Basic Structure Doctrine held applicable in Kenya by Kenya High Court referring to the Keshavananda Bharati case

The High Court of Kenya has ruled that the Doctrine of Basic Structure applies in Kenya, which is a substantial ruling in respect of the Kenyan Constitution. Articles 255 to 257 of Kenya’s Constitution restrict parliament’s amending authority.

A five-judge Constitution Bench delivered the decision in a public interest petition opposing President Uhuru Kenyatta‘s Building Bridges Initiative and the subsequent Constitution Amendment Bill. The petitioners claimed that the reform rights enshrined in Articles 256 and 257 of Kenya’s Constitution should only be used to amend the Constitution’s “ordinary clauses,” and that they should not include the authority to “replace the Constitution” or “create a new system of government or enforce a new Constitutional Order.” They also contended that the Kenyan Constitution’s Doctrine of Basic Structure, as well as the corollary doctrines of statutory unamendability and eternity clauses, preclude this from happening.

The petitioners centred their argument on the Indian case of Keshavananda Bharti v. State of Kerala and Others [(1973) 4 SCC 225], wherein they asserted that when it falls to parliament’s amending power, the Constitution itself imposes certain fundamental limitations on that power.

The respondents responded to the petitioners’ reference of the Keshavananda Bharti case (India) by implying that Keshavananda Bharti’s verdict emphasizes the essence of the Indian Constitution and the enforceability of this doctrine within the Indian context, which is not at all analogous to the Kenyan interpretation.

The Kenyan High Court ruled that: – The Basic Structure Doctrine is justifiable in Kenya. Articles 255–257 of the Constitution’s alteration authority is limited by the Basic Structure Doctrine. The Basic Structure Doctrine, in general, curtails the right to amend the Constitution’s Basic Structure and eternity clauses. The Constitution’s Basic Structure and eternity clauses must only be modified by the Primary Constituent Power that entails these steps: political engagement, public engagement and opinion gathering, Constituent Assembly debate, and, respectively, a referendum.

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