Deepali kalia
The High court of Kenya ruled that the Basic Structure doctrine which limits the amending power of the legislature with regards to the constitution is applicable in Kenya.
The Judgment was given by a constitution bench comprising of 5 judges in a petition which was filed in public interest that challenged the building bridges initiative and the resulting Constitution Amendment Bill initiated by President Uhuru Kenyatta.
It was argued by the petitioners that the bill proposed would do away with the doctrine of separation of powers and checks and balances by threatening to reverse the Presidential system of government.
The petitioners further argued that the proposed bill would alter the Judicial Service Commission , the County assemblies, the functions of the parliament and also topple the mandate of the Independent Electoral and boundaries commission.
During the case, the petitioners had taken extensive support from the judgment of Supreme Court of India Kesavananda Bharati v. State of Kerala case in order to substantiate their arguments regarding the scope and limits on the amending power of legislature.
Following was ruled by the High court of Kenya in the particular case:
The Basic Structure Doctrine is applicable in Kenya.
The Basic Structure Doctrine limits the amendment power set out in Articles 255 – 257 of the Constitution. In particular, the Basic Structure Doctrine limits the power to amend the Basic Structure of the Constitution and eternity clauses.
The Basic Structure of the Constitution and eternity clauses can only be amended through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum.
It was further declared by the court that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under article 256 or via a popular initiative under article 257 of the constitution.
Therefore, the president had no authority under the constitution to initiate any changes to the constitution.
The court thus issued a declaration stating that President Uhuru Muigai Kenyatta has by initiating and promoting a constitutional amendment process in contravention to the articles of the constitution on amendment of the constitution violated Ch 6 of the constitution and specifically Article 73(1)(a)(i).