High Court’s BBI Judgment: The basic structure doctrine

In Summary

• This article is one in a series of many that will analyse the fundamental issues on which the judgment turned on while situating the same within Kenya’s wider constitutional and societal context.

• The judges premised their finding on, among others, Kenya’s constitutional making history, holding that in much the same way the making of the Constitution was people-driven, so must the unmaking of the Constitution be.

A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
BBI REPORT: A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020.
Image: ANDREW KASUKU

On May 13, 2021, a five-judge bench of the High Court declared illegal the process leading to the enactment of the Constitution of Kenya (Amendment) Bill, 2020 (famously the BBI Bill) that sought to change the Constitution, on a number of grounds.

This article is one in a series of many that will analyse the fundamental issues on which the judgment turned on while situating the same within Kenya’s wider constitutional and societal context.

One of the landmark aspects of the decision was a declaration that the basic structure doctrine is applicable to the Constitution of Kenya which means that some parts of the Constitution deemed as forming the basic structure, described as ‘eternity clauses’ are not easily amendable.

Rather than providing that these clauses are unamendable, the Court applied this doctrine to state that such provisions may only be repealed through the exercise of primary constituent power-which entails: civic education, public participation and collation of views, constituent assembly debate and consultations, and finally culminating in a referendum.

Those specific provisions cannot be amended through the parliamentary process (Constituent Power) or a mere referendum (Secondary Constituent Power).

The judges premised their finding on, among others, Kenya’s constitutional making history, holding that in much the same way the making of the Constitution was people-driven, so must the unmaking of the Constitution be.

The Court in particular considered the Constitution’s text, structure, context and history; noting past efforts to gradually mutilate the Independence Constitution which was amended at least twenty-eight times between 1964 and 1997.

But what is the basic structure doctrine?

The doctrine is an import from the Indian Supreme Court as enunciated in the Kesavananda Bharati case, though it has its antecedents in France and Germany.

It is by its nature a judicial construct geared towards protecting the core provisions of a Constitution from mutilation through amendments.

Unsurprisingly, critics argue that the doctrine is a product of judicial activism that attempts to supplant the sovereignty of the people.

Granted, the basic structure doctrine serves the salutary purpose of checking Parliament and the Executive from unnecessarily altering the Constitution.

Ever since it was pronounced by the Indian Supreme Court, however, the doctrine has not yet assumed hallowed status in comparative constitutional law.

So much so that the doctrine has been described as nebulous for setting a subjective standard especially in delineating the contours of what constitutes the ‘basic structure’ largely because it falls to judges to determine what provisions of the Constitution form its ‘basic structure’.

There lacks an objective criteria of discerning and delineating ‘eternity clauses’, a fact appreciated by the judges when they stated, ‘An exhaustive list of which specific provisions in the Constitution are un-amendable…is inadvisable to make in vacuum…’

The Constitutions of Germany and Portugal provide a long list of unamendable provisions while those of France, Turkey, Iran and Italy set out a few core principles that are unamendable.

For context, the Kesavanda case revolved around the scope of Parliament’s power to amend the Constitution.

Questions may be raised as to whether the same would obtain where amendment is to be done by the people as opposed to Parliament.

Those opposed to the doctrine also advance the argument that the doctrine affords an opportunity for judicial aggrandisement at the expense of the people.

Given the indications that the judgment will be appealed, which will likely escalate to the Supreme Court, there is an opportunity for the Kenyan courts to authoritatively pronounce themselves on the applicability, scope and content of the doctrine in unequivocal terms.

The writer is an Advocate of the High Court of Kenya and teaches Law at the University of Nairobi.