—Gautam Bhatia, SCRIPTS Centre for Excellence, University of Humboldt, Berlin
[Editors’ Note: This is the fourth and final post in a joint symposium on the Building Bridges Initiative (BBI) in Kenya, through which President Uhuru Kenyatta attempted to introduce the Constitution of Kenya (Amendment) Bill, 2020. Among the various reforms proposed therein, the bill introduced a new post of Prime Minister which, it has been speculated, is a role that President Kenyatta could seek should he lose the presidency. The bill was opposed on the basis of its constitutional validity and traversed the Kenyan courts, finally reaching the Supreme Court. A split bench of the Supreme Court held that the bill was irregular and unlawful because the constitutional requirement of public participation was not satisfied through the process of the bill’s introduction. This series seeks to provide a global perspective on the significance of the Kenyan Supreme Court’s judgment, and features contributions from legal experts and practitioners reflecting on the judgment and its implications for Kenya’s legal landscape. The symposium is being sponsored and organized jointly with the African Law Matters blog, and all posts will appear on both blogs.]
On 5th April 2022, the Supreme Court of Kenya issued a landmark ruling in the “Building Bridges Initiative” (“BBI”) case. The case concerned the constitutional validity of the BBI Bill, a bill that had proposed an omnibus package of seventy-four amendments to the Constitution of Kenya, 2010.
Before the case came to the Supreme Court, the High Court of Kenya and the Kenyan Court of Appeal had both held the BBI Bill to be null and void on numerous grounds. The Supreme Court agreed with the holding of constitutional invalidity, but disagreed with some of the reasons that the High Court and Court of Appeal had given for their findings. In this blog post, I will consider one of those grounds – i.e. the basic structure doctrine.
In essence, the basic structure doctrine authorises judges to substantively review constitutional amendments for compliance with a Constitution’s “basic structure”. Its scholarly origins lie in the writings of the German jurist Dietrich Conrad, and the doctrine found judicial acceptance in the Indian Supreme Court’s 1973 judgment in Kesavananda Bharati v State of Kerala. The doctrine’s intellectual foundations are based in the conceptual distinction between “amendment” and “repeal”; its proponents argue that a substantive alteration to a Constitution’s core identity – or “basic structure” – is not simply an “amendment”, properly understood, but a “repeal”, and cannot therefore be carried out by amendment processes that exist within the Constitution.
Until the 2021 judgment of the Kenyan High Court, the basic structure doctrine – in the jurisdictions where it had been accepted – had taken only one form: that of the judiciary striking down constitutional amendments that “damaged or destroyed” the Constitution’s basic structure. This had led to legitimacy concerns about judges overruling the will of parliamentary super-majorities.
In the Kenyan context, this legitimacy concern was heightened, because of the “tiered amendment process” set out under Articles 255 – 257 of the Kenyan Constitution. According to this “tiered amendment process”, certain important, entrenched provisions of the Kenyan Constitution (set out under Article 255) cannot simply be amended by Parliamentary supermajorities, but require the direct involvement of the People through either a referendum, or a step-by-step participatory process known as the “popular initiative” (Article 257). The fact that the Kenyan Constitution explicitly sets out entrenched provisions, which cannot be amended without an exercise of direct democracy by the People, arguably suggests that the drafters of the Constitution explicitly set out a path through which the Constitution’s “basic structure” could be altered.
The High Court and the Court of Appeal responded to this by developing a different iteration of the basic structure doctrine: under this iteration, amendments to the basic structure were not forbidden (as they are in other jurisdictions), but could only be accomplished through a four-step process (civic education, public participation, a Constituent Assembly, and a referendum) that – according to the Courts – replicated the conditions under which the 2010 Constitution was drafted.
The logic underpinning the High Court and the Court of Appeal’s judgments was that a greater role for the People in the amendment process lessened the role that the judiciary needed to play (to protect the Constitution from mutilation through amendment), but that nonetheless, where a putative amendment fell into the category of constitutional repeal, that was a matter only for the primary constituent power – i.e. the power of Constitution-making – to accomplish.
By a 6-1 majority, the Supreme Court of Kenya, however, rejected this specific iteration of the basic structure doctrine. A reading of the six majority opinions indicates that what weighed with the Supreme Court judges was the tiered amendment process, which not only carved out an extensive role for the People in the amendment process when it came to entrenched provisions, but also made the process itself onerous and difficult (the judges noted specifically that in the twelve years since the Constitution had been enacted, all attempts to amend it had failed).
According to the Supreme Court, the basic structure doctrine primarily evolved to protect a Constitution against Parliamentary mutilation; in the specific context of Kenya, the Constitution itself provided that protection through the tiered amendment process. The tiered amendment process accomplished another important thing as well: it protected the Constitution from the threat of hyper-amendments, which had been a specific problem in Kenyan constitutional history. In essence therefore, in the Supreme Court’s view, the reasons why a jurisdiction might need a basic structure doctrine had already been considered – and addressed – by the Kenyan Constitution’s framers.
A close reading of the six majority opinions also reveals, however, that the judges left open a window for reconsideration in the event of a possible situation where the internal safeguards failed, and the prospect of constitutional mutilation was live and real. At least four out of seven judges – Ibrahim J, Mwilu DCJ, Lenaola J, and Smokin Wanjala J – accepted the distinction between “amendment” and “repeal”, and indicated that if a concrete case of the latter was brought before them, they would exercise judicial review. The judges split, however, on what precisely such a review would entail; perhaps that awaits clarification for another day!
The Kenyan Supreme Court’s judgment reflects the complexity of applying the basic structure doctrine in a tiered amendment context, where the amendment process explicitly carves out a high threshold of public participation. What it does make clear – and indeed, what all three judgments make clear – is that a tiered amendment process goes some distance towards achieving – internally – the kind of protection that the basic structure doctrine is meant to provide. Consequently, it takes some of the burden of protecting the Constitution from mutilation away from the shoulders of judges, and places them upon the shoulders of the People – which is how it should be.
However, is there a more limited, procedural role that the doctrine can still play, even in the context of a tiered amendment process? That question remains unanswered.
Suggested citation: Gautam Bhatia, Basic Structure and Tiered Amendment Processes: The Kenyan Supreme Court’s BBI Ruling, Int’l J. Const. L. Blog, Sept. 13, 2022, at: http://www.iconnectblog.com/2022/09/basic-structure-and-tiered-amendment-processes-the-kenyan-supreme-courts-bbi-ruling/
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