All publications of Idris Maalim . Nairobi , Kenya
The Basic Structure Doctrine Unceremonious Arrival in Kenya: An Attempt to Give Structure.
The recent events from East Africa (Kenya) have raised quite a number of discourses on what exactly is The Basic Structure Doctrine. On 13th May, 2021 a five judge bench made a very impressive, revolutionary and dramatic judgement in my view disqualifying The Constitution of Kenya (Amendment) Bill, 2020. Getting into the details of the Judgement itself is unnecessary as the same has been well elaborated by various legal scholars.
However, after a keen listen to the submissions on “the basic structure doctrine” and by extension “the eternity clauses” by the 49th President of the Law Society of Kenya Mr. Nelson Havi one cannot help but to marvel. It is from this submissions that I base my two cents on the same.
The Doctrine of Basic Structure is simply an aspect of legal philosophy that ensures power of amendment is not misused by parliament. The bedrock is that the basic features of the Constitution should not be altered to the extent that the identity of the constitution is lost in the process.
There are no hard and fast rules of the basic features of the Constitution and that’s why this doctrine singlehandedly empowers the judiciary to keep a check on the legislature and or acts as a brake to the legislative enthusiasm of parliament.
In as much as the Constitution is a living document and adapts to the changing requirements of generations, there are some intrinsic values and a basic framework on which the whole content of the constitution rests.
This doctrine has developed over time through various Indian cases but for purpose of this discourse I shall focus on one that brought this doctrine into the limelight.
The Supreme Court of India in Kesavananda Bharati v. The State of Kerala (1973) 4SCC 225 being influenced by the works of a German Scholar by the name Dietrich Conrad, the thirteen bench judges laid down several basic structures of the Constitution of key interest include;
1. Separation of Power between the Arms of Government
2. Social Justice and Public Participation
5. Sovereignty of the People
6. The Bill of Rights
7. Rule of Law
8. Judicial Review
I will be guided by the above basic structures as a landscape to identifying what the Basic Structure entails in as much as there are no clear ramifications of this legal philosophical concept.
The Constitution of Kenya 2010
Chapter One on Sovereignty of the People and Supremacy of the Constitution, Chapter Two on The Republic, Chapter Four on the Bill of Rights, Chapter Nine on the Executive and Chapter Ten on the Judiciary are relevant on the application of the legal doctrine and theory of the “basic structure” of a constitution.
Article 1 of the Constitution provides for the sovereignty of the people. It expressly provides that all sovereign power belongs to the people and it is exercised at both levels of government. This forms one of the Constitutions structural posture and any attempt to circumvent this goes against the basic structure of the Constitution.
Of relevance, there are precise formulations and expressions in the Constitution that can only be affected through the exercise of Primary Constituent Power of the people. Article 255 of the Constitution has already provided for matters that form the "basic structure" of the Constitution which can only be amended by the people exercising their sovereign right directly through a referendum.
Article 2(1) of the Constitution provides as follows; This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. This formulation expresses a core and fundamental principle of the Constitution. It can be properly seen as expressing an unamendable clause that forms one of the pillars and framework of the Constitution.
Article 25 provides for the specific rights and fundamental freedoms which cannot be limited. One of the rights listed is the Right to fair trial. It is crystal clear that the rights and freedoms -Bill of Rights- cannot be limited/altered whatsoever or at all and any attempt to do so will alter the constitutive genetic code of the Constitution.
Chapter 9 of the Constitution provides for the structure of the National Executive among others that relate to the executive. The composition of the executive forms part of the basic structure.
A read of Article 255 provides for certain values and principles as listed in Article 10 (2) that form part of basic structure one of them is sharing and devolution of power and any attempt to change that without the constituent power goes against the basic structure.
Still in the same vein, the doctrine of separation of powers that forms part of the basic structure in the event there is an attempt to reverse the pure presidential system of government by amending Chapter 9 on the executive will be discarded.
Chapter 10 of the Constitution provides for the established offices, appointment and tenure of office in the judiciary. Any attempt to change the structure of judiciary will be against the basic structure doctrine.
Article 160 provides that the judiciary shall not be subject to the control or direction of any person or authority this provision clearly falls under the basic structure and any attempt to introduce place the judiciary under control or supervision without following the proper channel will be an alteration to this doctrine.
How to determine what remains and what is subject to change is a huge perplexity.
This doctrine does not apply to shield the entire specific chapters of the Constitution from unamendability, but rather, to protect amendment of specific provisions to the Constitution, whose effect would either be to interfere with the basic structure or essential features of the Constitution.
Some of the proposed constitutional amendments are unconstitutional because they defy the Basic Structure of the Constitution as they attempt to take away the sovereignty of the People, alter pure presidential system, the basic structure of the executive, the concept of separation of powers and undermine the independence of the judiciary and independent commissions.
In closing, the Basic Structure can only be altered through the formation of a new Constitution by the people in the exercise of their Constituent Powers since the doctrine itself is founded on that constituent power.
Dissecting the BBI; The Good & The Bad.
Giving a history of how the BBI report came about is unnecessary as the story has already been told. Before I delve into the infamous BBI report, it is important to note that the report presumably such a serious document is badly written with quiet a number of errors and typos. For instance the very simple act of signing the document that takes less than a minute as seen in the letter dated 16th October, 2020 to the President Hon. Uhuru Kenyatta found within the report, says so much about the authors.
The report makes very good proposals that are really needed as will be discussed in this document and some proposals in all fairness are capable of being passed in parliament through simple legislation without necessarily amending the Constitution which also will be discussed herein.
Allow me to digress and briefly talk about our Constitution. Our 2010 Constitution is one of the most progressive chatters in the world and despite this, 10 years down the line, we have painfully found out that implementing it has been very challenging. According to Professor Makau Mutua, ours particularly lacks the elites backing, the basic cultural and normative legitimacy of the people. We literally haven’t fought and protected it as a nation. That is why we are here today. A Constitution without Constitutionalism?
Back to the BBI, as a nation we should ask ourselves can we afford it? BBI suggests to eliminate almost if not all the problems we are facing as a country miraculously; at zero cost. We should also ask ourselves is it inclusive as it purports? Are there enough tribes at the table? Who benefits most from it?
Let’s try to answer some of the questions and be your own judge.
BBI has a lot of “sweeteners” and or “incentives” that actually don’t need a referendum/the BBI for them to materialize. They are intentionally put there to get a good backing from the public.
1. The proposal to increase budgetary allocation to counties from 15% to 35%. I fully back this as it further strengthens devolution.
2. The Economic Proposals to be more specific;
a. The 7 year tax holiday for youth businesses.
b. The 4 year grace period for Higher Education Loans Board (HELB) loanees and the fact that graduates will be exempted from paying interest until they secure a job.
c. The establishment of incubation centers for businesses in every county to implement biashara mashinani concept.
d. The youth, women and persons living with disabilities being open to Government tenders and prompt payment (within 60 days).
3. The proposals to strengthen the Anti-Corruption laws. More specifically; the declaration of wealth by all public officials.
4. The 50-50 percent gender split at the Senate and the use of the mixed gender proportional representation to achieve the two-thirds gender rule.
The BBI report has several proposals that I don’t like. They include;
1. The return of the Imperial President. The President will be able to appoint and fire the Vice President, Prime Minister, Deputy Prime Ministers and Ministers. The President will appoint the PM and the 2 DPMs. The President will also appoint the Ministers directly without Parliament approving. In summary, the presidential powers are enhanced.
2. Increasing the Size of the Legislature and creating new Commissions- Parliament will have close to 700 members. We will have one of the largest Parliaments in the world almost relative to our GDP. The current wage bill is at Kshs. 80 Billion, we should be downsizing the wage bill instead of increasing it.
3. Compromising the Independence of the Judiciary- The President will appoint the Judiciary Ombudsman who will then be included in the Judicial Service Commission. The effect is it may give the President some if not all control on the discipline and removal of judges.
4. The appointment of 4 of the 7 IEBC Commissioners by representatives of parliamentary political parties- This basically means that the commissioners will not be independent as the political parties will have a majority in the number of commissioners recommended to the IEBC.
5. Forcing a Governor candidate to have a running mate of the opposite gender while exempting the presidential candidate from this rule. This in turn fails to actually see through the backbone of the BBI. If we can’t give the same unconditional treatment to our women in the top seat what picture does this portray?
6. Introducing a weak Senate- this will make it difficult to oversight on the executive. The fusion of the national assembly with the executive will also pose a challenge to devolution.
7. Introducing the tyranny of tribes- The 70 new virtual constituencies that will be introduced, will come from the most popular constituencies hence disadvantaging the minority communities. All the 70 MPS will have come from the most popular communities because of the fact that they have popular constituencies. A constituency can have even up to 2 MPS. Where is the inclusivity in this?
Unfortunately, the BBI report has proposed everything except what it should have proposed. What the BBI has done is to make recommendations that are mainly about positions. The inclusivity that it purports to introduce is not guaranteed.
What stops the President from electing the PM, DPMs of his/her choice that being from the same tribe and or community?
Hypothetically if Hon. William Ruto wins the 2022 elections and fails and or refuses to appoint Hon. Raila Odinga as PM what will happen? Will the BBI have accomplished its set out purpose?
The Constitutional amendment Bill of 2020 is very good for presidential candidates especially the front runners, the powers are so enticing that almost everyone will be eyeing that top seat. It also creates an unstable executive and expensive governance structure from which I strongly believe only the politicians will gain.
The BBI failed to address some important issues that i wanted it to address for instance;
1. The BBI report has failed to give a practical solution on how to deal with our crippling debt that is soaring to Kshs. 9 Trillion.
2. The BBI report has failed to provide bold and concrete ways of dealing with corruption.
3. The BBI report has also failed to come up with ways to reduce the Government expenditure; by doubling the number of members of parliament the report should have at least said it will revise the current salaries by half.
4. The BBI report has failed to introduce ways to sanction a president who will disobey the constitution and other laws despite the fact that it introduces an imperial and unaccountable president.
5. The BBI has failed to include all the communities. What it has done is it seeks to reward the 5 most popular communities and considers the remaining minority communities inconsequential and assumes the country will be inclusive.
6. The BBI has failed to address those that join politics for the money and not for public service. The BBI should have introduced actions that make the legislature very unattractive to foster good governance.
The only good/ what I like from the BBI are the unselfish proposals that will benefit everyone regardless of their ethnic community as discussed above. The rest are purely proposals that are based on the current situations and certain individuals in mind. It is safe to say the referendum is more about 2022 succession politics than the people’s issues.
I will fully endorse the BBI report and its accompanying bills subject to changes that I believe should be taken into account.
Lastly, from the numerous discussions I have held with my friends and acquaintances on the BBI report, I came to a conclusion that those who had not read but opposed the report were doing so purely on their political inclination. Take time and read the report don’t place reliance on the words of your political party leader.
Variation of Employment Terms and How to Mitigate its Negative Effects
In an employer – employee contract, just like in any other contract, parties are at liberty to amend, revise, change, vary and or enter into a new contract stipulating the new terms of service.
Section 10(5) of the Employment Act provides that for any changes of the terms of the contract of employment to be valid, the employer must in consultation with the employee revise the contract to reflect the change and notify the employee of the change in writing.
Fair labour practice dictates that the subject employee must be consulted and notified of the changes and the same put in writing contrary it would be in contravention of Article 41 (1) of the Constitution of Kenya 2010.
Any Institution and or company can therefore introduce and or implement the varied terms procedurally as hereunder;
i. Consulting/informing the employee (s) on the varied and or revised terms relating to the respective departments/offices.
ii. Issue a statement to the employee indicating change of employment terms, as relates to duration and or remuneration.
iii. Entering into a new/revised contract with the subject employees in reference to the letters of confirmation. This varied employment contract may provide that specific terms of the contract, for instance salary and capped/fixed term, would apply retrospectively as stated in commenced dates therein.
iv. The employee (s) must sign an acceptance form of the new contract or such document to signify acceptance of the new varied terms.
When will the varied terms commence/take effect? For the new varied terms of service to bind the employees, it would be required that each employee is consulted/informed and required to append his/her signature to a document stipulating and or introducing the varied terms as a sign of acceptance.
Unless otherwise expressly stated in the new varied contract of the employee, the commencement date of the varied terms of employment, including the new salary scale (or any other change (s)), shall be the date of acceptance of the varied terms, being the date of appending the signature.
I have deliberately used the phrase “unless otherwise expressly stated in the new contract letter” to mean that in the event the company intends that some clauses in the varied employment contract, such as salary, do have different effective dates, then nothing stops the company from inserting such a clause in the varied contract.
For avoidance of doubt, it is my respective view that unless specifically stated as such in the varied employment contract, the varied/new/revised/amended terms and conditions of employment contract, including salary, cannot be effected retrospectively.
Section 13 of the Employment Act also provides for change of initial employment particulars, and the employer is obligated to give the employee a statement indicating such change failure of which it would be an offence under Section 16 of the Employment Act.
On the other hand, an employee is at liberty to challenge and or complain of any provision that he/she finds detrimental as a result of such a change.
In the event that the employee does not agree to the new terms, what options can the employer pursue?
For these employee (s) contracts to be lawfully terminated, requires a valid reason(s) and accord the employee (s) a hearing prior to terminating their service.
In Walter Anuro vs Teachers Service Commission  eKLR the court observed that;
“… for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.”
The following scenarios may apply for their lawful termination from service;
i. For an indefinite employment contract, the proper procedure to terminate their contracts would be issuance of a proper notice according to the contract of employment or Section 35 (1)(c) and (2) of the Employment Act which provides for one calendar month notice period but still the company would be duty-bound to explain to the employees the reason(s) for their termination. In addition, they would be entitled to be heard and their representation, if any, considered before the decision to terminate their contract of service is made.
ii. In the event of a summary dismissal on the grounds of misconduct, poor performance or physical incapacity, the company would similarly be required to have a valid reason and accord the employee a hearing prior to termination.
iii. For a fixed term contract, the termination is by effluxion of time. This simply means that the contract of employment which was time bound came to an end by virtue of its own terms of duration (period of commencement and termination) as per Section 10 (3) (c) of the Employment Act.
From the above, the procedural steps stated shall assist in mitigating negative risks associated with the now heavily protected contract regime on matters employment.
NOTICE: This article is provided for information purposes only; it does not constitute legal service whatsoever or at all and should not be relied on as such. No responsibility for accuracy and or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter.
Loitering With Intent…
Loitering. There are many ridiculous offences under this. However, the full text of the charge that I am more inquisitive about is "Loitering with intent to commit a felony", which simply means a person has evil thoughts and is hoping for a chance to commit a crime. You can already sense the absurdity in this. Maybe you are one of those people with a stance, mien or even those strides that make passers by fear for dear lives? If so, I’m very sorry for you.
On a lighter note, how can you get off this derisory charge? But before that it is prudent to look at the proof - standard of proof- being beyond reasonable doubt. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge (Philip Muiruri Ndaruga v Republic  eKLR).
What this simply means is that the prosecution who has the burden of proof, should be certain with the evidence for lack of better terms it should be good enough (water tight)
Now let’s get into the substance of getting you off this charge of loitering with intent to commit a felony.
Fortunately, this is an arduous crime to prosecute. The main drawback I would say -for you being an advantage- with prosecuting this charge is that it requires the prosecutors to actually prove that you intended to commit a felony. Generally speaking, this means that you won’t be charged unless you were in certain circumstances that depict you were attempting to commit a felony.
For example, you were walking in a street/road that is known to have criminals or rather criminal activities do take place there, you are “dressed as a criminal” or even in a company of individuals that “appear” to be criminals, have criminal records or even hanging around a place and acting in a suspicious way this may be enough evidence for the prosecution to argue that you had intention of committing a felony.
Worry not this are mere circumstantial evidence (evidence based on inference and not on personal knowledge or observation) that can be fought with simple arguments. The thought behind this is, this type of evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another (Teper v R  AC).
The earlier mentioned instances are innocent circumstances. Each matter is unique and requires an individual approach and strategy. Your arguments are key to get you off this charge.
For instance you are arrested in town at night; alone or even in the company of your friends there are several defenses you could raise.
1. Demonstrate that you were not loitering- you were on a mission to accomplish something of importance.
2. You have a lawful reason for your conduct- cite an instance that will demonstrate/show that you had a lawful reason to conduct yourself the way you did.
3. Show that you had no intention to commit a crime- try to omit/eliminate the mens rea part of a crime.
Of course, many defenses to this crime can be negated by what you say to the police when you are arrested and that’s why you should exercise your right to remain silent and not to give self-incriminating evidence. Remember, it is not your burden to prove anything.
As they say in Latin, ex nihilo nihil fit (out of nothing comes nothing).