The Doctrine of Basic Structure II

I do not think there is any serious contestation. Constitution of Kenya, 2010 has a Basic Structure. Constitution of Kenya (Amendment) Bill, 2020 violates certain components of our Constitution’s Basic Structure. [Mr. Justice D.K. Musinga, President of Court of Appeal]

Constitutions, like human beings, are never perfect. Judges were agreed, Indian Constitution has a Basic Structure. They were not agreed on what exactly ‘Basic Structure’ is. Each Judge identified a different aspect. Constitution of Kenya, 2010 has a Basic Structure which has been identified by way of thematic areas in Article 255(1). [Lady Justice, H.M. Okwengu]

Whether a matter is part of the Basic Structure of our Constitution will not be a rudderless or unguided exercise because it is firmly beaconed in Article 255(1). [Mr. Justice F. Tuiyott]

Dismemberment in regard to the Constitution would mean completely tearing the Constitution apart by removing its significant parts so that it no longer has the same identity. [Lady Justice, H.M. Okwengu]

Doctrine of Basic Structure, as I understand it, is a complete bar to dismemberment or abolition of provisions of the Constitution in the name of amendment. [Mr. Justice S.G. Kairu]

Judges cannot be faulted, for what is termed ‘judicial craft’, for applying Basic Structure Doctrine to Constitution of Kenya, 2010 notwithstanding admitted lack of express provision for its applicability. [Lady Justice, R. Nambuye]

Learned Senior Counsel, Mr. Oraro made the curious submission,  “it is inconceivable that we can introduce it in Kenya.” Learned Senior Counsel, Mr. Orengo said, “they were so anxious to apply the Basic Structure Doctrine that they invented it,” which he termed a “trip to Wonderland.” Hon. Attorney General is, with respect, not right in submitting, the Basic Structure Doctrine has been “rejected by a vast majority of Courts around the world.” I find no factual basis for so bold and rather fallacious an assertion. It is instructive, Bangladesh and Pakistan have embraced and fully affirmed the Basic Structure Doctrine [Bangladesh Italian Marble Works v. Bangladesh, 2006 and Darvesh M. Arbey v. Federation of Pakistan, 1980]. As I have stated before, constitutional borrowing, cross-pollination and interpenetration of notions is perfectly legitimate and is the proper way to develop the law, while ensuring whatever is borrowed is relevant, useful and fitted to suit. The conclusion I have arrived at is, Basic Structure Doctrine is legitimate and sound. Every house, be it simple or complex and elaborate, must have some structure with its bare essentials. [Mr. Justice P.O. Kiage]

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As evident, Court of Appeal at Nairobi in Independent Electoral and Boundaries Commission v. David Ndii, Civil Appeal No. E 291 of 2021 discussed the Basic Structure Doctrine. The conclusion, “Basic Structure Doctrine is applicable in Kenya” had only Lady Justice, Fatuma Sichale’s Dissent.

Courts in Malaysia, Singapore, Zambia, Uganda and Tanzania have rejected the Doctrine of Basic Structure on the reasoning, Constitution being a living document must inevitably change as society progresses. We cannot possibly shackle future generations by what we consider to be noble today. I am therefore of the persuasion, the contest of what is amendable and what is not should not be left to be a matter of judicial innovation. Judges, just like Parliamentarians, cannot assume supremacy over all others.”