NAIROBI, Kenya, Aug 20 – Court of Appeal Judge Fatuma Sichale on Friday differed with the Constitutional Court view on the applicability of the basic structure doctrine in Kenya, saying the reference was far-fetched.
Sichale held that the Constitution is clear on procedure of amendments hence there need not be an attempt to refer to the doctrine in Kenya’s case.
She cited decisions from Malaysia, Zambia, Uganda and Tanzania as demonstration that the courts have rejected the doctrine of basic structure.
“Being living document must change as the society changes, that a living constitution must be flexible to allow for a country’s growth and the review of a Constitution is essential so as to cater for new and unforeseen problems and hence it is inadvisable to have a constitution that is cast in stone,” Justice Sichale said.
She also stated that validation on signatures in support of an amendment bill does not require a quorate electoral commission.
The judge also found the proposal to create 70 new constituencies by promoters of the Building Bridges Initiative (BBI) constitutional review process within constitutional limits.
She said the role of the Independent Electoral and Boundaries Commission is limited to the delimitation of constituencies.
Justice Gatembu Kairu who was the third judge to present his judgement argued that the basic structure doctrine is applicable explaining that it seeks to bar dismemberment of the Constitution.
“Doctrine of basic structure is not new in our systems. The doctrine and its pillars have been applied by our courts. It is not alien as argued by some appellants,” he said.
The judge defended his position by stating that an amendment of any provisions in the constitution cannot be used to abrogate the national document.
He cited that the framers of the 2010 Constitution had clearly identified what is the basic structure of the Constitution.
“Those provisions must be amendable, as long as they do not dismember the Constitution and done in accordance with article 257 of the Constitution.”
“The High Court was right in the methodology it employed in interpreting the constitutional provisions from historical and contextual perspective and the complaint that the court misapprehended the methodology applicable is not well-founded,” Kairu said.
Appellate judge Francis Tuiyott had earlier stated that the basic structure doctrine concept is anchored in Article 255(1) of the Constitution and is aimed at protecting the Constitution against replacement disguised as amendments.
He referred to the Black’s Law Dictionary which defines an amendment as a formal and usually minor revision or addition proposal made to a statute /constitution.
Judge Tuiyott asserted that lessons drawn from the 2005 and 2010 referendum is that constitutional amendment is a process and the constituent power is not an alien concept.
“The making and unmaking of the constitution is a preserve of people exercising their constituent power. By falling short on making provisions and procedure, textual reading of Article 255(1) matches or is in accord with contextual interpretation of the clause that power to change the Constitution rests elsewhere and need not be codified,” he ruled.
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