• The basic structure doctrine presupposes that the Constitution in question was attained through a genuinely participatory process.
• What people endorsed in the 2010 referendum was a caricature of the Bomas Draft after the Parliamentary Committee on Constitutional Review tampered with the experts' draft.
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A case was recently filed at the High Court, claiming that the 2010 Constitution has a 'basic structure' that the courts should protect from 'unconstitutional amendments'.
The argument is that a constitution has certain features that are so fundamental that they cannot be abrogated through amendments.
The idea may be useful to the extent that it seeks to protect a set of higher ideals (or fundamental principles) on the rationale that they are essential to the realisation of constitutionalism and democratic governance in a given polity.
Such ideals could include the right to self-rule, the separation of powers, the defence of human rights and the rule of law. Indeed, a constitution must embrace such higher ideals if it is to protect the weak and the voiceless.
It should not merely protect settlements negotiated between dominant/powerful groups during constitutional negotiations, where the weak and voiceless are rarely given a hearing and hardly participate.
On this reasoning, it is arguable that the legislature should be restricted or prohibited from amending the higher ideals.
The doctrine is also useful if it facilitates the preservation of the continuity and identity of a constitution.
At the same time, the basic structure doctrine presupposes that the Constitution in question was attained through a genuinely participatory process and truly embodies the views of all segments of society.
For, if the constitution-making process were undemocratic, it could not be plausibly claimed that the people produced the resulting constitution.
Even in the case of such an undemocratic constitution, however, courts can still 'read in' the above higher ideals into the constitution by appealing to universal human values or norms of international law, thus ensuring, for example, the protection of human rights. But if courts can read in the higher ideals into constitutions, doesn’t the doctrine become superfluous?
But while the doctrine can, evidently, be useful, we need to be cautious in applying it in our context for the following reasons.
FOSSILISING INSTITUTIONS
First, and above all, taken to its logical conclusion, the doctrine might lead to freezing particular institutional designs in a constitutional system, with the result that past generations would rule present and future generations from the grave.
It is necessary to appreciate that questions of institutional design respond to their time. Thus, while preserving a constitution’s fundamental principles, courts should ensure that original institutional designs are open to change and improvement.
To give an example, the principle of judicial independence can admit many concrete applications, which are context-dependent.
This explains the variations in the judicial councils that many countries have established to maintain a balance between judicial independence and accountability.
Hence the need to recognise that constitutional institutions can take different forms, provided these forms adhere to the fundamental principles.
And such flexibility prevents conflict, otherwise, change might only occur through chaotic revolutions.
Provided that amendments are made in a democratic and deliberative manner, we should therefore see them as the necessary continuation of a conversation that the constitution-makers opened. After all, no constitution is perfect.
Accordingly, while we must protect the higher-order principles, we must equally give succeeding generations room to adapt specific institutions and rules to suit their particular circumstances.
For example, it may, from time to time, be necessary to reorganise the Executive and units of devolution, even as we preserve the separation of powers principle.
In Kenya’s case, it is also noteworthy that the provisions of the 2010 Constitution on the Executive and devolution departed markedly from the Bomas Draft Constitution, which the people participated in making.
What the people endorsed in the 2010 referendum was a caricature of the Bomas Draft in significant respects, after the Parliamentary Committee on Constitutional Review tampered with the Committee of Experts’ draft constitution.
It would not serve us to deny present and future generations the possibility of changing these provisions.
And a referendum itself is a blunt instrument that needs to be managed carefully if its outcomes are to be faithful to the wishes of the people.
NEGOTIATIONS NOT ON A LEVEL PLAYING FIELD
Second, we must account for differentiation in power among the people at the time of constitution-making. Constitutions are never negotiated in a context of balanced powers. Inevitably, some groups/actors will always have more power than others, even as this may change over time.
Indeed, true constitution-making can only occur behind the mythical veil of ignorance, meaning that those making it should not know how it will affect them.
Because there will always be differentiation in power, there must be room for the weak, as they become empowered, to amend extant constitutional settlements, to protect their liberties.
Had the enslaved people in the US participated in the making of its venerated Constitution, it would certainly have had markedly different provisions on the institution of slavery.
Similarly, black South Africans should not be condemned to forever live with the Constitution of 1996, seeing as the white apartheid constituency dictated its terms in core respects.
This explains why Julius Malema and others are, for example, clamouring for land expropriation without compensation. It should therefore always be possible to amend constitutions if only to avoid ossifying oppression.
BASIC STRUCTURE DOCTRINE IMPRECISE
Essentially, the basic structure of any given constitution is what a court says it is; whether a particular feature is part of the basic structure is worked out on a case-by-case basis.
And so different courts have applied the label of 'basic structure' to varying provisions, and not always for convincing reasons.
For example, the Indian Supreme Court has rightly been criticised for holding unconstitutional a constitutional amendment that sought to establish a mechanism for judicial accountability.
The court claimed that the amendment violated the basic structure of the Indian Constitution by compromising the principle of judicial independence.
Therefore, there is no certainty that the interpretation that a court will provide will be consistent with the Constitution and conform to its identity.
Put differently, judicial declarations that certain provisions form part of a constitution’s basic structure in many cases merely preserve the understanding that the particular courts have of norms that are invariably open to different interpretations.
ROLE OF UNELECTED COURTS
But why should courts, which are unelected institutions, wield this much power? And this leads me to the fourth reason.
The doctrine risks transforming the courts into policymakers, in so far as it allows them to opt among different policies by approving or refusing an amendment to the constitution.
Constitution-making or amendment should be a bottom-up and not a top-down approach. Rather than telling us what constitutes the basic structure of our Constitution and risk becoming 'unaccountable accountability-holders', the courts should play the limited, judicially manageable and legitimate role of facilitating dialogue and ensuring that amendment processes are deliberative.
From this perspective, the courts should approve amendments that change the design of constitutional institutions, provided they adhere to constitutional higher values and are enacted through participatory and deliberative processes.
The people should have the freedom to determine the terms of the social contract and how they wish to change those terms. Sometimes this will require that they solely exercise their sovereign power.
At other times, it will suffice that they delegate this power to, or exercise it jointly with, representatives of their choosing. In Kenya’s case, the amendment power is shared power, and not just delegated to Parliament.
Both Articles 256 and 257 of the Constitution entail the exercise of the sovereign power to make a constitution in the form of a national referendum.
These provisions are vital safety valves; they allow the people to amend the constitution to address important concerns of the day.
Thus, as weak or marginalised segments of society become empowered, they should have the opportunity to redefine the elements of the social contract that they feel need redefining, through a people-led and people-owned process.
The author is an advocate of the High Court of Kenya