THE IMMMUTABLE NATIONAL VALUES AND PRINCIPLES OF NATIONAL

GOVERNANCE UNDER ARTICLE 10 OF THE CONSTITUTION FORM THE BASIC

STRUCTURE.

1.0. INTRODUCTION

On 5th July 2021, Peter Wanyama posed a question on his Facebook page. The question revolved
around the doctrine of Basic Structure. He wrote and I quote him verbatim, “Let me ask a
question for arguments sake. The Constitution contains a regime on the bill of rights and the
architecture of government defined by the principles of separation of powers. These, it appears,
constitute part of the ‘basic structure.’ However, there are other key provisions, for example,
governing the financial and human resource aspects of government that we do not seem to
prioritise in our analysis. For example, for good reasons we have established SRC to regulate
public wage bill and CBK to guide Kenya’s economic policies. Equally important, the
Constitution contains provisions on land governance that if implemented, will enhance the land
market and the role it plays in economic modernisation. Are these provisions of the constitution
part of the ‘basic structure’ of the Constitution? I ask this fundamental question because it
appears there is an intellectual and scholarship bias on what constitutes the basic structure; only
provisions associated with the voting system and politics are easily deemed important while
others are relegated to the periphery.” Mr. Wanyama further avers that we need to define a basic
structure from a contextualised perspective.

This article shall seek to address the concerns of Mr. Wanyama on a proper definition of the
basic structure under our constitution. It posits that the Basic Structure of the Constitution is
contained in Article 10 of the Constitution. It is the fountain of the basic structure. That is to
mean the Basic Structure applies to the entire structure of the constitution; Preamble, the
eighteen chapters and the six schedules of the constitution and not specific areas of the
Constitution. This argument takes into account the nature of the constitution of Kenya; its text
and structure on one hand, and the Constitution making history on the other hand. It concludes
by asserting that each provision of the constitution must be read with the values and principles of
governance at hand. An amendment under Chapter 16 therefore should improve on
implementing the national values and principles under Article 10 of the Constitution and not
altering the same.
2.0. BASIC STRUCTURE APPLICABILITY

Legal scholars and practitioners have spoken, written and analysed the basic structure doctrine
since 13th May 2021. This follows the High Court judgment in David Ndii & others v Attorney
General & others [2021]eKLR. The Petitioners in that matter tasked the court to analyse whether
the doctrine of basic structure applies to the constitution of Kenya and if it applies how it does
affect the amendment powers in Articles 255-257 of the Constitution.

The petitioners in that case argued that indeed the doctrine applies in the Constitutional
framework of Kenya. Their argument advances the idea that the basic structure only applied to
chapters 1,2,4,9 and 10 of the constitution. This means that the constitution amendment
provisions do not apply to the clauses contained in those chapters. The amendment powers only
applied to "ordinary provisions" of the constitution, which do not form the basic structure. They
conclude their arguments that an amendment of the basic structure mutilates the essential
features of the constitution. 1

On the other hand, the Respondents concur that indeed the constitution has a core that is the
basic structure. They pinpoint that Article 255 of the Constitution anchors the basic structure.
The Respondents further argue that the constitution contains amendment procedures for matters
contained under Article 255. That the sovereign people, either directly or through their
representatives, must participate through a referendum as clearly spelt out in the constitution to
amend the provisions highlighted under Article 255.2

The parties’ submissions when reviewed leave out other constitutional provisions in applying
the basic structure. These divergent arguments, as per Mr. Wanyama’s facebook post, create an
intellectual bias on the applicability of the basic structure. They both relegate other chapters of
the constitution as ‘ordinary provisions.’ It begs the question that should the basic structure apply
to specific constitutional provisions or the entire constitution.

The Basic structure, it is my submission, is contained under Article 10 of the Constitution. The
values and principles of governance contained therein. The Constitution of Kenya, 2010 codifies
the basic structure in this article since it forms the ‘spirit’ of the constitution. The values and

1
David Ndii &others v Attorney General & others [2021] eKLR 167 para.452.
2
Ibid, 170, para. 461.
principles of national governance therefore apply in the entire constitution taking account of the
preamble, all the chapters and its six schedules. Each constitutional provision must be interpreted
with the national values in the back of our minds. The definition, nature, canons of interpretation,
history of constitutional making in Kenya taking into consideration our unique circumstances
and the High Court’s analysis ratify this position.

2.1. Basic Structure definition

Prof Benson Tusasirwe in, ‘The Basic Structure Doctrine and Constitutional Restraint:
Take away from the ‘Age Limit’ Decision describes basic structure as follows,

The doctrine is to the effect that a national constitution has certain basic features, which
underlie not just the letter but also the spirit of that constitution. These features
constitute the inviolable core of the constitution and any amendment, which purports to
alter the constitution in a manner that takes away that basic structure is void and of no
effect.

The key element in this definition is the spirit of the constitution. It constitutes the sacrosanct
core of the constitution. The definition posits that the entire structure of the constitution
constitutes a spinal code that holds the structure together. The spinal code is equivalent to the
basic structure. The basic structure is the ‘spirit’ of the constitution. The question that we should
therefore ask ourselves is whether the Constitution of Kenya, 2010 has codified its spirit. To
answer that question it would be prudent to understand the nature of our constitution in order to
identify the ‘spirit’ of the constitution.

2.2. Nature of the Constitution of Kenya,2010

The Constitution of Kenya is a transformative constitution. The Supreme Court in In the Matter
of the Speaker of the Senate & another [2013] eKLR acknowledges the transformative nature of
the Constitution. The essential characteristics of a transformative constitution are provisions that
inaugurate social change and reform, through values such as social justice, equality, devolution,
human rights, rule of law, freedom and democracy. It therefore means that for any constitution to
be considered transformative, it must contain certain values in its entire structure that breathe life
to the aspirations of the people who enacted it through a social contract between them and those
who govern them. A constitution without these values is a mere document that has no effect to
the governed. It is lifeless, as it does not take into account the aspirations of the people.

Having said that, the transformative character of the constitution informs the courts tasked to
interpret it with the canons of interpretation. The Supreme Court has provided methods of
interpreting the constitution through its various decisions largely the advisory opinions it
rendered within the first five years of the promulgation of the constitution. It is important to
notice that when interpreting the Constitution of Kenya, 2010, the canons of interpretation
advances the values that embody the aspirations of the people contained in its Preamble. To
begin with, one must interpret the constitution holistically. Holistic interpretation should not end
at a textual understanding of a constitutional provision. It must go beyond the text and
incorporate a contextual evaluation. The Supreme Court in In the Matter of the Kenya National
Commission on Human Rights [2014] eKLR describes a contextual scrutiny of the constitution.
The judges in the matter described it as ‘...reading it alongside and against other provisions, so
as to maintain a rational explication of what the Constitution must be taken to mean in the
light of its history[emphasis mine], of the issues in dispute and of the prevailing
circumstances.’ A mere stating of the text without contextual analysis through the mode of
substantive reasoning is not enough when interpreting the constitution. This leads to the next
canon of interpretation. When interpreting the constitution, formalistic interpretation must be
idscouraged. This is the mechanistic formula of adding the law and facts to arrive at a conclusion
when presented with a constitutional problem. It narrows the cognitive exercise of an individual
in assessing a constitutional issue at hand. This interpretive approach fails to answer the ‘why’
question when interpreting the constitution. Its promoters when asked to explain the reasoning
behind a constitutional text, they peg their response by stating that the constitution provides as
such. In Re Interim Independent Election Commission [2011] eKLR, the Supreme Court
discouraged formalistic interpretation of the Constitution. The Supreme Court judges stated,
“...The Constitution has incorporated non-legal considerations, which must take into account, in
exercising our jurisdiction. The Constitution has a most modern Bill of Rights that envisions a
human rights based, and social-justice oriented state and society. The values and principles
articulated in the Preamble, Article 10, in chapter 6 and in various provisions,[emphasis mine]
reflect historical, economic, social, cultural and political realities and aspirations that are
critical in building a robust, patriotic and indigenous jurisprudence for Kenya.” In short, this
interpretive approach appreciates the fact that indeed the law does not exist in a vacuum.

The third canon of interpretation is that the Constitution provides a framework of interpretation
that conserves and shields its values, objects and purposes. The Constitution embodies this under
Article 259. Clause 1 directs that when interpreting the constitution you must promote its
purpose, values and principles. The Supreme Court in In Re the Speaker of the Senate &
Another v Attorney General & 4 others [2013] eKLR opined as follows, “...constitution making
does not end with its promulgation; it continues with its interpretation. The constitutional text
and letter may not properly express the minds of the framers, and the minds and hands of the
framers may fail to properly mine the aspirations of the people. It is in this context that the spirit
of the constitution has to be invoked by the Court as the searchlight for the illumination and
elimination of these legal penumbras.” This mode of interpretation defines the ‘spirit of the
constitution’ to mean its values and principles of governance that reflect the aspirations of the
people. It highlights a key component in interpreting the constitution that even the constitutional
final draft document may contain a structural design that does not reflect clearly the aspirations
of the people. However, using the values as a ray of light mitigates structural and institutional
design problems in the constitution and they should guide the courts when called upon to analyse
and determine constitutional issues.

The fourth canon is taking into consideration of non-legal factors in interpreting the constitution
to give its true meaning and values. These may include literature books, musical works, and
films among others.3 These non-legal materials contain historical, economic, social, cultural and
political perspectives that illuminate the desires of the society. Indeed, the Constitution being a
product of a social contract, those mandated to interpret the same must understand and
contextualise the “bargaining power” of the people in giving their rights to be governed in the
“negotiation” process. This information is contained in the non-legal materials and codified as
the values and principles of governance in the Constitution.

2.3. Constitutional making history

3
Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR paras
356 to 380.
During the Judicial Service Commission interviews in search of the new Chief Justice, Hon.
Justice Majanja made a solemn remark, ‘A man is his history.’ I will not elaborate the context of
that remark in this article but it poses a question to be contemplated. A question well captured by
Tee Ngugi writing for the East African. He asks, “Does our national history have a bearing on
our present attempts to re-engineer a new constitutional, political and social order?” 4My answer
would be yes. The history of Kenya reflects the special circumstances of its people. In fact, the
contextual analysis of any constitutional provision must reflect the constitutional making history
of Kenya. Furthermore, the Constitution of Kenya is autochthonous. It is rooted to the inimitable
state of affairs in Kenya. These circumstances are only identifiable in the history of Kenya. The
High Court Judgment elaborated in detail about the history of constitution making process. There
are however key features in the historical record that advances the preserve and protection of the
values and principles of governances, their erosion and restoration. The features include the
followings:

i. The people of Kenya on one hand, the public and state officers on the other hand in their
various capacities participate in the making of the constitution. The participatory process
is so crucial that it entails a consensus between the two. The people in this context refer
to the ordinary mwananchi. There should be no relegation of the people through expert
written constitutions led by the political leaders.
ii. Hyper-amendments in the constitution witnessed during the years of 1963 to 2010 of the
Constitution saw the values and principles of national governance mutilated to an extent
that Prof Ogendo described the constitution as one without constitutionalism.5
iii. The process of enacting the 2010 constitution that began in the late 90’s witnessed a
compromise between the political elite on one hand and the people through civil
societies, religious organisations, opposition leaders, political activists among others.
This compromise was to be facilitated through civic education, public participation
through debates and consultations, constituent assemblies and a referendum. It is
important to highlight that the main purpose of engaging the people was to ensure that the

4
Tee Ngugi, ‘For Public office job, a person’s history is the best judge’ The East African, 29th April 2021
https://www.theeastafrican.co.ke/tea/oped/comment/for-public-office-job-a-persons-history-is-the-best-judge-
3381772 accessed on 12th July, 2021.
5
Supra n(1) para. 407.
 body tasked to draft the constitution codify the national values of the people and the
principles of governance that should regulate them

2.4. The High Court’s position confirms Article 10 of the Constitution forms our
basic structure.

Many legal practitioners have criticised the judges in David Ndii & others v Attorney General &
others. The notable criticism is that the judges failed to locate the basic structure in the entire
judgment. Did the High Court judges fail to locate the basic structure in their judgment? The
answer to that question is No. They did locate the basic structure in the constitution. In fact I
would recommend reading the judgment more than once especially from paragraphs 393-474.
Let me quote the relevant parts for clarification sake.

474(a) The Text, structure, history and context of the Constitution of Kenya, 2010 all
read and interpreted using the canon of interpretive principles decreed by the constitution
yield the conclusion that the basic structure doctrine is applicable in Kenya.

(f) From a holistic reading of the constitution, its history and 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; 18 chapters and the 6
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 including land and environment.
Leadership and integrity; public finance and national security. Read as a whole, these
chapters, schedules and the Preamble form the fundamental core structure, values and
principles of the constitution.

(g) While the basic structure of the constitution cannot be altered using the amendment
power, it is not every clause in each of the eighteen chapters and six schedules which is
inoculated from non-substantive changes by the basic structure doctrine. Differently put
the basic structure protects the core edifice, foundational structure and values of the
 constitution but leaves open certain provisions of the constitution as amendable for
amendment in as long as they do not fundamentally tilt the basic structure.

This interpretation answers Mr. Wanyama’s concern that the basic structure arguments do not
promote an intellectual bias to specific sections of the Constitution. The basic structure protects
the values and principles of governance that binds all state organs, state officers, public officers
and all persons when called upon to apply or interpret the constitution; enact, apply or interpret
any law or make/implement any policy. When one reads the constitution holistically, they must
have it in the back of their minds whether that constitutional provision reflects the national
values underscored in the constitution. It is these values and principles of governance that the
aspirations of the people sought to protect and reserve in the constitutional making process. This
rationalises the limitation of the amendment process under Chapter 16 of the Constitution. Thus
to exercise a constitutional change that alters the national values and principle of governance
contained in the entire constitutional provision calls for the exercise of the primary constituent
power hence the essence of reflecting on the participatory process in the constitutional making
history.

3.0. CONCLUSION

The language of Article 10 reveals that it binds the entire provisions in the constitution including
the amendment process. It is therefore the anchor of the constitution. As an anchor of the
constitution, it forms the basic structure. Article 4(2) of the Constitution further substantiates this
point. It provides that the Republic of Kenya as a multi-party democratic state is founded on the
national values and principles of governance referred under Article 10.

A reading of the text, structure and history of the constitution of Kenya, 2010 embodies that the
mechanism of Kenya’s basic structure is ‘home grown.’ Indeed a spiritual internalisation of the
values and principles of governance under Article 10 circumscribe unique experiences only
known to Kenyans. When one applies their minds to read a constitutional provision, it revives
certain memories known to Kenyans. Kenya’s constitutional making history embeds this history.
A constitutional practitioner should therefore familiarise themselves with Kenya’s history.

The concept of a primary constituent power envisions an informed mind when making a decision
through civic education. The parties who called for wanjiku in the constitution making process
were largely civic society groups. Following the Ndii case, civic education is paramount. I
therefore urge the civic society groups to work hand in hand with the Attorney General to rollout
civic education programs even as we wait for the Court of Appeal to make a determination on
the issue at hand. This is because it is the people who are sovereign and they need a framework
to understand in greater extent the national values and principles of governance that embody
their aspirations.