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‘Basic Structure’ a hot name for new babies – Justice William Ouko

Justice William Ouko. [David Njaaga, Standard]

Today's ruling on the Building Bridges Initiative appeal at the Supreme Court of Kenya may have been bland and weaved in legalese but was served with a dash of eloquence and a squirt of humour.

Leading the bench, comprised of Chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, in breaking up the monotony of the hours-long reading with a dose of humour was Justice William Ouko.

Ouko, while making his ruling in which he dismissed the ground that the BBI process was initiated by Dagoretti South MP Denis Waweru and his Suna East counterpart Junet Muhammed, relieved the tension with a joke on Basic Structure, saying children born after the ruling may soon be named after the doctrine that, some argue, protects foundational structure and values of the Constitution.

According to Ouko, the term ‘Basic Structure’ has become a household name since the BBI side made a spirited fightback to salvage the amendment through a legal battle at the High Court and Court of Appeal, where one of the major points of contention revolved around the question whether the doctrine is applicable to Kenya.

Ouko said Kenyans are unique in their naming traditions and that the chance that a baby, somewhere in the republic, would be named after the doctrine was not lost to him, considering that in the ’70s, children in India were named after Kesavananda Bharati, a Hindu monk who won a landmark case on the basic structure.

The ruling was made in favour of Kesavananda in 1973 by the county’s Supreme Court affirming that the basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment.

In contrast, however, Ouko ruled that despite the case helping define basic structure across the world, Kenya's 2010 Constitution is self-regulating and is not subject to an implied limitation.

“In interpreting the Constitution, Courts must provide pragmatic solutions without adding confusion to the controversy that the parties have brought to them for resolution. Amending the constitution is not a light matter,” said Justice Ouko.

A position held by CJ Koome, who also ruled that the High Court and Court of Appeal erred by finding a fourth Judiciary-created pathway for amending the Constitution.

"In order to amend the Constitution of Kenya 2010, the four sequential steps are not necessary,” said Koome.

Closer home, names that ring a bell as reminders of defining historical moments include babies named after former US President Barack Obama, who ignited euphoric scenes in 2006 when he visited Kog'elo while serving as Senator and in 2008 after clinching the presidency. 

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021