By Austin Ekesa
In December 2020, I wrote an article in this magazine titled, “CJ Maraga: As profound as he was polarizing.” In it, I explained how Maraga’s judgements on constitutional matters, while groundbreaking, posed serious political ramifications. I also defended the former CJ from his critics who continuously deposed that he was unprepared for the jurisprudential rigour expected of an apex court justice, riding on the fact that Maraga did not “care” about the oncoming ramifications of his judicial pronouncements on the country and was therefore “weak”. In my defense of the former CJ, I pointed out that he was a jurist driven by deep belief in his chosen legal philosophy — originalism.
In this article, I argue that the recent BBI judgement delivered by a five-judge bench of the High Court, particularly on the applicability of basic structure doctrine in Kenya, confirms that the Court relied on originalism in concluding that the Basic Structure Doctrine applies to Kenya, and why it’ll be difficult for the appellants (the Government) to convince the Court of Appeal otherwise.
The Theory of Originalism
Originalism is a theory of constitutional interpretation that advances the argument that the text of a document ought to be understood in the sense in which the framer or author of such text intended it to mean. In the constitutional law sphere, the theory means that various provisions of the constitution must be construed and interpreted so as to discover the true meaning that was given to them by the framers of the constitution.
As an approach to constitutional interpretation, originalism enjoyed its greatest prominence in the 1980s in United States of America with figures such as Attorney General Edwin Meese, Judge Robert Bork, (whom Senate failed to confirm as a Supreme Court Judge in 1982 owing to his legal philosophy) and late Supreme Court judge Antonin Scalia as high-profile advocates for Originalism.
The key role of the Judiciary is to interpret the text in the constitution. If viewed through the lens of originalism, it would require judges to “discover the literal intention of the framers”. Judges who subscribe to the originalist school are not allowed to interpret the text in a manner where various political, social and other consequential factors govern the such interpretation. The sole consideration, according to Originalism, is finding the ‘original meaning’ intended by the drafters of our constitution.
Application of Basic Structure Doctrine by Kenyan Courts
Our courts have been cautious not to apply this doctrine in a rash and undirected manner; yet, some quarters have accused our courts, more so the High Court, of being “extremely careless and irresponsible” in performing its role.
The Learned Lenaola J. (as he then was) in the case of the Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 others  eKLR, pointed out that, “The basic structure of the Constitution, which is commonly known as the architecture and design of the Constitution, ensures that the Constitution possesses an internal consistency, deriving from certain unalterable constitutional values and principles.”
In 2021, the five-judge bench, having closely considered Kenya’s constitutional text, structure and nature to add on our history as a nation, could only conclude that it was indeed the intention of Kenyans to protect the Basic Structure of the Constitution from destruction through gradual amendment.
The evolution of basic structure doctrine has been central to the development of the power of judicial review in leading democracies such as India and Germany. And so it is for Kenya at its present state, particularly with an Executive and Legislature bent on circumventing the rule of law.
That said, there are those who argue that through ‘basic structure’, our courts have amassed the power of “constitutional judicial review” not presently available to them. Many are concerned that ‘basic structure’ is nothing more than a vulgar display of usurpation of constitutional power by courts. These critics label such ‘usurpation’ anti-democratic in nature and an abuse of sacred constitutional framework.
Justification of Originalism
The beauty of Originalism is that it does establish a historical criterion that is conceptually, to an extent, separate from the preference of the judge himself; admittedly, the historical anchoring is at times difficult and often inconclusive as has been pointed out by those opposed to the applicability of the basic structure doctrine in Kenya.
Nevertheless, such inconclusiveness does not in any way negate the fact that Originalism leads to a more moderate rather than a more extreme outcome. What’s more, the version of Originalism applied by the court in the BBI judgment exhibits a sense of compromise as opposed to a scenario where the judges might have decided the matter on the basis of what they would like the law to be.
I end this article with the words of Professor Jack Balkins, a Constitutional Law at Yale Law School: “Constitutional interpretation by judges requires fidelity to the Constitution. Fidelity to the Constitution means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.”