Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) & Okubasu Munabi (Moi University) have posted Stability of Constitutional Structures and Identity Amidst Political Bipartisanship: Lessons from Kenya and Israel on SSRN. Here is the abstract:
In July and August 2021, two dramatic constitutional rulings were was handed down in Kenya’s Court of Appeals and the Israeli Supreme Court. In Kenya, a seven-judge bench upheld a ruling from the High Court that had found the Constitution Amendment Bill of 2020 – aimed to implement the Building Bridges Initiatives (BBI) - unconstitutional and void, inter alia, for violating the basic structure of the constitution. Politically, this was a blow to the BBI initiative, a key project for President Uhuru Kenyatta and opposition leader Raila Odinga, that followed their famous 2018 handshake. It is assumed that the real purpose of the initiative, beside ‘reconciliation’, was expansion of executive power by creating the post of prime minister and two deputies, which would allow both Odinga and Kenyatta to constitutionalize the post-handshake de facto coalition arrangement and expand it to accommodate others for the sake of winning the 2022 general elections. In other words, the two leaders decided to put an end to the quarrels between them and cooperate in the division of power between them, a division of power that was sought to be anchored in a major constitutional reform.
The story is remarkably similar to what was happening in Israel, about the same time. After the March 2020 election did not lead to a clear result that would allow one of the two major parties vying to form a coalition, an agreement to form a unity government of the two was reached. Yet, in light of a deep distrust between the parties, a strong legal anchoring was needed. This eventually led to a major constitutional amendment that transformed the system of government and established a ‘rotating government’ model which created a new position of ‘Alternate prime minister’ alongside the serving prime minister. In contrast with constitutional amendments whose purpose is prospective and long-term, in the present case, it was clear that this was a constitutional amendment that was tailored-made to the circumstances and served a political purpose of forming a government that would be sworn in immediately after legislation. All in all, this initiative would have altered the constitutional arrangements in place and identity proudly.
Like in Kenya, this structural constitutional amendment was challenged before the Court. However, in Kenya, the challenge was accepted and the reform bill was repealed (this was approved by the Supreme Court, on procedural grounds, although the Basic Structure Doctrine itself was rejected at the apex court). In contrast, in Israel, a nine-judges bench rejected the constitutional challenges against this amendment, with only one dissenting judge claimed that this was an abuse of the constituent power. This amendment, which was allowed by the court, carries dramatic implications for the governing structure in Israel, basically creating a dual prime-minitership model, that far from being a one-time experiment, is expected to stay for long.
This article reviews these two decisions with the broader aim of analyzing the relationship between political bipartisanship settlements on one hand and structure and form of government to constitutional identity on the other.
