“Hooks”, “Pillars” and “Foundations” of Constitutionalism: Basic Stature in Kenyan Jurisprudence

The Kenya High Court extending the basic structure doctrine is people-centred rather than State-friendly. It prescribes a constitutional disciple and responsibility on the executive and legislature, even in a system providing referendum for ultimate constitutional change

- Upendra Baxi

TWO things are remarkable about the recent decision of five Justices of the Constitutional and Human Rights Division of the High Court of Kenya. Its unanimity extending to Kenya so contentious a judicial doctrine as basic structure of the constitution is striking; so is its relative brevity: 321 pages (of which nearly half summate the argument of counsel). One has to look at Kesavananda decision (1973) of nearly 800 pages (is about 420,000 words long), preceded by 68 days of argument, which produces 11 separate judgments, in a wafer-thin “majority” in a 6:6:1 decision!

Like Kesavananda, it asserts the doctrine of basic structure of the constitution and holds that “categorical core values” are “therefore, unamendable and cannot be changed through the exercise of Secondary Constituent Power or Constituted Power”.1 Only “the People” may alter or remake the constitution through a referendum “after four sequential processes, namely: civic education; public participation and collation of views” and “Constituent Ass em bly debate”. The president of Kenya, even through the device of Building Bridges to Unity Advisory Taskforce, may not do this. Political initiatives, however wise and popular, may not circumvent constitutional discipline on executive and parliamentary power.