Kenyan Court Of Appeals Quotes Kesavananda Bharati Judgment, Held Basic Structure Doctrine Legitimate & Sound

FACTS OF THE CASE

• The Government has contended before the court of appeal that the doctrine of basic structure is not applicable in Kenya.
• It is so because the Constitution of India has provided the exclusive power to amend the Constitution to Parliament, but in Kenya, the people have the right of altering the Constitution through a referendum.
• They also highlighted that the lack of unanimity margin in the Keshvananda Bharti judgement, poses a question on its applicability.

SUBMISSIONS BY ATTORNEY GENERAL

• The Attorney General made the submissions that many contexts and jurisdictions have rejected this doctrine.
• He also contended that, the rationale given behind the judgement in Keshvananda Bharti was to devoid the India’s Parliament from abusing the power of amendment.
• But the current Constitution of Kenya, has an inbuilt mechanism which limits Parliament's power to amend certain Articles of the Constitution, and such amendments require approval of the people.

OBSERVATIONS MADE BY THE COURT

• Majority judges comprising the seven-judge bench observed that this doctrine is applicable in Kenya and the alteration of basic structure of the Constitution can only be done through the Primary Constituent Power.
• It was further directed to follow four sequential steps for that. They are: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.
• The Court also quoted Justice Y V Chandrachud’s words, “The Constitution is a precious heritage and therefore, you cannot destroy its identity”.

JUSTICE KIAGE’S OBSERVATION

• Justice Kaige in his judgement, discussed the doctrine and Keshvananda Bharti extensively. He observed that the basic structure doctrine provided in that case is legitimate and sound.
• Keeping in mind the submission made by the Attorney General, Justice Kaige held that it was not right on the part of Hon. Attorney General in submitting that the basic structure has been rejected by various courts across the world.
• He contended that after going through numerous cases, books and articles he could not find any factual basis for such a bold and rather fallacious assertion.
• He further said that he found it strange that anyone could doubt the existence of the basic structure which is an essential core and the pillar on which the Constitution stands.
• Finally, he concluded that the basic structure doctrine is legitimate and sound.

JUSTICE SICHALE’S OBSERVATION

• Justice Sichale is the sole judge who dissented against the application of Basic Structure Doctrine in Kenya.
• He was of the opinion that the pre-2010 Constitution, was like the Indian Constitution and did not bar amendability.
• But the present Constitution explicitly mentions provision for the amendment of the Constitution along with the in-built mechanism that limits the power of Parliament in amending the Constitution.
• The Constitution itself has clearly laid down the methods for amendment.

DO YOU THINK THE BASIC STRUCTURE DOCTRINE SHOULD BE APPLICABLE IN KENYA?