have historically accepted the power of judicial review as an inherent incidence of the general process of agitation. Secondly, a power of judicial review may be inferred from the general provisions in the constitution of Anglophone countries, which invest judicial powers in the courts. And thirdly, and comprising perhaps the strongest basis for judicial review in Anglophone constitutions is the supremacy provision, which states expressly or implicitly that the constitution is the supreme law of the land and any law or action inconsistent with it is to the extent of the inconsistency invalid. What I therefore want to make clear from these three points is that the power of review of constitutional amendments is an inherent judicial power in the common law systems of Anglophone Africa, unless where the constitution clearly limits this. By contrast, although centralized costs are created exclusively to deal with constitutional matters, the exact scope of their jurisdiction depends on the powers expressly or implicitly conferred on them by the constitution. The principle of constitutional supremacy does not carry the same weight and impact in centralized systems as it does within decentralized systems. When the powers of the courts provided for under 36 African constitutions, which have adopted a centralized model in 2014 we examine the differences between not only decentralized and decentralized model, but also between the progressive and conservative approaches within the centralized model become very glaring. For example, under the Benin Constitution, the constitutional court has been given the express powers to exercise all three primary jurisdictional functions, namely a review of constitutionality, safeguarding of human rights and dealing with disputes concerning conflicts of competence. That end is commenced constitutional council, which is conferred only a very limited powers of constitutional review. Aside from the primary powers, the approach with respect to ancillary powers also differs from the centralized and centralized systems in Africa. Ancillary powers refers to those powers that fall outside the prototypical constitution review function. On the contrary, it's expressly implicitly stated, the Anglophone countries constitutional courts are able to exercise many of the powers which could be assumed to be ancillary powers. In the civilian jurisdictions, where the civilian system has been adopted, a defining list of ancillary powers functions is usually conferred on the constitutional court. From supervising elections and referenda to the regulation of political parties, the review of treaties and so on and so forth. These ancillary powers vary considerably, not only in the extent to which they may require the constitutional court to refer to the constitutional texts, if at all, but also in the degree to which they place this court in the peak of potentially serious political controversies. On the whole, unlike in the common law jurisdiction where the constitutional courts operate within a decentralized system, and half as I pointed out earlier, inherent powers to review the nature of constitutional amendments. The powers of constitutional courts operating within the centralized system are usually limited only to those matters expressly specified in the constitution. These powers not necessarily always include the mandate to review the exercise of constitutional amendment powers. Or in some cases, this is only vaguely a little bit. For example, at 9 to 5 of the 2016 Constitutional Center of the Republic, give the constitutional power, the constitutional court powers to only, and I quote, give an opinion concerning bills or proposals of constitutional revision and procedure of a referendum. And of course, let me now come to some of the constraints within which the constitutional courts operate today. Although in the last three decades, the quality of constitutional justice has improved considerably due to the enhanced part of judicial review, the problem of arbitrary constitutional changes remains acute. This is largely due to the fact that the factors that have combined to undermine constitutional justice in the past have not entirely disappeared. As a result, the numerous constraints that prevent the constitutional courts in many countries from intervening as decisively as the courts did, the Kenyan court did in the BBI case. I'll just mention a few of these constraints. Firstly, the power to undertake such reviews by constitutional courts operating within the centralized system, as I pointed out earlier, is often very limited. At some point, the expanded powers give it to the Benin constitutional court, and the manner in which they exercise it had led some of us to suggest that we may be getting to a point where the question of constitutional justice today was less about what model is in operation, and more about what powers the court has been given, and whether it can fully utilize them to provide constitutional justice and protect citizens against arbitrary government. In the last four years, the congenital defects of the centralized model have surfaced in the Benin constitutional court to explore this myth. This is in spite of the fact that the Benin constitutional court, or like that in many civil and jurisdictions in Africa, allows ordinary citizens to petition it, and furthermore, carries are both abstract and concrete review of constitutionality. Secondly, African judiciaries were at their most vulnerable before the 1990s when they came under the tight control of the post-independence authoritarian regimes and could hardly act independently. In spite of the recent reforms, political control of judicial appointment processes by presidents whose authoritarian inclinations are becoming ever more apparent is still a future, particularly in civilian jurisdictions. As a result, the judiciary in these jurisdictions have remained as dull as they were before the 1990 reforms. The situation in most foreign countries is only slightly better because judicial appointments in most cases are based on recommendations met by a reasonably independent judicial service commission. By contrast, in some civilian jurisdiction, the President of the Republic and his Minister of Justice still act as the chair and the deputy chair, respectively, of the appointment body, the Supreme Council of Magistracie, which is convened and his agenda is set by the president. And this body, believe it or not, only expresses an opinion or makes recommendations to the president himself. Well, you can judge for yourself, whether a judge appointed under such circumstances can act independently. Thirdly, even in countries reasonably independent constitutional courts, because of the many divisive and politically sensitive cases coming before these courts and the great tendency of the judges to assert their independence, the judiciary increasingly finds itself on a coalition with others with the executive branch. This happened to the judges of the Kenyan Supreme Court after September 2017 presidential election judgment. Even in South Africa, the judiciary is under attack and sometimes referred to as counter-revolutionaries by some members of the ruling party. After the fight back to intimidate judges remains a potent threat, especially in the last few years, during which the ugly head of authoritarianism is on the rise all over the country. This is bound to have a negative impact on the ability of judges on the continent to act independently and impartially when dealing with dispute involving the amendment of the Constitution. Fourthly, apart from attacks on the judiciary, there's also been more direct action to reverse changes designed to ensure that judicial appointments are based on competence, not external political considerations. For example, in Zimbabwe in 2017, the 2013 Constitution was amended to give the president so power to appoint the chief justice, his deputy, and the judge president be high court, with an obligation only to inform the Senate if he does not act in accordance with the recommendation of the chief justice. The judicial branch will remain vulnerable to manipulation as long as the executive are allowed to play a decisive role in appointing the judges. Finally, on balance, the overall structure of constitutional courts operating within the centralized system, especially where there has been little attempt by constitutional designers to borrow progressive ideas from other models, perhaps the exception of Benin. And the fact that organized citizens have no local standard before these courts have limited their ability to check executive abuse of constitutional amendment powers. By way of conclusion, let me say that constitutional courts can only go as far as the constitutional allows them to go. In my humble opinion, and before I read the full judgment of the Kenyan Supreme Court, my impression is that the Supreme Court made this point absolutely clear. Good constitutional design will however not solve problems such as judicial timidity and difference or judicial conservatism. There is an era of heightened rights consciousness, and all judges must be conscious of this. Regrettably, there are still many countries, especially in France, Africa, and other civil law jurisdictions that have adopted constitutional courts for their symbolic value only. These countries are firmly stuck in the market middle ground between constitutional democracy and constitutional authoritarianism. This explains why in many of these countries, important constraints on the abuse of power such as term limits provision were easily repealed. And in some cases, with the complicity of the constitutional courts. Whether or not one agrees with the DBI Supreme Court judgment, one key lesson for constitutionalism in Africa that one can draw from this case is that, in spite of the limited jurisdictional mandate of many of our constitutional courts, a combination of judicial assertiveness and civil society vigilance can help to control and limit the endless propensity by our leaders to change constitutions for their selfish ends. Thank you very much for your kind attention. I'm very proud for that magisterial overview of judicial review in Africa, the different models, different factors that affect different rules of courts. And where all of this sits with regards to the protection of constitutional democracy or the progress of constitutional authoritarianism. We really found that excellent. Thanks so much. Next, we come to Dr. Adam Abebe, who is part of our own constitutional building program at International Idea. He is also part of the African network of constitutional lawyers so he's vice president at the AMCL and here is double host today. With us he generates knowledge on comparative constitutionalism provides platforms for dialogue, and has provided advice, technical assistance to constitution making bodies and civil society in numerous African countries. He was published in prominent academic journals on comparative constitutional practice, and is a regular commentator on political transition in Africa in prominent global news media such as Al Jazeera and BBC. As well as his role with the AMCL, Adam is on the advisory board of the International Journal of Constitutional Law icon, and extraordinary lecture at the University of Pretoria, as well as fellow at Cabaret University. His article was cited by a judge in the Kenyan Court of Appeal and he was invited as a neutral expert as an amicus curate in several recent prominent court cases, including by the Ethiopian Council of Constitutional Inquiry, and of course by the Kenyan Supreme Court on the BBI case. So Adam, over to you. Thank you very much, Samith, and thank you very much also for Professor Miguel Ketch and Professor Fombad for the background. I'll try and build on what Professor Fombad was trying to outline, which is that in a lot of Anglophone African countries in particular, while courts have claimed the right to review constitutional amendments, it is often implicit. So there's no provision in the constitutions, particularly in Anglophone countries that specifically empowers courts to review constitutional amendments. And it's generally the same also in in in Francophone African countries, in the sense that with a few exceptions, the constitutions are not clear in terms of whether the constitutional courts or the Supreme Court other case maybe can review constitutional amendments. And as also Professor Fombad indicated what often that leads to is an assertion by the courts themselves to review constitutional amendments, but often mainly on procedural grounds, essentially looking at whether the process outlined in the constitution has been has been followed. And there are exceptions. But overall, the first key observation is that constitutions in Africa across across the linguistic divide across the geographic divide do not specifically regulate how and whether constitutional courts or the Supreme Courts other case maybe can review constitutional amendments. And this is important to my key commentary today. This sits with a reality where the African Court in particular, but the African Commission but also the African Committee on the rights and welfare of the child have actually claimed the authority demanded to review not just the process and in fact they don't look at the process as outlined in the specific constitution. More more in terms of the substance and generally in terms of compliance with the requirements that exist at the African African level. I'll give two quick two quick examples to exemplify this, but the key point is that at the national level constitutions do not specifically empower their highest courts to review constitutional amendments certainly not on the substance of them. But at the African level at the continental level, we have institutions that have claimed the authority to review anything at the national level including constitutional provisions to enforce the standard set at the African level. I'll give two quick examples one on substance Tanzania in Tanzania. There was a candidate called meticula, he consistently tried to run as an independent candidate in presidential elections, but he was refused because the electoral low band independent candidates. And when he went to court and challenged it in the high courts, the high courts actually invalidated that provision and allowed him to run as an independent candidate. Nevertheless, the government appealed that decision to the Supreme Court. And while the constitute while the Supreme Court was actually looking at the case, the government amended the Constitution and included the ban on independent candidates in the constitution itself. And he still went on and challenged that amendment in the high court which agreed with him. But when he went to the Supreme Court the Supreme Court said the other court it did not have the authority to review the substance of constitutional amendment so it can review how the constitution was the amendment was enacted. And if they were incompatibilities it could invalidate it, but on substance it would not do it. But meticula was it was a persistent, persistent man, and he went to the African court. And in the end, he got a decision from the African court, which found that the constitutional amendment, despite the fact that it's part of the constitution of Tanzania, it was invalid, because it contravened the right to association, which according to the African court includes the right not to associate and the forcing of individuals to associate themselves with political parties to run for elections were therefore found to be incompatible with the African, with the African Charter. So you can see that you have a domestic court, which could not review the substance of that amendment because it does not have the mandate, but you have an African court that claimed the mandate to review anything, whether it's laws, constitutional provisions, or government decisions. So this is the, you know, a good example on substance. The second one is also very interesting, but it's on process. One of the, the interesting aspects of the, the bill of rights, if you will, at the African level is that it includes provisions that normally are found in in different like principles of separation of powers, judicial independence. And for our purposes, the particular the African Charter on democracy elections and governance, specifically provides that amendments should be accepted or adopted to a process that ensures national consensus. And so the amendment process of constitutions should comply with the principle of national consensus. And there was an interesting case and Professor Fombard touched on it. Benin has been seen as the epitome of democratic governance, particularly in Frankfurt, West Africa. But since the current president came to power in 2016, it has seen a steady decline in the level of competitiveness of the democratic, the democratic context, but also in terms of the autonomy of the framework. And one of the things that that happened, it was with that in the 2018, just before the 2018 legislative elections, the government enacted certain change to the to the electoral law. And, and political opposition political parties opposed that that change, because it restricted their operations, and they then boycotted the elections and legislative elections, which meant that the ruling party essentially won all the seats. And the government then used its dominance again to not only change electoral law again, but also the constitution that included two key changes. The first one was the the introduction of what is called a sponsorship system. Essentially, if you want to be a candidate, you need to be sponsored by members of parliament, and also mayors. And as I said, because the political parties had boycotted the elections before there was no opposition in the in the in the parliament. And so what this constitutional and legal amendment meant was that nobody could run against the president in the 2021 elections. But to bypass this this this fear and partly because the Benin constitutional court itself had in the past say that constitutional amendments should be founded on national on national consensus. And the government, because there was no opposition in parliament, organized what is called a national dialogue just before the amendments were adopted. And in that national dialogue, there were certain general principles that came out of it. But ultimately, the outcome of that dialogue was rejected by the cure position. But again, still the government used that the outcomes of national dialogue as a foundation for for the change. And so a gentleman who wanted to run as a candidate in in the in the in 2021 elections challenged this amendment in the constitutional court. But one of the things that had happened actually was with that the president had appointed new members for the constitutional court. And because the terms of the constitutional court judges are limited he had the chance to make new appointments. And the president of the court happened to be the personal lawyer of the president because before he became president and he was also an attorney general. And so essentially the constitutional court was captured by the time these constitutional amendments were challenged based on the principle of national consensus, which as I said is also the same principle found at the African level. But to cut these things short, the constitutional court approved the amendments, but this person again went to the African court and challenged it. And the African court said on the ground and because of the fact that the parliament was fully, fully controlled by the president's party one. And secondly, even if there was a national dialogue of sorts. It was not inclusive. It was not participatory. The amendment was found to be unconstitutional. And so, you know, in this particular case, the court, the African court did not evaluate the substance of the amendments, it said procedurally, it was not founded on national consensus. And therefore it was not necessary to look at the substance because the amendment itself is unconstitutional on those grounds. And in fact, in my amicus argument actually I had suggested that the Kenyan court should have done that. And then ultimately, if you can invalidate something based on procedural grounds, there was really no need for a court to look at the substance and that's exactly what the African court did. But to just bring us back now to the team that I'm covering, obviously I've given examples from the African court itself but if you look at the African commission on human and people's rights, but also the committee on the rights and welfare of the child. They all have claimed demanded to review constitutional amendments and I will end where I started, which is that we have African constitutions that do not empower their courts to review constitutional amendments. But at the African level, they can be reviewed. And so there is that in compatibility of sorts. And I think this kind of builds up to what the next speaker will talk about in terms of what, one, the fact that courts at the domestic level, you know, despite the fact that there are no specific governments courts themselves are claiming this power. And secondly, particularly at the African level, there is now a new jurisprudence and what should and that what should that mean to constitution makers all in that. Thank you. Thanks, Adam. Our last speaker is Professor Christina Mari and Professor Mari is emeritus professor of human rights and constitution law at the University of Cape Town and a member of the standby team of senior mediation advisors at the United Nations. In addition to advising on numerous constitution making processes, Professor Murray has what I think is the unique distinction of having sat on constitution making bodies in three different countries. Professor Murray was on the panel of experts advising the constitutional assembly of South Africa in 1994 to 1996 set on the constitutional commission in Fiji in 2012. And most relevant for our purposes was a member of the committee of experts on constitutional review that drafted the text that went to referendum in Kenya in 2010. Christina, you have 15 minutes. Thanks very much. And thanks for bringing me into this discussion. I am particularly pleased to see some old friends lurking in behind their names in the, in the audience. But Adam, I don't think I'm going to exactly to what you were talking about. I suppose the focus of the discussion for understandable reasons is really the basic structure stock doctrine will should courts assume responsibility for determining what is untouchable in a constitution. It's not really to begin with just a comment to begin with exactly the point Adam has just made it. It's really stunning to me that the, all the Kenyan courts actually chose to dive into the substantive issue of the basic structure doctrine and so on. When in particular the Supreme Court without having read the judgment, when in fact, the matter seems to have been settled on procedural grounds. And it makes me wonder whether the only right here of the decision of the Supreme Court is in fact the statement about the unconstitutionality of the process. And as I understand it from the media summary that the amendment is unconstitutional, because it was procedurally incorrect, the way in which it was adopted. I sort of the way I learned law that makes all the rest obitur, and then of course, and I think a second aspect of that actually also is that even if they decided the process was was, it was properly procedural. Were any of the proposed amendments, amendments that would interfere with the basic structure of the Constitution, and I again having not read the majority, the Supreme Court judgment obviously, I'm really puzzled about that. Possibly the shift to a presidential to really alleged shift from a presidential system could be considered to be something about basic structure. Firstly, it wasn't very much of a shift in my reading, but there are other countries I think in Portugal may be one in which much more fundamental shifts in the nature of the structure of the government have been undertaken without anyone suggesting this is a element of basic structure. One can look at the way the Indian courts have treated basic structure sometimes they've had very sort of niggling things about it but so sort of two sort of preliminary comments, you know why did the court decide to do this. I agree with Charles that courts should be bold and fearless, but I don't think they should be reckless and I think it's very wise to keep one standard dry. I don't understand that this judgment, perhaps deliberately gives something to all sides. But I would, I would, I suppose, hope that courts generally are just a little bit more cautious, and perhaps leave some battles to be fought some other day. Anyhow, that's a little bit of a background. But more background is something I think everyone who's ever heard me speak knows I always say that is that I've been asked to speak about how this might impinge on the way in which one designs amendment provisions. And of course, generally speaking there's really very little space for innovative constitutional desire in constitution making. Sometimes things are a little bit out of the spotlight out of the limelight, and there's space for some more imaginative treatment. But by and large constitution makers, I think, have rather little space in which to maneuver. So more background. Right, when one gets to designing amendment procedures as the guy mentioned at the very beginning the first question and the dominating question in my experience at least is always how difficult amendments should be. How rigid should the Constitution be. How much flexibility is needed. And that as my guide pointed out was an element that concerned Kenyans when they were asked those questions in 2001 and 2002. Quite interestingly, they are often a lot of people who want the Constitution, a new constitution to be quite rigid for all kinds of reasons everyone will understand. There's a little bit of addition there probably that the vanity of the drafters presses to pushes towards rigidity, and other people to come in and change the brilliant things you've done. Of course, there are also usually people who are going to look for constitutions to be easier to change and sometimes I think particularly in post conflict situations. Those will be people who feel they've been forced to compromise on something, and are hoping to walk away from those compromises as soon as possible. So lots of politics in the whole decision making process about how difficult it should be to amend a constitution and also of course there will be often some sectors that want special protection. And as I think was mentioned in sort of earlier judgments and in some of the amicus briefs, this tiered approach that we see in the Kenyan Constitution and many new constitutions has helped a lot of people around those problems. I mean the one thing that I think Constitution makers are going to perhaps the attention of Constitution makers will have been drawn to by this whole series of judgments is the issue of how you get the public more involved. I mean it seems a good route to go to have more decision making bodies in an amendment process. As you can see with the public initiative process in Kenya. You have the signatures. I remain a little bit cynical about whether the signature route is a very sensible one but seems too easy to open to manipulation to be very wise but there's the signatures the evidence of people being involved. So that's one way of having a sort of more diverse package. Another way I'm quite attracted to always is the requiring a gap between the first adoption of constitutional amendments, requiring an election between the first adoption of constitutional amendments of the final ratification of those amendments, because that process seems to me to bring the public and the politicians together in quite an intense way and I know it's very northern European but it's something possibly worth thinking about. Anyhow, point there really is that I think this, this judgment is going to all the series of judgments is going to draw attention to ways in which one might try and make constitutional amendment processes more inclusive of engaged public. So first point second point. In one of his really interesting and I think sort of challenging blogs on the earlier cases, Professor but here comments that the text didn't help answer a large number of the questions, or a number of the questions that were before the court. I don't really think well, could the text have been better where they were is it which the Constitution could have been drafted to tighten up the text to make these questions easier to answer. I think my answer might be no but just to draw out a couple of the questions that he in fact raises and that come up in the cases. One question that I think is really quite interesting is the question whether one should be allowed, or one should try and restrain the possibility of a referendum to approve constitutional change on a whole bundle of diverse issues. As you know the proposal in Kenya would have been that the whole huge package of amendments ranging from small technical things fixing problems in the Constitution, right through to fairly major changes anticipating the forthcoming elections would just be presented to the public in one package. I think perhaps I would go for suggesting that issues need to be presented separately. I'm aware that there are arguments that would suggest that you can't see a Constitution as a sort of package of separate individual items that every bit of the Constitution interlocks with every other bit. And that's true although I think one could probably pull issues out of the Bill of Rights or out of independent institutions and so on, that seemed quite stand alone. But the problem of sweetness and the ability of amendments to be manipulated to pull people long is a real one. And the example that comes to my mind and someone should correct me if I've got this wrong is the amendment that I think was in 2006 3456 in Uganda, when Museveni granted people the right to have political parties, but in that package of amendments was also basically his right to remain president forever. He removed the term limits at the same time as including or permitting political parties and people stand through political parties for election. So, there's a bit of a question but it's constitution designers constitution drafters could clearly quite easily say that at a referendum separate set issues must be separated at a referendum. I'm not pretending it'll be easy. It's never easy to define an issue clearly there will be overlaps and probably some haggling about what should go in which package at a referendum, but I think that might help certainly force the electorate to think quite hard about things. Another textual thing. Could the Constitution have clarified whether or not the president could actually use this popular route. I suppose you could draft into a constitution that the popular initiative route cannot be initiated by promoters to use the term referred to in the Constitution should not be people who hold political office or state officials with that help I think it's been pointed out somewhere either in Amicus briefs or in the judgments themselves that of course it would be manipulated indeed, but a statement like that might signal at least to future decision makers, the kind of thing the Constitution makers had in mind. So even if it wouldn't clearly eliminate the use of the popular process by political institutions or state institutions. It would describe what was intended a little bit more clearly. And then thirdly and when that comes slightly closer to the issue of basic structure doctrine should constitutions be more explicit should Commonwealth constitutions be more explicit about whether amendment includes replacement. I don't have proper survey of all of this but I, I think that the constitutions in civil law countries quite often separate out the idea of amendment and the idea of replacement. I mean, Kenya's independence Constitution talks about alteration and defines alteration is including amendment modification and reenactment. Now, I don't know what reenactment means does it mean a new constitution or not. And really what that issue raises well that question raises is can the Constitution itself be more clear on whether the power to amend includes the power to replace. I think I've written somewhere and I wish I hadn't with some confidence that of course it amend includes for a place. And I certainly know that in South Africa and then Kenya in the past and indeed even in Kenya now perhaps it's assumed that you'd have continuity and the amending power could include a replacement, but maybe things would be clarified if the Constitution said that out more clearly. Which brings me to the third issue. So, the first was just that the big question is how rigid the Constitution should be and there are always many political interests there. The second is, in what ways can you make a text more clear. And of course must be this basic structure doctrine, and my first response, and I think I must have frustrated Adam saying this to him, I said what should I talk about the basic structure doctrine is out of the hands of Constitution makers. It's up to courts to sort of come in and say well, Constitution makers, you could do certain things. But in fact, once you've come up with a Constitution. There will be parts of it that are unamendable, and you can't determine those parts. You can't tie the hands of future Constitution makers, you can't tie the hands of the constant constituent power by saying, Well, X is amendable. In fact, possibly a court, a political body might assume that it's an aspect of the basic structure of the Constitution. I'm not sure how clearly I've managed to put that but I think one of the conundrums with the basic structure doctrine for Constitution drafters is that it depends on some kind of external assessment of what the basic structure is. But then having thought that I wondered well are there ways in which Constitution makers might engage with the basic structure doctrine. I mean obviously as number of people have already mentioned, when you include an eternity clause when you include something that is unamendable in a Constitution, you signalling that some kind of new exercise of Constitution power would be necessary to change it. In fact, you're signalling that you hope it will never change. So eternity clauses are in a sense a way of up-fronting an aspect of the basic structure of a Constitution. Possibly actually saying that you can replace the Constitution, going back to the point I made earlier, spell out what you mean by amend and say expressly that you can. The amendment power, the amendment process allows you also to replace the Constitution would signal that at least in this exercise of Constitution power, the people want to permit all their decisions to be changed. And as I've already said the concept of basic structure kind of possibly disallows that decision by current Constitution makers. Possibly a Constitution could set out a process for its full replacement and it might set out a process that is more alert to the exercise of Constitution power. It might as like McGuy, I'm not convinced that the description of the process by the High Court was particularly accurate or particularly useful, but it may want a Constitution assembly of some sort or a referendum and a Constitution assembly. So maybe the Constitution drafters can engage with the challenges of the basic structure doctrine by committing the replacement of a Constitution, complete revision of the Constitution, but setting a special process that engages the Constitution power. Yeah, I'm sort of completely flummoxed by all of this I must just sort of say two things I mean I'm fascinated in the literature by the, the, the trust that people have some people not everybody, not a number of speakers today actually having the idea that there is a basic structure to a Constitution and it shouldn't be aspects of Constitution should be unamendable. And secondly that the exercise of Constitution power and I think this is the other side of the coin, the exercise of the Constitution power is a better way of changing these fundamental things. I think we've seen for instance in the Andes region in Bolivia and Venezuela, if that's in the Andes, that the use of Constitution power can be as manipulated as the use of existing political structures and so on and the people under ordinary circumstances. And then an issue for certainly for South Africans and I think for Kenyans is this question of continuity. Now, I haven't had really thought enough about this but why do we find constitutional continuity so important. The United South Africa even agree that the White Parliament should approve the new process for adopting our Constitution. I mean, to me that's really remarkable you have a obviously illegitimate legislative body, but go with the idea that the new Constitution making process should be approved without illegal break by that old body. And moving ahead. So, suppose that slightly indecisive point to to end on. One last comment perhaps also made by the guy right at the beginning is, I also wonder how many. Again, if the exercise of Constitution power is the other side of the basic structure doctrine, basic structure doctrine says you can't change things without an exercise certain things without an exercise of Constitution power. How many constitutions do we know that actually have been adopted in a way that would sort of meet the expectations of the exercise of Constitution power. I suspect relatively few. But anyhow, thanks, particularly to African network and idea for making me spend the weekend sort of try to think about these things. And, yeah, I look forward to questions. Thanks, Professor Murray thanks to all of our speakers for excellent interventions. I think it's now open for questions you can either put them in the chat. Or you can just raise your cyber hand in in zoom. There is a question already in the chat for Professor catch but I think it's also worth opening to the other panelists and the question is from the loom of Buiri, and it is the following. I'm not sure if you've seen this but I'll read it out for all of the participants. And so the question is, in the judgment justice one jala of pine that in the basic structure ideology was yet to attain the status of a doctrine and is best, and is at best a school of thought, and therefore was not just dishable and courts could not be called upon to determine. What is Professor catches take on justice one jala is holding vis-à-vis the justice, just disability of the doctrine. So is the basic structure doctrine and doctrine at all, and should courts even be required in Kenya to to consider it. Professor catch. Thank you. Thank you, Buluma for the for the questions. Let me answer I haven't read the judgment as I've said I'll be kindly looking to read what justice doctor and jala was meant by saying that the basic structure doctrine is not really a doctrine. But let me look at it from, from, from my perspective, and from my perspective, I find on the useful side. If, if you're saying that you want to be able to protect a set of higher ideals of fundamental principles in a constitution that courts should be able to do that, then that that makes sense. However, how far should you go, which is where I think the question of whether this is an established doctrine comes in, how far should you go. And for me that that is that is problematic at four levels. Number one, that the danger with with the doctrine as I see it is, is the danger that it can lead to the fossilization of institutions, because if you take it to its logical conclusion, it might lead to the freezing of particular constitutional designs in the constitutional system. And the result would be that past generations would rule present and and future generations from from the grave. And I want to link this to what I thought Christina was saying that that that is important two things. Number one is asking that question, how rigid or flexible should a constitution be. And then she was saying that perhaps post conflict constitutions should be easy to change. And one can read the Constitution of Kenya 2010 in many respects as a post conflict constitution coming in the wake of the post election violence of 207. And I say so because when you look at the compromises that were made, particularly with respect to the system of government that all along. Many very many people wanted a parliamentary system, but ultimately the compromise was made that a very delicate compromise very last minute compromise that let us have a presidential system of government. In that context, do you really want to tell the people that look, you can never be able to change what you did not want in the first place. So you have a very delicate compromise. So from that perspective, therefore, I think that it is then harmful to claim through the doctrine that certain institutional designs in a constitutional system and by institutional designs I mean for example I'm trusting a parliamentary system of government with a presidential system of government and again linked to that, the mistake that the two courts made particularly at the high court was that it never engaged in a granular analysis of the building bridges bridges initiative bill. It never told us that this provision of the bill violates these fundamental provision of the Constitution. If you read both the edments was nothing of that nature, which then makes it very difficult to outline the precise scope of the doctrine. So for me, from that perspective, then you have a doctrine that is very imprecise and from the cases that are read including the Indian cases the basic structure of any given constitution will be what the court says it is. And so you have a dilemma if you want to amend a constitution should you then go to the court to ask in advance. Well, is this one. Okay. Will this one meet with the approval or not. The other quarrel that I have with it is that constitutions are never made or negotiated in a context in which everyone has the same kind of power. So, in any constitution making process, there's never a level playing field, you must account for differentiations in in in power at among the people at the time of a constitution of, of, of, of, I mean at the time of constitution, making. And that is why we talk of the mythical veil of ignorance because you can only have true constitution making behind occurring behind the mythical veil of ignorance, but we never have that. And so, precisely because you there's never a level playing field, one must always contemplate that it should be possible to amend the constitution that you must get that rigidity. flexibility balance right. And then for me and I think what this probably what justice when general was a leading to. Why should courts have that much power. Why shouldn't we leave, let the people decide what it is that that that that the one because the risk is that the doctrine in quotes is. And I'm saying doctrine in quotes, given what justice when general was saying is that it risks transforming the courts into policy makers. Because what essentially the courts are doing is, they're opting among different policies by either proving or refusing an amendment to the to the to the Constitution. That for me is very, is very problematic. Thank you. I hope I answered the question boom. Thank you, Prof. Any other of our panelists want to weigh in on any reflections on justice when Julia's comments that basic structure doctrine is not a doctrine. Adam, go ahead. Thank you. Well, I think so. Professor Arkesh has kind of covered most of the ground. But I think one of the related aspects is is also that you know that the judge is trying to resist the call for importing something that has not concretized even if there is this binding idea of a precedent. And the judge is essentially saying that this thing, the idea itself has not achieved a level where it can be called an acceptable established precedence. But in any case, I think the key point for me that ultimately the judge in the Supreme Court made with with that. The four procedures that the Constitution, the High Court developed and the Court of Appeal approved. Essentially, we're not put together to measure vis-a-vis the procedure that the Constitution already outlined. So, even if we agree with them with the idea that there's a basic structure, and that can only be changed through a particular process. We find it unconvincing from the High Courts and the Court of Appeals perspective that what they outlined can protect those basic structures more than what is provided for in the current Kenyan Constitution. And in fact, if the Indians, and I think, you know, Christina Murray talked about eternity closes, but you can talk broadly about basic structure in the Indian context, and I'm not an expert, but I assume that if there was a process in India, that followed the process that the Kenyan Constitution provides now to change certain aspects of the Indian Constitution, I'll be very surprised if the courts were still invalidate something like that. Essentially, you know, the Indian Constitution in terms of the basic structure doctrine and other countries where they put eternity closes, often the suggestion is that there has to be an inclusive participatory process, especially if that is not provided already in the Constitution. And of course that creates vulnerabilities, and I think that's what we saw for instance in Guinea Conakry, where the president essentially tried to go around an unamendable provision that prevented him from running again and adopted any Constitution and the process was not outlined and effective it was actually less strict than the amendment process that was provided in the Constitution. And so, you know, if we say that a different process has to be followed to amend an amendable provisions, it could be problematic and I think that's where Christina Murray's point about specifically regulating replacement may also be critical. Thank you. Excellent. Christina. And we'll just briefly first. I would actually say that you might want post conflict constitutions to be easier to amend. And it's quite an interesting question. I think quite a troubling one actually because those are the very constitutions that people often rely on to secure uncertain futures. What I did say is there will often be people in those situations, perhaps negotiating the Constitution, who are quite cynical about it, and who hope to be able to get out quickly, get out of whatever deals they've made and so my push for an easy amendment process. That is an equally interesting one. And just quickly on the doctrine thing. I don't know how you define doctrines. I agree with the guy and broadly speaking, but is the underlying issue not the idea that certain matters can only be changed by an exercise of constituent power. And if you accept that idea, which I, you know, the court, Supreme Court didn't. And I think they're quite strong arguments, not too necessarily, especially in a common law tradition. Then the, what is called the basic structure doctrine isn't attempt to implement that. So I suppose for me it's a doctrine, but it's just not a doctrine that is not necessarily acceptable. And one quick thing on the replacement of constitutions. What about having a process for the full replacement of a constitution set out in a constitution. Now again that I suspect could be a really sensitive issue in a constitution drafting process. I can say with some certainty 100% obvious that South Africans, the South African politicians who adopted our Constitution would not have wanted a process about how that very constitution could be replaced incorporated in the Constitution for a reason that Adam hinted at, you don't want to start to adopt a constitution and you don't want to immediately say, but it can be replaced. And similarly, I think when you include the eternity clauses in a constitution, you're not really also saying, but actually one day, an exercise of constituent power can can change that. So you are attempting to say something that is actually for eternity. Thanks, Christina. Any more questions from the floor I see Adam has a question in the text. Does anyone else would like to pose a question. You're welcome. I see Henry selector says hand up, please Henry. I guess my question. Can you hear me okay. Yeah, I can answer probably for Christina given this is this where her her talk focused on, but I'm so I sort of wanted when I heard that. It may seem like a very silly question, but is it possible for a constitution right to simply put it an absolute house to cause for any future constitutional amendments to say, under no circumstances may a court review anything other than I guess the form in which a constitutional amendment is adopted. Do you know if any country has done that none springs to mind for me. Do you think courts would take that seriously like it seems like there's an option on the table here that I, again, I can't think of any obvious reason why that would be completely unacceptable to cause. Thanks Henry. Christina could constitution makers limit courts to reviewing amendments only on procedural basis. Well, I suppose constitution makers can do anything. But it's what it work. I mean I'm sort of, I suppose again, other speakers have said more about this already today than I have no more about it. But what really interests me a little bit is how in Africa at least, possibly in other parts of the Commonwealth. The courts were unwilling even to assess procedural matters. You know, so the idea that parliament can, or the speaker can say this followed the set procedure. Certainly many Commonwealth African courts have said in such cases, we can't go there. We can't sort of second guess anything the legislature said. So, you know not so long ago. Courts were prepared to be very uninvolved in any matter that was related to lawmaking. And so constitutional amendment doesn't really answer your questions to start mulling over these things. Okay, Adam. So there's a question in the chat that you say is not from you so it must be from someone else. Is that right. Yeah, I don't know how my name is on that because I didn't write it. But maybe I don't know if Professor from body still with us, but it may be can he can answer. Okay, well, I think so. In that case, I think in India they tried to do that right after the courts reviewed the amendments they tried to actually exclude the courts right, but of course the court kept on doing what it did. Another country is Turkey I think kind of the same, the same process the courts were reviewing amendments, and then they specifically said okay you can review but only on procedural grounds. That's that's a response and I think it has worked slightly better in Egypt in in in in Turkey than in India in terms of actually constraining judges but even in Turkey, they have, you know, found a way to engage in in substance, even even at the talk of of the exclusion even at the accept that they have been excluded they always find a way to engage substantive substantive aspects so you Christianize right. So it's always a battle. But I think it's interesting to see what other things can do, particularly in my opinion in terms of saying okay you can do it, but you need a two thirds majority or something right, because the trouble with silent you know remaining silent about it is that if they do claim the right to review. Then they will be using the normal process or normal process they use to rule on basic things they will be using the same thing to challenge something that has been gone that has gone through a higher consensus and even potentially referendum. And so I think there is there are some things that can be done. And particularly as I said if the international courts, if the international judge that have, you know, that are quite distant can do it. And if states, of course, you know in both Tanzania and Benin, they have not agreed you know they have not accepted the judgments because you know many a constitution requires process and all of that. But if in theory and in practice they have if the international courts have done it. Does it make sense for domestic constitution makers to remain silent about these things. And so, you know, maybe there are some certain things that they can do. Thanks. Thanks, Adam, turning again to a question in the chat from yaya balde. If I if I understand completely the question here but basically it's can constitutional interpretation be entirely left with the courts, given its relevance to parliamentary divide takeover massers. I'm not sure I understand the second part of that. But if you're here and your microphone is working maybe you can clarify. I mean, if we take that question with the other question that somehow came from Adam, but was from someone else, I think there's just sort of two general concerns that that this court case raises one is how to structure an appropriate balance of rigidity and flexibility of constitutional amendment formulae and can constitutional interpretation be entirely left with the courts or does this give the courts too much power. Many of our panelists like to reflect on those two fundamental questions. So I'm going to go back to the summit. And a number of things but just, just the first of all, responding to Christina on the Kenyan context. What I meant is that. Look, to 20 to 20 to seven to 2010. We were coming out of a conflict situation, the two or seven to zero eight post election violence. It was felt strongly that the country needed to be stabilized. So if it might getting a system of government that was nonetheless, not really something that people agreed on, we could in the interim have that precedential system of government stabilize the country. But it was never the intention that even if you speak to the politicians who are involved in the process of the time they will tell you that we never thought at the time that we would subsequently be prevented or that it would never be possible to revisit. Compromise. So what I'm trying to maintain is that the compromises on the system of government in the Constitution of 2010 was shallow promises. So hence my concern that really should the people be stuck with what was a shallow compromise and what remains very contentious. When we ended up with bbi the reason that we've we've we've had a contentious contentious elections in 2013 contentious presidential elections in 2013 and 2017 are precisely because of the presidential system of government. It being recognized recognize now that we need a system of government that is include inclusive the presidential system of government is not it. And so it should be possible that obviously we the involving the exercise of the Constitution power to amend the system of government to change the system of government, but on on the flexibility rigidity balance my sense. Let me give you context. There have been 21 attempts to amend the Kenyan Constitution of 2010 21 attempts, none of them have succeeded. So then you ask the question is this are we dealing with a rigid or a flexible the Constitution, but so in terms of my answer to that I see. We see it displayed in the Kenyan Constitution that we have that it's difficult to amend it's it's difficult to amend because if you look at chapter 16, it has special procedures. So it requires special majorities. In some cases, it requires the involvement of different institutions whether it is the county assemblies, the, the, the, the legislature the national level both houses of the legislature. In many ways, therefore, what you have in in our Constitution as the Chief Justice was stating in our judgment in the, in the, in the, in the BPA case is that we have a tired amendment. We have tired amendment procedures, which I've made it exceedingly difficult for, for the Constitution to end it if the 21 attempts are anything to go by, and then also when we say that only the, the people can use the BPA initiative route. We are not considering the practicalities of that in the sense that successfully pushing through a constitutional amendment will require resources. It will require resources at the level of mobilizing the people at the level of persuading citizens at the level of educating citizens on, on, on the amendment, it's going to be a very expensive exercise. If you look at it from that perspective you ask yourself which one Gico, which citizen is this that has these resources to be able to push through a constitutional amendment, or will the popular initiative be something that we only have on paper but we will never realize in practice. I leave it at that. Thank you. Adam, maybe you could pick up the thread and there's also a sort of query directed for you in the chat. Well, so I think maybe a little bit about what I think that the final point that that's me guy made. There's actually a piece maybe I'll share it later by what is Tom, what's his name, the Kenyan he wrote an article when the first citizen initiative was started. And his fundamental point was was was really that I was supposed to enable the people and disabled elites, but in reality, there is was there was a massive risk that it's actually giving elites an alternative a second door essentially. And that's what the point that you know me guys is trying is trying to make you can be clever when you design it. But it's very difficult to to evade the influence of elites, whether politicians or other elites in terms of pushing reform reform ideals considering the resource and all its needs, but at the same time. And especially the way the courts have now tried to refine it to constrain that the political elites. There is always a chance that the people can use it to do certain things on the point about about from from the name. I can't really read this from the second, the second name. You were right, I think, and kind of builds up on what Christina said earlier. You know, we cannot agree or arguably that there is a basic structure of a constitution. And especially when there are clearly stated principles as in Kenya and other places that are made an amendable or eternity closest and all. One of the differences is that just because they are there. It doesn't entitle courts to then try and enforce them. Because it's it's very, you know, constitutional amendments require very extensive large scale consensus, broad, broad, you know, broad deals behind the scenes and with the public and all of that. And in, you know, if courts can just claim that power. Then then as as as again as I could say, essentially we, you know, we can, it can arguably that judges should invalidate laws, you know, ordinary laws, but if we say they also should do constitutional amendments. And we are leading to judicial supremacy rather than constitutional supremacy. So my argument is not that they shouldn't have these powers, but it should only emanate from express regulation. And that regulation of course cut then mean that the process they follow the number of judges that must agree the time they should, you know, there's a lot of things that regulation can do. And that way, you know, we are not empowering them we are actually constraining courts in that sense. Thank you. Thanks, Adam. Christina any reflections. Yeah, there's sort of hundreds of reflections, but I don't think you want to hear them all. I'm just to pick up on McGuy's sort of first point, or most recent point. So let's assume we're all a bit uncomfortable with the presidential system. I must admit I'm slightly cynical about the politicians who say oh but we didn't think this would be there forever. I know certainly thinking of the next election, but really politicians engaged in constitution making need to assume they're doing something that is not just for the next term. So I'm a little bit unimpressed by politicians who kind of later say well we didn't really mean it to last. And that does more seriously that does take one to this question of the list of amendments that need to go to a referendum. Because I think you're, you're right in saying some things need to be changed more easily. I mean what is very evident as I think I said before is it in the bundle of changes in the BBI proposal are some that are really military and really very technical, just tidying up things that are messy and should be streamlined and so on. Those things should go through. That should be an easy process. A sort of related question is the list of issues in is at section 256 or seven whichever the list of issues that need to go to a referendum to could it have been done another way. I don't know how other constitutions do these lists, but I mean could you have tried to refer for instance to issues like accountability, and rather than the whole of the system of government. And so as to allow changes to sort of institutional arrangements, but to protect underlying principles and require a referendum for them. I mean, as I said I realize it would be really difficult to be the laws of blunt instrument and constitutions of blunt instruments. So possibly that would be asking too much and open up too much for again judicial determination. But as I said before that this whole debate has made me think about is, you know what was the role of the popular initiative initiative route in the constitutional proposals. It's Genesis is obviously or I assume is in the incredible force of civil society in Kenya, particularly in the 1990s and in the early 2000s, where the, the role of people driven constitution making was important. So actually if you look at that process, the only serious thing it does about amendments is makes it easier to get amendments through parliament, right because it reduces the parliamentary approval from two thirds to a majority. So it's a process which allows you to avoid a minority of MPs blocking constitutional change. So if that's your goal, I suppose this is you know if I was thinking about this redesigning this part of the Constitution. Are there other ways of doing that. Are there other ways of trying to avoid that parliamentary block or do we actually believe that the best we have in the representation of people is politicians. I'm very aware that politicians, you know, it's sort of like the best of a bad bunch, but they do at least potentially represent people and nothing else does that is the other way to go to be a little bit more demanding of subnational units. I think it was rather a quick fix to have 50 half of the county councils do the job under the bonus draft for instance they were 70 subnational units, half of which had to approve an amendment going through this route. But that's just to say all of this makes me wonder are there other ways of managing this. The one that's another speaker referred to earlier that I think is not a good way is the Russian way of allowing the president to completely bypass the legislature and go straight to a referendum. That was proposed in Syria and some earlier Constitution as well and so on. So you don't want that kind of way of bypassing a legislature, but if it is strongly felt that a super majority in a legislature shouldn't be the only way of changing the Constitution. What other options are there. And I think that's worth thinking about. Thanks Christina. And I think it's actually a really interesting point and for me, you know that this decision as well as the 2016 process. Rather than the basic structure doctrine to me do raise a lot of questions about the place of citizen initiatives in constitutional change. There is one specific question on the judgment. So I shall ask Professor catch again to come in on this one. And this question is from Camilla Knight, who says and sort of touches on a point that Christina raised before regarding whether to have multiple questions or a single question in a referendum. So the question is as follows. The Kenyan Supreme Court avoided addressing the question whether there was need for multiple questions or a single omnibus referendum. Yes or no question. Would this be a potential challenge in the future. Thank you. Thank you Camilla for the for the question. Would it be a potential challenge. Probably yes. But my sense of it is, is, is, is the following. I think it is, it is sensible to avoid the multiple questions all altogether. And the reason I say so is, if you have already designed a process for amending constitutions that is deliberative that is participatory that is consultative that involves various institutions of the people. And the referendum is, I would imagine, either a vote of confidence on the process or not. And so if you look at it in from that perspective, then you're better off with a yes or no vote. And so in the sense that it is then a mechanism, a mechanism for the people to either approve the package or not because again as Christina was saying, you're dealing with a package, isolating particular issues to be able to say we voted for the vote for the other, I think can be very complicated in terms of the practicality of it. But also I don't think that that would be necessary. So for me, it is simply saying, how do the people support these proposals and not all these processes that that that we have gone through. There has been public participation. There has been deliberation on these proposals by the people they've been compromises given take here and there. On the whole then you're asking the people, given this context that you're compromised on some you've not, you don't like others on the whole do you think that this is something that you can leave with. This is what we did with the constitution of 2010 we didn't ask the people, look, they are you voting. We want you to vote on contentions issues. No, we just want you to vote on the package do you like this as a package, or you don't. Obviously, it's not going to be a situation where everybody agrees on every single provision of the constitution, but given the necessary compromises that are to be made, is it something that you can leave with. I would, I would think that it is best to avoid multiple multiple if a random question, just yes or no, assuming of course that the process has been deliberative. Thanks professor. That brings us to the end of our time here. And I want to thank all the panelists for their excellent interventions. And also thank our partners, the African network of constitutional war. It's always an honor and a pleasure to work with the ANCL. And thanks very much to all the participants for your attention and your participation. And look forward to seeing you all again in another forum sometime soon. Thanks very much. Thank you very much. Have a good day everyone. Thanks. Thanks for future meetings. Looking forward to them. Thank you Christina. And thanks everyone. Thanks. Thank you. Thank you. Take care everyone.


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