The Doctrine of Basic Structure III

Basic Structure Doctrine is applicable in Kenya” had only Lady Justice, Fatuma Sichale’s Dissent.

My Lord, Independent Electoral and Boundaries Commission v. David Ndii, Petition No. 12 of 2021 before Supreme Court of Kenya at Nairobi?

6-1, Friend.

Lady Justice, P.M. Mwilu, Deputy Chief Justice & Vice-President of Supreme Court of Kenya:

If there were any stand out words emanating from these proceedings, they are “basic structure”. Some judicial reasoning which is what Kesavananda is, cannot be above the Constitution. Basic Structure Doctrine is not within our Constitution and needless to say, our Constitution is self-sustaining.

Mr. Justice Issac Lenaola:

Basic Structure Doctrine has not met criteria for recognition. It is my finding, Doctrine as enunciated in Kesavananda has not attained wide acceptability and cannot certainly be applicable to Kenya noting our history, context and constitutional text.

Lady Justice, Njoki Ndungu:

Basic Structure Doctrine, in my opinion, does not meet global standard of recognition or prominence. I find it absurd. Two Superior Courts acknowledged, there is no clause in the Constitution that bars amendment to any Article therein. But, they proceeded to consider factors outside the Constitution to create un-amendable clauses! It was unnecessary to import, imply and apply factors not contemplated by the Constitution. We must not, eternally, tie and impose our current ideals, values, morals, structures, commissions and organs on future generations who might not aspire to them or need them.

Lady Justice Martha Koome, Chief Justice & President of Supreme Court of Kenya:

Basic Structure Doctrine and its various variants have been accepted in Bangladesh, Belize, Colombia, Taiwan, Malaysia, Slovakia, and Peru; and rejected by Courts in France, Georgia, South Africa, Singapore, Zambia, Uganda, and Tanzania. What this state of play demonstrates is, Basic Structure Doctrine has not yet matured into a universal norm of constitutionalism. Court ought not to import, idea of a judicially-created Basic Structure Doctrine. In a context like Kenya, the Constitution has an explicitly in-built structure to discourage hyper-amendments and tame likely abuses.

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Mr. Justice M.K. Ibrahim:

Supreme Court of India in Kesavananda interchangeably used: “basic structure”, “basic elements”, “basic framework”, “basic features”, “fundamental features” and “essential features”. To quote William Shakespeare: “A rose by any other name would smell as sweet.”

I find, Basic Structure Doctrine to be a legal principle which exists to protect essential characteristics of the Constitution by implicitly limiting power to amend a Constitution. Just like Supreme Court of India, it is through application of Doctrine of Basic Structure, Courts in Kenya would be able to prevent “an absurdity not contemplated or intended.” Doctrine is not only applicable to Kenya, but was already in application as evidenced by decisions.

Mr. Justice Dr. Smokin Wanjala:

Never, since promulgation of the Constitution of 2010, have our Courts been confronted by so polemical, elastic, and indeterminate a notion: “Basic Structure Doctrine”.

Minority of 6 out of 13 (Ray, Palekar, Mathew, Beg, Dwivedi & Chandrachud, JJ) declared, no part of the Constitution was expressly exempted from amendment. Judges stated, it was not permissible to read or imply into Article 368, words of limitation which had not been contemplated by drafters.

Parliament may not be able to annihilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the physician’s needle but also the surgeon’s saw. It may amputate any part of the Constitution if and when it becomes necessary so to do for good health and survival of other parts of the Constitution. [Dwivedi, J]

Speaking for myself from where I sit as a Judge, and deprived of romanticism of academic theorizing, it is my view, what has been articulated as “Basic Structure Doctrine”, is no Doctrine. It is a notion, a reasoning, a school of thought or, at best, a heuristic device, to which Court may turn in determining: whether, a proposed constitutional amendment has potential to destabilize, distort or even destroy constitutional equilibrium.

It appears to me, characterizing certain provisions as constituting a “basic structure”, hence unamendable, would be veering away from canons of interpretation that require Courts to interpret the Constitution holistically and purposively. Every provision in the Constitution is amendable. To hold, there are certain provisions that enjoy attributes of eternity, is to stifle growth and flowering of the Constitution for benefit of future generations.

Mr. Justice W. Ouko:

Of all issues argued, none has taken so much space and attracted lengthy and very substantial research and arguments.

1st, 2nd, 3rd Amici Curiae – Prof. Rosalind Dixon, Prof. David E. Landau, Dr. Gautam Bhatia –  have submitted, jurisdictions that have rejected “Basic Structure Doctrine” operate in a unique political and legal context with low levels of judicial independence or insulation of Courts from authoritarian actors. They posit further, every Constitution stipulates a procedure for amendment, distinct from concept of ‘repeal’ or ‘replacement’. An amendment implies, amended clauses retain their identity before and after proposed amendments. A ‘replacement’ or ‘repeal’ means a permanent loss or extinguishment of identity and imposition of a new one and power to amend does not entail effacing, extinguishing, or erasing identity of the Constitution. They conclude, the Constitution of Kenya contains implied limitations on its amendment as well as a limitation on ability of the President to propose amendments outside procedures. Therefore, failure to follow amendment procedures laid down in the Constitution would be a ground for invalidating any amendments.

In Kenya, as indeed in many African states, there have been indiscriminate amendments of the Constitution. These indiscriminate amendments were possible because of existing simple amendment procedure. Parliament will no longer be used to pass amendments to the Constitution, as it did before 2010, because of current inbuilt mechanisms and safeguards as well as complex and elaborate procedures. In view of explicit, long, complex and in most cases unpredictable process of amending the Constitution, it can be said, there are no implied constitutional limitations by which the Constitution should not be amended in any way. There are sufficient safeguards against unwarranted amendments.

Basic Structure Doctrine is an implied limitation to amendment power which tends to contradict people’s power to amend the Constitution, expressly reserved in Article 257 for people themselves and under Article 256 for Parliament through people’s delegated mandate. Basic Structure Doctrine does not apply to the Constitution of Kenya, as framed today.

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