Stability of constitutional structures and identity amidst ‘political settlement’: lessons from Kenya and Israel

Abstract

In 2021, two dramatic judgments were handed down in Kenya’s Court of Appeals (CoA) and the Israeli Supreme Court. In Kenya, the CoA 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. It is assumed that the real purpose of the initiative, beside ‘reconciliation’, was expansion of executive power by allowing both leaders to form a coalition for the sake of winning the 2022 general elections. About the same time, in Israel, after the March 2020 election did not lead to a clear result that would allow one of the two major competing parties 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 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. This tailor-made constitutional reform served a political purpose of the two leaders to form a government. In both countries, the sought constitutional change was challenged before courts. Yet, while in Kenya, courts stopped the constitutional transformation, the Israeli court did not intervene. This article reviews both case studies in order to draw broad lessons on how political settlement may overcome constitutional rigidity and abuse the amending process for dismemberment of the constitution, and how courts may function as a veto institution that can be a useful countermeasure against radical change to constitutional structures and identity.