Explainer: Why Supreme Court threw out Basic structure doctrine in BBI case

Supreme Court Judges during the reading of the BBI verdict at the Supreme court building on March 31, 2022. [Collins Kweyu, Standard]

When Kenya’s Supreme Court said that the basic structure doctrine is not part of Kenya’s constitutional culture and therefore the 2010 Constitution will not be interpreted through that lens, it entered the list of countries that have subscribed to an idea that was mooted in Germany and conceived in India. 

Kenya found herself in the list of history of countries knotted with eternity structure doctrine; amendable and non-amendable clauses clamour. 

She has now joined South Africa and Tanzania in rejecting a reasoning by German thinker Dieter Conrad who transferred it to India. 

His school of thought is that a constitution should not be altered to an extent that its identity is lost. This is what petitioners led by economist David Ndii referred to as eternity clauses. 

The issue of amendable and non-amendable clauses of the constitution is a tower of babel. Worldwide and even locally no one seems to agree on what it is and if it can be applied. 

By majority judges- Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Smokin Wanjala, Njoki Ndung’u, Isaack Lenaola, and William Ouko ruled that the doctrine is not applicable in Kenya. 

However, Justice Mohamed Ibrahim dissented stating that the 2010 Constitution has a basic structure and should be determined on cases by case basis.

Countries such as Singapore, Bangladesh and Pakistan accepted the doctrine. 

Malaysia has flip-flopped on this. In two cases, Malaysia rejected the doctrine and accepted one. 

At the heart of the basic structure is a 1973 Indian case filed by Swami Kesavananda Bharati challenging the Kerala government's attempts, under two land reform acts, to impose restrictions on the management of a Hindu monastery property. 

Kesavananda was the head of the Hindu monastery Edneer Matha in Edneer, Kasaragod District, Kerala. 

 A 13-judge bench of The Supreme Court of India held that the basic structure applies. The judgment was over 700 pages and the decision was by seven judges- a majority,  versus six. 

Lawyer Okweh Achiando said that the ratio of the judgment was 6.4 versus 6.6. 

“That is how the slim chance the slim structure became the jurisprudence in India. It was a very narrow win, all these judges took all directions, and they only converged at the final decision,” he observed. 

2010 Constitution Amendments 

In Kenya, the issues boil down to whether the 2010 Constitution can be amended and if so, which chapters and how to do it. 

At the heart of the epic court battle was Article 257 of the Constitution and Chapters One, Chapter Two, Chapter Four, Chapter Nine, and Chapter Ten. 

Attorney-General Kihara Kariuki and the Building Bridges Initiative (BBI) lawyers James Orengo and Paul Mwangi drummed up support for the rejection of the doctrine. 

AG’s team led by Solicitor General Ken Ogeto argued that the basic structure doctrine would make it impossible to amend the constitution. 

Solicitor General Ken Ogeto (centre) talks to lawyers George Oraro (left) and Kamau Karori during the reading of the BBI verdict at the Supreme court building on March 31, 2022. [Collins Kweyu,Standar]

 

“Even if the Basic Structure Doctrine was applicable in Kenya (which we dispute), the absence of clarity on what the basic structure is would create much legal and constitutional difficulty. This is a matter that we humbly urge this court to clarify with finality,” argued Ogeto. 

During the hearing, Senior Counsel James Orengo likened the High Court judgment affirming that basic structure is applicable in Kenya to a movie, saying they ought to have been cautioned that the finding was not real.  

“It is good judicial literature, very compelling but in terms of our Constitution, it does not stand on all pillars. If you look at where it is applied in the Asian continent, if you look at the countries where it is applied other than India, Pakistan, Bangladesh, is that the league where we are?" he paused. 

"And historically we would like to understand why they want to jump into an issue like this. In Pakistan where the President is assassinated and killed. I shiver if we go in that direction after many wars in this country to have a definitive document," said Orengo. 

He relied on French philosopher Francois-Marie Arouet’s Voltaire quote on the existence of God to assert that the basic structure doctrine and eternity clauses are not part of Kenya’s constitution-making history and the constitution itself.  

Voltaire, who was a staunch Christian wrote an article in 1768 condemning an essay written by atheists dubbed ‘ the three imposters.’ His ironic quip is today quoted as ‘God is a fictional being.’ 

He continued: “The court had to create basic doctrine structure because it did not exist and went to wonderland. My Lord as you watch a movie, in the beginning, you are warned that the characters are not real. Since there is no law in the Constitution, they went to history and context and it was skewed.” 

Mwangi on the other hand explained that the basic structure doctrine was too many things to too many people. 

“Throughout where this doctrine is applied, nobody seems to agree on what universally can be agreed to be basic structure,” argued Mwangi. 

He compared Conrad’s views to an unruly horse. “The words that I would use to describe the basic structure doctrine is that it is a very unruly horse. In addition, once you get on it, you will never know where it is going to carry you,” he continued. 

 In order to buttress that the Kenya Constitution can be amended, the lawyer took judges to the United States of America. He stated that the US Constitution was initially without the bill of rights but the same has changed over time. 

“Lastly, all I want to say is that we must warn ourselves against the romanticism of the jurisprudence in basic structure doctrine and its philosophy. It is very alluring when you read it, it's very charming. It's very enchanting, but the more you read it, the more you realize what kind of chaos is in it,” added Mwangi. 

But Ndii’s team anchored their argument on the writings of Nigerian Professor Ben Nwabueze. The legal scholar never practised law but was elevated to a Senior Counsel position for his published works. 

“It is submitted on behalf of the first of the fifth respondents that there is a clear dichotomy between the power of amendment and disbarment of the Constitution. The distinction between the two has been extensively made by Prof. Ben Nwabueze in the chapter titled presidentialism and constituent power,” argued Ndii’s lawyer Nelson Havi. 

Ndii’s team argued that we already have a good law, which has chapters that cannot be amended and deals with all the problems cited in the BBI document. The only problem, they said, is the failure to comply and implement it.