Case BriefsForeign Courts

High Court of Kenya: While deliberating upon constitutional petitions challenging the Building Bridges Initiative (hereinafter BBI) and the resulting controversial Constitution of Kenya Amendment Bill, 2020; the 5 Judge Bench of Joel M. Ngugi, G.V. Odunga, Ngaah Jairus, E.C. Mwita and Mumbua T. Matheka, JJ., held the following –

  • The Doctrine Basic Structure is applicable in Kenya and it limits the power to amend the Basic Structure of the Constitution and eternity clauses.
  • The Court also held that the Basic Structure of the Constitution and eternity clauses can only be amended through the Primary Constituent Power which must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, referendum.
  • The Kenyan President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative or through a Popular Initiative as enshrined in the Kenyan Constitution.
  • It was also held that civil Court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.

Background:

Post the Presidential Elections in 2017, elected President Mr. Uhuru Kenyatta started an initiative “towards united Kenya” and appointed the Building Bridges to Unity Advisory Taskforce comprising of 14 committee members and 2 joint secretaries in May 2018. The key mandate of the BBI Taskforce was to come up with recommendations and proposals “for building a lasting unity in the country”. The BBI Taskforce came up with an interim report in November, 2019. On 3rd January 2020, the President appointed the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report. The Committee recommended certain administrative, policy, statutory or constitutional changes. Despite some controversy as to how exactly the Report of the BBI Steering Committee (after it was handed over to the President), became the Constitution of Kenya Amendment Bill, 2020 (herein after, “The Constitution of Kenya Amendment Bill”). There was no dispute that the BBI Secretariat then put in motion the process to collect signatures in support of the Popular Initiative associated with the Constitution of Kenya Amendment Bill. Thereafter, the BBI Secretariat submitted the signatures to the Independent Electoral and Boundaries Commission (IEBC), for verification and submittal to the County Assemblies and Parliament for approval.

Contentions:

Both the petitioners and the respondents relied heavily on the landmark Indian case on Basic Structure Doctrine- Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.

Applying the Basic Structure Doctrine to the proposed Constitution of Kenya Amendment Bill, the petitioners argued that the Bill proposes to discard the doctrine of separation of powers and checks and balances first, by threatening to reverse the Presidential system of government, by threatening amend Chapter 9 of the Constitution on the executive, which goes against the decisions and reasoning of the makers on the Constitution. Regarding the Basic Structure doctrine, the petitioners contended that the Doctrine imputes logical limits to the power of amendment. They stated that the Doctrine exists to protect the essential characteristics of the Constitution; the power to amend the Basic Structure is limited because to so amend would be to destroy the essential character of the Constitution. The Petitioners drew their primary authority for this argument from the comparative Indian case of Kesavananda Bharati.

Meanwhile the respondents attributed the origin of the Doctrine of Basic Structure to Kesavananda Bharti case. The Basic Structure Doctrine articulated in the Kesavananda Case is not applicable in Kenya because of our different circumstances. They argue that, unlike in India, the amendment authority in the Constitution does not rest with Parliament alone since the people of Kenya have the final say through a referendum. They submitted that the Doctrines of Basic Structure; unamendability and eternity clauses do not apply in Kenya. They faulted the Petitioners for mixing up the concepts of Basic Structure Doctrine, the Concept of Unamendability and Eternal clause, which they contended must be distinguished. The respondents further argued that the Basic Structure Doctrine lacks universal acceptance.

Observations: 

‘Anxiously’ perusing the contentions, the Bench observed that, “Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and, at times, against the Political and other elites. Kenyans, therefore, were keen to ensure that their bequest to themselves would not be abrogated through either incompatible interpretation, technical subterfuge, or by the power of amendment unleashed by stealth”. The Court noted that 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. This structure outlines the system of government Kenyans chose – including the design of the Judiciary; Parliament; the Executive; the Independent Commissions and Offices; and the devolved system of government. It also includes the specific substantive areas Kenyans thought were important enough to pronounce themselves through constitutional entrenchment. Read as a whole, these chapters, schedules and the Preamble form the fundamental core structure, values and principles of the Constitution. This core thus, cannot be amended without recalling the Primary Constituent Power of the people. “We can discern this doctrinal illumination by correctly interpreting both the history of Constitution-making and the structure of the Constitution Kenyans made for themselves. At every step of the way, Kenyans were clear that they wanted a Constitution in which the ordinary mwananchi, Wanjiku, took centre-stage in debating and designing”.

With the aforementioned observations, the Court declared that the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report established by the President is unconstitutional. The Court also declared that the entire BBI process culminating with the launch of the Constitution of Kenya Amendment Bill, 2020 was done unconstitutionally and in usurpation of the People’s exercise of Sovereign Power and that the President contravened Chapter 6 of the Constitution and Art. 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution.

[David Ndii v. Attorney General, PETITION NO. E282 of 2020, decided on 13.05.2021]


Sucheta Sarkar, Editorial Assistant has put this report together 

 

 

 

 

OP. ED.SCC Journal Section Archives

Few persons know that the most momentous judgment of the Indian Supreme Court in constitutional law delivered on 24-4-1973 by the largest Bench of 13 Judges in Kesavananda Bharati v. State of Kerala1 was subjected to a serious attempt to overrule it by a review by another Bench of 13 Judges for two days on 10-11-1975 and 11-11-1975 but on the third day the review was suddenly and inexplicably abandoned and the 13-Judge Bench was dissolved.

The circumstances under which the review was made and given up have for long been clouded in mystery and lawyers and judges have speculated about it till now. No official record or report exists of this attempt to review Kesavananda1 judgment. The review took place during the height of the Emergency when even the reporting of courts’ judgments by the press was restricted. Today, it is possible to piece together the full story of this important event in our constitutional history from a few published and mostly unpublished accounts, memoirs of some of the participants in the review and interviews by this writer and others of judges constituting the reviewing Bench.

It is a story as dramatic as instructive. It is an extension of the saga of the extraordinary circumstances in which Kesavananda1 itself was heard for five months between 1972-1973. As a matter of interaction of constitutional law with politics of the day as well as for difficulties in formulating the abstruse concept of the basic structure of the Constitution, the story of Kesavananda1 and the attempted reversal of Kesavananda1 requires to be widely known. In the United States, landmark Supreme Court decisions in Marbury v. Madison2Dred Scott v. Sandford3Brown v. Board of Education4 have been commented on for their political and social background as well as for the actual decision making by judges. Such an exercise has not been done for any important case of the Supreme Court of India. Kesavananda1 is one case which requires to be related in its political background and the actual decision making to understand it.

[Read more]


† Senior Advocate, Supreme Court of India, former Solicitor General of India (1996-1998), Advocate General of Maharashtra (1993-1995).

1 (1973) 4 SCC 225.

2 2 L Ed 60 : 5 US (1 Cr) 137 (1803).

3 15 L Ed 691 : 60 US 393 (1856).

4 98 L Ed 873 : 347 US 483 (1953).

Hot Off The PressNews

His Holiness Kesavananda Bharati Sripadagalvaru, who initiated the case before the Supreme Court that gave us the ‘Basic Structure’ doctrine, passed away this morning at the age of 79 in his ashram at Edneer in north Kerala’s Kasaragod district.

His Holiness Kesavananda Bharati filed a petition on March 21, 1970, under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution wherein he prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. The issues that started with challenge to 24th, 25th, 26th and 29th Amendments to the Constitution, went on to be heard by a Full Bench of 13 judges over seminal questions involving the limits on power of the Parliament to amend the Constitution.

After hearing the matter for almost 70 days, the 13-judge bench in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, wrote eleven judgments with nine judges writing individual judgments and Justices Shelat & Mukherjea and Justices Hegde and Grover teaming up to write combined judgments and held that the Parliament cannot alter the basic structure of the Constitution.

Here are some excerpts from the Judgment:

“Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.”

-Justice HR Khanna


“I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for Government, has a noble and grand vision. The vision was put in words in the preamble and carried out in part by conferring fundamental rights on the people.”

-Justice SM Sikri, Chief Justice of India


“Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution. The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take away or abridge the fundamental rights contained in Part III.”

-Justices JM Shelat and AN Grover


“Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change.”

-Justices KS Hegde and AK Mukherjea


“One cannot lift parts of the Constitution above it by ascribing ultra-constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power.”

-Justice DG Palekar


“Parliament cannot under Article 368 abrogate, damage or destroy, any of the fundamental rights though it can abridge to an extent where it does not amount to abrogation, damage or destruction.”

-Justice P. Jaganmohan Reddy


“If the State fails to create conditions in which the fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.”

-Justice YV Chandrachud


“… a Constitution is always valid whereas a law is valid only if it is in conformity with the Constitution … Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be.”

-Justice KK Mathew


“… the good of the mass of citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the Preamble or the “key” which puts “justice, social, economic and political” as the first of the four objectives of the Constitution by means of which “the people” of India constituted “a Sovereign Democratic Republic”.”

-Justice MH Beg


“Article 368 places no express limits on the amending power. Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Article 368 and thus make fundamental rights immutable if they so desire. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words.”

-Justice SN Dwivedi


“Where the people express themselves in careful and measured terms in framing the Constitution and they leave as little as possible to implications, amendments or changes in the existing order or conditions cannot be left to inserting implications by reference to the Preamble which is an expression of the intention at the time of the framing of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.”

-Justice AN Ray

Case BriefsForeign Courts

Supreme Court of Uganda: The Full Bench of Katureebe, CJ., Arach-Amoko, Mwangusya, Opio-Aweri, Tibatemwa-Ekirikubinza, and Mugamba, JJ SC; and Tumwesigye, AG JSC upheld a Constitutional Amendment which negated age bar for the President and Local Council V Chairpersons.

The Constitutional Court headed by Owiny-Dollo, DCJ. had declared that the Constitutional (Amendment) Act No. 1 of 2018 which removed the age limit for the President and Local Council V Chairperson as lawful. The Appellants,

The Court referred to various judgments passed by the Courts of different countries on the basic-structure doctrine and thereby, referred to the landmark judgment by the Supreme Court of India, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Quoting the judgment, the Court stated: “According to the doctrine, the amendment power of Parliament is not unlimited; it does not include the power to abrogate or change the identity of the constitution or its basic features.” The Court stated on the judge-made principle that a country’s Constitution has certain basic features that cannot be amended by its legislative body. The Court also stated that “while Parliament has wide powers to amend the Constitution, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. The Supreme Court declared that the basic structure or features of the Constitution rest on the basic foundation of the Constitution. The basic foundation of the Constitution is the dignity and the freedom of its citizens which is of supreme importance and cannot be destroyed by any legislation made by the Parliament.”

The Court quoted Minerva Mills v. UOI, (1980) 3 SCC 625 as well, stating that Parliament has no power to repeal, abrogate or destroy basic or essential features of a constitution. It reinstated that the Supreme Court of India, in this case, had also stated that any particular feature of the Constitution being “basic” or not, shall be determined with the subject matter of each case.

Thereafter, the Court revisited the Preamble and various Articles of the Constitution of Uganda, 1995 to refer to the doctrine embedded in the Preamble and Articles itself. It stated that Article 1(2) envisages the core principle of governance that the people shall be governed through their “will and consent”. It emphasised that Article 1(3) puts forth the Constitution is the source of “all power and authority of the Government and its organs” and noted that the Constitution derives its powers from the people itself. The Court opined that this is one of the first pillars on the basic structure of the Constitution apart from the Preamble. The Chief Justice equated the doctrine as a “family house” whereby the basic structure doctrine should be the root or the strong foundation for the house, where the roof could constitute of any material or colour, and “if the wind blew away part or all of the roof, the basic structure should remain and the next day the family can put the roof. But if the weight-bearing pillars were undermined or removed, the whole structure would collapse.” It reinstated a position held in a previous judgment stating that, there are certain features, inherent to the Constitution and not stated explicitly but such features form an important part of the Constitution.

Upon deciding the issue of the Amendment, the Court used the abovementioned analogy and questioned: “whether the effect of the above said amendment was to the strong pillars, to the weight-bearing walls, or to the roof in as far as the 1995 Constitutional structure was concerned?“

 The Court upheld the Amendment and put forth in consonance to the analogy provided hereinabove that “the restriction on age may be a roof or shutter on a house; very important on the house but capable of being altered without changing the basic structure of the particular house\ It is not a foundation or a strong pillar on the house which, if changed, would lead to the collapse of the house.” It stated that this amendment merely increased the spectrum of the people’s choice and did not restrict it thus not violating the basic structure.

The Judgment also provided various examples of other countries whereby a Prime Minister or President was re-elected despite not confirming to the age stipulations provided. It was the people’s choice which preceded such stipulations. The Majority upheld the decision of the Constitutional Court and discarded any such contentions of the violation of the basic structure of the constitution. [Male H. Mabirizi K. Kiwanuka v. Attorney General, 2018 SCC OnLine UGSC 33, decided on 18-04-2019]

High Courts

Madras High Court: In a petition filed for the scrutiny of Section 85 of Trade Marks Act, 1999 dealing with the qualification and selection of the Chairman and Judicial Member of the Intellectual Property Appellate Board (IPAB) as violative of the Basic Structure of the Constitution insofar as it is related to the establishment of the IPAB, the Division Bench of S.K. Kaul, C.J. and M.M. Sundresh, J., declared Sections 85 (2) (b) and 85 (3) (a) of Trade Marks Act, 1999, which deals with qualification for a member of Indian Legal Service who held the post of Grade I of service or of higher post at least 5 years to the post of Vice-Chairman and eligibility of a member of the Indian Legal Service who has held the post of Grade I of that Service for at least 3 years for appointment to the post of a Judicial Member in IPAB, as unconstitutional for offending the principles of separation of power and independence of judiciary and being contrary to the Basic Structure of the Constitution.

The issue raised before the Court was that Section 85 of the Trade Marks Act infringes the doctrine of separation of powers and the independence of judiciary as an individual who is not a practicing lawyer is appointed as a technical member and thereafter as Vice-chairman and Chairman; similarly there is a discrepancy between the qualifications of a Registrar under Trade Marks Act and Controller under the Patent Act. The entire administration of the IPAB is controlled by Government and not left to the Chairman. As argued by noted counsel, Arvind Datar on behalf of the petitioner, the scheme governing Section 85 demonstrates executive encroachment within the judicial sphere. On the contrary the Additional Solicitor General G.Rajagopal for the respondents, sought to refute the contentions.

Perusing the contentions, the Court observed that the Supreme Court had clearly stated that Tribunals should be established with similar characteristics and standards of the Court which is to be substituted, thereby protecting Judiciary from the Executive. The Court was of the opinion that the guidelines by the Supreme Court are binding in nature. The Court further observed that the respondents overlooked the directives laid down in Union of India v. R.Gandhi, (2011) 10 SCC 1, as the selection process for the IPAB is entirely in the hands of the Executive, even though the functions of the IPAB are judicial in nature, thus contravening the Basic Structure of the Constitution. The Court therefore declared the constitution of the Appointment Committee as contrary to the basic structure of the Constitution and directed a re-constitution of the Committee by providing a predominant role in the selection process to the Judiciary.  Shamnad Basheer v. Union of India, decided on 10.03.2015