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Basic structure doctrine not applicable in Kenya: Supreme Court
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The Supreme Court of Kenya by a majority on Thursday held that the ‘Basic Structure Doctrine’ is not applicable in Kenya.
The seven-Judge bench of the Supreme Court said this as they rendered their verdict on Building Bridges Initiative (BBI).
Majority agreed on five out of seven issues of the consolidated appeal that sought to overturn earlier decisions of the High Court and the Appellate Court that declared the entire BBI process as unconstitutional.
One of the seven key issues that was being determined was ” Whether the Basic Structure Doctrine is applicable in Kenya; if so, the extent of its application; whether the basic structure of the Constitution can only be altered through the primary constituent power; and what constitutes the primary constituent power.”
The Majority held that no gaps had been identified with regard to Chapter Sixteen of the Constitution, which deals with amendments to justify the application of the basic structure doctrine.
” Further, the Constitution is self-executing in dealing with any threat of any possibility of abusive amendments as witnessed in the pre-2010 era. In addition, the Court held that the basic structure doctrine does not form part of the general rules of international law which are applicable in Kenya under Article 2(5) of the Constitution,” said Chief Justice.
” Dissenting, Ibrahim, SCJ agreed with the High Court and Majority of the Court of Appeal that the basic structure doctrine is applicable in Kenya. He agreed with the High Court that fundamental features of the Constitution, which are to be identified on a case by case basis by the courts, could only be amended by the People in exercise of their primary constituent power. He further found that genuine exercise of primary constituent power can be identified through the four-sequential steps prescribed by the High Court,” added CJ.
Majority of the judges are agreed that in order to amend the Constitution of Kenya 2010, the four
sequential steps are not necessary as pronounced by the two Superior courts below.
On her part, Chief Justice Martha Koome rejected the application of the doctrine faulting judges of superior courts who applied it while determining the BBI constitutional review petition.
Koome equated the application of the doctrine in Kenya, where she argued enough safeguards against hyper-amendments exists, as tantamount to operationalizing a ‘judiciary-created fourth pathway’ to amendments.
Supreme Court Judge Isaac Lenaola however declined to uphold the doctrine dismissing indications that there are implied limitations to constitutional amendments.
Supreme Court Judge William Ouko placed President Uhuru Kenyatta at the core of the proposed constitutional amendments under the BBI process, dismissing asserts the process was instead promoted by two lawmakers.
Ouko who held that the President is barred from initiating constitutional reforms through popular initiative said the assertion that Dagoretti South MP Deniss Waweru and his Suna East counterpart Junet Muhammed was factually incorrect.
Justice Ouko concluded that the President’s involvement in initiating a popular initiative made the process invalid.
Justice Njoki Ndung’u on her part stated that President Uhuru Kenyatta did not initiate the constitutional amendments process, through the BBI.
In her judgement, Justice Ndung’u however explained that the President can initiate the process either in his personal or official capacity since he is democratically elected by Kenyans.
“I perused carefully all the judgements, looking for proper reasons for the decision to exclude the President from the amendment process and I cannot find a logical constitutionally based explanation,” she stated.
Justice Ibrahim allows Justice Mohamed Khadhar Ibrahim disagrees with the rest of the apex judges on the issue of basic doctrine structure. He holds the decision of the lower courts that the findings of the basic doctrine structure can be applied in Kenya.
Click here to read the–> Summary of the Supreme Court judgment
The full judgment will be released on Tuesday next week.
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