The Basic Structure Doctrine in Kenya: Key Principles, Cases, and Implications
- Muhoro & Gitonga Associates
- 7 days ago
- 4 min read
Table of Contents
1. Introduction to the Basic Structure Doctrine
The Basic Structure Doctrine holds that certain fundamental elements of a constitution cannot be amended through ordinary processes. These elements form the core identity of the constitution.
In Kenya, this doctrine gained prominence through judicial interpretation of the 2010 Constitution. It aims to protect essential features from alteration that could undermine the constitutional framework.
However, its applicability in Kenya has been contested and ultimately clarified by the courts.
2. Origins of the Doctrine
The doctrine originated in India through the landmark case of Kesavananda Bharati v. State of Kerala (1973). Indian courts ruled that Parliament's amendment power is limited.
Amendments cannot destroy the basic structure, such as supremacy of the constitution, rule of law, and separation of powers. This concept has influenced jurisdictions worldwide, including Kenya.
In Africa, it addresses concerns over excessive amendments that erode democratic gains. Kenya's history of frequent changes to the 1963 Independence Constitution prompted similar discussions.
3. Application in Kenyan Law
Kenya's 2010 Constitution provides for amendments under Articles 255, 256, and 257.
Article 255 lists matters requiring a referendum, such as sovereignty and human rights.
Article 256 allows parliamentary initiatives.
Article 257 enables popular initiatives with one million signatures.
The doctrine was invoked to challenge amendments perceived as threatening core constitutional values.
3.1. The Building Bridges Initiative (BBI) Case
The BBI stemmed from a 2018 handshake between President Uhuru Kenyatta and Raila Odinga. It proposed 74 amendments to the 2010 Constitution.
These included creating new positions like Prime Minister and altering devolution. Petitions challenged the process as unconstitutional.
The case progressed from High Court to Supreme Court between 2021 and 2022.
3.2. High Court Judgement
In Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment), a five-judge bench applied the doctrine. The court held that the basic structure includes the preamble, 18 chapters, and six schedules.
It also covers entrenched areas like land, leadership, public finance, and national security.
Amendments altering this structure require a four-step process:
Civic education.
Public participation.
Constituent assembly.
Referendum.
The court declared the BBI process unconstitutional.
3.3. Court of Appeal Decision
In Attorney General & Others v. David Ndii & Others (2021), a seven-judge bench upheld the High Court by 6-1. Most judges affirmed the doctrine's applicability. Some identified the basic structure in Article 255's referendum-requiring provisions.
Others adopted a value-based approach, emphasizing principles like rule of law and human rights. The court stressed Kenya's amendment history justified implied limits.
3.4. Supreme Court Judgment
In Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment), the Supreme Court rejected the doctrine by 6-1.
The majority held that the 2010 Constitution's tiered amendment design balances flexibility and rigidity. Silence on unamendability indicates no implied limits beyond explicit procedures.
Chief Justice Koome noted the doctrine is inappropriate in Kenya. However, the court invalidated BBI on other grounds, including presidential initiation of popular initiatives.
4. Key Principles and Features
The doctrine, where applied, protects core elements from ordinary amendments.
In Kenya's context, proposed features include:
Supremacy of the Constitution (Article 2).
Sovereignty of the people (Article 1).
Bill of Rights (Chapter 4).
Devolution (Chapter 11).
Independence of judiciary (Chapter 10).
These reflect values in Article 10, such as democracy and participation.
The Supreme Court clarified no such unamendable core exists under current law.
5. Implications for Constitutional Amendments
Amendments must follow Articles 255-257 strictly. Popular initiatives require genuine public-driven processes.
The President cannot initiate amendments via Article 257. This prevents executive overreach.
Judicial review ensures compliance with procedural safeguards. The judgement promotes participatory constitutionalism without doctrine-imposed barriers.
6. Compliance and Procedural Requirements
Initiate amendments via parliamentary or popular routes. For popular initiatives:
Collect one million verified signatures.
Submit to Independent Electoral and Boundaries Commission (IEBC).
County assembly approval if needed.
Parliamentary review.
Referendum for Article 255 matters.
Timelines:
IEBC verifies signatures within 90 days.
Parliament acts within three months.
Referendums occur within 90 days of parliamentary approval.
Public participation is mandatory throughout.
Non-compliance risks judicial invalidation.
7. FAQ
Q1. What is the Basic Structure Doctrine?
It is a judicial principle limiting amendments that alter a constitution's core features.
Q2. Does the Basic Structure Doctrine apply in Kenya?
No, the Supreme Court ruled in 2022 that it does not apply, favoring the Constitution's explicit amendment procedures.
Q3. What was the BBI case about?
It challenged proposed amendments under the Building Bridges Initiative, leading to debates on amendment limits.
Q4. Can the Kenyan Constitution be amended freely?
Amendments must follow Articles 255-257, including referendums for key areas, but no part is unamendable.
Q5. What role does public participation play in amendments?
It is essential, ensuring civic education and inclusive processes under Article 10 principles.
Q6. Why did the Supreme Court reject the doctrine?
The Court viewed the Constitution's design as intentionally flexible, without implied unamendability.
Q7. What are examples of basic structure elements discussed in Kenya?
Elements like sovereignty, Bill of Rights, and devolution were cited by lower courts.
Q8. How does Kenya's amendment process differ from India's?
Kenya lacks unamendable clauses, unlike India's judicially enforced basic structure.
