On 13th May 2021, the Kenyan High Court delivered a ground breaking judgment which officially recognized, among other things, what is called the “Basic Structure Doctrine” This was in the case of David Ndii & Others versus Attorney General & Others {2021} eKLR
In this case, the Petitioners asked the court to declare the Bill to Amend the Constitution of Kenya , also known as the Building Bridges Initiative (BBI) unconstitutional as its main purpose was to actually replace the constitution rather than amend it.
The court, in the above-mentioned case, stated as follows:
“From a holistic reading of the Constitution, its history and the context of the making of the Constitution, the Basic Structure of the Constitution consists of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution. It also includes the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment including land and environment; Leadership and Integrity; Public Finance; and National Security. The Basic Structure Doctrine protects the core edifice, foundational structure and values of the Constitution but leaves open certain provisions of the Constitution as amendable through the procedures outlined in Articles 255, 256 and 257 of the Constitution in as long as they do not change the Basic Structure.”
ORIGINS OF THE BASIC STRUCTURE DOCTRINE.
The Basic Doctrine Structure was first developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in the famous and celebrated case of Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted.
Bangladesh is perhaps the only legal system in the world which recognizes this doctrine with an expressed, written and rigid constitutional manner through article 7B of its Constitution.
In Kesavananda, the court propounded that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament of India. Key among these “basic features”, as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the power of the constitutional Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a “basic” feature is determined by the Court in each case that comes before it. (Case to case basis).
In simple terms, the basic structure doctrine states that there must be a difference between amending a constitution and replacing the constitution.
An amendment to a constitution can only make minor alterations to the constitution without departing from the fundamental structure of the constitution. This however does not mean that the constitution cannot be replaced. Replacement of a constitution would then need the people to exercise their constituent power through a referendum. The people would need to know that they are replacing the entire constitution and not merely amending it.