Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment

One of the hotly contested issue before the Kenyan Court of Appeals in BBI judgment was whether the Basic Structure Doctrine expounded in Kesavananda Bharati by the Indian Supreme Court is applicable in Kenya or not.

The majority judges of the seven judge bench held that this doctrine is applicable in Kenya and that the basic structure of the Constitution can only be altered through the Primary Constituent Power. This must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum., the majority held.

Before the Court of Appeals, the Government had contended that this doctrine not be applicable in Kenya because the power to amend the Constitution in India is constituted power that vests exclusively in Parliament, and unlike Kenya, does not give the Indian people the right of altering the Constitution through a referendum. It also highlighted the lack of unanimity margin in the Kesavananda case of (seven –six) to contend that its application is questionable. The rationale of the decision in the Kesavananda case was to curb abuse of the amendment power by India's Parliament, while the current Kenya Constitution has inbuilt mechanism which limits Parliament's power to amend certain Articles of the Constitution, and such amendments require approval of the people through a referendum, it was contended. The Attorney General also submitted that the doctrine has been roundly rejected in many contexts and jurisdiction.

Justice Kiage

Justice Kiage's judgment extensively discusses this doctrine vis-a-vis Kesavananda Bharati and holds that that the basic structure doctrine is legitimate and sound. The President Justice Musinga and Justice F. Tuiyott in their judgment, specifically stated that they agrees with these views and findings. The following are some observations made in the judgment by Justice Kiage. 

Analogy of a house

There is a certain undeniable simplicity to the notion. I thought of it as a house. Any and every house, be it simple or complex and elaborate, must have some structure with its bare essentials. Even as some houses may have fewer items than others going into their basic structure than others, so would different Constitutions differ in complexity. I was pleasantly surprised to find that Joseph Raz, in Between Authority and Interpretation (Oxford University Press 2009) at page 370 uses the analogy of a house to differentiate between minor changes to the Constitution like redecorating a house, and major ones that alter its character.

'Fallacious' Contention That Doctrine Is Roundly Rejected 

I also find it curious that the submission was made that the doctrine "has been roundly rejected in many contexts and jurisdictions". The Hon. Attorney General is, with respect, not right in submitting that the basic structure doctrine has been "rejected by a vast majority of courts around the world." I have carefully and painstakingly read through the numerous cases, books and articles cited by the parties before us, and I find no factual basis for so bold and rather fallacious an assertion.

In Malaysia, the judge found that the basic structure doctrine is more accepted than rejected and that other asian countries such as Bangladesh and Pakistan have embraced and fully affirmed 

Bulky and numerous as they are. But read them I have

I note with a measure of bemusement that while castigating the learned judges for relying on foreign jurisprudence, the aggrieved appellants have laid before us numerous decisions of foreign courts. I can only take it that they intended that we would consider the said decision and authorities and hopefully be persuaded by them. And consider them I have, for many hours, days and weeks. I need to point out, however, that I have had serious difficulties with the commentaries and submissions by counsel that have accompanied the cases cited. I have already termed some of those submissions to be exaggerated or fallacious. I was at first minded to treat them as a case of honest misapprehension of the judgments referred to in the part of counsel but, considering the regularity, consistency, and repetition of some of those wholly inaccurate comments and submissions, I cannot but wonder whether they were calculated to mislead the Court. They may have been made in the hope, alas vain, that we would not take the trouble to read the authorities ourselves - bulky and numerous as they are. But read them I have

Basic structure doctrine is legitimate and sound

The conclusion I have arrived at out of my forays into all the jurisprudence and learning I have referred to, and much more besides, is that the basic structure doctrine is legitimate and sound. I would think it strange that anyone would doubt the existence of a basic, fundamental, essential core being the pillar upon which our Constitution stands, and from which its character, ethos and identity flows.

The judge also discusses Indian Supreme Court judgments from Shankari Prasad to Kesavananda Bharati and beyond. 

GOLAKNATH decision unleashed the wrath of a furious Prime Minister Indira Gandhi 

"The GOLAKNATH decision unleashed the wrath of a furious Prime Minister Indira Gandhi and "signified the opening shot of a great war … over Parliamentary versus judicial supremacy" as Roznai puts it, recalling Granville Austin's Working a Democratic Constitution: The Indian Experience (Oxford University Press 1999 at p. 198. The Prime Minister, seeking to establish parliamentary sovereignty, and while riding on a crest of political popularity that gave her Congress Party a two third parliamentary majority, saw the passage of the 24th and 25th Amendments. The latter sought the contested property reform while the former was to the effect that Parliament could amend any provision of the Constitution, including those protective of fundamental rights.

Majority which decided Kesavandanda faced reprisals from Gandhi

Those amendments were the subject of challenge in KESAVANANDA, heard by an extraordinary bench of 13 Supreme Court Judges. A narrow majority of 7:6 held that the amendment power does not include the power to alter the basic structure or framework of the Constitution so as to change its identity. This is the kernel of the basic structure doctrine. The dissenting 6 Judges were of the view, expressed strongly before us by the aggrieved appellants, that all parts of the Constitution have equal status and are amendable. The majority faced reprisals from Gandhi, most notable being her breaking with custom to appoint Justice Ray, the senior most of the dissenting Judges, as the Chief Justice instead of the senior most judge on the Court, who happened to have been in the majority.

Quotes Justice YV Chandrachund

Those who seek to amend the Constitution are at liberty to effect what changes they wish but, as Justice Chandrachund stated in KESAVANANDA, "the basic structures theme song is amend as you may, even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore you cannot destroy its identity." That word of caution resonates with what Ringera, J. observed in NJOYA above that "the limitation of Parliament's [amendment] power was a very wise ordination by the framers of the Constitution which is worthy of eternal preservation."

By using the basic structure doctrine, the judiciary does play an important role against democratic erosion

Ultimately, I come to the inescapable conclusion that the basic structure doctrine is a vital tool for the preservation of the integrity of the Constitution and a strong barricade against the ever-present threat to the rule of law and democratic governance. The learning in this area is plentiful, inexhaustible even, and it is enough to say that having seen the deployment of the doctrine and its utility in stopping or slowing down..., it is undeniable that by using the basic structure doctrine, the judiciary does play an important role against democratic erosion, I would unhesitatingly affirm the learned judges.

Justice Gatembu Kairu

Justice Gatembu Kairu observed that the doctrine of basic structure and the pillars on which it is founded has been recognised and applied by Kenyan courts and is very much part of its jurisprudence.

59) Based on the foregoing, my conclusion in relation to the basic structure doctrine is that it is applicable in Kenya. In its application in the context of our Constitution, it bars (as opposed to limiting) the dismemberment, replacement or abolition of the Constitution in the name of amendment. The Constitution does not envisage, contemplate or permit its replacement, abrogation, or its dismemberment. That is a preserve of the People and can only be done by the People, outside the framework of the Constitution, following the procedure used or akin to that used to make the Constitution and which must include civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum. The doctrine does not, in my view, prevent genuine amendments to the Constitution. The framers of the Constitution identified the matters set out in Article 255(1) of the Constitution as the core or the basic structure of the Constitution and any amendments, properly so called, to the Constitution relating to or touching on those matters can be done in accordance with Article 257 of the Constitution infused with the national values and principles. Whether a proposed amendment amounts to a dismemberment, abolition or derogation of the Constitution is ultimately a matter of judicial interpretation. Any other amendments to the Constitution that does not relate to or touch on the matters set out in Article 255(1) can be made in Civil Appeal No. E291 of 2021 Page 33 accordance with Article 256 of the Constitution. In my view, there are no eternity clauses in the Constitution

Justice Sichale Dissents

Justice Sichale, the sole judge who expressed dissent against applying Basic Structure Doctrine in Kenya, opined that pre-2010 Constitution, like the Indian Constitution did not bar amendability. But the situation obtaining in Kenya after the promulgation of the 2010 Constitution is totally different, the judge said.

It is against the backdrop of the Indian Constitution where there is no provision for amendment of the Constitution by the constituent power but the power to amend being reposed solely in Parliament; that the Kesavananda decision was made.

In my view, the position obtaining in India in so far as it related to its Constitution was not any different from the position obtaining in Kenya before the promulgation of the 2010 Constitution on 27th August, 2010. The Indian Parliament has the exclusive power to amend the Constitution. Our Parliament had similar power to amend the Constitution, prior to the 2010 Constitution. The situation obtaining in Kenya after the promulgation of the 2010 Constitution is totally different. There are explicit provisions on the amendments of the Constitution as well as in-built mechanism which limit Parliament in amending the Constitution. The methodology to amend the entrenched provisions is also clearly spelt out. There are also clearly spelt out entrenched provisions. Suffice to state that the Constitution itself anticipated that it can be amended and it provided for its own amendment procedures. In the same Constitution, there are strictures as regards entrenched provisions which require a referendum and which ones do not.

Justice Nambuye

[62] My take on the above rival position starting with applicability or otherwise of the basic structure doctrine issue is that it is common ground that the CoK, 2010 itself does not contain a definition for "a basic structure". Neither did the Judges offer one, hence my association with the definition given above by Prof. Yaniv Roznai that "it is a judicial principle that guide courts in their exercise of their judicial mandate to guard against sanctioning amendments to constitutions likely to have the effect of either dismembering or changing their identity completely." The Judges cannot therefore be faulted for using what appellants have termed judicial craft to imply the applicability of the said doctrine to the CoK, 2010 notwithstanding admitted lack of express provision for its applicability. I associate myself fully with propositions in the local jurisprudence relied upon by respondents in support of the application of the doctrine that the phrase "basic structure" of a constitution means "the constitution itself and what it contains.". I therefore find as did the Judges and correctly so in my view that the basic structure doctrine applies to the CoK, 2010.

Justice Okwengu 

The basic structure has been variously described as the foundation, the core, or the pillar of a constitution. These are all descriptive adjectives. However, when it boils down to a particular constitution, these descriptions appear too general as parties may not be agreed on what the foundation, the core or the pillar of that constitution is. This was evident in the Kesavananda case from which the basic structure doctrine has gained its popularity. Although the judges were agreed that the Indian Constitution has a basic structure, they were not agreed on what exactly the basic structure is. Each judges identified a different aspect. Dietrich Conrad used the metaphor of pillars and describes the basic structure of the constitution as the fundamental pillars supporting its constitutional authorit

[104] My conclusion on the basic structure is, first, that the Constitution of Kenya has a basic structure which has been identified by way of thematic areas in Article 255(1) of the Constitution; secondly, Chapter 16 of the Constitution provides for amendment of any part of the Constitution including the basic structure and no express unamendable constitutional provisions or eternity clauses have been provided in the Constitution; and finally, the basic structure doctrine is applicable in Kenya to the extent that the exercise of secondary constituent power and constituted power to amend the Constitution is impliedly limited by the Constitution as evident in its spirit and purport, and therefore the exercise of amendment powers under Chapter 16 (Articles 255-257) of the Constitution is impliedly limited as such amendment must conform to the spirit and purport of the Constitution.