The Basic Structure doctrine was enunciated by the Supreme court of India in one of its most important decisions ever, in the 1973 case of Kesavananda Bharati vs The State of Kerala.
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, 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 rationale of the decision was that an amendment which makes a change in the basic structure of the constitution is not really an amendment but is, in effect, tantamount to rewriting the constitution, which parliament has no power to do.
The court held that as the Supreme court of the land, it had a limited power to review and strike down amendments which went to the very heart and core of the constitution, by seeking to alter its basic structure.
In its wisdom, the court did not lay down a list of provisions it considered to constitute the basic structure.
Consequently, the claim of any particular feature of the constitution to be a “basic structure” is left to be determined by the court on a case by case basis.
The basic structure doctrine has since been upheld and relied on in subsequent decisions in that country, for example in Minerva Mills Ltd v. Union of India (1980) and Indira Nehru Gandhi v. Raj Narain (1975).
It has also been widely accepted, adopted and cited with approval in many other Commonwealth countries, or what we call common law jurisdictions, for example in Anwar Hossain Chowdhary v. Bangladesh (Supreme Court of Bangladesh, 1989), Phang Chin Hock v. Public Prosecutor (Federal Court of Malyasia, 1980), Si- varasa Rasiah v. Badan Peguam (Federal Court of Malaysia, 2010), Pakistani Lawyers’ Forum v. Federation of Pakistan (Supreme Court of Pakistan, 2005) and many others.
In the process, the courts have suggested various guidelines which can be relied on to determine whether an amendment touches the basic structure of a particular constitution and is therefore void.
Whether or not a provision is part of the basic structure varies from country to country, depending on each country’s peculiar circumstances, including its history, political challenges and national vision.
Importantly, the decisions I have cited show that in answering this important question, courts will consider factors such as the preamble to the constitution, national objectives and directive principles of state policy (in countries which have them in their constitutions, such as Uganda), the bill of rights, the history of the constitution that led to the given provision, and the likely consequences of the amendment.
It is very clear that in the case of Uganda, all the above factors being taken into consideration would lead to the inevitable conclusion that Article 102 (b) is part of the basic structure of our constitution, that its removal would strike at the very heart, core and essence of the constitution, and should only be amended with the direct involvement of the entire population, possibly through a constituent assembly.
The 1995 Constitution was en- acted against the historical reality that since independence, Uganda has never had a peaceful transfer of power, but was instead characterised by presidents hanging on to power by all sorts of stratagems until they are violently removed, including even a life president.
The amendment sets the stage for the very history the repetition of which the constitution was designed to forestall. The preamble to the Constitution captures the spirit behind the Constitution, that it was made to address a history “characterised by political and constitutional instability”.
The goal of ensuring stability is echoed in National Objective number III. Above all, the preamble declares that what was intended to be enacted was a constitution for “ourselves and our posterity”, in other words, a durable Constitution.
The amendment not only paves way for a fresh round of instability, it also wipes out the intended durability of the Constitution. To amend the Constitution, moreover, through the casual and frivolous route of a private member’s bill is to reduce it to an ordinary Act of Parliament.
You cannot do that and thereafter pretend that the Constitution is sacred. Indeed, the very idea summarised in Ms Evelyn Anite’s arrogant assertion, that they will amend it because they have the army, is the best proof of the low regard, verging on contempt, in which the Constitution is now held.
It is indeed a proclamation that the Constitution is not supreme, that it is the military that is supreme. The point is that removing Article 102 (b), especially having earlier removed term limits, basically wipes out the very purpose for which the constitution was enacted through an extremely elaborate and expensive process.
Since what would remain would not be any different form the 1967 Constitution, what was the purpose of making this Constitution?
Consequently, it is my submission that the amendment, both in intent and effect, undermines the basic structure of the 1995 Constitution, the very spirit that informed the enactment of the Constitution. The amendment is therefore void and, on that ground alone, it ought to fail.
Benson Tusasirwe, a lecturer at Makerere University’s school of Law, and PhD candidate, argues that the proposed constitutional amendment is void because it violates the ‘basic structure’ doctrine.
This follows veteran lawyer Peter Mulira’s much-debated opinion in which he made a legal case for Article 102(b) remaining intact.