The Finality of Decisions of the Kenya Supreme Court in Deciding Presidential Election Disputes: A Review of the Advisory Opinion Issued by the Supreme Court in Reference No. E001 of 2022

The Supreme Court of Kenya (“the Court”) was established by Article 163 of the Constitution of Kenya and the Supreme Court Act, Cap 9, Law of Kenya.

The Court has exclusive original jurisdiction to:

1. Hear and determine disputes arising from presidential elections;
2. To issue an advisory opinion at the request of the national government, a State organ or a county government regarding a matter concerning the county government. An advisory opinion issued by the Supreme Court is binding just like other orders of the Court; and
3. To make determinations in a state of emergency touching on the validity of a declaration of a state of emergency, an extension of a declaration of a state of emergency or any legislation enacted or action taken in consequence of a declaration of a state of emergency.

The Court has appellate jurisdiction in the following instances:

1. By leave of the Court;
2. Appeals from the Court of Appeal as of right on interpretation of the Constitution;
3. Upon certification by the Court of Appeal on a matter of general public importance;
4. Upon certification by the Court on a matter of general public importance; and
5. Appeal by a Judge of the superior courts on a determination made by a tribunal on removal of the Judge from office.

 

Reference No. E001/2022

This was an application by the Hon. Attorney General on behalf of the national government seeking the Court’s advisory opinion on the following questions:

1. Whether decisions of the Court on Kenyan law may be subject to a merit review by the East Africa Court of Justice (EACJ)?
2. What would be the legal consequences upon the Government of Kenya and the sovereignty of the people of Kenya, of orders of the EACJ premised on a differing interpretation of Kenyan Law from that held by the Court?
3. The legal effect of a finding by the EACJ that a national court, including the Supreme Court, did not adhere to legal principles, including natural justice and the rule of law, in a case heard and determined by a Kenyan court including the Supreme Court.

 

Facts of the Reference

The Hon. Martha Karua and one Male H. Mabirizi, instituted cases at the EACJ arising from the decision of the Court in the 2022 Presidential Election Petition.

These cases were informed by a successful appeal by Hon. Karua regarding violation of her right to access justice in the 2017 gubernatorial elections for Kirinyaga County where she vied for the position of Governor.

Hon. Martha filed a Petition at the Kerugoya High Court contesting the gubernatorial election results and which the Court struck out resulting in an appeal to the Court of Appeal at Nyeri.

The Court of Appeal at Nyeri found no merit in the appeal including the claim of violation of Hon. Martha’s right to a fair trial by the Kerugoya High Court. The Nyeri Court of Appeal set aside the High Court finding that the Court had jurisdiction to hear and determine the election petition outside the statutorily prescribed time limits.

On appeal to the Court, it agreed with the Court of Appeal that the High Court determination was a nullity having been undertaken outside the prescribed statutory timelines and declined to consider any other issue for want of jurisdiction.

Having exhausted all domestic avenues, Hon. Martha filed a reference at the EACJ’s First Instance Division against the decision of the Kenya Supreme Court. The EACJ’s First Instance Division agreed with her that the Supreme Court’s interpretation was wrong and that Kenya had violated Hon. Martha’s right to access to justice. Further that Kenya had violated its commitment to the fundamental and operational principles of the EAC Treaty by not properly interpreting and giving effect to the Constitution of Kenya.

The Hon. Attorney General appealed the decision to the Appellate Division of the EACJ where the appeal was dismissed and the decision of the First Instance Division upheld.

In the instant Reference, the Hon. Attorney General contended that the decisions of the Court in exercise of its powers are final and not subject to further appeal, by the EACJ. The Hon. AG in persuading the Court relied on the decision of the EACJ in East African Civil Society Organisation Forum v The Attorney General of the Republic of Burundi & 2 Others Reference No. 2 of 2015 where the EACJ First Instance Division held that the EACJ has no jurisdiction to interpret the provisions of the Burundi Constitution or Arusha Peace Agreement for purposes of determining the correctness of the Burundi Constitutional Court’s decision and the EACJ can only properly execute its mandate by interpreting and applying the EAC Treaty.

In deciding the Reference, the Supreme Court found that:

1. The Constitution is the supreme law of Kenya as provided under its Article 2(1).
2. The Supreme Court decisions are binding on all other courts in Kenya and final and there is no dispute that they are not subject to further appeal in line with Article 163 (7) of the Constitution.
3. Article 2(5) of the Constitution provides that the general rules of international law shall form part of the law of Kenya.
4. Article 2(6) of the Constitution stipulates that any treaty or convention ratified by Kenya shall form part of the law of Kenya. The EAC Treaty forms part of the laws of Kenya that must be subservient to the Constitution.
5. Where there is any conflict on the hierarchy of the Kenyan courts and courts created by the EAC Treaty, the provisions of the Constitution shall take precedence over those of the Treaty.
6. International law, including treaty law, applies in Kenya and by extension to the organs of the State as long as they are not in conflict with the Constitution, local statutes and final judicial pronouncements.
7. The Kenya Constitution embodies the primacy of domestic laws and the subsidiarity of international laws where the principle of subsidiarity respects national sovereignty by recognizing that each State retains the ultimate authority over matters occurring within its territories.
8. There are no provisions in the Treaty establishing the EAC that confers upon the EACJ appellate jurisdiction over the member state apex courts’ judgments.
9. Kenya’s electoral laws and procedures squarely fall within the Kenya competency of its courts.
10. Judicial supra-nationality in a regional or international community is a precept that must be categorically provided in the Treaty to which member states have signified their consent.
11. The Kenya Constitution positions the Supreme Court as the apex court and a court of final judicial authority under its Article 163 (7). The Supreme Court referred to the decision of the ECOWAS Court in Moussa Leo Keita vs Republic of Mali ECW/CCJ/APP/03/07 where it held that: “Unlike other international courts of justice, such as the European Court of Human Rights, ECOWAS does not possess, among others, the competence to revise decisions made by the domestic courts of Member states. It is neither a court of appeal nor a court of cessation vis-a-viz the national courts.”
12. The jurisdiction of the EACJ is to ensure adherence to law in the interpretation, application of and compliance with the Treaty only.
13. The EACJ has in several of its decisions refrained from interfering with decisions of national courts like in:

• Dr. Mpozayo Christophe vs The Attorney General of the Republic of Rwanda Reference No. 10 of 2014 where is cited with approval the case of Ida Robinson Smith Putnam (USA) v United Mexican States, 1927, UNRIAA Vol. IV, p, 151 at 153 where it was held that:

“The Commission, following well established international precedents, has already asserted the respect that is due to the decisions of the highest courts of a civilized country. A question which has been passed on in courts of different jurisdiction by the local judges, subject to protective proceedings, must be presumed to have been fairly determined.”

 

• Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others Reference No. 1 of 2010 the EACJ stated that:

“In the circumstances, it is this Court’s finding that Article 27 of the Treaty does not confer appellate jurisdiction on the EACJ over the decision of the Supreme Court of Uganda in Election Petition Appeal No. 6 of 2009, Hon. Sitaenda Sebalu v Hon. Sam K. Njuba & Electoral Commission of Uganda.”

The Supreme Court, therefore, found that a differing decision of the EACJ amounting to merit review would have no legal consequence.

In conclusion, the Kenya Supreme Court found that the Constitution bestows upon it the final judicial authority to interpret and apply its provisions. Further that Kenyan courts and the EACJ do not have a vertical relationship to subject their decisions to review or appeal by the EACJ.

Please note this article is specifically on the finality of the decisions of the Kenya Supreme Court. It does not discuss all the issues determined by the Kenya Supreme Court in the Reference.

 

Conclusion

B M Musau & Co., Advocates LLP is a leading legal advisor on emerging trends and review on court decisions of general public importance especially on the interpretation of the Constitution. For specific legal concerns, clarifications or situations, please consult us on email via info@bmmusau.co.ke