“Hooks”, “Pillars” and “Foundations” of Constitutionalism: Basic Stature in Kenyan Jurisprudence
India Legal|May 31, 2021
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
“Hooks”, “Pillars” and “Foundations” of Constitutionalism: Basic Stature in Kenyan Jurisprudence

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.

Denne historien er fra May 31, 2021-utgaven av India Legal.

Start din 7-dagers gratis prøveperiode på Magzter GOLD for å få tilgang til tusenvis av utvalgte premiumhistorier og 9000+ magasiner og aviser.

Denne historien er fra May 31, 2021-utgaven av India Legal.

Start din 7-dagers gratis prøveperiode på Magzter GOLD for å få tilgang til tusenvis av utvalgte premiumhistorier og 9000+ magasiner og aviser.

FLERE HISTORIER FRA INDIA LEGALSe alt
PIL, Difficult To Swallow?
India Legal

PIL, Difficult To Swallow?

In a recent ruling, the Bombay High Court lamented the increasing number of frivolous public interest litigations being filed in courts and echoed the sentiments of the Supreme Court that such litigations are the bane of the judicial system. Is there any way to restrict their misuse?

time-read
6 mins  |
February 13, 2023
Till Infertility Do Us Part...
India Legal

Till Infertility Do Us Part...

The Calcutta High Court slammed a husband for initiating divorce proceedings due to his wife's infertility and asked him to be a pillar of support for her. Courts have often taken an empathetic view in such matters

time-read
4 mins  |
February 13, 2023
IS THAT LEGAL?
India Legal

IS THAT LEGAL?

Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day-to-day basis

time-read
3 mins  |
February 13, 2023
The Big Lie
India Legal

The Big Lie

In America, The Big Lie is an idiom used by Donald Trump's opponents and the media to describe his constant gripe about election fraud. Now, it seems more suited to another Republican, Congressman George Santos (right), who has been facing growing calls to resign after he admitted fabricating parts of his resume and biography since his election in New York last year.

time-read
1 min  |
February 13, 2023
Flying into the Sunset
India Legal

Flying into the Sunset

Over 50 years since the first and original jumbo jet, the Boeing 747, took to the skies and revolutionized air travel, the last of the legendary aircraft (right) was delivered to a freight charter company, bringing down the curtain on one of aviation's most successful products.

time-read
1 min  |
February 13, 2023
Star Crossed
India Legal

Star Crossed

Actor and producer Alec Baldwin is a Hollywood legend, having starred in a range of movies, award winning TV sitcoms, and theatre. He was most recently seen in Mission Impossible Fallout, which is an apt description of his current situation.

time-read
1 min  |
February 13, 2023
Walkouts in the UK
India Legal

Walkouts in the UK

An estimated half a million workers have gone on strike, shutting down thousands of schools, public transport and border disruption. It is the biggest day of industrial action for more than a decade.

time-read
1 min  |
February 13, 2023
Myanmar's Misery
India Legal

Myanmar's Misery

Two years after the military coup ousted the elected government led by Aung San Suu Kyi, the brutal crackdown by the junta on so-called \"insurgents\" and civilian protesters has reached a new level with the use of air strikes, a new and deadly tactic in the ongoing civil war.

time-read
1 min  |
February 13, 2023
AMERICA'S ANGST
India Legal

AMERICA'S ANGST

From messy, divisive politics to a series of mass shootings, and now black officers brutally beating another black man to death as seen in bodycam videos, America's domestic convulsions are cause for serious introspection

time-read
4 mins  |
February 13, 2023
JUSTICE LEAGUE
India Legal

JUSTICE LEAGUE

There are few judicial appointment procedures in the world that are completely bereft of the overarching presence of either the executive or the legislature, or both. In the end, the judge is left with all the powers vested in him/her by the constitution to uphold the rule of law, within an atmosphere of external influences

time-read
9 mins  |
February 13, 2023