Tragedy of an ornamental Supreme Court

“The Supreme Court’s only armour is the cloak of public trust; its sole ammunition, the collective hopes of our society” – Irving R. Kaufman


By Jane Wachira

Supreme Courts in various jurisdictions have been praised for their contribution to jurisprudence; their well reasoned decisions have formed precedence for developing legal systems. This can hardly be said of the Kenyan Supreme Court, which has earned the unenviable reputation of being more ceremonial and ornamental than it is functional. Why does it cast the image of an institution whose hands are tied? Is it because of its limited jurisdiction? Is it because of the wording of Article 163 of the Constitution that established it? Is it about the court’s rules? Is it that it is so young a court and thus not so many decisions emanate from it? Or is about the squabbles that have befallen it since its inception?

The Supreme Court of Kenya (SCOK) is established under Article 163 (1) of the Constitution. It is the highest court of the land. It is comprised of seven judges, including the Chief Justice. It has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of president arising under Article 140, appellate jurisdiction to hear and determine appeals from the Court of Appeal and court or tribunal as prescribed by national legislation. Such appeals include cases involving the interpretation or application of the Constitution or any other case the Court, or the Court of Appeal, certifies as a matter of general public importance. A certification by the Court of Appeal may be reviewed by the Supreme Court, and either affirmed, varied or overturned. Its other functions have been well captured.

Other Supreme Courts

The Supreme Court of the United States, sometimes colloquially known as SCOTUS, is the highest federal court in the US. It was established by Article III of the US Constitution in 1789. It has ultimate discretionary and appellate jurisdiction over all federal courts and over a small number of cases. It is the mandate of the president to nominate, under the advice of Congress, and appoint judges of the Court. Justices hold their offices “during good behaviour”, which means they may serve for the remainder of their lives unless they are impeached and convicted by Congress. Almost all cases that go before the Supreme Court are by way of petitions for writs of certiorari. The Court may only review final judgments rendered by the highest court of a state in which a decision could be had if those judgments involve a question of federal statutory or constitutional law. Cases are decided by majority vote of the justices.

SCOTUS has ruled on various matters, inter alia, individual rights; discrimination based on race and ethnicity, sex, sexual orientation, birth control and abortion, end of life, and the power of Congress to enforce civil rights; criminal law; unlawful searches and seizures, right to an attorney, right to remain silent, detainment of terrorism suspects and capital punishment; First Amendment rights, including freedom of speech and expression, freedom of religion, freedom of association and freedom of petition. Remarkable cases include “Brown v Board of education” (1954), where segregated schools were held to be unconstitutional as they violated the Equal Protection Clause of the 14th Amendment; “Marbury v Madison” (1803), which established the doctrine of judicial review; and “US v Nixon” where it held that the President is not above the law. The most recent significant decision is the 2015 ruling that legalised gay marriages.

According to statistics, in twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22 pc) were decided by a 5-4 vote, with an average of 70pc of those split opinions decided by a court divided along traditionally perceived ideological lines. In the October 2010 term, the court decided 86 cases, including 75 signed opinions and 5 summary reversals.

Until October 1 2009, the House of Lords held judicial functions and served as the court of last resort in UK law. This role has since been scrapped following the establishment of the Supreme Court of the United Kingdom. Its judicial functions were exercised by Law Lords. Its jurisdiction extended to civil and criminal matters.

Landmark cases emanating from the House of Lords include “Ryland vs Fletcher”, which established the strict liability rule for escape of materials from land; “Donohue v Stevenson”, which is the locus classicus case in the tort of negligence. It established the elements that constitute a tort of negligence; “Amin Rasheed Shipping Corp v Kuwait Insurance Co” on the choice of law in contract where there’s a conflict of laws; and “Dunlop Pneumatic Tyre v Selfridge and Co. Ltd” on privity of contracts among others. These cases, and many others, have since become a source of law for commonwealth countries and are referred to as precedence.

Another well performing Supreme Court is that of India. Landmark rulings emanating from it include “Om Prakash vs Dil Bahar” (2006), where the court held that a rape accused could now be convicted on the sole evidence of the victim, even if medical evidence did not prove rape. The ruling meant that escape for rapists became more difficult as the victim was no longer treated as an accomplice to the crime, and her statement would be relied upon without corroboration. In the widely known Nirbhaya Case (2012) where a girl had been gang-raped on a bus and an iron rod shoved into her genitalia (she later succumbed to her injuries), the four adult suspects received the death sentence. Further, the new definition of rape was amended to go beyond penile-vaginal intercourse to include penetration of any orifice of the woman with any part of the woman or man’s body or with any object.

In “Nota” (2013), the Supreme Court recognised the right to a negative vote for the electorate in the country. The voters now have a “none of the above” option if they don’t feel that the candidates deserve a vote. The “Tamil Nadu vs Suhas Katti (2004)”, which was first case involving conviction under the Information Technology Act 2000, related to the posting of obscene and defamatory messages on the Internet.

Landmark rulings and judgments’ by South Africa’s Supreme Court of Appeal include orders to the South African police to investigate crimes against humanity in Zimbabwe. This ruling in 2014 saw South Africa dubbed the new United Nations due to its contribution to international criminal justice. In March 2016, the Court dismissed a government appeal declaring the decision not to arrest Omar al Bashir as being inconsistent with South African law. When Bashir entered South Africa in June 2015 for an African Union summit, the SA Litigation Centre approached the High Court for an order that government enforce an International Criminal Court (ICC) arrest warrant on him; the Court in Pretoria ordered the government to arrest Bashir and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.

In the Oscar Pistorius case, the SCA overturned the lower court’s verdict of culpable homicide and found him guilty of murder. That verdict reaffirmed the importance of circumstantial evidence.

Kenyan scenario

The aforementioned Supreme Courts exhibit instances of high jurisprudential value. Precedents emanating from the House of Lords have become a source of law for common law jurisdictions, and cases have shaped the legal system of a state. The same can hardly be said of our Supreme Court. The highest numbers of cases handled are election petitions, while the rest have been applications which have been dismissed due to lack of jurisdiction at the highest court.

The most significant decision emanating from the court is Petition No. 5 of 2013 – the controversial presidential election petition – where it disallowed the petition and upheld the Presidential election results as declared by IEBC on March 9, 2013. In the TSC appeal from the Court of Appeal, the Supreme Court, led by Judge Smokin Wanjala, came to a decision that by legal norms, jurisdiction ought to preserve the substratum of an appeal. He concluded that the Supreme Court did not have jurisdiction over the matter, and that the orders of the Court of Appeal sufficed.

It has given advisory opinions regarding the conflict of roles of the National Land Commission and the Ministry of Lands, and on the death penalty. Its most recent decision regards the retirement age of judges which directly affected formed Deputy Chief Justice Kalpana Rawal and Justice Phillip Tunoi. The Court confirmed the Court of Appeal ruling that judges retire at 70 years.

The Hermanus Steyn Test

The Hermanus Steyn test sets out principles for determining whether a matter is of public importance thus: (i) the intending appellant must satisfy the court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case; (ii) where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;  (iii) such question or questions of law must have arisen in the court(s), and must have been the subject of judicial determination; (iv) where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; (v) mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court, and the matter to be certified for a final appeal in the Supreme Court must still fall within the terms of Article 163 (4)(b) of the Constitution; (vi) the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance”.

A court in crisis

The integrity, impartiality and independence of the Supreme Court of Kenya have been questioned severally by lay citizens and scholars alike. It has been dubbed “a court in crisis”.

The integrity of its key actors has regularly been questioned – from first DCJ Nancy Barasa, who was dismissed for assaulting a guard in an upmarket mall in Nairobi; former Chief Registrar Gladys Shollei, dismissed over gross misconduct and misappropriation of public funds; Justice Tunoi, who allegedly received a Sh200 million bribe; Justice Rawal, who was linked to the Panama Papers dossier; and Justice Ndung’u, who is being probed on allegations of misconduct.


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