The Supreme Court on Friday, May 31, ruled that decisions made by the country’s apex court could not be overturned by the East African Court of Justice (EACJ).
This followed an advisory opinion sought by Attorney General Justin Muturi on behalf of the National Government on whether the decisions by the Supreme Court on Kenyan law may be subject to a merit review by the EACJ.
Muturi, in his submission, further sought what would be the legal consequences upon the Government of Kenya and the sovereignty of the people of Kenya if orders of the EACJ premised on a differing interpretation of the Kenyan Law from that held by the Supreme Court.
The advisory opinion was preceded by Azimio Principal Martha Karua filing a case at EACJ following her loss of the Kirinyaga gubernatorial seat in the 2017 general election.
This was after she had lost her petition to overturn Governor Anne Waiguru's win at the apex court who was elected on a Jubilee Party ticket.
“The AG in this matter raised questions regarding the jurisdiction of the EACJ to conduct a merit review of the decisions of this Court and the effect of such review. This Court acknowledges the supremacy of the Constitution of Kenya but with respect for Kenya’s regional and international obligations subject to the Constitution,” the Supreme Court ruling read in part.
“The Constitution also entrenches its own supremacy meaning that, while international law is a source of law in our constitutional set-up by dint of Article 2(5) thereof, it cannot be applied in a manner as to upstage clear normative and procedural prescriptions of the Constitution.”
As such, the Supreme Court found that the Kenyan Constitution bestowed the court the final judicial authority in regard to the interpretation and application of its provisions.
The Supreme Court further ruled that domestic courts and regional courts did not have a vertical relationship.
This was interpreted to mean that the decisions of the Supreme Court were not subject to appeal at the EACJ.
“The EACJ also does not have a merit review jurisdiction over decisions of the Supreme Court. We so find,” the Supreme Court ruled.
The Supreme Court refrained from making orders as to whom would bear costs.
Disagreeing with the ruling, Martha Karua stated, "The Supreme Court in this case acted as judges in their own cause and gave a convenient advisory that is supposed to protect them from accountability, otherwise why would they purport to interpret East African Community treaty which is solely the preserve of EACJ."
