1.

Whether the Basic structure doctrine is applicable in

Kenya (if so, the extent of its application) whether the
basic structure of the Constitution can be altered
through the primary constituent power (and what
constitutes the primary constituent power)
If there were any stand out words emanating from these proceedings, they are “basic structure”.
Petition No. E282 of 2020, David Ndii & Others v.Attorney General & Others before the High Court
brought the issue of basic structure to the core of these proceedings. The petitioners therein raised
three main issues seeking declaratory reliefs imposing the doctrine of the basic structure and its
corollary doctrines in Kenya. They specifically sought to protect chapters one, two, four, nine and ten
as forming part of the basic structure and therefore not amendable. It was therefore no surprise that
Isaac Aluochier, the 19threspondent herein referred to David Ndii as “the champion of the basic
structure doctrine”.

A) Basic structure and Basic structure

Doctrine.
It is my considered view that before determining the applicability of a doctrine, it is imperative to
first establish and/or locate it.

According to the petitioners in Petition No. E282 of 2020, the Constitution has certain fundamental
aspects that must be always maintained. To them, there are eternity clauses whose amendment
cannot be entertained without overhauling the Constitution.

Considering the constitution-making process leading to the promulgation of the Constitution of

Kenya 2010, there is no doubt that the Constitution had to take a certain configuration. For instance,
certain aspects of sovereignty of the people and supremacy of the Constitution, the Bill of rights
which now extended to socio-economic rights, leadership and integrity, devolution and the two
levels of government, the executive which was detached from legislature, Judiciary among other
provisions were introduced into the Constitution. Following the clamor for constitutional review over
the years, the Constitution was promulgated following an elaborate process that was preceded by a
largely participatory and people-centric mechanism.

I can therefore state, the Constitution has a certain structure incorporating certain provisions as
stated above which are termed basic. This structure considers the history of the country and the
aspirations of the citizens that are elevated into the Constitution. From the proceedings and the
record, the parties commonly agreed that the Constitution does have a basic structure that is
inherent therein. This structure may differ from country to country but subsists in all Constitutions.

The point of departure between the parties before us, as I perceive it, is the existence and
applicability of a basic structure doctrine in Kenya. That was the direct invitation to the High Court by
David Ndii & Others when they first approached court. But first, it is imperative that the basic
structure doctrine is identified and defined.
The Constitution of Kenya 2010 neither defines the word ‘doctrine’, ‘basic structure’ nor even ‘basic
structure doctrine.’ The only doctrine referred to in the Constitution is on the construing of the
Constitution. Article 259(3) provides that every provision of the Constitution shall be construed
according to the ‘doctrine of interpretation’ that the law is always speaking.

A doctrine is defined as “a belief or set of beliefs held and taught by a church, political party or other
group” (refer to Oxford Dictionary 12th ed. (2011) Oxford University Press).

Black’s Law Dictionary 11th Edition defines a doctrine as a “principle, especially a legal principle, that
is widely adhered to.”

In legal parlance, legal doctrine is the currency of law. In many respects, doctrine, or precedent is the
law, at least as it comes from courts. According to Emerson H. Tiller & Anor “What is legal doctrine?”
A legal doctrine sets the terms for future resolution of cases in an area, and it may take many forms –
fact-dependent and therefore limited or sweeping in its breadth. It is not debatable then that a
doctrine is a legal principle of long usage, which is widely accepted as such. That definition is what I
consider a working tool in resolving the present controversy inherent in the existence, and
applicability, if at all, of the basic structure doctrine in the circumstances and commands of the
Constitution of Kenya, 2010.

The learned Judges of the High Court found that the basic structure doctrine is applicable in Kenya
and it protects certain fundamental aspects of the Kenyan Constitution from amendment through
the use of either secondary constituent power or constituted power. Accordingly, to the High Court,
there are unamendable or eternity provisions that represent certain provisions in the Constitution
which are inoculated from any amendment at all because they are deemed to express categorical
core values and cannot be changed through the exercise of secondary constituent power or
constituted power. To the High Court therefore, the basic structure can only be altered or modified
by the people using their primary constituent power and that the text, structure, history and context
of the Constitution of Kenya 2010 all read and interpreted using the canon of interpretive principles
decreed by the Constitution yield the conclusion that the basic structure doctrine is applicable in
Kenya.

By majority, the Court of Appeal (Sichale, J.A dissenting) affirmed the High Court decision to the
extent that the basic structure doctrine is applicable in Kenya and it limits the amendment power set
out in Articles 255-257 of the Constitution (Okwengu and Sichale, JJ.A dissenting). The Court of
Appeal further affirmed the High Court decision to the effect that the basic structure of the
Constitution can only be altered through the primary constituent power which must include
foursequential steps, that is:

A) civic education to equip people with sufficient information to meaningfully participate in the
constitution-making or constitution-altering process
B) public participation and collation of views in which the people – after appropriate civic
education – generate ideas on the type of governance charter they want and give their views
about the constitutional issues
C) Constituent Assembly debate, consultations and public discourse to channel and shape the
issues through representatives elected specifically for purposes of constitution-making or
constitution-alteration
D) and referendum to endorse or ratify the Draft Constitution or changes to the basic structure
of the Constitution. (Okwengu, Gatembu and Sichale JJ.A dissenting).
What is apparent is that there is no consensus on what this basic structure doctrine is, including its
origin and applicability in Kenya. To my mind therefore, it is only upon a proper understanding of the
doctrine that would render a proper determination of its applicability, the extent of its application
and the amendment of the Constitution in that context.

In their case before the High Court, the proponents of the doctrine merged the basic structure
doctrine with the doctrine and theory of unamendability of “eternity clauses,” the doctrine and
theory of “constitutional entrenchment clauses” and “unamendable constitutional provisions” in
seeking a declaration that they are applicable in Kenya. Their lead argument is that the legal and
judicial doctrines substantively limit the ability to amend the Constitution under Articles 255-257
thereof. That the amendment powers reposed in Articles 256 and 257 of the Constitution can only be
used to amend the ordinary provisions rather than enact a new constitutional order, there being a
difference between amendment and alteration. To them, any amendment of what part of the basic
structure amounted to an alteration, going beyond Articles 255 to 257 of the Constitution.

The seminal book, Constitutional Amendments; Making, Breaking and Changing Constitutions by
Prof. Albert Richard was cited to buttress the evolution of unconstitutional constitutional
amendments across multiple jurisdictions and how it applies to modern constitutional democracies
tracing its political foundations to France and United States, with its doctrinal origins to Germany.

The Njoya Case was heavily relied upon for the position that it established the doctrine of
constituent power in Kenya. The Indian Kesavananda Case was cited as establishing the basic
structure doctrine and applying it to the Indian context. They posit that constituent power did not
originate with the Njoya Case but rather that it is traceable from John Locke, and Montesquieu as
earlier enunciated.

To the proponents, even local text affirms the basic structure of our Constitution. They cite John
Mutakha Kangu, “Constitutional Law of Kenya on Devolution,” (Strathmore University Press, 2015)
who states that the basic structure of our Constitution should include the sovereignty of the people,
the supremacy of the Constitution, the principle of sharing and devolution of power, democracy, rule
of law, the Bill of Rights, separation of powers and the independence of the Judiciary.

The opponents of the importation of the basic structure led by the Hon. Attorney General faulted the
doctrine just as it has been rejected in many jurisdictions including Malaysia, Singapore, Zambia,
Uganda and South Africa. They also faulted the applicability of the Kesavananda Case determined in
1973 under circumstances radically different from the present case.

Further criticism of the Indian case was made by Prof. Charles Manga Fombad, amicus curiae, that
the doctrine of basic structure was developed in India when it was dealing with India’s 20th century
independence Constitution of the 1950s whereas African Courts are now dealing with African made
Constitutions of the 21st century, negating the relevance of the Kesavananda Case due to the
changed circumstances.

To help expound this issue further, the court admitted Professors Rosalind Dixon, David E. Landau,
Gautam Bhatia, Migai Akech, Richard Albert, Charles Manga Fombad and Dr. Adem K. Abebe as amici
on the basis of the briefs filed. I have greatly benefited from their exposition, some of which is right
“from the horse’s mouth” owing to the fact that their scholarly works had been quoted by the
litigants. The amici came forth to directly express their views, just in case they had been quoted out
of context or misquoted. As expected, the scholarly contest among the amici turned out to be an
interesting discourse on this issue of the extent of applicability of the basic structure doctrine. This is
both from the amici admitted before this Court and those that had participated in the case prior to
its hearing before this Court.

The irrefutable conclusion that I make on this issue is that while the
Constitution of Kenya has a basic structure as conceded by the parties, the
structure is different from the basic structure doctrine and the different parties
in this matter, just like the amici, had different definitions, origin, components
and considerations as to what amounts to the basic structure doctrine. This
now leads to the consideration whether indeed the basic structure doctrine
applies in Kenya and if so to what extent.

b) Applicability of basic structure doctrine in Kenya

What then be the place of this doctrine? As earlier stated, it is not an express
provision of the Constitution. There is no uniform and agreed definition of this
doctrine. Is it then an implied doctrine and if so from which provisions of the
Constitution does it accrue? Article 2 of the Constitution deals with the
supremacy of the Constitution. How then does the doctrine mirror in this
supremacy equation? Article 1 of the Constitution vests all sovereign power in
the people, and it is exercised only in accordance with the Constitution. This is
either directly or through democratically elected representatives.

As stated, the parties did not have consensus on what the doctrine entails. The High Court found the
doctrine applicable in Kenya, and that it protected certain fundamental aspects of the Kenyan
Constitution from amendment. Differently put, the basic structure doctrine protected the core
edifice, foundational structure and values of the Constitution but left open certain provisions of the
Constitution as amenable to amendment as long as they did not fundamentally tilt the basic
structure. That the basic structure doctrine limited the amendment power set out in Articles 255 –
257 of the Constitution.

The challenge on the applicability of the doctrine in Kenya was manifest at the Court of Appeal. By
majority, six of the seven Judges of Appeal agreed with the High Court’s conclusion as to the
applicability of the doctrine; that it was applied thru implication.

questions arose on whether there was need to amend the Constitution to provide for referendum or
whether amendments to the operating statute relating to the review of the Constitution would
suffice. The basic question at the heart of the Njoya Case was whether the existing Constitution of
Kenya could be extinguished and another given life in its place otherwise than as provided for in the
Constitution and on the basis only of the provisions of an ordinary Act of Parliament.

Section 3 of the Supreme Court Act gives the objects with respect to the operation of the Supreme
Court as a court of final judicial authority to among other things:

(a) assert the supremacy of the Constitution and sovereignty of the people of Kenya;

(b) provide authoritative and impartial interpretation of the Constitution

(c) develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social
economic and political growth;

(d) enable important constitutional and other legal matters, including matters relating to the
transition from the former to the present constitutional dispensation to be determined having due
regard to the circumstances, history and cultures of the people of Kenya.

As we observed in Mitu-Bell Case, any foreign legal principles must be construed within Article 2(5)
of the Constitution and only applied as a fall back when we have no internal recourse to the matter
at hand.

The fact that the parties propose the basic structure doctrine as the method of interpreting the
clauses of the Constitution does not mean that the Constitution embodies the basic structure
doctrine as the method of interpreting the articles of the Constitution. Any departure from or
concurrence with the basic structure doctrine as posited by the proponents would thus be purely
coincidental rather than consequential.

The Attorney General challenged the unamendability argument on two grounds – One, that such a
doctrine of unamenability was not applicable in Kenya. Secondly, that the issues raised were not
justiciable, were speculative and not specific enough.

Article 259. Construing this Constitution

(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(2) If there is a conflict between different language versions of this Constitution, the English language
version prevails.

(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation
that the law is always speaking and, therefore, among other things—

(a) a function or power conferred by this Constitution on an office may be performed or exercised as
occasion requires, by the person holding the office;

(b) any reference in this Constitution to a State or other public office or officer, or a person holding
such an office, includes a reference to the person acting in or otherwise performing the functions of
the office at any particular time;

(c) a reference in this Constitution to an office, State organ or locality named in this Constitution
shallbe read with any formal alteration necessary to make it applicable in the circumstances; and

(d) a reference in this Constitution to an office, body or organisation is, if the office, bodyorganisation
has ceased to exist, a reference to its successor or to the equivalent office, body or organisation.”

The learned judge stated;

“To my mind, the basic structure of the Constitution requires that Parliamentary power to amend the
Constitution be limited and the judiciary is tasked with the responsibility of ensuring constitutional
integrity, the Executive, the tasks of its implementation while Independent commissions serve as the
“people’s watchdog” in a constitutional democracy. The basic structure of the Constitution, which is
commonly known as the architecture and design of the Constitution ensures that the Constitution
possesses an internal consistency, deriving from certain unalterable constitutional values and
principles.” where the basic structure or design and architecture of our Constitution are under
threat, this Court can genuinely intervene and protect the Constitution.”

Its not only amended by referendum …….”Parliament may consider and pass amendments to this

Constitution”

On the other hand, suffice to note that alteration connotes a more radical approach. As earlier
stated, the Constitution of Kenya 2010 does not refer to alteration. Unlike amendment whose
process is spelt out, an alteration involves an extra-constitutional process. This may therefore take
the form of a coup or any such other Kelsenian theory of grundnorm as exemplified in the South
Rhodesia case of Madzimbamuto v. Lardner-Burke and Another (1969) 1A C.645(P.C.) which was
concerned with the legality of the Unilateral Declaration of Independence made by Rhodesia in 1965.
There was also the decision in Uganda v. Commissioner of Prisons, ex parte Michael Matovu (1966)
EA 514. In applying these cases, Bwonwong’a, J. in Erickson Rover Safaris v. Peninah Nduku Muli
(Suing as Legal Representative of the Estate of Michael Kyalo Wambua (Deceased) HCCA No. 56 of
2017;[2019] eKLR acknowledged that a new constitutional dispensation will be upheld even if it
came about through violent means.

In Preston Chitere et al Kenya Constitutional Documents: AComparative Analysis CMI Report Kenya
Constitutional DocumentsR 2006: 5, the authors identify four options of constitution making process.
The

a)first one is the constituent assembly which remains one of the more popular options for
resuscitating constitutional review process. The role of such an assembly would solely be to consider
and synchronize all the data collected so far in the course of the review process. On the basis of all
the already collected sources, the constituent assembly would be required to craft a document
largely acceptable by the majority of the people

The second option involves the enlisting of constitutional experts to write the Constitution. The
experts may be local or international. In either event, the terms of reference of these experts would
be to coalesce and align the diverse views that have emanated from the debate with a view to
producing an acceptable document. Such a document would still require endorsement by the people
through a referendum.

The third option is that involving Parliament. To the above cited authors, this is the least popular
option the review of the constitution by Parliament. They argue that though the current Constitution
under Article 94 reserves to Parliament the power to amend the Constitution, it is now
widelyaccepted that as a matter of law Parliament does not have the power to overhaul the
Constitution in the fundamental manner anticipated by the proposed review process. That view has
been endorsed by the court decisions in the Njoya Caseand the Patrick Onyango Case.

The final approach is what was adopted by the Constitution of Kenya Review Commission, CKRC. It
involved local people through consultations when the CKRC toured the country to hear views and
collect information about the new constitution it was to prepare. The CKRC also brought together
various stakeholder representatives as well as members of parliament into a constitution-making
assembly at the Bomas conference. The process thus emanates from the grassroots in order to
evolve a system in which the people feel genuine ownership of governance.
The High Court, after undertaking its analysis and having regard to the history of the country
constitution making process, arrived at the conclusion that sovereign primary constituent power is
only exercisable by the people after four sequential processes namely – civic education, public
participation, and collation of views, constituent assembly debate and ultimately, a referendum.

primary constituent power.

It is inconceivable for Parliament to legislate for the drastic overhaul of the Constitution. Even if that
were to occur, the resulting law would have to surmount the supremacy of the Constitution as
contemplated under Article 2 of the Constitution.

Turning to the Amendment Bill, it is evident that it contained far reaching consequences. There is a
contestation as to whether the proposed changes amounted to permissible amendments as
contemplated under Articles 255-257 or went beyond, into the realm of dismemberment.

It is evident that the High Court indeed appreciated that there was a power that existed beyond the
amendment power set out in Articles 255 – 257 of the Constitution. This is what the High Court
considered the primary constituent power.

In my view, there are two ways of looking at it. Firstly, by looking at each of the amendments as
proposed in the Amendment Bill as against the threshold set out in Article 255 to see whether they
result in fundamental alteration of the governance structure or are mere amendments. Secondly,
looking at the totality of the amendment proposals – the over seventy of them – and the resultant
effect in relation to the Constitution as it exists. The answers to either of the two questions would
inform the next course. Needless to add, the facts and evidence before the courts points to far-
reaching proposals that go beyond the limited realm of amendments – akin to alteration of the basic
structure and affecting the existing form of governance stipulated under this Constitution. This
necessitates the need

The upshot of my finding is that the Constitution of Kenya 2010 does indeed, have a basic structure.
That the matter of the Constitution of Kenya 2010, embodying in itself or deriving from it such a
thing as a basic structure doctrine is a misnomer for in my view, no such doctrine is derivable from
our Constitution and consequently, the basic structure doctrine wherever else it may be found, does
not apply in the Kenyan constitutional context. The manner and process through which sovereign
power is exercised by the citizens, in its different forms is fundamentally important under our
constitutional architecture and the Constitution can be altered through other mechanisms not
limited to the primary constituent power.