Chief Justice Martha Koome has overturned the decision of the two lower courts which held that basic structure is applicable in Kenya.
Koome is the first of the seven judges to read her decision on the issue of basic structure. She said the court erred in law by ruling that it was applicable in Kenya.
“I find that the basic structure is not applicable in Kenya and any amendment to the constitution must be carried out within the law,” she ruled.
She faulted them for not analyzing the shortcomings of the basic structure and not finding that the Constitution is self-regulating.
She further noted that there have been several failed attempts to amend the Constitution which shows the resilience of the 2010 Constitution.
“I disagree with them on the issue of basic structure.”
Koome further said that there was no justification for the two lower courts to create a fourth pathway of amendment of the Constitution.
She also said that the most important thing is for there to be a balance of rigidity and flexibility in the Constitution.
However, she has upheld the ruling by the two courts that the president cannot initiate the popular initiative.
But she added that the president as an individual has the freedom to make political choices so long as it excludes the state organ which is the presidency.
In this case, the president did not do those things as a private citizen which included receiving the report at a state function.
She said that the president was involved in the initiation of the popular initiative by the actions that were stated in court.
“I find that the basic structure of three and the four sequential steps for amendment as prescribed by the High Court and the majority of the Court of Appeal are not applicable in Kenya and under the Constitution, any amendments to the Constitution must be carried out in strict conformity with the normative standards and provisions of Chapter 16 of the Constitution,” she ruled.
Justice William Ouko has also agreed with CJ Koome’s finding that the basic structure does not apply to the constitution of Kenya. He has set aside the finding of the two lower courts on that issue of basic structure
“In interpreting the Constitution, courts must give directives and not leave more questions than answers, thus they should ensure their rulings are unambiguous – not open to more than one interpretation,” the judge said
He also ruled that Parliament cannot be used to amend the Constitution faulting the lower courts for using India’s constitution.
“Just like India and Germany where the basic structure was applied, it was based on their own history. Constitution of a country is based on their own unique distinction,” he said.