Constituent power and Carl Schmitt's theory of constitution in

© The Author 2011. Oxford University Press and New York University School of Law.All rights reserved. For permissions, please e-mail: [email protected].

..........................................................................................

I•CON (2011), Vol. 9 No. 3–4, 587–614 doi: 10.1093/icon/mor050

Constituent power and Carl Schmitt’s theory of constitution in Kenya’s constitution-making process

Richard Stacey1

The decade-long constitutional reform process in Kenya spans two phases. The first ended with a High Court decision that the constitution-making process was unconstitutional because it failed to provide an opportunity for the exercise of constituent power by the Kenyan people. In the second phase Parliament sought to shield substantive questions of constitutional design from the reach of the constituent power. Drawing on Carl Schmitt’s constitutional theory, this article argues that although paradoxical, such treatment of the constituent power is theoretically coherent. Reading Schmitt’s theory closely reveals that, despite himself, Schmitt accepts limitation of the constituent power where the nature of law and liberal con-stitutionalism demand it. The article does not apply Schmitt’s constitutional theory, so much as read it against itself to suggest that it bears close resemblance to Fuller’s and Dworkin’s jurisprudence. At the same time, the article seeks to understand the Kenyan constitutional reform process, and ultimately questions whether the limitations placed on the constituent power in Kenya are consistent with theoretically acceptable limitations.

The most important attribute of a sovereign people is their possession of the constituent power. And lest somebody wonder why, the supremacy of the Constitution. . .is not explicable only on the basis that the Constitution is the supreme law, the grundnorm on Kelsenian dictum; nay, the Constitution is not supreme because it says so: its supremacy is a tribute to its having been made by a higher power, a power higher than the Constitution itself or any of its creatures. The Constitution is supreme because it is made by they in whom the constituent power is reposed, the people themselves. . . . In short, I am of the persuasion that the constituent power of the

1 Institute for Law and Society, New York University. My thanks to members of the committee of experts on constitutional Review in Kenya for the opportunity to participate in and discuss aspects of the Kenyan constitutional review process in Nairobi during July and August 2009. All views expressed here are mine alone. Thanks also to the Institute for Law and Society at NYU for partial financial support, and to the Journal’s anonymous reviewers for comments and suggestions. Email: [email protected]

Downloaded from https://academic.oup.com/icon/article-abstract/9/3-4/587/657635by gueston 11 April 2018

mailto:[email protected]

588 I•CON 9 (2011), 587–614

people has a juridical status within the Constitution of Kenya and is not an extra-constitutional notion without import in constitutional adjudication.2

IntroductionThe concept of the constituent power is an old idea in constitutional theory, yet it retains a great deal of currency in contemporary constitutional discourse. The concept was inserted into the heart of the decade-long constitution-making process in Kenya in 2004, when the High Court upheld an argument that fundamental constitutional change could not be made through anything but the exercise of sovereign constituent power. In June 2009, the German Bundeverfassungsgericht held that “essential ele-ments of the constitution” can be disposed of only through the exercise of constituent power—not by the legislative, executive or judicial bodies—and that elements of Germany’s accession to the Treaty of Lisbon were on that basis unconstitutional.3 On the one hand, understanding the constituent power and how theories of popular sovereignty associated with the concept inform constitutional discourse is important to understanding the Kenyan experience of constitutional reform and current inte-gration debates in Europe. On the other hand, such processes are usefully studied as sites where constitutional theory is put into practice.

I aim to do two things in this paper. First, I want to come to grips with the idea of the constituent power by looking both at Carl Schmitt’s theory of constitution and at how the idea has surfaced in the Kenyan constitutional reform process. To begin, the Kenyan High Court relied on the concept of the constituent power to hold that constitutional reform processes had not been inclusive enough; but in subsequent processes of constitutional reform the range of substantive questions exposed to the constituent power has been limited. Many readings of Schmitt’s theory would argue that any limitation of the constituent power is inconsistent with Schmitt’s theory of the constitution and with the concept of the constituent power itself. For Schmitt, the arguments go, democracy and dictatorship are two sides of the same coin,4 and limi-tation of the constituent power undermines the constituent power. I argue here that Schmitt’s theory of constitution and of constituent power can be read against this con-clusion, and that Schmitt himself admits of constraints to the will of a sovereign people and the constituent power. Second, taking this approach offers a useful perspective from which to understand the Kenyan experience. Examining constitutional reform in Kenya from Schmitt’s perspective is thus not an application of Schmitt’s theory, but rather a way to read Schmitt, in some ways against himself and certainly against other readings of Schmitt, to establish constitutional limits to constituent power.

2 Ringera J in Njoya & Others v. Attorney General & Others, [2004] LLR 4788 (HCK), High Court of Kenya at Nairobi, 25 March 2004, at 15.

3 BVerfG, 2 BvE 2/08, 30 June 2009, available online at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.

4 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar 57-58 (1997).


http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html

http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html

Constituent power and Carl Schmitt’s theory of constitution in Kenya’s constitution-making process 589

For Carl Schmitt writing in Weimar Germany in the 1920s, a theory of the con-stituent power provided the basis of an extended attack on Hans Kelsen’s legal posi-tivism, and much of Schmitt’s Constitutional Theory5 can be read as an invective against Kelsen’s idea of a Grundnorm.6 Against this idea Schmitt erected the concept of the constituent power, resting on the foundation of the democratic sovereignty of a politically cohesive people giving a political order to itself. In developing his theory, Schmitt relied on a vast body of ancient and modern political theory, from Aristotle in Greece to Sieyes in revolutionary France, Lasalle in Prussia and Bryce in Britain. Using these old ideas, Schmitt deployed the constituent power in new ways against the rising force of legal positivism, running in some ways contrary to the broader contemporary context of increasing antipathy to classic natural law theories. Sch-mitt professed to share this antipathy to natural law,7 but his anti-Kelsenian project nevertheless remains rooted in natural law ground. There is a tension in Schmitt’s theory between the will of the people and a kind of supra-democratic constraint on the people. Schmitt argues powerfully, for example, that principles immanent to the law preserve its protective character and constrain the law-making power of law-making organs.8 In later work, Schmitt moved even further away from the idea of a sover-eign people as the unconstrained author of a political-legal order and accepted the Aristotelian idea that “nomos, rather than democratic plebiscites, should be decisive.”9 The Kenyan case stands at the watershed of these theoretical currents, since although plebiscite has been and remains central to the constitutional reform process in Kenya, substantive boundaries and limitations have nevertheless been placed on the role of the democratic will in the constitution-making process.

The element of this tension that I want to investigate here, with Kenyan constitu-tional reform as an embodiment of it, is how both Schmitt and the Kenyan High Court reject Kelsenian legal positivism (and by implication the positivism of H.L.A. Hart10), remain committed to what might be described as a kind of Hobbesian democratic posi-tivism, and yet envisage at least some constraints on the constitution-making power of the people. There are two avenues along which this tension is usefully explored. The first is in how Schmitt constructs the Rechtsstaat concept of law and the political form of the bourgeois Rechtsstaat as a response to the “command-theory” aspects of Kelsen’s theory of law. His response foreshadows a line of reasoning pursued some years later by Lon Fuller in his own debate with Hart. Schmitt argues that there are natural limits to what laws a legislature can pass—not by virtue of natural law or other metaphysical restraints of pure reason or justice, but because the Rechtsstaat “rule of law” is impossible without those constraints. For law to rule, in other words, it has to conform to a set of general principles. For Fuller these principles constitute an “inner

5 Carl Schmitt, Constitutional Theory (Jeffrey Seitzer ed. & trans., Duke Univ. Press 2008) (1928).6 Jeffrey Seitzer & Christopher Thornhill, Introduction to Schmitt, Constitutional Theory 5-7.7 Schmitt, supra note 5, §8 and § 13. See also Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl

Schmitt 194-195 (2000).8 Id. §13.9 carl schmitt , The Nomos of the Earth in the International Law of the Jus Publicum Europeaum 68 (Telos Press

2003) (1950).10 H.L.A. Hart, The Concept of Law (1961).


590 I•CON 9 (2011), 587–614

morality of law”;11 for Schmitt they are intrinsic conditions that constitute a “general, logical and unavoidable minimum” substantive content to the law.12 Ronald Dworkin, for his part, has argued that uncertainties in the law must be resolved through the application of the principles that are embedded in the political culture and values of the community, and Dworkin’s jurisprudence contributes a great deal to a developing understanding of Schmitt’s position. The political question against Schmitt is how far these intrinsic principles constrain the decisions of the sovereign people, or in Ringera J’s words in the Kenyan High Court, those in whom the constituent power is reposed.

The second avenue of investigation begins with the distinction Schmitt draws between the constituent power and the constituted powers, and between the ab-solute concept of the constitution and constitutional laws. Fundamental constitu-tional change, he says, can only be effected by the constituent power. Attempts at fundamental change by organs other than those which wield constituent power will be unconstitutional, and indeed, the doctrine of unconstitutional constitutional amend-ment has become a cogent one in constitutional theory.13 On the basis of a distinction of this kind, Bruce Ackerman suggests that the basic structure of a legal order is laid during extraordinary constitutional moments or periods of “higher lawmaking.”14 Processes of constitutional change are thus limited by physical and external constraints, rather than by intrinsic principles, and it becomes important to determine both whether a represen-tative body holds constituent power and whether the changes it seeks to make amount to amendments, fundamental amendments, or constitutional replacements.

Kenya’s constitutional development calls Schmitt to mind in a number of ways. The first part of this paper provides the factual context to Kenya’s stilted transition from autocratic presidentialism to liberal democracy. I describe Kenya’s executive-dominated post-colonial history as a background to the constitutional reform process, begun by former president Daniel Arap Moi in 1998, as well drawing attention to important elements of the reform process so far. Part 2 looks at how the concept of the constituent power was used in political struggles to derail the constitutional review process in 2004 in the Njoya case, and draws out the Schmittian aspects of the High Court of Kenya’s reasoning. Part 3 makes the link between constraints on the constituent power and Schmitt’s anti-positivist position, and examines the experience of Kenya, as well as “basic structure” arguments in other countries, in light of this link. In the concluding section I offer a brief evaluation of the ways in which the con-stituent power has been limited in the Kenyan constitutional review project. I argue that these limitations are not entirely consistent with the kinds of principled and inherent limitations that Schmitt’s theory envisages, and that whatever the prag-matic and practical value of these limitations on the democratic will, they are hard to reconcile with the earlier judicial construction of the constituent power.

11 Lon Fuller, The Morality of Law (rev. ed. 1969).12 Schmitt, supra note 5, at 194, 196.13 Most importantly in this regard see the Indian Supreme Court decisions in Golak Nath v. State of Punjab,

AIR 1967 SC 1643 and Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1469. See also Gary J. Jacobsohn, An unconstitutional constitution? A comparative perspective, 4 Int’l J. Const. L. (I•CON) 460 (2006).

14 Bruce Ackerman, We the People: Foundations chapter 1 (1991).



1. Kenyan presidentialism and the initiation of constitutional reformSince independence from British colonial rule in 1963, Kenya has had only three presidents. Jomo Kenyatta, the country’s first independence leader, took power under the terms of the Lancaster House agreements and a constitution negotiated with the British in the early 1960s. The first of Kenyatta’s constitutional amendments took place only months after independence, abolishing the office of prime minister and leaving the president as the head of both state and government. Kenyatta held an increasingly tight grip on power until his death in 1978, when he was succeeded after a single-party election by his vice president, Daniel Arap Moi. Moi held power until 2002 when he left office in terms of 1992 amendments to the Constitution limiting presidents to two five-year terms. Kenyatta and Moi’s combined four-decade rule was, however, marked by myriad constitutional amendments, “the effect of which was to dismantle the entire Lancaster Constitution, personalize power, and prevent the emer-gence of resilient, accountable and transparent institutions of the state. Political con-venience and survival . . .dictate[d] the constitutional developments and evolution of the Kenyan state.”15

Several steps are important in Kenya’s post-colonial trajectory towards executive dominance. First, a de facto one-party state was established by Kenyatta’s co-option of Moi, as the leader of the opposition, into the government.16 Not long after Moi’s ascent to the presidency, however, Kenya became a de jure one-party state with the passage in 1981 of Section 2A, a constitutional amendment banning all political opposition.17 The rest of the 1980s was characterized by the now-standard battery of constitu-tional amendments and only-dubiously legal measures bolstering presidential rule. The president made full use of his powers to appoint and dismiss public officials, to restrict rights to freedom of speech, assembly and association in terms of the colonial Chief’s Authority Act, and to prohibit public gatherings in terms of the Public Order Act.18 During this period, arrests, detentions and trials of government opponents and dissidents increased as basic rights were restricted. Kenyatta had as early as 1966 amended the president’s emergency powers in terms of the Constitution, enlarging them and shielding their exercise from parliamentary oversight. Detention without trial and beyond judicial scrutiny was extended from 24 hours to fourteen days by amendments to the Preservation of Public Security Act.19 In the same year, tenure for judges was abolished20 and judicial independence further compromised by the

15 Makau Mutua, Kenya’s Quest for Democracy: Taming Leviathan 62 (2008).16 Frank Khachina Matanga, Kenya: A Chequered Path to Democracy 1 E. Afr. J. Hum. Rts. 31, 33 (2003).17 Mutua, supra note 15, at 66.18 Id. at 84.19 Laws of Kenya, Chap. 57.20 Constitution of Kenya (Amendment) Act 50 of 1988. The Constitution of Kenya (Amendment) Act 14 of

1986 had already removed the security of tenure of the Attorney General and the Auditor General.


592 I•CON 9 (2011), 587–614

employment of non-Kenyan judges on contract basis.21 Perhaps the most vulgar of Moi’s perversions of democracy, at least to contemporary democratic sensibilities, was the introduction of “queuing” voting in 1988, which replaced the secret ballot with a system requiring voters to line up in plain sight behind their preferred single-party candidate.22 This not only eroded the political rights of the electorate, but also made interference in elections far easier for the president.23

All of these measures were designed to repress political opposition and facilitate the concentration of power in the executive president. Even after the repeal of Section 2A and a nominal return to multi-party elections in the 1990s, political power remained highly concentrated. The 2002 election, although not won by Moi’s preferred can-didate from the incumbent Kenyan African National Union (KANU), was neverthe-less won by Moi’s former vice president, Mwai Kibaki. After forty years of centralized power it was extremely difficult for essentially ethnic political parties to generate the level of national support needed to challenge or restrain the “power emanating from the center.”24 The introduction of multi-party elections in the 1990s had little effect in limiting presidential rule.25

1.1. Presidential leadership in the political theology of Carl Schmitt

It is an interesting coincidence that two of the most intellectually explored parts of Schmitt’s work present themselves in Kenya. Schmitt’s view of the constituent power is particularly relevant once the constitutional reform process begins in Kenya at the end of the 1990s, but his view on executive leadership plays out in the earlier history of post-independence Kenya as well.

Schmitt was a proponent of strong executive leadership. In this, his short pupilage with Max Weber is evident. For Weber, the iron cage of bureaucracy and the con-straints of legal rationality leave politics in need of inspiring and creative leadership.26 In his own involvement in debates about the constitutional design of the new German republic in 1919, Weber argued for a powerful executive president ruling “with more or less unfettered discretion when (as he saw it) the need arose.”27 Schmitt took

21 Mutua, supra note 15, at 67. See also Drew S. Days, Justice Enjoined: The State of the Judiciary in Kenya (1992).22 Matanga, supra note 16, at 34. It is an interesting point that the secret ballot was a fairly recent political

innovation in the 1920s, when Schmitt was writing. Schmitt expressed the view that the practice is un-democratic because it removes individuals from the public sphere and transforms them into individuated, private persons (Schmitt, supra note 5, at 274). In this view of democracy, Schmitt exhibits some of his Rousseauian roots.

23 G.K. Adar, Ethnicity and Ethnic Kings: The Enduring Dual Constraint in Kenya’s Multi-Ethnic Democratic Electoral Experiment, 5 J. Third World Spectrum 80 (1998).

24 J.B. Ojwang, Constitutional Trends in Africa: The Kenya Case, 10 Transnational L. & Contep. Problems 517, 530 (2000).

25 Id.26 See Max Weber, The President of the Reich and The Profession and Vocation of Politics, in Weber: Political

Writings (Peter Lassman & Ronald Speirs eds., 1994).27 David Dyzenhaus, The Legitimacy of Legality, 46 Univ. Toronto L.J. 129, 147 (1996). See also Wolfgang

Mommsen, Max Weber and German Politics, 1890-1920 chapter 9 (1984).



Weber’s proto-presidentialism forward into the Weimar Republic in two ways.28 The first of these was his interpretation of Article 48 of the Weimar Constitution, a provi-sion which imbued the president with emergency powers to suspend the operation of basic rights enshrined in the Weimar Constitution in times of crisis.29 In Die Diktatur, Schmitt described a temporary suspension of the Constitution in this way as an act of “commissarial dictatorship,” understood in contrast to “sovereign dictatorship.” While the sovereign dictator—the people—holds the constituent power to create a new constitution, the president acting on commission has the power only to act in defense of the constitution within the limits set by the constitution.30 Schmitt is notori-ously ambiguous on this distinction, however, and in a work subsequently published as an appendix to Die Diktatur, Schmitt suggested that between the lines of Article 48 lay a delegation to the president of the “residuum of the sovereign dictatorship of the National Assembly.”31

Schmitt’s second contribution to presidentialism was his favorable response to the Weimar government’s request for a “consultant’s report” on the legality of Chancellor Brünning’s use of the Article 48 emergency powers to circumvent Reichstag resistance to the Chancellor’s economic policies. Brünning’s use of Article 48 had been legal, Schmitt argued, because it was an example of commissarial dic-tatorship. Moreover, he continued that while the Reichstag was not in session the president could exercise sovereign authority in the same way as the Reichstag itself.32 David Dyzenhaus’s reading of Schmitt in this is that the president’s authority “cannot be contained by any attempt at normativization.”33 Rather, Dyzenhaus goes on, Schmitt wanted Weimar ruled by an authoritarian government able to rule free from parlia-mentary constraint and able “to stop the war between different social groups.”34

Kenyatta and Moi often gave Schmittian justifications for their exercise of largely unfettered executive power. Makau Mutua points out that one of the enduring problems of post-colonial Africa is the relationship between state power and the, often artificial

28 The intellectual link between Schmitt and Weber has been acknowledged since at least 1964, when Jürgen Habermas called Schmitt a “legitimate student” of Weber’s. Habermas later softened his stance towards Weber, identifying Schmitt rather as the “natural son” of Weberian theory; see Kjell Engelbreckt, What Carl Schmitt picked up in Weber’s Seminar: A Historical Controversy Revisited, 14 Eur. Legacy 667, 668 (2009). Schmitt’s most direct statement of the role of presidential leadership is in Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1985), in which he argues that the sovereign is “he who decides on the state of exception.”

29 The relevant part of Article 48 read as follows: “If in the German Reich the public security and order are significantly disturbed or endangered, the President can utilize the necessary measures to restore public security and order, if necessary with the aid of armed force. For this purpose, he may provisionally sus-pend, in whole or in part, the basic rights established in Articles 114, 115, 117, 118, 124, 153.”

30 Carl Schmitt, Die Diktatur chapter 4 (1964) cited by Dyzenhaus, supra note 4, at 75. See also note 5, at 109-111.

31 Die Diktatur des Reichspräsidenten nach Artikel 48 der Weimarer Verfassung, quoted by Dyzenhaus, supra note 4, at 75.

32 Seitzer &Thornhill, supra note 6, at 21.33 Dyzenhaus, supra note 4, at 80.34 Id. at 82.


594 I•CON 9 (2011), 587–614

and constructed identities of different ethnic groups that constitute the whole.35 The project of state formation in the post-colonies is “about forging a national character by absorbing precolonial and other group identities into the whole without establish-ing an informal hierarchy of groups or ethnicities.”36 Moi used this rhetoric to warn that multipartyism would foster ethnic rivalry and political instability. Behind the re-pressive use of state power was the specter of tribal violence and civil war, and Moi in particular played on ethnic rivalries and tensions to foment unrest.37 Kenya has unfortunately been no stranger to violence over the last twenty years, and much of this violence is either ethnically motivated or claimed by politicians to be so. Vio-lence erupted both before and after the 1992 elections and again around the 1997 elections, and of course most recently in the aftermath of the disputed 2007 elections. Moi justified the repression of opposition on the basis that it prevented the disintegra-tion of the Kenyan people into ethnic nativism or tribalism. Even as the government’s policies favored Moi’s own Kalenjin ethnic group and marginalized other tribes, the president painted himself as the unifier of the Kenyan state, the guardian of the na-tional identity without which the project of state formation would fail. It is easy to pick up the Schmittian flavors in this excuse for presidential power in Moi’s Kenya.

1.2. The constitutional reform process

This paper is not concerned to analyze why, with a seemingly tight grip on power, Moi acceded to demands for political liberalization and constitutional reform. Com-mentators suggest that the severance of international donor funding had a great deal to do with the initiation of reform,38 and that Moi believed he could mollify dissenters with a constitutional review process he would be able to control.39 In any case, there was significant internal pressure for reform, and this pressure can be read in a way that fits the Schmittian frame of constitutional analysis. In the first place, pressure for reform was driven by a desire to place limits on executive power and enshrine protec-tions for basic rights40—two things notably absent from Moi’s regime. For Schmitt, the “ideal concept of the constitution of the bourgeois Rechtsstaat” consists in the vin-dication of bourgeois (liberal) freedoms and the political arrangements guaranteeing those freedoms. “Only those constitutions which contain a few guarantees of bour-geois freedom,” Schmitt proclaims, “will be viewed as free constitutions deserving the name ‘constitution.’”41 The necessary guarantees of liberal freedom are for Schmitt

35 Mutua, supra, note 15, at 12. See also Marina Ottoway, Ethnic Politics in Africa: Change and Continuity in State, Conflict and Democracy in Africa 301 (Richard A. Joseph ed., 1999).

36 Mutua, supra, note 15, at 13.37 Id. at 84. In regard to the violence in the 90s see Laurence Juma, Ethnic Politics and the Constitutional

Review Process in Kenya, 9 Tulsa J. Comp. & Int’l L. 471, 494-497 (2001-2002).38 Joel D. Barkan, Kenya after Moi, 83(1) Foreign Affairs 87, 89 (2004).39 Roger Southall, Re-forming the state? Kleptocracy and the Political Transition in Kenya, 93 Rev. Afr. Pol.

Econ. 79, 101-105 (1999).40 Juma, supra note 37, at 501.41 Schmitt, supra note 5, at 90-91.



the recognition of basic rights, the separation of powers and a minimum degree of popular participation in the legislative process.42 Schmitt’s view is that liberal rights themselves are worth little without political mechanisms and a total structure to preserve them.

This means that the constitutions of today’s bourgeois states are always composed of two com-ponents: On the one hand, the principles of the Rechtsstaat for the protection of bourgeois freedom against the state and, on the other hand, the political component, from which the actual state form (monarchy, aristocracy, or democracy, or a “status mixtus”) is derived. In the connection between both these components lies the peculiarity of today’s constitutions of the bourgeois Rechtsstaat. This duality determines its total structure, and by way of central concepts, such as the concept of the statute, it leads to corresponding dualisms.43

Second, following Dyzenhaus’s charge that Schmitt really saw the president as the holder of residual constituent power after the people’s original exercise of constituent power, the Kenyan people had never had the opportunity to exercise the constituent power. Even if Dyzenhaus is correct that Schmitt’s position was that the president inherits some residue of constituent power once it has been exercised by the people in constituting the political-legal order, the people must nevertheless exercise the constituent power at some point. This had never happened in Kenya. The Lancaster House Constitution was imposed on Kenya by Britain, and even generously framed as a negotiated transition, only a small elite of Kenyan politicians were involved in the negotiation. Moreover, the Constitution was amended many times and in fun-damental ways without the involvement of the people. Even though Kenyatta’s and Moi’s amendments were rubber-stamped by Parliament, it can hardly be claimed in the context of their authoritarian regimes that Parliament was a truly representative body.

The pressure for constitutional reform can be seen both as a push for substantive reform towards a bourgeois Rechtsstaat, as well as a more visceral, instinctive desire on the part of the Kenyan people to taste constituent power. The political and legis-lative developments of the constitutional review process are usefully viewed against this background.

In 1997, shortly before the second multiparty elections in Kenya, the government introduced in Parliament the Constitution of Kenya Review Bill. It mandated the Attorney General to constitute a representative commission charged with the review of the existing Constitution. It was duly passed by Parliament,44 although it was met with serious opposition in civil society and from opposition parties. The primary objec-tion was that the recommendations of the Commission were to be considered by Par-liament.45 In this regard a statement of opposition politicians and civil society leaders is informative.

42 Id. at 91.43 Id. at 93.44 Constitution of Kenya Review Act 13 of 1997.45 Juma, supra note 37, at 506-508; Mutua, supra note 15, at 110.


596 I•CON 9 (2011), 587–614

We totally reject Parliament as the only forum for constitution-making. We do not recognize it as representative of all the voices in Kenya. We do this appreciating that there already is a stated national consensus that the constitution properly belongs to all the people of Kenya. We unequivocally state that the constitutional review process is irreversible and must be people-driven.46

By the end of 1999 a Parliamentary Select Committee had been appointed to con-sider amendments to the Act. Following the acceptance by Parliament of recom-mendations for amendment in 2000, Moi appointed Professor Yash Ghai, a Kenyan lawyer and academic at the University of Hong Kong, to head the Constitution of Kenya Review Commission (CKRC). The CKRC’s powers and functions and the scope of its review mandate were explicitly set out in the Act. The CKRC was empowered to “draft a Bill to alter the Constitution for presentation to the National Assembly.”47 The review process thus seems to have been conceived by the drafters of the Act as no more than a process of constitutional amendment, rather than a process for constitutional replacement or of fundamental constitutional change. The restriction of the CKRC’s mandate amounts to what Jon Elster has called “upstream constraints” on the consti-tution-making body.48

Beyond the terms of the Act itself, political wrangling over whether the review pro-cess would be entrenched in the existing Constitution and shielded from executive influence further undermined the CKRC’s position. The Moi regime refused to pro-vide the CKRC constitutional protection, and thus left itself the option of manipulating or ending the process through its KANU-led Parliament.49 As the CKRC came close to releasing a draft bill to amend the Constitution before the 2002 general elections, Moi flexed his muscles. Apprehensive about an election fought under the terms of a new constitution, he announced that he had disbanded the CKRC and would create a new commission after the elections. The Attorney General pointed out that the presi-dent had no such power—only Parliament, by repealing the Act that had created the CKRC in the first place, had the power to dissolve it. Moi had nevertheless shown his hand, and in order to ensure that no constitutional amendment happened before the elections, he forced an early election by dissolving Parliament—a power the president does have under the Constitution.50

Despite hiccoughs, the CKRC did produce a draft constitution in the two years after the 2002 elections. The process of constitutional review outlined by the Act provided for a National Constitutional Conference (NCC) after the CKRC had com-pleted its work.51 This conference produced an amended draft constitution in January 2004 after three sessions held during 2003 and 2004 at the Bomas of Kenya, a resort just outside Nairobi. The NCC was depicted as a representative forum, meeting the

46 Leaders dismiss Moi’s prescription for Constitutional Review, Daily Nation (Nairobi), 24 May 1999, quoted in Mutua, supra note 15, at 112.

47 Constitution of Kenya Review Act, n 44, s 17(b).48 Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke L. J. 364, 373 (1995).49 Mutua, supra note 15, at 125.50 Id. at 135.51 Constitution of Kenya Review Act, supra note 44, s 4.



requirements of a “people-driven” process, and unlike the Lancaster House process 40 years earlier, Bomas, as the NCC became known, was hailed as inclusive and participatory.52 The new president, Mwai Kibaki, called it a “gathering of the whole nation” and likened it to a “constituent assembly.”53 And indeed, the outcome of the CKRC’s work and the Bomas conference was a draft constitution, rather than a bill amending the existing Constitution. The draft altered the form of the state by shifting from a presidential to a parliamentary system, substantially reducing the powers of the executive and replacing the executive president as head of government with a prime minister.54 The Act provided that the draft would be presented to the attorney general who would in turn present it to Parliament as a bill. Parliament was required to enact the bill into law as the country’s new constitution.

The Kibaki government, however, was opposed to the Bomas draft.55 It is unsur-prising that once in power a strong president would block reforms aimed at reducing the president’s powers; but as it happened it was civil society, in the form of cleric Timothy Njoya, which sank the Bomas draft. His application to the High Court of Kenya argued that the draft constitution produced by the CKRC and the NCC was unconstitutional because the existing Constitution envisaged only amendment rather than the whole-sale replacement of the Constitution, and that where a new constitution was to be enacted it could only be enacted by the exercise of the constituent power. The court agreed, holding that the Bomas Draft could not become the new Kenyan Constitution without a referendum, and the Review Act was accordingly amended. The amended sections emphasized that “the people of Kenya collectively have the sovereign right and power to replace the Constitution with a new Constitution.”56

The requirement of popular approval through referendum imposes what Elster calls “downstream constraints” on the constitution-making process, since the need for later ratification by another body acts a constraint on what the constitution-drafting body can propose.57 Whether this downstream constraint had an effect on the reform process in its last days is somewhat moot now, since the 2004 draft constitu-tion was defeated at referendum in any case. On 21 November 2005, Kenyans ended the constitutional review process, with 57 per cent voting against the draft.

The next part of this paper examines the reasoning of the court in the Njoya case and locates its use of the concept of constituent power in Schmitt’s constitutional theory. In closing this section, it is useful to briefly describe subsequent developments in Kenya. The 2007 elections led to widespread violence and bloodshed as both President Kibaki and his main rival Raila Odinga alleged electoral improprieties against each other.

52 Mutua, supra note 15, at 152.53 Id. at 156.54 The Bomas Draft, as it is known, is available online at http://www.coekenya.go.ke/images/stories/

Resources/bomas_draft.pdf. http://www.coekenya.go.ke/55 See Mutua, supra note 15, at 216.56 Constitution of Kenya Review Act 13 of 1997 (as amended), supra note 44, section 26.57 Elster, supra note 48, at 374. Elster notes that since the delegates to the Federal Convention knew

that states would have to ratify any document they proposed, states’ had to be taken into account by the framers.


http://www.coekenya.go.ke/images/stories/Resources/bomas_draft.pdf

http://www.coekenya.go.ke/images/stories/Resources/bomas_draft.pdf

http://www.coekenya.go.ke/

598 I•CON 9 (2011), 587–614

Some stability was eventually restored with the formation of a national unity gov-ernment with Kibaki as President and Odinga in the hastily-created position of Prime Minister. In the aftermath of the violence, however, renewed pressure for constitu-tional and political reform built. The Constitution of Kenya Review Act, 200858 was passed, requiring the establishment of a Committee of Experts on Constitutional Review. The Committee was mandated to work specifically on the “contentious issues” remaining from the previous constitutional review process—former CKRC commis-sioners were controversially barred from serving on the new Committee59—and to prepare a draft constitution as a new constitution for Kenya.60 The Committee began work in Nairobi in early 2009, and published a new draft constitution for public com-ment in late 2009. The Committee presented a draft constitution to Parliament in February following consultation with a Parliamentary Select Committee. Parliament approved a draft constitution, which was then presented to the Kenyan people on 6 May 2010. In terms of the 2008 Review Act (sections 37-43), a national referendum on the adoption of the draft constitution was held in August 2010. A confident 67% of voters approved the draft, and the new constitution took effect on 27 August 2010.

2. The constituent power in Schmitt’s constitutional theory and in KenyaThe Kenyan High Court’s decision in the Njoya matter calls the concept of the con-stituent power directly into focus. The examination of that decision benefits from reading Schmitt’s work on the constituent power, and it is to that work that I now turn. Schmitt’s Constitutional Theory is largely organized around dichotomies between concepts and between the corresponding elements of counterpoised theoretical posi-tions. Schmitt himself identifies a number of “dualisms” or “dualities” thrown up by the history of constitutionalism and constitutional law.61 The notion of the constituent power can be explored through three pairs of dichotomies: the distinction between absolute and relative concepts of the constitution; the distinction between constituent power itself and the constituted power; and the differences between constitutional amendments and fundamental constitutional change.

2.1. Absolute and relative concepts of the constitution

Schmitt begins Constitutional Theory with the notion of the “absolute” constitution. By this Schmitt does not mean the set of rules or laws that constitute the state or the

58 Act 9 of 2008.59 Section 10(2)(b)(ii).60 Section 23.61 Schmitt refers explicitly to the duality of the two components of the bourgeois Rechtsstaat—separation

of powers and protection of liberal rights—that determine the structure of the state (Schmitt, supra note 5, at 93), and the dualism of constitutional orders claiming to locate constitution-making power in both the people and the monarch (at 104-105).



government or a nation. Rather, he has in mind the Aristotelian notion of a polity. The state does not have a constitution, he notes. “The state is constitution.”62 For every polity there is an actually existing condition, a specific status of unity and order that is the soul, the concrete life and the individual existence of that polity.63 Schmitt acknowledges that this is only one possible understanding of the absolute constitution, and contrasts this Aristotelian concept with Hans Kelsen’s concept of constitution. The absolute constitution for Kelsen means the norm of norms, or the fundamental legal rule by which all other laws and rules of order in the polity are legitimated.64 Inverting Aristotle, the constitution is the state, and it becomes possible to designate the constitution as “sovereign.”65

Schmitt launches his assault on this Kelsenian concept of the absolute constitution with an assault on its legal positivist foundations. For Kelsen, the validity of the legal system depends on its regressive justification in a chain of norms. Each law is valid within the legal system because it can trace its provenance to a higher rule of lawmak-ing, which is itself valid within the entirety of the legal system. In a formal sense, legal validity can be traced back to a constitution. “If we ask why the constitution is valid,” Kelsen notes, “perhaps we come upon an older constitution.”66 The first such consti-tution is the ultimate link in the chain of justification for Kelsen, “the final postulate, upon which the validity of all the norms of our legal order depends.”67 The essence of the doctrine of legal positivism is that this basic norm or Grundnorm confers law-making authority on the first legislator. The basic norm, however, is not valid because it rests on some other higher norm, as positive legal rules do. The basic norm is valid, Kelsen says, “because it is presupposed to be valid.”68 For Kelsen, the end of the regres-sus comes with the conclusion that the basic norm, “being the supreme reason of validity of the whole legal order,” constitutes the “unity” of the legal order.69

Kelsen’s “pure” theory of law is supposed to be sealed off from sociological consid-erations, and “unified” by nothing other than the law itself; but it is hard to resist the implications in General Theory of Law and State that the validity of the Grundnorm depends on its contingent social acceptance. In talking about changes to the basic norm, Kelsen states that an old order ceases and a new order based on a new basic norm begins, and must be considered a valid order, “because the individuals whose behavior the new order regulates actually behave, by and large, in conformity with the new order.”70 Similarly, in talking about the effectiveness of a legal order, Kelsen

62 Schmitt, supra note 5, at 60.63 Id.64 Id. at 62.65 Id. at 63. See also at 104-105 for further criticism of the idea of “sovereignty of the constitution” and at

154-155 for discussion of the political and legal fictions and “apocryphal acts of sovereignty” that liberal constitutionalism is forced into.

66 Hans Kelsen, General Theory of Law and State 115 (2006).67 Id.68 Id. at 116.69 Id. at 124.70 Id. at 118.


600 I•CON 9 (2011), 587–614

says that the validity of a legal order depends on its agreement with reality, upon its “efficacy.”71

Kelsen’s intellectual twin in Anglo-American jurisprudence, H.L.A. Hart, made the social basis of legal positivism unambiguous. In The Concept of Law, he described the “rule of recognition” as the ultimate rule by which rules and prescriptions can be recognized as valid law. Following Kelsen, Hart argued that the validity of legal pre-scriptions depends on their provenance, on whether they are made by an authorized law-maker in an authorized way.72 At each stage, there is a rule by which the validity of a law is to be determined, following a regressive chain all the way back to an ul-timate rule of recognition. This ultimate rule of recognition, however, cannot be valid in itself, as Kelsen claimed. Rather, its validity depends on its acceptance as the appro-priate standard of legal validity. “Its existence is a matter of fact.”73

Schmitt is highly sceptical of the logic of Kelsen’s legal positivism. The normative element of regressive justification breaks down exactly at the point of the basic norm, leaving in its place “the tautology of a raw factualness.” A law “is valid when it is valid and because it is valid,” Schmitt says, paraphrasing Kelsen.74 Schmitt insists that if one is to sever law from morality, as Kelsen does, then one must posit the Grundnorm as a command that has no justification outside itself.75 Kelsen is caught on the horns of a “tautological circumscription of the ‘unity,’” on the one hand, and a “brutal sociopo-litical reality”76 of the kind later embraced by Hart on the other.

Schmitt’s alternate view is that constitutional validity derives from the will of the constitution-making power. The Weimar Constitution was valid, Schmitt says, be-cause the German people “gave itself this constitution.”77 It is the will of the people, which necessarily pre-exists acts of lawmaking and positive legal justification, in which the validity of the constitution—understood in the absolute sense—is rooted. Schmitt thus rejects Kelsen’s positivist position on constitutional validity as unten-able:

Whoever says that the constitution is valid as basic norm (not as positive will) maintains, con-sequently, that the constitution is capable of bearing a closed system of correct principles by virtue of particular logical, moral, or other substantive qualities. It is a contradictory confusion to say that a constitution is valid not because of its normative correctness, but only because of its positive character, and that nevertheless the constitution as pure norm establishes a system or an order of pure norms.78

Against this absolute concept of the constitution is contrasted the relative concept of the constitution. If the absolute constitution is understood as the Aristotelian polity,

71 Id. at 120.72 Hart, supra note 10, at 97-104.73 Id. at 105-107.74 Schmitt, supra note 5, at 64.75 Robert Howse, From Legitimacy to Dictatorship – and Back Again: Leo Strauss’s Critique of the Anti-Liberalism

of Carl Schmitt, in Law as Politics: Carl Schmitt’s Critique of Liberalism 56, 62 (David Dyzenhaus ed., 1998).76 Schmitt, Political Theology, supra note 28, at 20.77 Schmitt, supra note 5, at 65.78 Id. at 64-65.



then the relative concept of the constitution is to be understood as the set of constitu-tional laws or constitutional statutes. Understood in only a formal sense, the concept of constitution means no more than the written constitution or the set of constitu-tional laws. Where this happens the concept of “the constitution” is lost among the various constitutional laws.79 The purely formal concept of constitution can never suffice, therefore, to explain the unity of a constitutional order. Arguing that the con-stitutions of various states appear as “diversely constituted sets of norms” or “organ-izational provisions regarding the most important state authorities,” Schmitt states that “the unity of [each state’s] provisions lies not in their substantive, systematic, and normative completeness. It lies, rather, on a political will external to these norms, which first makes all of these norms into constitutional laws.”80 For Schmitt it is this political will, expressed in a fundamental political decision, identifying a people and uniting them as a nation, that provides the foundation for constitution.81 In other words, constitutional laws—or the relative conception of constitution—mean noth-ing without a polity, a constitution understood in the absolute sense. Even Kelsen recognizes this to the extent that he distinguishes between a formal and a material sense of the constitution.82 It is the material sense of the constitution that makes dis-crete constitutional provisions valid. For Schmitt the conclusion is inescapable: “The constitution is valid by virtue of the existing political will of that which establishes it. Every type of legal norm, even constitutional law, presupposes that such a will already exists.”83

2.2. The constituent power and the constituted power

Following Sieyes and Bryce, Schmitt distinguishes between the pre-existing political will as the bearer of constitution-making power and the legislative powers of a body constituted by the constitution and functioning within the four walls of the constitu-tional order.84 This difference between the constituent power (pouvoir constituant in Sieyes’s terms) and the constituted powers (pouvoirs constitués) is crucial in Schmitt’s constitutional theory.

The first point to note is the connection Schmitt posits between the political unity of a people and the constitution-making power. The people must be brought to political

79 Id. at 68, 70-71.80 Id. at 70.81 Id. at 77.82 Kelsen, supra note 66, at 124. Kelsen describes the constitution in the formal sense as a written constitu-

tion, a set of laws; but he describes the constitution in the material sense as those rules which regulate the creation of general legal rules.

83 Schmitt, supra note 5, at 76.84 Schmitt makes clear his debt to Sieyes, referring to him directly in discussion about the constituent power

(Schmitt, supra note 5, at 126-129). Sieyes’s theory of the pouvoir constituant is set out in chapter 5 of Emmanuel Joseph Sieyes, What is the Third Estate? 119–122 (1964). Schmitt makes reference to Bryce only in describing his own conception of democracy, but Bryce himself follows the Sieyes line in drawing a distinction between the power to enact a constitution, invested in a constituent assembly of some kind, and the power to amend constitutional laws, invested in an ordinary legislature and controlled by specific procedures; see Essay III in James Bryce, Studies in History and Jurisprudence (1901).


602 I•CON 9 (2011), 587–614

consciousness before the constitution-making power can be exercised.85 Speaking of the French Revolution, Schmitt describes how the French people “constituted them-selves” in giving themselves a particular type and form of political existence. In doing so they became conscious of their political unity, even though the political unity existed before the act of constitution.86 Implicit in this process by which people become nation is the understanding that only the people can constitute the nation. Only the people come to political consciousness can forge a constitutional order, a constitution in the absolute, Aristotelian sense, out of the extant political unity. The subject of the constituent power is thus the nation.87 Lying at the origin of the absolute constitution, the constituent power is not constrained by any legal forms.88 Indeed, if legal forms take their validity only from the formal, written constitutional laws, it makes no sense to speak of how the origin of constitutional validity might be bound by legal forms: “The constitution-making will of the people is an unmediated will. It exists prior to and above every constitutional procedure. No constitutional law, not even a constitution, can confer a constitution-making power and prescribe the form of its initiation.”89

The constituted powers, on the other hand, are based on the constituent power. The “fundamental” constitutional laws that determine the organization and functions of the legislative and executive organs of a state are not independent of the political will, Sieyes says. They are called “fundamental” because the bodies they create can-not change them, but they remain creations of the constituent power rather than the constituted powers.90

From this distinction between constituent power and constituted powers, it follows that the power to eliminate a constitution and replace it with a new one can reside only in the people come to political consciousness. The constituted powers—legislature, executive, or whatever else is erected by the constituent power—have only the powers given to them expressly by the constitution.91 Moreover, they exist only on the basis of the constitution. It makes no sense to suppose that the constituted powers could act to eliminate the foundation of their power to act.92 Amendments to a constitution are therefore possible to the extent permitted by the constitution and according to the procedures set out in the constitution. Schmitt makes this point very clearly in his discussions of Article 76 of the Weimar Constitution.93 Were a legislature to pass laws

85 Schmitt, supra note 5, at 101.86 Id. at 102.87 Id. at 126-7.88 Id. at 128.89 Id. at 132.90 Sieyes, supra note 84, at 124.91 As Schmitt’s occasional references to Britain show, the constitution need not be written down, and can

be distinguished from constitutional laws even though there is no physical constitution. See Schmitt, supra note 5, 69-72. See also in this regard Bryce, supra note 84, at 128-36, A.V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (Macmillan 1885), and more recently, Anthony King, The British Constitution chapters 1-3 (2007).

92 In this regard see especially the judgment of the Indian Supreme Court in Minerva Mills v. Union of India, AIR 1980 SC 1789, holding that the Constitution cannot legally be used to destroy itself (1798).

93 Schmitt, supra note 5, at 72-74, 79-80, 150-155, 215.



seeking to eliminate the constitution, it would be overreaching its powers and acting unconstitutionally. The power of constitutional amendment is a “statutorily regulated competence. . .[I]t is in principle bounded. It cannot transcend the boundary of the constitutional regulation on which it rests.”94 This recognition gives rise to the important distinction between constitutional amendment and constitutional replace-ment, and the notion of unconstitutional constitutional amendments. Even though the wording of Article 76 of the Weimar Constitution does not make the explicit distinction Schmitt makes between constitution and constitutional laws, Schmitt is emphatic in saying that the procedures for amendment established by Article 76 cannot be used to change the constitution as a whole:

That ‘the constitution’ can be changed should not be taken to mean that the fundamental political decisions that constitute the substance of the constitution can be eliminated at any time by parliament and be replaced through some other decision. The German Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag.95

The acts of constitution-making and constitutional change are “qualitatively dif-ferent.”96 The former go to the fundamental political decisions of the constitution and are a matter reserved to the consideration of the people.97 For Schmitt, even purported constitutional amendments that offend the “spirit or the principles of the constitution” are prohibited by this distinction between constitution-making power and delegated powers of constitutional revision.98

2.3. Unconstitutional constitutional amendments and the Njoya case

Timothy Njoya is a prominent member of Kenyan civil society, having played a role in reform politics for many years. He headed the National Convention Executive Council that had opposed the participation of certain civic organizations in the Constitution of Kenya Review Commission (CKRC) since its inception.99 While Njoya’s court chal-lenge thus has to be seen in the broader context of Kenyan politics, the implications of the judgment and its jurisprudence are no less significant for that reason.

The challenge followed two lines of argument. The first was that the CKRC had exceeded its lawful competence by preparing a new draft constitution to replace the existing constitution. The existing constitution made no provision for such change, authorizing only amendment rather than elimination. The question for the court was “whether Parliament could in the exercise of its amendment power repeal a Constitution and enact a new one in its place.”100 The second argument was that since the CKRC and the Bomas process that followed it amounted to a project of

94 Id. at 146.95 Id. at 79. See also pages referred to in note 93.96 Id. at 80.97 Id. at 152.98 Id. at 153.99 Mutua, supra note 15, at 216.100 Njoya v. Attorney General, supra note 2, at 10.


604 I•CON 9 (2011), 587–614

constitutional replacement, the outcome would be illegitimate without the participation of the Kenyan people and the exercise of constituent power. The court accepted that it was called upon to determine “the constitutional status of the concept of the con-stituent power of the people and it implications for the Constitutional Review Process.”101

Section 47(1) of Kenya’s then-Constitution provided that “Parliament may alter this Constitution” in terms of the procedures set out in the rest of the section. Njoya’s argument in this regard was undeniably Schmittian. He argued that the “sovereign constituent power to make a Constitution was reposed in the people as a whole,” and that the difference between constitution-making and constitutional revision is cru-cial. In accepting this argument, the court noted that were it the case that any “organ of government was vested with sovereign powers, it would mean that the people were not sovereign.” Accepting the Schmittian position that the powers of a legislature are inherently limited, the court went on: “The principle of the supremacy of the Constitution also precluded the notion of unlimited powers on the part of any organ created by the Constitution.”102

Njoya’s argument in this regard can be viewed in fairly straightforward and formal terms. The Constitution authorizes Parliament only to “alter” the constitution, yet the Constitution of Kenya Review Act authorized Parliament to adopt a new constitu-tion.103 Elster points out there are often two creators of constituent assemblies, and as a result two possible sources of upstream constraints. In the Kenyan case, the sources of power and constraint on the CKRC found themselves in conflict, with the Constitution limiting Parliament to constitutional amendment and the Review Act empowering the CKRC to draft a new constitution and requiring Parliament to adopt it. In the United States, the Federal Convention was similarly limited by upstream constraints—and disregarded them in even bolder fashion. The Continental Congress authorized the Federal Convention only to consider changes to the Articles of Confed-eration, not to propose a new constitution in its entirety.104 Had a court with powers of constitutional review existed, the Federal Convention’s conduct might well have faced the same sort of constitutional challenge as did the CKRC.

The CKRC’s argument in response to this challenge, however, required the court to delve more deeply into constitutional theory. The respondents argued that the power to amend or alter the Constitution included the power to make changes amounting to the replacement of the constitution. In rejecting this response, the court found support in the “basic structure” doctrine developed in the Indian Supreme Court. The fount of this jurisprudence is the case of Kesavananda v State of Kerala,105 in which the court accepted that even though Parliament had the power to pass amendments affecting

101 Id.102 Id. at 22.103 Constitution of Kenya Review Act, supra note 44, section 28(3) and (4) (prior to amendment in light of

the judgment).104 Elster, supra note 48, at 374.105 Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461.



even the fundamental rights set out in the Constitution,106 it could pass no amend-ments in defiance of the basic structure of the Indian Constitution. The Indian Supreme Court was here called on to interpret the meaning of “amend” in the Constitution, as the Kenyan High Court was required to. Khanna J, concurring with the majority in Kesavananda, said the following: “Amendment of the Constitution necessarily contem-plates that the Constitution has not been abrogated but only changes have been made in it. The word ‘amendment’ postulates that the old Constitution survives without loss of its identity despite the change.”107 Using language highly evocative of Schmitt, Khanna J went on to say that Parliament could not “under the garb of amendment” change the democratic government into a dictatorship or hereditary monarchy. To do so would be in conflict with the basic structure of the constitution.

South Africa’s Constitutional Court has taken a less firm stand on the basic struc-ture doctrine. In United Democratic Movement v President of the Republic of South Africa (No 2),108 a challenge against constitutional amendments allowing “floor-crossing” in legislatures, the Court was presented with an argument that the changes to the Con-stitution amounted to changes to the democratic structure of the state and were for that reason unconstitutional. The Court rejected the argument on its merits, holding that the changes could not be said to undermine fundamental or basic elements of the constitutional order. The implication, however, is that changes of a fundamental nature are not contemplated even by the amendment procedures laid out in the South African Constitution.109 On the other hand, Ireland’s highest court has rejected the basic structure doctrine insofar as it imposes limits to the legislature’s constitutional amendment powers. In State (Ryan) v Lemmon, the Court argued that the distinction between the essential features of a constitution and its nonessential ones is “difficult to maintain.”110 The only oversight role open to the courts in the area of constitutional amendment, the court held, was a procedural one.111 Jacobsohn describes this pos-ition as “the idea that any duly enacted amendment to the Constitution carries with it the legitimating aura of sovereign authority.”112

The second argument addressed by the Kenyan High Court proceeded from the con-clusion that the work of the CKRC, in replacing the Constitution, amounted to the alteration of the basic structure of the Kenyan polity and was thus an unconstitutional amendment. Accepting that the proposed new constitution amounted to a change to the basic structure, the respondents argued that Parliament was in fact entitled to make basic structural changes because it was entitled to exercise constituent power.113

106 On this point the court overturned its own earlier decision, Golak Nath v. State of Punjab, AIR 1967 SC 1643, in which it had been held that ‘fundamental rights are given a transcendental position in our Constitution and are kept beyond the reach of Parliament’ (1656).

107 Kesavananda, supra note 105, 1860, quoted by Njoya, supra note 2, at 22.108 2003 (1) SA 495 (CC).109 Id. at paras 15-17. See also Premier of KwaZulu-Natal & Others v. President of the Republic of South

Africa & Others, 1996 (1) SA 769 (CC), at paras 47-49.110 [1935] 170 IR 197, 180.111 Id. at 242.112 Jacobsohn, note 13, at 469.113 Njoya, supra note 2, at 23.


606 I•CON 9 (2011), 587–614

To this the court’s rejoinder was unambiguous, and is expressed in the passage in the judgment with which this essay begins. The Constitution is supreme, Ringera J said, because it is the product of the exercise of the constituent power. Ringera J’s statement here is even more notable for its outright rejection of Kelsen’s legal positivist founda-tion for constitutional supremacy. The supremacy of the Constitution does not rest on “the basis that the Constitution is the supreme law, the grundnorm on Kelsenian dictum.”114 Rather, the Constitution’s validity and supremacy grow from its roots in the constituent power. For the notion of constitutional supremacy to have any mean-ing, Ringera J’s reasoning goes, the Constitution cannot be unmade or remade except by the exercise of constituent power.

3. Limits to the constituent powerAlthough the amendment power is limited, the democratic will for Schmitt can never be limited. It is for this reason that Schmitt’s constitutional theory must be read against its radical democratic elements in order to justify and make coherent the limits to the constituent power. “In a democracy,” Schmitt explains, “the people are sovereign. They can violate the entire system of constitutional norms and settle litiga-tion like the prince in an absolute monarchy, who could resolve legal disputes before courts. The people are the highest judge, just as they are the highest legislator.”115 Schmitt claims that there are no limitations on the democratic will that stem from democratic principles,116 and from this it should follow that since the constituent power is an element of the democratic will, there can be no limitations on the exer-cise of constituent power that stem from the constituent power itself. In other words, the exercise of the constituent power cannot be limited or restrained by any actions of the constituted powers. The Kenyan case, however, taken as a concrete example of Schmittian constitutional theory, presents a challenge to this view. While the Njoya case highlighted the constitutional importance of the constituent power in Schmittian terms, the rest of the constitutional reform process has involved what arguably amount to significant limitations on the sovereignty of the constituent power.

The first step in describing this challenge is in Schmitt’s suggestion that it would be impermissible to judge the legitimacy of a new constitution according to the norms of the eliminated constitutional laws.117 It does seem somewhat odd that the CKRC and the Bomas process, engaged as they were in the making of a new constitution, could have been subjected to the constraints of the very constitution they were engaged in eliminating. This restraint would seem to make any attempt at constitutional replace-ment impossible. The easy, Schmittian response is of course that the CKRC and the delegates to Bomas were not bearers of constituent power, and thus had no legitimate authority to do anything more than amend the constitution in terms of the existing

114 Id. at 15.115 Schmitt, supra note 5, at 300.116 Id. at 286.117 Id. at 144.



constitutional laws. This first constraint, however, is consistent with the theory of the constituent power. It illustrates how the law-making power of an assembly is limited by the fact that it does not hold the constituent power.

The second leg of the challenge deals directly with limitations on the constituent power itself. The initial constitutional review process was altered in light of the Njoya judgment to provide for the participation of the holders of constituent power, and while the first draft constitution failed at referendum, the constitutional review pro-cess resuscitated under the terms of the Constitution of Kenya Review Act, 2008, con-tained a similar referendum requirement. The constituent power, in the form of the Kenyan people’s voice at referendum, is integral to the constitutional reform process. But the Kenyan people speaking through a referendum must first be presented with a draft constitution. The mandate of the new constitutional drafters, the Committee of Experts on Constitutional Review, is nevertheless severely limited by the terms of the 2008 Act. In setting out the functions of the Committee, section 23 of the Act provides that the Committee of Experts shall “identify the issues already agreed upon in the existing draft constitutions” and “identify the issues which are contentious or not agreed upon in the existing draft constitutions.” Identifying the contentious issues was one of the Committee’s first jobs, and doing so set the agenda for the rest of the constitutional review process. The Committee concluded early on in its existence that the three contentious issues yet to be resolved were the relationship between the ex-ecutive and the legislature, questions of devolution of power and federalism, and tran-sitional issues relating to the bringing of the new constitution into effect.118

These upstream constraints amount to an effective limitation on the exercise of the constituent power. The constitutional review process has been steered by the legisla-ture towards a small set of issues. If a constitution-making process is supposed to be an extraordinary moment of democratic consciousness in Ackerman’s terms, or the exercise of an unbounded democratic will in Schmitt’s, it is hard to accept that the extent of that process can be restricted by the decisions of a legislature. Indeed, in con-fining the Committee of Experts to considering “contentious issues” remaining from a previous constitutional review process impugned for its overriding of the constituent power, the constitution-making power is bound to already existing determinations about the substance and content of the new constitutional order, by orders of the con-stituted powers. It seems incoherent that the eventual outcome of a judicial decision upholding the Schmittian principles of constituent power and unbridled democratic sovereignty is a hamstrung constitutional review process.

My aim in this final part of the article is to argue that Schmitt’s constitutional theory does in fact entertain the possibility of limitations on the constituent power. This is not to say that the limitations the Kenyan Parliament has set to the review process are consistent with a true exercise of constituent power. I use the Kenyan case rather as an illustration that a limited exercise of the constituent power in a

118 The Committee’s full discussion of these contentious issues and the reasons for their selection is avail-able online at http://www.coekenya.go.ke/index.php&option=com_content&view=article&id=92:the-executive-and-legislature&catid=48:the-executive-and-legislature.


http://www.coekenya.go.ke/index.php?option=com_content&view=article&id=92:the-executive-and-legislature&catid=48:the-executive-and-legislature

http://www.coekenya.go.ke/index.php?option=com_content&view=article&id=92:the-executive-and-legislature&catid=48:the-executive-and-legislature

608 I•CON 9 (2011), 587–614

constitution-making process does make sense to Schmittian constitutional theory. The constituent power, I want to say, is inevitably and inherently constrained, even for Schmitt. The starting point in this argument is Chapter 21 of Constitutional Theory, where Schmitt describes democracy’s “first natural boundary.”119

One of the dualities Schmitt describes in Constitutional Theory is the variance of a democratic society between the absolutes of identity and representation.120 The demo-cratic will, as Schmitt has told us already, is the highest, unrestrained judge and legislator in a polity. But this can remain so only as long as there is an absolute iden-tity of ruler and ruled. He refers here to Book 6 of Aristotle’s The Politics for the idea that the best state form, the one best approximated by the term democracy today, is the one where all participate in ruling and being ruled.121 And he refers to James Bryce’s work, American Commonwealth, for the “special connection of democracy and public opinion.”122 But the significance of the pendulum swing between identity and representation for Schmitt is that there can be no state form based on an identity of this kind without some representation.123 And because of this necessary dilution of identity with representation, there is a limit to the “implementation of the democratic principle of identity.”124 I mean to make no more of this than to point out that since Schmitt did perceive boundaries to absolute democracy, it is reasonable to suppose that his theory of the constitution imposes limits on the constituent power too.

3.1. Anti-positivism and the immanent principles of law

In taking on Kelsen’s legal positivism, Schmitt was in a sense required to take the field of what he called the bourgeois Rechtsstaat. He had to attack Kelsen on the grounds that Kelsen himself had staked out for legal positivism, and this drew Schmitt to the principles of liberal constitutionalism central to the Rechtsstaat conception of state. I have mentioned how Schmitt took the Rechtsstaat constitution to be composed of two components: the organizational separation of powers and the substantive protec-tion of rights. In discussing the particular conception of law associated with the Rech-tsstaat, Schmitt begins by noting that the Rechtsstaat is based on the rule of law. The fundamental idea implied by the rule of law, Schmitt says, is the rejection of the rule of a person whose will takes the place of a norm valid for and applicable to all. It must be possible to distinguish a legal norm from a command based on nothing more than a legislator’s will. If the Rechtsstaat is to retain this connection with the rule of law, and the two essential components of the political form of the Rechtsstaat are to be main-tained, Schmitt argues that a ‘command’ theory of law cannot be countenanced.125 Even H.L.A. Hart was critical of the command theory of law, for although he agreed

119 Schmitt, supra note 5, at 302.120 Id. §16.121 Id. at 259.122 Id. at 277.123 Id. at 238.124 Id. at 302.125 Id. at 181.



with John Austin’s general thesis that determining which rules count as legal norms should have no connection to the moral evaluation of the content of those rules, he argued that a legal system has to consist of more than just the commands of the sovereign backed by the threat of force.126

Hart built on Kelsen’s theory of hierarchically ordered rules of rulemaking, but while Kelsen’s theory resisted sociological conclusions and culminated in the “foun-dationless foundation” of the Grundnorm,127 Hart accepted the social basis of the rule of recognition. Whether Hart or Kelsen is taken as Schmitt’s target, however, his criti-cism is equally telling. Even on Hart’s view the source of legal validity is the proven-ance or source of a rule. For Schmitt, this legal positivism destroys the essence of the bourgeois Rechtsstaat:

A merely formal concept of law, such as that law is anything the lawmaking bodies ordain via the legislative process, would transform the rule of law into an absolutism of the legisla-tive offices, and any distinction of legislation, administration, and adjudication would be elimi-nated. If that were valid constitutional law today, the entire Rechtsstaat struggle against the absolutism of the monarch would be ended in the sense that the multiheaded absolutism of the transitory partisan majority would replace monarchical absolutism.128

The Rechtsstaat concept of law must be imbued with certain qualities if it is to avoid this outcome.129 While the Kelsenian positivistic notion of legal validity is a purely formal one, Schmitt argues that “every constitutional regulation of legislative authorizations presupposes a substantive concept of law.”130 Moreover, some of the sub-stantive content of law is determined by the very fact that it is law. That is, there are inherent qualities that every command with the force of law must exhibit. “Equality before the law is immanent to the Rechtsstaat concept of the law,” Schmitt says. “In other words, law is that which intrinsically contains equality within the limits of the possible, therefore a general norm.”131 The independence of the judiciary and the pro-hibition on retrospective punishment are two more principles that Schmitt identifies as intrinsic qualities of the Rechtsstaat concept of law.132

The contours of the Hart-Fuller debate that dominated Anglo-American juris-prudence in the 1950s and 60s track almost exactly those of Schmitt’s criticism of Kelsen’s position. In The Morality of Law Fuller developed the thesis that if law is to do the job of law at all, it has to conform to a set of principles that make that possible. These principles include things like publicity (people have to know what the laws are) and consistency (laws cannot change from day to day), but they also include Schmitt’s requirement of equality (which Fuller called generality) and the prohibition on retro-spective application of law.133 Fuller called these requirements an “inner morality of

126 Hart, supra note 10, at 20-25.127 Howse, supra note 75, at 63.128 Schmitt, supra note 5, at 191.129 Id. at 181.130 Id. at 189.131 Id. at 194.132 Id. at 195.133 Fuller, supra note 11, at chapter 2.


610 I•CON 9 (2011), 587–614

law” because no system of law can function without them and their existence reduces opportunities for cloaking wicked acts under law. Fuller and Schmitt were not the only, nor indeed the first, to take this position. Edmund Burke understood constitu-tional governance to depend on certain attributes of the rule of law. Fuller’s inner morality of law “is a fair representation of Burke’s unequivocal denial of constitutional identity to a rulership that fails to meet its minimum requirements.”134 Schmitt fol-lows this line, recognizing that the law can be bad or unjust, but that the qualities law inherently has reduce this to a minimum. “The protective character of law. . .lies in its general character.”135

More than these minimum requirements and general qualities, however, the ar-gument can be made that Schmitt’s theory extends to the immanence of substantive rights. To begin with, he links his thesis of rights to the notion of the rule of law, by noting that the “legal significance of the basic rights consists in the fact that they establish the principle of the ‘legality of the administration.’”136 Of course, Schmitt has made it clear that the basic rights constitute one of the essential components of the bourgeois Rechtsstaat. While these rights are part of the constitution and can there-fore be amended, he maintains that they are a fundamental part of the constitution. Their elimination from the constitution would therefore be unconstitutional under the amendment procedures. Presumably they could be eliminated by the exercise of constituent power; but if, as Schmitt claims, these rights support the legality of admin-istration—or the rule of law—it seems that these substantive rights might be imma-nent too. The principles of the inner morality of law, to the extent that they establish the rule of law, thus expand outward to include basic rights to the extent that they too establish the rule of law. For the rule of law to exist at all, certain basic rights must be protected even from the reach of the constituent power.

3.2. Dworkin and matters of principle in hard cases

There is another way to get at the conclusion presented in the last section. Both Hart and Ronald Dworkin are concerned, at least in the debates with each other, to work out what happens when judges make decisions in hard cases. By hard cases, Hart and Dworkin mean the situations where no rules of law obviously apply—where the law has run out. Much of Schmitt’s theory rises out of similar hard cases—out of states of emergency or moments of political crisis. David Dyzenhaus calls Dworkin’s hard cases mini states of emergency for positivist legal theory.137 Hart argues that when judges are called upon to adjudicate these hard cases, they have no choice but to make law

134 Jacobsohn, supra note 13, at 481.135 Schmitt, supra note 5, at 196. The debate about law’s protective character often surfaces in discussions of

Nazi Germany. I cannot take up this debate here, but refer to others who have: see in particular Kristen Rundle, The Impossibility of an Exterminatory Legality: Law and the Holocaust, 59 Univ. Toronto L. J. 65 (Winter 2009), David Fraser, National Constitutions, Liberal State, Fascist State, and the Holocaust in Belgium and Bulgaria, 6 German L. J. 291 (2005), and Vivian Grosswald Curran, The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France, 50 Hastings L. J. 1 (1999).

136 Schmitt, supra note 5, at 214.137 Dyzenhaus, supra note 4, at 15.



as they decide the case, exercising an unbridled discretion. Normatively ungrounded decisions, decisions that refer to no “foundational normative sources of legal order,” permeate the positivistically constructed liberal legal order.138 Kelsen’s ungrounded Grundnorm is at the base of a machine that does not run itself.139

Ronald Dworkin’s view, on the other hand, is that judges decide hard cases on the basis of an interpretation and application of principles that are already implicit in the political life of the community.140 Schmitt’s advice to judges in hard cases takes the Dworkinian line: “During the interpretation of statutes, in particular the application of indeterminate statutory concepts, the judge should conform to the fundamental legal views of his time and people.”141 Howse makes explicit the link between Dwor-kin’s approach and Schmitt’s theory in a footnote to his contribution to Dyzenhaus’s volume on Schmitt: “One can understand Ronald Dworkin’s nonpositivistic jurispru-dence as precisely a response to this problem with positivism as a liberal legal theory—if one can always revert to the moral sources of legal norms in applying them to cases which the norms themselves on their face underdetermine, then one can in principle solve the indeterminacy problem.”142

There are two conclusions to be drawn from this aspect of Schmitt’s constitutional theory. The first is that even in the state of exception, where a commissarial dictator exercises residual constituent power, the exercise of sovereign power is limited by principles of “implicit normative reasonability.”143 The nature of the exception is that it cannot be resolved by the application of positive legal norms or established practice. The decision taken in an exception cannot be purely arbitrary, since it must at least be directed towards establishing a precedent that will guide decisions in comparable situ-ations in the future.144 If a workable precedent is established, comparable situations will no longer be exceptional. If the exceptional decision can point to a rule that is at least implicit in the legal order, the decision will retain the all-important connection with the constitutional—in the absolute sense—principle of the rule of law. The exer-cise of residual sovereign power, and presumably sovereign power itself, is not unre-strained. Rather, “by referring to normative principles which themselves derive from people’s ethical and political practice, liberal constitutionalism is a way of rendering explicit what exists already implicitly, that is, the rationality and accountability implied in all normative practice.”145

Second, where a judge makes a decision in a hard case, for Dworkin the judge relies on principles that are intrinsic to the legal and political culture. In unearthing these

138 Howse, supra note 75, at 63.139 Id. See also David Dyzenhaus, “Now the machine runs itself”: Carl Schmitt on Hobbes and Kelsen, 16 Cardozo

L. Rev. 1 (1994-1995).140 Ronald Dworkin, Taking Rights Seriously (1978).141 Schmitt, supra note 5, at 301. On this, see also Howse, supra note 75, at 62-63.142 Howse, supra note 75, note 20.143 Heiner Bielefeldt, Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism, in

Law as Politics: Carl Schmitt’s Critique of Liberalism 23, 33 (David Dyzenhaus ed., 1998).144 Id. at 32.145 Id. at 33.


612 I•CON 9 (2011), 587–614

principles and making them explicit, the judge is speaking where the people have not. Dworkin may be wrong about what is going on here, of course. But the relevant point is that Schmitt thinks with Dworkin that the role of adjudication in these hard cases, where the people have not spoken, is to work out what the people would have said. Schmitt has a theory of adjudication that rests on an idea of an identifiable “spirit of the law” that is implicit in the political order. But—and this is the critical point—if there is such a thing as the spirit of the law that is not expressed in any of the pronouncements of the people come to political consciousness exercising constituent power, then it has to be the case that this spirit of the law exists independently of the sovereign people. On a purely ontological level, then, there is an independent set of principles that exists, and which is capable of being applied to determine the outcome of political questions. In this sense, the sovereign people are subject to these principles, to this spirit of the law. At this point I am not concerned to show what the content of this set of principles might be—all I am concerned to show is that on Schmitt’s theory as he describes it and as it is most coherently reconstructed, it is feasible and consistent to restrict the exer-cise of the constituent power by the political unity in which it is reposed.

4. ConclusionEven in Schmitt’s radical democratic theory of the constitution, the exercise of the constituent power is subject to constraints. These constraints flow from the rule-of-law requirement that law conform to qualities of generality and rationality. These are constraints of substance that ensure the protection of certain basic rights. Import-antly, they are constraints that are intelligible within the broader theoretical scheme Schmitt presents, despite the radical democratic flavor of that scheme. The question that motivates this research is how it was possible for the constituted powers of Kenya to impose restrictions on the exercise of constituent power, despite the essentially Schmittian decision by the High Court impugning an earlier phase of the constitu-tion-making process for its failure to allow for the exercise of the constituent power. The first part of my answer to that question is in the conclusion that the constituent power is inherently constrained. Since it is necessary as well as theoretically coherent that the exercise of constituent power fall within certain limits, there should be noth-ing wrong, on its face, with explicit limitations on the exercise of constituent power. The Kenyan High Court has itself recognized that the Constitution rests on an extra-constitutional spirit of the people. In Njogu v Attorney General, a matter decided four years before Njoya, the Court had this to say on constitutional interpretation:

We do not accept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament. The Constitution is not an Act of Parliament. It exists separately in our statutes. It is supreme. . . . Constitutional provisions must be read to give [effect to the] values and aspirations of the people. The court must appreciate throughout that the Constitution, of necessity, has principles and values embedded in it, that a Constitution is a living piece of legis-lation. It is a living document.146

146 [2000] LLR 2275 (HCK).



In the Njoya case, the government argued that the notion of the constituent power had no place in constitutional adjudication. The government characterized Njoya’s reliance on the theory of constituent power as an unacceptable invitation to the court “to a space outside and above the Constitution.”147 The court, for its part, accepted wholeheartedly that there is a space above and outside the constitution against which the validity of even the constitution is to be judged. This space, for the court, is occu-pied by Schmitt’s constituent power. But crucially, when Schmitt’s theory is pushed to its limits, it emerges that the constituent power itself is subject to limitations. There is a space of principle above and outside even the constituent power in which the actions of those who bear constituent power must be judged.

What this paper has not confronted is whether the limitations that the Kenyan Parliament did impose on the Kenyan people, as the bearers of constituent power in Kenya, are consistent with the principles that constrain the constituent power in Schmitt’s theory of the constitution. The mere fact that the constituent power is in principle limited by the principles of the rule of law is no reason to accept that any or every statutorily-imposed limitation on the exercise of the constituent power is coherent with the theory of constituent power.

The Kenyan case is presented here in order to frame the problem, and to describe the paradox of vindicating the constituent power at the same time as subjecting it to constraints. That this paradox can be explained away in terms of constitutional theory does not, however, mean that the Kenyan experience should be unques-tioningly accepted as a theoretically coherent or constitutionally valid treatment of the notion of the constituent power. The exercise of an unjustifiably limited form of constituent power is no exercise of constituent power at all. A full evaluation of the Kenyan reform process requires an assessment of whether the limitations imposed on the Committee of Experts and ultimately the constituent power reposed in the Kenyan people are justifiable in terms of the theoretical observations I have made here.

A first reaction is that they are not. The limitations Parliament imposed on the pro-cess seem to be of an entirely different order to the sorts of limitations that Schmitt’s theory contemplates. Schmitt’s theory allows and indeed requires limitations of prin-ciple that flow from the nature of law as such. The areas of decision from which the exercise of constituent power is barred contain the rights commitments fundamental to the liberal Rechtsstaat. It is only the basic structure that stands beyond the reach of the constituent power. The Kenyan Parliament, on the other hand, has barred the Committee of Experts and in turn the people themselves from much more specific, and not at all basic, questions of legal mechanics. The Committee was restricted to the con-sideration of contentious issues, and isolated only three for review: the institutional relationship between the executive and the legislative branches, devolution of power, and transitional arrangements. Questions about the position and power of the judi-ciary, for example, were not within the mandate of the Committee and were not be before the people when they voted on the draft constitution. One of the most divisive

147 Njoya, supra note 2, at 14.


614 I•CON 9 (2011), 587–614

issues in contemporary Kenyan constitutional discourse is the status of Islamic law and Kadi Courts148—an institutional legacy of the domination of the coastal regions by the Sultan of Oman. The issue was not listed as contentious, and was therefore not within the scope of the constitutional review. It is an issue that has been hotly debated in civil society in Kenya, and there is great popular dissatisfaction that the issue was, in effect, taken off the table and put beyond public constitutional debate. It is hard to see how shielding issues like this from the reach of a constitutional review process infused by notions of the constituent power is consistent with the value the Kenyan High Court placed in the concept of the constituent power.

The Kenyan experience reveals a tension that remains in Schmitt’s theory. Deciding which questions are structurally basic, which issues of rights are fundamental to the legal-political order, or which questions are unequivocally answered by the inherent principles of the rule of law, are themselves things that we, the people, might reason-ably disagree about. It is hard to know, in other words, at which point the constituent power runs up against the inherent limitations the theory of the constituent power imposes, and this inescapable vagueness has to be accepted along with any politic-ally cogent understanding of the constituent power. Inevitably, a decision just has to be made as to whether an issue falls within the grasp of the constituent power or is something that our fundamental political commitments have put beyond its reach. Whether the courts should have this power, as in Kenya, India, South Africa, and arguably every legal system that has a supreme court with powers of constitutional review, is a question for which Schmitt’s theory of the constituent power appears to have no answer.

148 Mutua, supra note 15, at 186-188.


Documents

Constituent power and Carl Schmitt's theory of constitution in