Policy

Part 2: The BBI Court of Appeal Slam Dunk

by Joshua Malidzo Nyawa
23 September 2021

Image Source: REUTERS/ THOMAS MUKOYA

 

Arrival of the Basic Structure Doctrine and Constitutional Dismemberment in Kenya

 

 

Introduction

 

In Part One of this series, I provided an entry-point into the judgment of the Court of Appeal (BBI 2), and on to elaborate on the role of judges as guardians of the constitution, the place of Passive Virtues and how to correctly interpret our transformative constitution. In this piece, I shall delve into the main gist of the decision and consider what the Court meant when it spoke of the basic structure, and constitutional dismemberment.

 

I begin by asking myself two questions that I consider necessary. First, how should judges judge? And second, how should judges write their decisions? Justice Samson Uwaifo, a retired judge of the Supreme Court of Nigeria offered an answer to these questions during his valedictory speech at the special session held for him by his country’s Supreme Court. He posited thus:  

 

So a Judge should not just write his judgment. He must let it appear he made it with a clear commitment to convince. That must be demonstrated by the quality of its analysis and transparency. An unconvincing judgment is like a song rendered in awkward decibel: it can neither entertain nor can it be danced to.

 

As I proceed to analyze the BBI 2 decision, I am convinced that the Court of Appeal judges wrote their separate decisions with a clear commitment to convince. This can be seen in the voluminous decision – a whopping 1089 pages in total, a decision that is able to entertain and can be danced to. I would dare add that this decision has been able to entertain comparative constitutional scholars who have organized international dance sessions and danced to the decisions. These scholars include Prof. Yaniv Roznai, Prof. Richard Albert, Prof. Gautam Bhatia, and Prof Mark Tushnet among a myriad others.

 

The arrival of the Basic structure at the Court of Appeal

 

Whereas the concept of the Basic Structure Doctrine is not new in Kenya (it was pointed out in the famous Njoya decision by retired Justice Aaron Ringera as early as 2004; Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 Others [2013] eKLR by now Supreme Court Judge Justice Isaac Lenaola), this was the first time that the appellate court was met with the concept. In this regard, two questions were posed to the Court of Appeal. First, does the Basic Structure Doctrine apply in Kenya, and if yes, what forms the Basic Structure of the Constitution of Kenya 2010?

 

Whether the Basic Structure Doctrine Applies in Kenya

 

The Indian Supreme Court is credited as the mother of the Basic Structure Doctrine, and a reading of the BBI 1 and BBI 2 judgments confirms this. The infamous Indian case of Kesavananda is considered by every judge as a basis of the Basic Structure Doctrine, which was applied in India to mean that the powers of Parliament to amend the Constitution are substantively limited. According to this school of thought, there exists certain parts of the Constitution which can only be amended by the People. Put differently, the basic identity of a Constitution cannot be replaced through amendments.

 

The Supreme Court of Uganda in Mabirizi attempts to define this concept as follows:

 

The basic structure doctrine is a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed through amendments by the Parliament in exercise of its legislative powers. These features are considered to be fundamental principles that give identity to the constitution. They are intended to subsist forever to enable the continued existence and legitimacy of a country and therefore cannot be amended in a way which would destroy the indestructible character of a constitution.

 

Justice Ringera in the infamous Njoya case also considers the applicability of this doctrine in Kenya, forming the opinion that the amendment power does not include the power to make those changes that amount to the replacement of the Constitution: ‘the [amendment] provision’, it was held, 

‘plainly means that Parliament may amend, repeal and replace as many provisions as desired provided the document retains its character as the existing Constitution’, and that ‘alteration of the Constitution does not involve the substitution thereof with a new one or the destruction of the identity or existence of the Constitution altered.’

Based on the Indian Basic Structure Doctrine, the Ringera Court held that fundamental constitutional change could be made solely by the exercise of original constituent power.

 

The former Chief Justice of Uganda, Justice Bart Magunda Katureebe gives us a better explanation of this doctrine. He uses the analogy of a house and states that a family house must have a strong foundation, strong pillars and strong walls to support the roof. The roof on the other hand can be made of iron sheets or be grass-thatched, and if the wind blows away the roof, the basic structure remains and early the next morning, the family will replace the roof

‘‘but if the weight-bearing pillars were undermined or removed, the whole structure will collapse. It would not be a dwelling house anymore.”

 

The main challenge in this BBI case is that unlike in Uganda and India, the promoters of the amendment were planning to use the popular initiative route (which requires the involvement of the people). Articles 255-257 provide for ways of amending the constitution (Article 255 provides for the chapters that cannot be amended by Parliament,  which provisions can only be amended by the People under Article 257.

 

The question then was whether the Basic Structure Doctrine is applicable where there are express amendment procedures. From the disposition (a summarized version of the final orders of the Court), the Court of Appeal held that the Basic Structure Doctrine is applicable in Kenya (voting 6-1). Secondly, that there is an implied limitation on the power of the People to amend the Constitution under Article 257 (voting 5-2). Thirdly, the process to amend the basic structure is outside the Constitution and includes civic education, public participation, Constituent assembly debate and a referendum (voting 4-3).

 

Court of Appeal President Justice Daniel Musinga, who wrote the lead judgment, does not engage himself on this subject but only talks of constitutional dismemberment (which I delve into below), stating that ‘’I had the benefit of reading, in draft, the elaborate opinion of Kiage, J.A. on this issue and I substantially agree with His Lordship’s views and findings. However, I would like to make some additional views on the same’’ (Para 272). I will therefore proceed to Justice Patrick Kiage’s decision.

 

Justice Kiage begins his analysis by reminding Kenyans of their history and the import of the Constitution of Kenya 2010; that the constitution is a break from the past that was characterized by oppression and suppression of rights as freedoms.

 

He gives several examples, including:

 

…the amendment of the infamous Section 2A of the retired Constitution installing the Kenya Africa National Union (KANU) as the sole political party, dejure, brooked no opposition. Treason, sedition, public order, foreign exchange restrictions and a motley other laws were used to beat the populace into submission. Detention without trial, torture, prosecutions on trumped up charges, confiscation of passports and many other misdeeds marked the darkest days of independent Kenya. (See Pages 33-35)

 

Justice Kiage then proceeds to hold that history demonstrates that the people of Kenya were not mere observers in the making of the constitution but were shapers of their destiny, and that the people made a clear statement that their constitution should not suffer the fate of the previous constitution which had

 

’been amended many times in a deliberate and systematic scheme to quarter it, water it down, dismember and all but obliterate the promise of freedom for the citizens and limited government that it once had’’. (Pages 51-52)

 

Justice Kiage later travels across Africa and concludes that the creation of an imperial presidency was mostly created through amendments and as such, Kenyans sought to protect their constitution from the said ill-intentioned amendments. The core argument by the Judge is that history demonstrates that the essential character of a constitution can only be amended by the primary constituent power. What this means is that there is an intrinsic limitation to the amendment of the constitution and that if the effect of the amendment is to alter the essential character of the constitution, then this can only be done by the same means by which Kenyans made the constitution (pages 59-66). That is to say, it can only be amended by the constituent power through a four stage process; Civic Education, Public Assembly, Constituent Assembly Debate and a Referendum (Pages 88-97).

 

The other Justices agree with Justice Kiage on the applicability of the doctrine to Kenya. Justice Roseline Nambuye (para 62-65) finds that the doctrine is applicable in Kenya. She holds that Kenyans wanted to insulate their constitution against hyper-amendability characterized by the old independence Constitution of Kenya order. This is shared by Justice Gatembu Kairu (para 36-59) and Justice Francis Tuiyott (para 24-34). Only Justice Fatuma Sichalle dissents on this point, being of the view that Articles 255-257 of the constitution do not shield any provision or chapter from amendment.

 

Whereas Justice Sichalle concedes that Kenya has had a dark history and that the constitution was misused and abused for selfish reasons, she holds that the Constitution of Kenya 2010 unlike the pre-2010 and the Indian Constitution provides for both parliamentary and the people’s power to amend the constitution, and as such the Basic Structure Doctrine is inapplicable. Further, the Judge observes that the Constitution at Article 255 (1) protects some Chapters from amendment unless the same is done by the People. Justice Sichalle therefore rejects the implicit bar to amendments (pages 18-36), holding that Chapter 16 is explicit on what can and can’t be amended how, and there is therefore no need to look outside the constitution and import the Basic Structure Doctrine (pages 42-43). She also rejects the doctrine on the basis that we cannot possibly shackle future generations by what we consider to be noble today (page 50), concluding that:

 

At the risk of being repetitive, I reiterate that there is no clause in the 2010 Constitution that prohibits amendments but there is an inbuilt mechanism that provides safeguards and I am of the persuasion that the High Court erred in imposing another hurdle on the basis of an implied provision anchored on the “spirit” or “overarching theme” of the Constitution.

 

Whereas the argument by Justice Sichalle might appear attractive, it is an argument that is anti-constitution in my view. The constitution, unlike a statute, cannot be interpreted by merely reading the text. The constitution demands more and asks of judges to consider the purpose and values, to consider history and context. Further, as I had noted in Part One of this series, the constitution requires judges to be its guardians, a role requiring of them to adopt innovative ways of interpreting the constitution, meaning the reliance on traditional interpretive methods will leave the constitution impotent.

 

What forms the Basic Structure Doctrine in Kenya?

 

The appellants argued before the Court of Appeal that even though the Basic Structure Doctrine applies in Kenya, the thematic areas which constitute the same have already been identified under Article 255(1). The High Court had held that it is not possible to define what constitutes the Basic Structure, which can only be determined on a case by case basis.

 

However, Court of Appeal Judge Justice Hannah Okwengu (paras 82-104) agrees with the appellants, holding that indeed Kenyans consciously identified the Basic Structure of their constitution and included it in Article 255(1). The Article provides for Chapters which can only be amended by popular initiative. These Chapters include:

 

(a) the supremacy of this Constitution;

 

(b) the territory of Kenya;

 

(c) the sovereignty of the people;

 

(d) the national values and principles of governance referred to in Article 10 (2) (a) to (d);

 

(e) the Bill of Rights;

 

(f) the term of office of the President;

 

(g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;

 

(h) the functions of Parliament;

 

(i) the objects, principles and structure of devolved government; or

 

(j) the provisions of this Chapter.

 

 

On his part, Justice Gatembu Kairu (para 57-59) similarly holds that the framers of the Constitution already identified the Basic Structure thematic areas in article 255(1).

 

Justice Francis Tuiyott (para 37) reasons that:

 

What comprises the basic structure of the Constitution is therefore specifically defined by the people of Kenya and is that in Article 255(1) which even in amendment requires the exercise of constituent power, the secondary constituent power.

 

This holding finds support in Priscilla Ndululu Kivuitu & another (suing as the Personal Representatives of Samuel Mutua Kivuitu & Kihara Muttu (deceased) & 22 others v Attorney General & 2 others [2015] Eklr where the Court stated that there are various parts of the Constitution that cannot be amended by the Parliament but can only be amended through popular initiative. This is also evident in Senate and 48 others vs. Council of County Governors and 54 others [2019] eKLR.

 

Broadly speaking, Justices Okwengu, Tuiyott and Gatembu Kairu seem to have taken the Ugandan route where the Constitutional Court and the Supreme Court identified specific Chapters which form the Basic Doctrine Structure. On the other hand, Justice Kiage (page 91-92) agrees with the High Court that Chapters under Article 255(1) are not exhaustive and should be dealt with on a case by case basis.  This view is also shared by the Judge President, Justice Musinga. In her submission, Justice Sichalle raises a concern with the case-by-case approach, opining that judges are human and aren’t infallible, should thus not arrogate unto themselves unfettered power to validate or invalidate amendments.

 

The Reception of Constitutional Dismemberment at the Court of Appeal

 

Constitutional Dismemberment has been defined by Richard Albert to mean a deliberate effort to disassemble one or more of the Constitution’s constituent parts, whether codified or uncodified, without breaking the legal continuity that is necessary for maintaining a stable polity. Simply, dismemberment means the tearing apart of the Constitution by removing the significant parts. It means removing the identity of a constitution.

 

In his lead judgment, Justice Musinga (paras 281-293) embraces this concept and attempts to distinguish it from ordinary constitutional amendments. He holds that the proposed BBI amendments cannot pass as mere amendments but amounts to dismemberment:

 

 In my view, the omnibus constitutional Amendment Bill that seeks to fundamentally alter certain constitutional pillars of our supreme law like the concept of separation of powers and the independence of the Judiciary is not an ordinary constitutional amendment, it amounts to a dismemberment of the Constitution.

 

Justice Musinga pinpoints various clauses of the BBI Bill inter alia; introduction of the office of the Judiciary Ombudsman; removal of the requirement for vetting by the National Assembly of Cabinet Secretaries; introduction of the hybrid system (getting Ministers from both within and without Parliament); and the increase in the number of constituencies, and arrives at the conclusion that the 74 proposed amendments seek to alter the fundamental aspects of the Basic Structure, thus amounting to dismemberment.

 

Justice Musinga’s view is shared by his colleague judges, with Justice Gatembu Kairu (para 56) holding that Abolishing or abrogating provisions of the Constitution in such a way as to alter its foundation and structure is therefore not envisaged under Chapter16 of the Constitution’. (See also Justice Okwengu (para 81), Justice Tuiyott (para 28-37), and Justice Kiage, who in a rather flowery use of language agrees thus:

 

I cite the passage at length to signify my full agreement with the learned judges that the amendments proposed by the BBI initiative and Bill were as far-reaching in character, scope and content as to shake the foundation and alter the identity and character of the Constitution. They were effectively dismembering the Constitution, blasting so huge a hole in it as to pulverize its foundations and essentially create a new constitutional order. (Page 82)

 

The conclusion appears to me inescapable that as long as what is contemplated is an amendment, it will ipso facto be limited. The limitation, in this case, stems from the fact that certain aspects of the proposed amendments unquestionably go the essential core, and fundamental fabric of the Constitution, thereby purporting to alter irredeemably its character and identity. Such radical alterations are not amendments in the real sense of the word, for there has to be a limitation to what amendments can achieve. And I would think that dismemberment is dismemberment, whether effected through surgical amputation or through rough mutilation. It matters not whether you carve Ceasar as a dish fit for the gods, or hew him as a carcass fit for hounds: the cuts are mortal either way. (Page 84)

 

The reception of this doctrine is important to Kenya. It serves to remind us that no one can hide under the veil of amendments to destroy the Constitution. The ‘destruction’ of the constitution is not an amendment and requires the input of Kenyans.

 

Conclusion

 

To the today’s  Belshazzar’s who are hell-bent in dismembering the Constitution of Kenya 2010, the BBI judgments at the High Court and the Court of Appeal are a Mene Mene tekel moment, telling them that the Constitution is mature and can defend itself from any missile fired at it. The writing is surely on the wall!

 

 


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