The Basic Structure 'Doctrine' and the Politics of Constitutional Change in Kenya: A Case of Judicial Adventurism?
Posted: 16 Nov 2022
Date Written: November 7, 2022
This paper has two objectives. First, it evaluates the application of the basic structure doctrine by three Kenyan courts to determine the constitutionality of the Constitution of Kenya Amendment Bill 2020. It contends that while the High Court and the Court of Appeal were unduly adventurous and wrongfully asserted that the basic structure doctrine was applicable in Kenya thereby frustrating an arguably necessary process of constitutional change, the Supreme Court adopted a restrained approach that appreciated that courts should limit their role to facilitating such political processes and ensuring that they are participatory and deliberative. From this perspective, courts should only invalidate constitutional amendments where they are enacted through processes that do not adhere to a constitution’s amendment provisions. Second, the paper evaluates how the three courts dealt with the question of public participation in constitutional amendment initiatives. In this respect, the paper argues that the Supreme Court’s test for the adequacy of public participation in such initiatives is unclear and could be used to frustrate arguably participatory constitutional amendment processes or approve amendment processes that are not sufficiently participatory, depending on the inclination of the judges. In either case, the test, therefore, enables the courts to inappropriately approve or decline amendments to the Constitution.
Keywords: Courts and constitutional change; unconstitutional constitutional amendments; history of the making of the Constitution of Kenya; applicability of the basic structure doctrine; public participation in constitutional amendment initiatives.
JEL Classification: K10
Suggested Citation: Suggested Citation