[This is the second post in the OxHRH Blog’s ongoing series on the Kenyan Court of Appeal’s BBI Judgment. For Part One, see here.]

Introduction

Rarely do judges get to decide make-or-break cases. When these cases come to court, they bring a lot of pressure upon the judges to get everything right. Despite this pressure, judges often make wrong decisions on some of the issues. The BBI case represents the failure of judges to get it right on the methodology of identifying the basic structure of the constitution.

Over the recent weeks, Kenyans have been obsessed with the basic structure doctrine. What has, however, not received a lot of reflection is how to identify the basic structure. The Court of Appeal justices Tuiyott and Okwengu have straightforwardly approached this question, stating that the basic structure is found in Article 255 of the Constitution of Kenya. But some of the judges have not dealt with how to identify the basic structure.

This piece criticizes the court for using the text-based approach in identifying the basic structure of the Constitution. Instead, it proposes a value and principles-based approach as the basis for examining what constitutes the basic structure of the constitution.

The limits of text-based and subjective approach in identifying the basic structure

The Court of Appeal did not set aside the highly subjective approach established by the High Court to determine what constitutes the basic structure.  The High Court was of the view that to identify the basic structure is a fact-intensive task which involves examining “the Constitution, its foundational structure, its text, its internal coherence, the history of the clause and the constitutional history and other non-legal considerations”. Most of the Court judges who gave examples of what constitutes basic structure used a textual approach while others solely relied  on Article 255 of the Constitution.

It is inadequate to use history as the basis for identifying the basic structure of the constitution.  First, not all constitutional provisions have a historical background. Second, for some constitutional provisions, history is insufficient to elevate them to the basic structure. Third, the Constitution is a living document; it ought not to be constrained by history, since what was important yesterday might not be important today.

What is even more problematic is isolating a part of the text as the basic structure of the constitution. A constitutional text is just a manifestation of the overarching constitutional principles. Therefore, the basic structure is the foundational underpinning of a  constitution. To use the text of the Constitution would be to ignore the character of the basic structure of the Constitution. More importantly, basing the basic structure on the text of the Constitution reduces the judges’ work to mere speculation. Unlike values and principles , there is no consensus on what part of the Constitution constitutes the basic structure. Most of the national values and principles of constitutionalism are agreed upon (see below), hence bringing some clarity on the basic structure of the constitution. Similarly, leaving the identification of the basic structure to the circumstances of the case makes the adjudication of such an important matter overly subjective which might raise questions of judicial overreach and legitimacy.

Value and principles-based approach to identifying the basic structure of the Constitution

It has become a cliche to claim that the Constitution of Kenya is a transformative charter founded on national values. Yet, like many cliches, it carries a lot of truth. The 2010 Constitution seeks to establish a value system as opposed to formal structures of power. This was advanced in George Bala v Attorney-General [2017] eKLR where, commenting on the Constitution, the court stated that “It is not focused on presenting an organization of Government, but rather a value system..”.

The core part of the Constitution is the values and principles found in Article 10 (2) of the Constitution and general constitutionalism principles. The text only expresses these underpinning values and principles. The advantage of using these values and principles as the basis of examining the basic structure is that they are broad enough to protect the core of the constitution and yet controlling enough to provide guidance for what constitutes the basic structure. Second, using the values and principles preserves the character of the Constitution as a value-based charter. Although one might argue that national values are listed as part of article 255 of the Constitution, and hence the recourse to this provision as the basic structure means adopting value based approach, such an argument is incorrect. This is because adopting article 255 of the Constitution without using national values as a methodology of identifying the basic structure of the Constitution remains a textual approach.

Conclusion

The Constitution of Kenya is a value-based charter.  Thus, to examine what constitutes the basic structure one has to adopt a value lens. The approach to be adopted must not only advance constitutional values and principles but also be engrossed in them.