19 Mai 2021

The Basic Structure Doctrine arrives in Kenya

Winds of Change for Constitutionalism in Africa?

On 13 May 2021, a panel of five High Court justices unanimously adopted a significant ruling disqualifying  The Constitution of Kenya (Amendment) Bill, 2020. The bill aimed to implement President Uhuru Kenyatta’s so called “Building Bridges Initiative (BBI)” and was supposed to be the most significant change to the state’s governmental structure since the constitution was adopted in 2010. It included the creation of 70 new constituencies, an increase in parliament-seats, the return of cabinet ministers to parliament-members, the creation of a Prime Minister position, together with Deputy Prime Ministers, and the creation of a Leader of Official Opposition in the National Assembly. Having been approved by the Legislature, the amendment awaited presidential approval after which it was supposed to go on to a referendum. The High Court ruled that the constitutional amendments are unconstitutional and, most importantly, that the so-called Basic Structure Doctrine applies in Kenya. Gautam Bhatia called the judgment “an instant classic” and “an example par excellence of transformative constitutionalism.“ The judgment is not only a milestone from the perspective of comparative constitutional law; it might also change the future landscape of constitutionalism in Africa.

Constitutional Amendment and Basic Structure Doctrine

The basic structure doctrine, in a nutshell, is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity. The doctrine migrated from Germany to India, where it was accepted by the Supreme Court (see e.g. Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461), and from there migrated to other countries, in one name or another (see, for instance, the Slovak Constitutional Court’s ‘material core’ doctrine).

The basic theoretical argument for this idea, as I elaborate in my book Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, is that the constitutional amendment power is not unlimited. The amendment power is a delegated legal competence which acts as trustee of the people and therefore is limited both explicitly and implicitly. Firstly, it is limited by those explicit limitations / eternity clauses stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it to destroy the constitution from which the body’s authority derives in the first place. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power thus undermines its own raison d’être. Amending the constitution in a way that would destroy the old and create a new constitution would be an action ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy those basic principles. The alteration of the constitution’s core would result in the collapse of the entire constitution and its replacement by another. This decision, however, is not left for the delegated organs, but for the people’s primary constituent power and is ought to be taken via proper channels of higher-level democratic participation and deliberations.

Three Layers of Sovereignty

The dramatic judgment of the Kenyan Court reflects this general idea very well.

Reading out the judgment, Justice Joel M. Ngugi, a former law professor at the University of Washington, began with a review of Kenya’s constitutional history and the 2010 constitutional process. As we shall later see, this historical review will be important for drawing the exact basic structure limitations. The most important part of the judgment, however, is this: the basic structure doctrine applies in Kenya. In particular, the doctrine limits the authority of amending the constitution (as set forth in sections 255-257) in a way that would change the basic structure of the 2010 Constitution.

According to the court, the sovereignty of the people in its constituent capacity is expressed in the following three layers:

  1. Primary Constituent Power – the extraordinary power to draft or radically change a constitution. This is, in the tradition of Sieyès, the immediate expression of the people. This authority is free and independent of any constitutional restrictions and is unlimited by the constitutional rules and procedures of the previous Constitution.
  2. Secondary constituent power – constitutive authority for constitutional changes which are not material and therefore do not change the basic structure of the constitution. In Kenya, this power “is exercisable through a referendum subsequent to public participation and Parliamentary process” and may be exercised only in accordance with the procedure set forth in Articles 255-257 of the Constitution.
  3. Constituted power – those limited powers created by the Constitution and derived from it. It is a delegated authority limited by the Constitution. In Kenya, this limited power to amend the constitution is in the hands of the parliament.

The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power. In other words: the essential features of the constitution that form the basic structure can only be changed through the people by exercising the primary constitutive authority.

The Court’s reasoning on this dimension of primary constitutive authority marks an extremely important development. In Kenya, the court states, this power can be exercised in four stages:

  1. Civic education to provide the public with sufficient information regarding the possibility of participating in the process of establishing or amending the constitution;
  2. Public participation, in which the people share their positions on constitutional issues;
  3. Deliberations in a Constituent Assembly for the formulation of constitutional ideas through representatives specially elected for establishing or amending the Constitution;
  4. A referendum for the adoption or rejection of the constitution or the amendments to the basic structure of the constitution;
[para. 474 of the judgment].

If constitutional theory regarded the people in its ‘original constituent power’ capacity as either the initiator of the process but not necessarily its executor, or alternatively, its ratifier in the end, the Kenyan judgment is crucial in elaborating that for constitutional moments to truly manifest the people’s will, popular participation in constitutional moments should not be limited to a solely ‘yes’ or ‘no’ vote in a referendum but should extend to the stages before, throughout, and after the process of constitutional change. As I claimed elsewhere, “it is the manifestation of ‘we the people’, not simply ‘oui, the people’”.

Foundational Structure Interpretation

As the notion of constituent power is returning to the front stage of current constitutional theory (see for example only recently: AratoColón-Ríos, Rubinelli, Arvidsson, Brännström & MinkkinenSpång, Patberg, and López Bofill), this amplification of the  various stages through which the people’s primary constituent power can be democratically initiated and exercised, provides an important contribution and a ground for both scholarly work as well as future constitution-drafters and courts.

The court learned about these implied limitations of the basic structure doctrine from what I term in my book ‘foundational structure interpretation’: a holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.

The historical point is interesting. According to the court, the 2010 constitution-making process served as a “model…of participatory constitution building process” [para. 402] and was a response to the previous “culture of hyper-amendment” [para. 405-407], especially under one-party states where the constitution was frequently amended for every-day politics which is a mark of what Okoth-Ogendo described as “Constitutions without Constitutionalism”. Considering this constitutional history of struggle for popular participation in constitution-making and change and hyper-amendment culture, the court notes that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments” [para. 469].

This latter emphasis on ‘destruction through gradual amendments’ is especially important in the current era of populist constitutionalism in which constitutional democracies are eroded through subtle and gradual means, by a “Straw that broke the Constitution’s back”.

Thus, the court held that the core of the constitution, the foundations of the constitutional building, cannot be transformed without summoning the primary constituent power of the people. And this point is crucial for any criticism that might – and probably will – arise from the decision. When the court enforces the implied limitations on constitutional amendments, it ensures that the amendment power does not exceed its authority, and thereby protects popular sovereignty and the vertical separation of powers between the primary constituent power of the people and the secondary constituent power.

In addition, the court ruled that the president has no authority to initiate changes to the constitution, and that only parliament through a parliamentary initiative or through a popular initiative can initiate a constitutional amendment. Giving the president the authority to initiate amendments which should be made through a popular initiative, would grant the president the dual role of initiating and deciding on the amendment – and therefore put him in a conflict of interest: “The President cannot be both player and the umpire in the same match” [para. 492].

The court further ruled that the matter as such was justiciable and that legal proceedings could be initiated against an incumbent President for any violation of the constitution. The Steering Committee, which was established for the Implementation of the BBI is unconstitutional and therefore unable to initiate constitutional changes. By initiating and promoting the process of constitutional change contrary to the Constitution, the President violated the Constitution.

Winds of Change?

Apparently, an appeal of the court’s decision will be filed to the Court of Appeals, but it is difficult to predict how the matter will be decided. On the one hand, affirming the decision would mean to go against a strong political leadership based on substantive rather than formal interpretation of the constitution. On the other hand, the High Court discussed all the issues comprehensively and convincingly, and it might be difficult for the court to go against such a grounded decision that guards constitutionalism and the people’s constituent power. Gitobu Imanyara writes that:

“The … court has saved our hard-won constitution from the most serious assault it has faced during the ten years of its existence. The culture of rule of law and constitutionalism that our country is settling into has been entrenched.”

And Joshua Malidzo Nyawa adds,

“this decision sets a tempo in our constitutional democracy. It tells the wielders of state power that they are subject to the Constitution, reminding Judges that it is their duty to protect and safeguard the Constitution and its aura.”

Beyond the implications to Kenya, this ruling could have wider implications in Africa. It might signal the prospect for the much needed
consolidation of constitutionalism and democracy in Africa. The news of the dramatic ruling will have already reached courts in other countries of the continent such as Zimbabwe, where the High Court recently held hearings concerning petitions against constitutional amendments. And indeed, two days after the Kenya decision, on 15 May 2021, the High Court of Zimbabwe declared that the decision of President Emmerson Mnangagwa to extend Chief Justice Luke Malaba’s tenure by five years through a constitutional amendment was invalid because it breached the constitution.

Perhaps, these judicial decisions signal winds of change for constitutionalism in Africa.


SUGGESTED CITATION  Roznai, Yaniv: The Basic Structure Doctrine arrives in Kenya: Winds of Change for Constitutionalism in Africa?, VerfBlog, 2021/5/19, https://verfassungsblog.de/the-basic-structure-doctrine-arrives-in-kenya/, DOI: 10.17176/20210519-175102-0.

10 Comments

  1. Joe Kobuthi Mi 19 Mai 2021 at 19:59 - Reply

    Hi Professor,
    My name is Joe Kobuthi, editor at the Elephant,a Nairobi based digital news media platform. I saw this piece and I wondering whether I could republish for local audience. Do let me know. Thanks, Joe

    • Andrew Murangiri Do 20 Mai 2021 at 07:24 - Reply

      This is an interesting article. Am amazed at how ignorant of the constution Kenyan parliament and executive has been. Its unfortunate and regrettable that two arms of government keep letting Kenyans down. If they implemented the letter and spirit of the Kenyan constution 2010 the country would be a leading example to Africa and the world on how constitutional social contracts can improve democracy. But as we speak the kenyan parliament and executive are busy signing loans and trying to burden Kenyans with expensive constructional amendments. We thank God that the basic structure is anchored in the Kenyan constitution. It is truly a work of courage to protect the voiceless from the excesses of parliament and executive. Long live the basic structure doctrine.

      • Karuti Kanyinga So 23 Mai 2021 at 10:00 - Reply

        This article clarifies several things but leaves a few issues unsettled probably because of space. One, it emphasis that people must have civic education. In moments of constitution making or amendment. But giving civic education is not public participation as some people pushing for BBI want us to believe. Civic education is provision of information, improving people’s knowledge so that they can effectively participate in public affairs. It is about information. It is about improving knowledge. These are done in a structured manner. Curriculum or identifying topics to be covered. Training educators. Monitoring the education and reviewing extent of improvement of knowledge before engaging in public participation

    • Maximilian Steinbeis Do 20 Mai 2021 at 08:16 - Reply

      This post is under a Creative Commons licence, so you are free to republish it observing the licence conditions, https://creativecommons.org/licenses/by-sa/4.0//legalcode

  2. Njuki Mwaniki Mi 19 Mai 2021 at 20:30 - Reply

    The Oxford dictionary defines constitutionalism as adherence to a constitutional system of government . It further elaborates that it is a political philosophy based on the idea that government’s authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can’t do. African countries are still transitioning to Democracies and can carry out constitutionalism campaigns to re-educate and redirect their leadership and people towards understanding and obeying their very laws. The highest obligation to obedience of the law is placed on the leaders since they take an oath to uphold it. As Psalm 119.105 exhorts “Your word (constitution/law) is a lamp for my feet, a light on my path.” Obedience to the laws in African countries by the leadership will be a lamp to guide these nations in building national cohesion and stability; and it will improve the national values, promote the national image and create a purpose for obeying the law. Ultimately these countries will holistically grow stronger socially, politically and economically. Constitutionalism will therefore be the primary foundation of the substructure that will see the transformation of these countries. The Judiciary in Kenya has severally demonstrated that it has transitioned to independence despite hostility from the executive and parliament.

    • i agree. Constitutionalism will remain the primary foundation of the structures that will see the transformation of our Countries Mi 19 Mai 2021 at 23:38 - Reply

      I agree

    • Daniel Mugun Do 20 Mai 2021 at 05:23 - Reply

      Very good article on comparative constitutional law

  3. Mahendra Pal Singh Do 27 Mai 2021 at 18:17 - Reply

    Dear Professor Roznai.
    Congratulations and thanks for your detailed and insightful comments on the Kenyan High Court decision, which opens a new era in constitutionalism in Africa. I am sure this decision will lead to the establishment of constitutionalism in Africa and several other countries in global south strengthening the foundations of constitutionalism in several countries. Let us hope this traditions grows and finds strength in global south in the interest of constitutionalism and democracy.

    • Otieno Aluoka Mi 30 Jun 2021 at 18:55 - Reply

      Great wake up call! The Kind of writing that the appeal advocates in the BBI case should have been exposed to for ease of honesty. Actors in the primary constituent power, being superior to those inside the walls of constituted power, must be shielded from the appetite of the latter. They can not purport to delegate powers to those enjoying the primary constituent powers (referendum??) to endorse changes that in fact only them could initiate. I think.

  4. Adongo Ogony Do 8 Jul 2021 at 05:44 - Reply

    I like the piece written here but after reading the ruling by the judges which is pretty long and repetitive, few things struck me as strange.

    1. The Basic Law Doctrine which permeates throughout the ruling and is the cornerstone of the judgment is arrived at by the judges merely through insinuation by the judges and there is nothing about it in the constitution.

    I don’t know know how that stands in the appeal. The appellants have asked the Court of Appeal why the Basic Structure Doctrine should be applied when those who made the constitution never put such demands written in the constitution.

    Are judges allowed to just imagine what they think was in the minds of those who put constitutions together.

    The other issue raised by the judges on why they have literally imposed this Basic Structure Doctrine is citing the history of constitution amendments and battles in Kenya.

    I have been involved in some of those battles. As a student leader at the University of Nairobi we opposed the one party rule imposed by the then president, Daniel Arap Moi in 1983.

    Many Kenyans thought we were mad to oppose Moi and may be were because many of us were arrested, tortured at the Nyayo Torture House, jailed for years and forced into exile.

    We put our experiences together in publication “ We Lived To Tell “ which was written by the survivors of the ordeal when got together in Kenya in 2003.

    This was after Moi was out of office and Kibaki was then the president and allowed some room for human rights groups. We worked with an NGO called „People Against Torture“ (PAT) led by the late Njuguna Mutahi who was with me at Kamiti Medium Prison 1986- 1987 my second term injail.

    People can google that publication it is still online and it has some insight into battles by Kenyans to resist constitutional dictatorship.

    I cite this to explain why I think that providing selective evidence of the long struggles for a democratic constitution in Kenya and bringing only the ones where people Kibaki and Raila were involved does a great injustice to Kenyans.

    In fact Section 2(A) of the Kenya constitution at that time which imposed one party rule was moved in parliament by the then V.P Mwai Kibaki himself and was passed in one day.

    Myself as the Secretary General of the Students Organisation of Nairobi University (SONU) took a memorandum to the State House demanding Moi takes the issue to the voters first.

    The team sent to Moi by the Students Union was David Murathe, Onyango Cornelus and myself. We made it to the security at the gate with the document but I take the 5th on saying what happened there.

    I bring all these up to say that the struggle for a new democratic constitution and for social justice in Kenya is complex and has taken many turns in the 60 years of our Independence and should not be caricatured into a linear format to fit into what looks to be a pre-determined Basic Structure legal system.

    If judges were to just speculate about what a constitution says then there might be no need for written constitutions at all. Just preserve the supposed constitution in a DVD and the job is done.

    2. There are other startling aspects of the ruling but I am exhausted now. I will mention a few. The idea of un-ammendable constitution is a long shot.

    IEBC with three commissioners being illegal is already disputed by previous court ruling in the High Court. The ruling tried to bend around that by claiming the three bench IEBC may be legal for some cases but illegal for others. That is more of an opinion from the Judges.

    Declaring that President Uhuru broke Chapter 6 of the constitution which is about the intergrity of leaders who have committed crimes is an overreach by the judges.

    We have many leaders in Kenya today who should not run for office including whose cases have been heard in court and a negative ruling made on very serious matters and they are still clean like pamba (cotton).

    We have a governor charged with the gruesome murder of a young woman who was a college student but he is untouchable because he has not been found guilty.

    Which leads me to my last question. Why the heck does our judiciary allow the big moneyed people however terrible the crimes they have committed to stay out for years before their cases come to court. And yet that chicken thief is tried and convicted in less than a week.

Leave A Comment

WRITE A COMMENT

1. We welcome your comments but you do so as our guest. Please note that we will exercise our property rights to make sure that Verfassungsblog remains a safe and attractive place for everyone. Your comment will not appear immediately but will be moderated by us. Just as with posts, we make a choice. That means not all submitted comments will be published.

2. We expect comments to be matter-of-fact, on-topic and free of sarcasm, innuendo and ad personam arguments.

3. Racist, sexist and otherwise discriminatory comments will not be published.

4. Comments under pseudonym are allowed but a valid email address is obligatory. The use of more than one pseudonym is not allowed.




Explore posts related to this:
Global South, India, constitutional amendment


Other posts about this region:
Kenya

Explore posts related to this:
Global South, India, constitutional amendment


Other posts about this region:
Kenya
10 comments Join the discussion