Jolly Lanji and Kevin Motaroki
Kenya’s Supreme Court is established under Article 163 of the Constitution. It has exclusive and original jurisdiction to hear and determine disputes related to the elections to the office of the president [Article 162 (3)], appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation, and to give advisory opinion at the request of the national government, any State organ or county government with respect to matters concerning county governments.
Further, the Constitution is clear that decisions made by the court are binding and set precedent for all other courts in the country [Article 163(7)].
The Constitution sets out very clearly the mandate and functions of the Supreme Court, and one would expect that an organ with such specific functions – in a nascent democracy such as ours, and in the context of the ‘rebirth’ alluded to during promulgation – would exercise fidelity to its roles, to establish and entrench its jurisdiction, as well as distinguish the position given it at the apex of the Judiciary.
To the contrary, however, the Court seems to have embarked on a mission to usurp specific powers set apart for the other courts by arbitrarily giving pronouncements on different issues referred to and before it, as well as covertly declaring itself the highest court in the land. In the latest case pitting the TSC against its teachers, however, it did well to refer the matter back to the Court of Appeal, where it should rightly have been concluded.
Yes, the Supreme Court is the highest court in the land by virtue of the fact that its President is the Chief Justice himself, and that it is the court of last resort with regard to appeals of the courts subordinate to it. But the Constitution also assigns different roles for each of the superior courts, and provides for explicit superiority in a number of matters.
It is on account of this that questions have been raised about the relevance of the Court. In a paper titled “The Limits of Prescriptive Reforms: The Struggle and Challenges of Judicial Reforms In Kenya, 2002 to 2010”, presented by Senior Counsel Ahmednasir Abdullahi during a judges colloquium in Mombasa last month, the lawyer raises several questions: Has the Supreme Court added any jurisprudential value since its establishment? Has it upheld its mandate?
While it would be unfair to claim that each and every decision passed by the court is wrong or misguided, it is meet to point out that a number of decisions made by the Court can be said to be unprecedented or contradictory.
One, the Supreme Court exists to enforce the Constitution. Discourse by different legal scholars has it that the court utterly failed to enforce the Constitution contrary to majoritarian expectations of society during the election petition of 2013, citing a number issues in the judgment, such as the failure to rule on the “ever fluid” totals in multiple voter registers. The Court received more backlash for the use of dissenting legal precedents, acceptance of technological failures and use of subsidiary legislation to limit the meaning of “votes cast”, an otherwise unambiguous phrase in the Constitution. At the time, some lawyers even complained that the Court used the limited time frame for filing, hearing and determining the petition as an excuse to block critical affidavits submitted by the petitioner.
While this is now water under the bridge, it goes on to demonstrate that the Court began blundering right from the time it gave it first landmark judgment. It is this first instance that made actors in the legal fraternity comment that the Court – despite its esteemed bench – had a long way to go to distinguish itself as both “authoritative” and “valuable”.
Two, in February this year, National Assembly Speaker Justin Muturi lashed out at the Supreme Court when it gave Parliament up to last month (August) to pass a law that would implement the one third gender rule. Muturi was of the opinion that since the Court itself had failed to observe the gender principle in the way it is constituted, it was in no position to dictate to the House, and by extension government, regarding the matter. Of the Court’s seven judges, only two are women. This could be looked at as a case of preaching water and drinking wine.
Three, under Article 167(1) of the Constitution, a judge shall retire from office on attaining the age of seventy. This has been perhaps the Court’s biggest undoing, as it speaks to the inability the judges themselves to obey the law as it is laid down.
This law is not ambiguous. Justice Philip Tunoi was set to retire in 2014 after attaining the mandatory retirement age of 70. But, in total disregard of the law, he sought orders from the Court of Appeal barring the Judicial Service Commission from retiring him on grounds that the repealed Constitution, under which he was employed, set the retirement age at 74. Justice Tunoi’s continued sitting at the Supreme Court raises the question of the Court’s legality and legitimacy, owing to the fact that any decision to which he is party ought not, for all purposes and intents, to be considered to be as a decision of the Supreme Court.
Four, the Court has also failed to interpret the Constitution appropriately, and decisions reached by the court are characterised by the vague and ambiguous interpretations of the law. Despite significant investment on resources to establish guiding principles in constitutional interpretation, the court still lacks efficient and method-proven skills to clearly interpret the law in a manner that assures and persuades the general public.
In The Speaker of the Senate & Another v Attorney General & 4 others eKLR the Chief Justice states: “The Supreme Court of Kenya, in the exercise of powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognisable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the court must be seized upon as an opportunity to provide high yielding interpretive guidance on the Constitution, and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its content.”
But many of the decisions by the Court, it is argued, can hardly be said to be illuminating.
In his paper, Abdullahi further submits that the interpretative tool used by the Kenyan Supreme Court is different from the usual methods of constitutional interpretation. This according to him is called “interpretative strategies”.
Citing David Feldman, in “Factors Affecting the Choice of Techniques of Constitutional Interpretation”, who posits that “interpretive strategies operate at a higher normative level than methods of interpretation; an interpretive strategy is goal-directed, allowing the interpreter to decide the kinds of outcome that are generally most favored in the constitutional structure”, the lawyer argues that once an issue arise in interpreting the law, there will be issues on jurisdiction as well. Each one of these flaws is the result of poor management structures at the Court.
The limitations in the Supreme Court’s urisdiction is clearly spelt out in Article 163 of the Constitution; however, the court has managed to expand its jurisdiction, chewing more than it can swallow, gradually building up a backlog in the hearing of appeals and cases.
For example, in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others, which was delayed and subsequently died a natural death because Matemu left office before the Court could clearly decide whether he was competent to be the Ethics and Anti- Corruption Commission chairperson.
The jurisdiction of this court is quite narrow but it has heard numerous cases, which are outside its scope, such as Deynes Murithi and 4 others v. The Law Society Of Kenya and Another, where the Court stayed an order of the Court of Appeal staying an order of the High Court on the basis that weighty constitutional issues had been raised; this, it was argued, was not a legitimate reason to invite the intervention of the Supreme Court.
The role of the Supreme Court needs to be clearly defined. Its perceived failure stems from the lack of a clear articulation and recognition of its proper role, which implies that the jurisprudential value of its decisions may not be fully felt or realised.
Additionally, steps must be taken to ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards, so that the question of whether the Supreme Court discharges its mandate in accordance with the law does not arise.^
Jolly Lanji and Kevin Motaroki