The Applicability of the Basic Structure Doctrine in Kenya

By:- Devanshi

A historic decision issued on August 20th by the Kenya Court of Appeals determined that the ‘basic structural concept’ is applicable in Kenya. The only way to change the fundamental structure of the Constitution is via the Primary Constituent Power, which must involve four consecutive procedures, including civic education, public engagement and collation of opinions, Constituent Assembly discussion, and, finally, a referendum. The majority of the seven-judge bench ruled in favour of the plaintiff.

The Kenyan High Court’s ruling that the Constitution of Kenya Amendment Bill, 2020 was illegal and an appropriation of the people’s exercise of sovereign authority was maintained by the majority of the court.

The seven-judge bench, led by Daniel Kiio Musinga, also ruled that the President does not have the authority to initiate constitutional amendments and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 of the Constitution or through a popular initiative under Article 257 of the Constitution.

Also overturned were the following pronouncements and orders of the High Court:

  • Because he has initiated and promoted a constitutional change process in violation of the Constitution’s provisions on constitutional amendment, President Uhuru Muigai Kenyatta has violated Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), as well as other provisions of the Constitution.
  • According to Article 257(10) of the Constitution, all particular proposed changes to the Constitution must be presented to the People as independent and different referendum questions in order to be considered by them. Nnambuye, Okwengu, and Kiage, JJ.A. dissented, as did the other three judges.

According to Kenya Gazette Notice No. 264 of 3rd January 2020, the BBI Steering Committee, which was formed by the President and published in a special edition of the Kenya Gazette on 10th January 2020, is an unconstitutional and illegal organisation.