WHAT IS BASIC STRUCTURE DOCTRINE IN CONSTITUTIONAL AMENDMENTS?

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On May 13th, The High Court sitting in Nairobi in a penel of justices Joel Ngungi, Jairus Ngaah, Teresia Matheka, George Odunga and Chacha Mwita unanimously came up with a ruling annulling the Constitutional Amendment Bill, 2020 widely known as the BBI Initiative.This Bill was to be the first amendment to the Kenya 2010 New Constitution. It was largely going to alter the structure of political leadership in the country. Some of the spotlights in the Bill include the creation of 70 new constituencies increasing the seats in parliament, doing away with the position of  County Women Representatives to be replaced with a  both gender senate delegation from each county, appointment of the Members of the Cabinet from the chambers of parliaments as it is in the majority Westminister jurisdictions, creation of the position of a Prime Minister and deputies,  and creation of the office of the Leader of official opposition in the parliament.

By the time it was being annulled, the Bill had received the 1 million signature endorsements, approval by the bicameral parliament and was waiting presidential assent before paving way for a Yes/No question Referrendum.
In the ruling, The High Court noted 17 issues at the heart of The David Ndii & others v Attorney General & others [2021]Eklr  and one of them is the much talked about , Basic Structure Doctrine.  My focus in this paper will be finding out more about the background of basic structure doctrine in constitutional amendments using the Kenyan context and practices throughout the world.  On this matter, the High Court ruled that basic structure doctrine is applicable in Kenya and that the BBI Bill was in a huge way mutilating this doctrine. So then, what is this ghost of law called Basic Structure Doctrine.

Basic structure Doctrine has its roots in the famous Kesavananda Bharati v State of Kerala [1973]  . This doctrine is largely defined as a legal doctrine according to which even in the absence of explicit limitations on the process of constitutional amendment, the constitution should not be amended in a manner that destroys the basic features of the constitutional identity without involving the sovereign power of the people. In a nutshell it means some parts of the constitution should never be amended without involving the people because such parts are the basic skeleton of the constitution and amending them without involving the people equates to a coup. Such amendments can only be termed as unconstitutional constitutional amendments-a topic for another day. Every constitution consists of basic principles which can be termed as the skeletons of the constitution, and any particular amendment to these principles results to a collapse of the entire constitution and therefore the amendments only signify a new constitution for there can never be a constitution with a dead spirit. The decision to change these basic principles are not to be delegated but left to the primary sovereign power and that is the people through valid channels provided by the law. This therefore means that the Kenyan constitution can be amended as stipulated in Articles 255-2557   without changing its basic structure, however when the basic structure is changed then the entire constitution is overhauled and a new constitution is brought forward. This is the living definition and contextualization of the Basic Structure Doctrine.


Indeed in its findings, the High Court concluded that Basic Structure Doctrine is applicable in Kenya and therefore the rules on amendment as provided in articles 255, 256 and 257 of the Constitution are limited by implication of this doctrine , therefore the eternity clauses of The Constitution cannot be amended and can only be changed through drafting a new constitution. 

Even though this doctrine is seemingly new in Kenya evidenced by the submission in Court of Appeal, some countries have already embedded it in their legal jurisprudences.  In Semenyih Jaya v Pentadhir Tanah DAERAH   The Federal Court of Malaysia gave substantive effect to basic structure doctrine after ruling that the constitutional amendments that purported to curtail the judicial authority were amended from the constitution’s core features and therefore unconstitutional. This doctrine is widely applied in the democracies of the East such as India, Singapore, Pakistan and Bangladesh. African common law jurisdictions such as Uganda are quickly embracing it. 


It is noteworthy to state that the High Court judgement annulling the Constitution of Kenya Amendment Bill 2020 was appealed in the appellate court, and at the moment the hearings are already done and the wait is on the decisions of the members of the CoA bench. Whatever the CoA rules will be of huge impact to the growth and the application of the basic structure doctrine in Kenya. 

What are your thoughts about The Basic Structure Doctrine? Is it necessary. You can add a comment and I will reply. Have a good read.








By Lincoln Oyugi

Just as Isaac Newton died a virgin, I'll die a writer!

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