AG Kihara: Basic structure doctrine doesn’t apply to the Constitution

Wednesday, January 19th, 2022 01:00 | By
Attorney General
Attorney General Kihara Kariuki: PHOTO/courtesy
Attorney General Kihara Kariuki: PHOTO/courtesy

Attorney General Kihara Kariuki (right) yesterday put up a spirited fight to overturn the Court of Appeal decision that shot down the BBI Bill.

The AG, who was represented by Solicitor General Kennedy Ogeto, Senior Counsel George Morara and Kamau Karori, asked the Supreme Court to set aside the Court of Appeal decision saying the judges erred in law in their findings.

The High Court and the Court of Appeal last year declared the BBI Bill unconstitutional. Ogeto, who made the opening remarks, told the seven Supreme Court judges that the Court of Appeal erred in holding that the basic structure doctrine of the Constitution is amendable only through the primary constituent power.

“With tremendous respect, we disagree with this position. Neither our Constitution nor its history contemplate the doctrine,” he said.

It was his case that the Court of Appeal judges erroneously elevated the Basic Structure Doctrine to a universal template for certain constitutional amendments or changes.

“Problematically, the learned judges do not agree on what the basic structure is. Even if the Basic Structure Doctrine was applicable in Kenya (which we dispute), the absence of clarity on what the basic structure is, would create much legal and constitutional difficulty. This is a matter that we humbly urge this court to clarify with finality,” said Ogeto.

The seven Supreme Court judges further heard that the issue of popular initiative in the Constitution does not discriminate between private citizens and public or State officers.

“Our study of the history of this provision is that the popular initiative route was meant to curb the monopoly of Parliament on matters of constitutional amendments. It was not meant to exclude certain citizens because of their positions or standing in society,” Ogeto told the court.

He also contended that the judges of the Court of Appeal did not agree on the implications of their finding that the President cannot use the popular initiative route to amend the Constitution or options available to a president who may wish to spearhead constitutional changes.

On the Issue of Presidential Immunity from Civil Court Proceedings, Ogeto argued that in order to determine whether the President has done, or not done, anything contrary to the Constitution, there has to be a judicial process.

“This defeats the whole essence of immunity as the President would have to participate in the process, to prove his innocence,” he said.

The sentiments were supported by Oraro, Karuri and Eric Gumbo. Oraro argued that the people of Kenya have delegated their powers to State organs.

He argued that if the makers of the Constitution were to expressly recognise the sovereignty of the people and their constituent power, they would do so and it was textualized in the Constitution.

It was his contention that direct democracy is exercised through national values and principles of governance, public participation and legislation, popular intuitive and public discussion.

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