Basic Structure Doctrine Is Legitimate & Sound - Kenyan Court of Appeals Extensively Quotes Kesavananda Bharati Judgment

8/24/2021 Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment
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Basic Structure Doctrine Is

Legitimate & Sound: Kenyan
Court Of Appeals Extensively
https://www.livelaw.in/top-stories/kenyan-court-of-appeals-extensively-quotes-kesavananda-bharati-judgement-180174 1/46
Quotes Kesavananda Bharati

Judgment
LIVELAW NEWS NETWORK 24 Aug 2021 4:59 PM
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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.
Also Read - Supreme Court Orders Status Quo On
Eviction Of Over 10K Slum Dwellers In Gujarat
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.
Also Read - EPF Pension Case : Supreme Court Larger
Bench To Decide If There Is Cut-Off Date For Option
Under Para 11(3) Of EPS
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
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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.
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'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.

Basic Structure Doctrine Is Legitimate & Sound - Kenyan Court of Appeals Extensively Quotes Kesavananda Bharati Judgment

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8/24/2021 Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment

Hi, Aditi Singh Logout

BOOKMARKS TOP STORIES NEWS UPDATES COLUMNS

KNOW THE LAW VIDEOS SPONSORED ROUND UPS

LAW SCHOOL CORNER JOB UPDATES BOOK REVIEWS EVENTS

Basic Structure Doctrine Is

Quotes Kesavananda Bharati

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

Also Read - Supreme Court Orders Status Quo On

Eviction Of Over 10K Slum Dwellers In Gujarat

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,

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.

Also Read - EPF Pension Case : Supreme Court Larger

Bench To Decide If There Is Cut-Off Date For Option

Under Para 11(3) Of EPS

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.

Also Read - Will Amicably Resolve With CBI Issue

Regarding Sharing Of Documents : Maharashtra Govt

Tells Bombay High Court

There is a certain undeniable simplicity to the

Also Read - Permanent Commission- Recourse to

Article 32 Worrying Us: Supreme Court Relegates

Individual Grievances To Armed Forces Tribunal

'Fallacious' Contention That Doctrine Is Roundly

I also find it curious that the submission was made

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

the part of counsel but, considering the regularity,