DALTON MWANGI CHEGE

LSG201-COO2-0082/2023
SFL ASSIGNEMENT
‘THE NON APPLICABILITY OF THE BASIC STREUCTURE DOCTRINE IN KENYA’
 To discuss the non applicability of this doctrine, understanding its origin is adamant.1

ORIGIN OF THE BASIC STRUCTURE DOCTRINE

BASIC STRUCTURE DOCTRINE: The basic structure doctrine is an Indian judicial principle,
most notably propounded by justice Hans Raj Khanna, that the constitution of India has certain
basic features that cannot be altered or destroyed through amendments by the parliament.
It was developed by the Supreme Court of India in a series of constitutional law cases in the
1960s and 1970s that culminated in Kesavananda Bharativ v State of Kerala(1973)
Key among these "basic features", as expounded by justice Khanna, are the fundamental rights
guaranteed to individuals by the constitution. The doctrine thus forms the basis of a power of the
Supreme Court to review and strike down constitutional amendments and acts enacted by the
parliament which conflict with or seek to alter this "basic structure" of the constitution. The basic
features of the constitution have not been explicitly defined by the judiciary, and the claim of any
particular feature of the constitution to be a "basic" feature is determined by the court in each
case that comes before it. Thus it gives extra power to court to review and strike down any
constitutional amendments and act enacted by the parliament.1

To understand this doctrine, the pre-Kesavandan era should be understood, Part III of the Indian
Constitution deal with Fundamental Rights. These are: Right to equality, including equality
before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth,
and equality of opportunity in matters of employment.
In the case of Shankari Prasad Singh Deo v. Union of India, the Constitution (1st amendment)
act, 1951, which amended the fundamental rights guaranteed under the constitution was
challenged. The SC contended that the parliament’s power of amending the constitution under
article 368 is absolute and therefore they have the power to amend the rights provided under Part
III of the constitution. The principle laid down in Shankari Prasad case, was further followed by
majority in Sajjan Singh v. State of Rajasthan. The earlier cases were overruled by Supreme
Court in the case of Golak Nath v. State of Punjab. The Supreme Court ruled that the
parliament had no authority to change part iii of the constitution because the fundamental
freedoms are transcendental and permanent. According to the judgment of the SC, Article 368
sets out just the process for amending the constitution and does not grant parliament full
authority to change any section of the constitution. The parliament adopted 24th amendment to
the constitution in 1971. The act granted the parliament full authority to introduce any
amendments to the constitution, including fundamental rights. It also made it mandatory for the
president to give his assent to all the bills of amendment submitted to him by the parliament . 1
These precedents show that, at some time, the Supreme Court had held that the power of
parliament to amend the constitution was unfettered. However, In 1967, the Supreme Court
reversed its earlier decisions in Golaknath v. state of Punjab. It held that fundamental rights

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included in part iii of the constitution are given a "transcendental position" and are beyond the 2
reach of parliament. it also declared any amendment that "takes away or abridges" a 3
fundamental4 right conferred by part iii as unconstitutional. It can be seen there was a certain
claim to protect the ‘basic structure’ of the constitution. However, there is no reference of the
word basic structure thus in the landmark case of Kesavananda Bharativ v State of Kerala, the
court adjudicated that while parliament has "wide" powers, it did not have the power to destroy
or emasculate the basic elements or fundamental features of the constitution. The judges over
time have disseminated the features of the constitution, Sikri, C.J. explained that the concept of
basic structure included:2

• supremacy of the Constitution

• republican and democratic form of government

• secular character of the Constitution

• separation of powers between the legislature, executive and the judiciary

• federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of State Policy

• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• sovereignty of India

• democratic character of the polity

• unity of the country

• essential features of the individual freedoms secured to the citizens

• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in
the Preamble of the Constitution and the provisions into which they translated such as:

• sovereign democratic republic

• parliamentary democracy

• three organs of the State

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He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles.

BASIC STRUCTURE DOCTRINE IN KENYA

In Kenya, this issue was greatly dealt upon during the BBI era;
Background of BBI
There was a hostile political climate in the country following the hotly contested presidential
election in 2017 and as such, something had to be done in order to ensure that there was peace in
the country. On March 18, 2018, the President, Mr. Uhuru Kenyatta, and Mr. Raila Odinga, both
candidates in the elections, held what became known as the handshake. Later, the President
formed the Advisory Taskforce on Building Bridges to Unity (BBI Taskforce). It was made up of
14 members and two joint secretaries. The BBI Taskforce's main goal was to develop
suggestions and proposals for achieving long-term unity in the country.3
The Taskforce issued an interim report in November 2019, and on January 3, 2020, President
Kenyatta appointed the Steering Committee on the Implementation of the Building Bridges to a
United Kenya Taskforce Report (the BBI Steering Committee), which included 14 members and
two joint secretaries.4The Steering Committee was required to engage in public consultations in
order to validate the Taskforce Report and to propose administrative, policy, statutory, or
constitutional changes that may be required for the implementation of the Taskforce Report's
recommendations, while taking into account input received during the validation process. After
being given to the President, the BBI Steering Committee's report became the Constitution of
Kenya Amendment Bill, 2020. In favor of the popular effort to change the Constitution,
signatures were collected. The signatures were submitted to the Independent Electoral and
Boundaries Commission (IEBC) for verification before being presented to the County
Assemblies and Parliament for consideration.5Eight unified constitutional petitions were filed in
court to oppose the Building Bridges Initiative, the resultant Constitution Amendment Bill, and
the popular initiative that accompanied it. Petition Nos. E282 of 2020, 397 of 2020, E400 of
2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020, and 2 of 2021 were combined.
On 5th April 2022, a seven-judge bench of the Kenyan Supreme Court delivered judgment
in The Hon. Attorney General and Ors v David Ndii and Ors [“the BBI Appeal”]. The
judgment marked the judicial culmination of the constitutional challenge to the BBI Bill, which
had proposed seventy-four amendments to the 2010 Constitution of Kenya. Recall that the case
came up in appeal from the judgments of – first – the High Court of Kenya, and then the Kenyan
Court of Appeal, both of which had found the Bill unconstitutional for a variety of reasons. The
Supreme Court, thus, was the third Court to hear and decide the issue; and over a period of one
year, as many as nineteen judges heard and decided this case.6

The Rulings on the BBI Issue in the High Court, Court of Appeal and the
Supreme Court
The High Court’s decision was per curiam ,where the five-judge bench made up of presiding
judge, Justice Joel Ngugi; Justice George Odunga; Justice Jairus Ngaah; Justice Teresia
Matheka; and Justice Chacha Mwita declared the BBI Process as irregular, illegal and
unconstitutional.7
A declaration hereby issues: 8
(a)That the Basic Structure Doctrine is applicable in Kenya.
(b)That the Basic Structure limits the amendment power set out in Articles 255 – 257 of the
Constitution. In particular, the Basic Structure Doctrine limits the power to amend the Basic
Structure of the Constitution and eternity clauses.
(c)That the Basic Structure of the Constitution and eternity clauses can only be amended through
the Primary Constituent Power which must include four sequential processes namely: civic
education; public participation and collation of views; Constituent Assembly debate; and
ultimately, a referendum.
The Court of Appeal judges had their own individual findings but the conclusions and their
findings were pronounced in the lead judgment of Musinga, (P) dated 20 th August, 2021 as
follows:9
“We uphold the judgment of the High Court to the extent that we affirm the following:
i.The basic structure doctrine is applicable in Kenya. (Sichale, J. A. dissenting).
ii.The basic structure doctrine limits the amendment power set out in Articles 255 – 257 of the
Constitution. (Okwengu & Sichale, JJ.A. dissenting).
iii.The basic structure of the Constitution can only be altered through the Primary Constituent
Power which must include four sequential processes namely: civic education; public
participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.
(Okwengu, Gatembu & Sichale, JJ. A. dissenting).
From the aforesaid rulings, it was clear that both courts held that the basic structure doctrine was
applicable in Kenya. In addition, both Courts (5-0 and 4-3) had also held that in concrete terms,
this meant that any alteration to the basic structure of the Kenyan Constitution could take place
only through an exercise of the People’s primary constituent power, which existed outside of the
Constitution. The primary constituent power was essentially the power to make or remake a
Constitution, and would therefore could only be done under the framework within which the
2010 Constitution had originally been drafted. This – according to both Courts – required a four-
step sequential process: civic education, public participation, a Constituent Assembly, and a
referendum.
ARGUMENTS BY THE PARTIES IN SUPPORT AND AGAINST ON THE BASIC
STRUCTURE DOCTRINE
 From the High Court judgement, it is evident that, in their case before the High Court, the
proponents of the doctrine merged the basic structure doctrine with the doctrine and theory of
unamendability of “eternity clauses,” the doctrine and theory of “constitutional entrenchment
clauses” and “unamendable constitutional provisions” in seeking a declaration that they are
applicable in Kenya. 10

The bone of contention in this case was what the doctrine entailed, some of the proponents,
including Kenya Human Rights Commission, the 78 th respondent, considered it a common law
doctrine that is inherent in all Constitutions, this proposition was however opposed Opponents
like Prof. Yaniv Roznai dismisses the notion that the doctrine is a common law doctrine in the
following terms:

“The Kesavanand a Case did not provide a precise list of unamendable features that constituted
the Constitution’s Basic Structure, thus forming a sort of common law doctrine that develops on
a case by case basis” and that the Kesavanand a Judgment created a “Constitutional
quicksand .”

In addressing the question of the basic structure, several judgments of the Supreme Court begin
at amendment procedures (set out under Chapter XVI) were attempting to address? The answer:
a culture of “hyper-amendments” to Kenya’s Independence Constitution. the years after
Independence, the old Constitution was often seen as an impediment by the Presidency, and as a
result, a series of far-reaching amendments were passed that more or less entirely devalued its
status as a founding charter (and invariably concentrated power in the office of the Presidency, at
the cost of other State organs and the People 11. Upon Kenya’s return to multi-party democracy in
the 1990s, and the eventual constitutional reform process, this culture of hyper-amendments was
prominently in the minds of the People and of the drafters .6

In paragraph 438, the fact that, in considering the text, structure, nature, historical development
and context of the Constitution of Kenya 2010, the High Court concluded that “ . . . Kenyans
intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010
from destruction through gradual amendments” the respondents equated this conclusion to the
basic structure doctrine and espoused to be applicable in Kenya.
The High Court identified that the fact that the Kenyan Constitution provided amendment of
basic principles through constituent power or secondary constituent power and that the text,
structure, history and context of the Constitution of Kenya 2010 all read and interpreted using the
canon of interpretive principles decreed by the Constitution yield the conclusion that the basic
structure doctrine is applicable in Kenya.
Drawing upon the historical record, the Supreme Court opinions then go on to argue that the
Kenyan People therefore devised a solution to the problem of hyper-amendments,
and constitutionalised it; in other words, the hyper-amendments were to be addressed by a
solution internal to the 2010 Kenyan Constitution. This solution is to be found in Chapter XVI
of the Constitution, and – in particular – in the tiered amendment process that it sets up. Article
255(1) of the Constitution “entrenches” certain provisions of the document. 12 For these
“entrenched” provisions, the amendment procedure is far more onerous than for un-entrenched
provisions, requiring a referendum with certain conditions (Article 255(2)), in addition to (or
complementing) the Parliamentary amendment route (under Article 256) or the popular initiative
route (in Article 257). This tiered amendment process, according to the judges, thus creates a
balance between constitutional flexibility and constitutional rigidity, and also “tames” the
mischief of hyper-amendment .13
It is, of course, entirely correct to say that the plenary power of parliament to amend the
Constitution (as in India) is significantly distinct from the tiered amendment process under
Articles 255 – 257; and, further, that this distinction is relevant when considering the question of
the basic structure. However, it is equally important not to overstate the sequitur: it does follow
that the version of the basic structure doctrine as developed in India (i.e., a judicial veto over
amendments) cannot be transplanted into the Kenyan context.6
It can also be argued that The tiered amendment process, the onerous requirements under Article
257 to prevent hyper-amendments, and the balance between flexibility and rigidity ensure that as
a practical matter, in most circumstances, the basic structure doctrine will not need to be
invoked, because the Constitution’s internal mechanisms are far more effective for dealing with
potential constitutional destruction (as opposed to, say, the Indian Constitution). The fact that the
basic structure doctrine will almost never need to be imposed does not, however, address the
point that it exists because of the conceptual distinction between amendment and repeal, and the
fact that the Constitution – as conceded by Ouko J – “does not provide for its own replacement”
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Thirdly, the the historical context within which the decision was made is different from Kenya’s
situation. Kenya did not undergo the same circumstances as those of India. While India’s
parliament had the sole discretion of amending the constitution, in Kenya the amendability of the
Constitution was not of concern. The global dynamics obtaining in the 1970s including the cold
war when the decision was made were very different from the current dynamics. As stated inter
alia, the framers of the Constitution of Kenya 2010, considered the hyper amendment era and
textually protected fundamental rights from executive manipulation.
In addition, the juxtaposition of the Constitutional provisions and architecture reveal a
discrepancy between the Indian Constitution and the Kenyan one. The doctrine in India sought to
limiting the plenary power of the parliament while Kenya emphasis on its basic structure was
due to limit and protect citizens from hyper amendments influenced by the executive.
Moreover, the political underpinning and democratic spaces between the two countries remain
distinguishable.
The doctrine can also be deemed non applicable due to the contextual and textual differences
between Kenyan and Indian Constitution at the time the Indian Supreme Court developed the
doctrine. For instance, under the Indian Constitution, Parliament has the exclusive and final
power to amend the Indian Constitution; there is no requirementt for approval of an amendment
of the Indian Constitution in a referendum; the popular initiative approach is neither provided for
nor contemplated under the Indian Constitution; the court’s jurisdiction to question
parliamentary power to amend the Indian Constitution on any ground is expressly ousted.

An argument by the petitioners was also considered in Paragraph 403 where other jurisdictions
which had accepted the doctrine was held, countries like Nicaragua, El Salvador, Honduras and
Bolivia have over-enforced the basic structure doctrine, while others have applied the doctrine in
ways that have had distinctly anti, rather than pro-democratic effects, to for example, remove
term limits on the presidency.

In conclusion, I concur with the Supreme Court’s ruling that

“To state that the basic structure doctrine is applicable in Kenya is, to say that it has the force of
law. That, it does not have in my view. Some judicial reasoning which is what Kesavanand a
Case is, cannot be elevated to a doctrine above the Constitution. The basic structure doctrine is
not within our Constitution and needless to say, our Constitution is self-sustaining…”