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SUPREME COURT OF KENYA: PRESS SUMMARY ON AN APPLICATION FOR THE COURT’S ADVISORY OPINION ON THE DATE OF THE NEXT GENERAL ELECTION

SUPREME COURT OF KENYA

In the Matter of Advisory Opinions of the Court under Article 163(3) of the Constitution –and- In the matter of Section 21(2) of the Sixth Schedule of the Constitution –and- in the matter of the Interim Independent Electoral Commission As the Applicant.

Case No: S.C.Const.App 2/11

Date of Hearing: 15th November 2011

PRESS SUMMARY

This is not a copy of the certified ruling. The following explanatory note is provided to assist the media in reporting this case and is not binding on the Supreme Court or any member of the Court.

On 15th November, the Supreme Court heard a preliminary objection with regard to an application filed before it, which was seeking an advisory opinion as to the date of the next general election.

During oral arguments and in written submissions by counsel and amicus curiae, several issues were raised and the questions put have been addressed by the Supreme Court as follows:

1) Does the Supreme Court have jurisdiction to hear matters that require constitutional interpretation?

The High Court is entrusted with the mandate to interpret the Constitution. This empowerment by itself, however, does not confer upon the High Court an exclusive jurisdiction. Both the Court of Appeal and the Supreme Court are equally empowered to interpret the Constitution, certainly in respect of matters resolved at first instance by the High Court. The Advisory-Opinion jurisdiction is exclusively entrusted to the Supreme Court, and the Constitution does not provide that this Court when giving an opinion may not interpret the Constitution. The Supreme Court, therefore, may undertake any necessary interpretation of the Constitution.

2) Does the applicant have legal standing to seek an advisory opinion?

To whom may such Advisory Opinion be given under the Constitution?  (i) The national government; (ii) any State organ; and (iii) any county government. Does the applicant, the Interim Independent Electoral Commission, fall in that category? Yes, if it is a “State organ,” a term defined in Article 260 of the Constitution as: “a commission, office, agency, or other body established under the Constitution.” It is clear to us that the applicant is a “State organ” under the Constitution and indeed has the capacity to seek the Supreme Court’s Advisory Opinion by virtue of Article 163(6).

3) In what instances and to whom may the Supreme Court render an advisory opinion?

With the benefit of the submissions and of comparative assessments, we wish to set out certain guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction.

(i) For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): The question as to whether a matter is one falling under this Article will be determined by the Court on a case-by-case basis.

(ii) The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.

(iii) The Court will be hesitant to give an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may do so if satisfied that it is in the public interest.

(iv) Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion and that the matter in question would not be amenable to expeditious resolution through adversarial Court process.

Applications seeking Advisory Opinion shall be resolved depending on the merits of each case. In view of the practical and legal constraints regarding Advisory Opinions, this Court will exercise that jurisdiction with appropriate restraint.

4) Can the Supreme Court render an advisory opinion in this particular matter, which is the subject of elections, as matter that relates to county governments?

On the question whether election date is a matter of “county government”, we have taken a broader view of the institutional arrangements under the Constitution as a whole; and it is clear to us that an interdependence of national and county governments is provided for – through a devolution-model that rests upon a unitary, rather than a federal system of government. Certain crucial governance functions at both the national and county level – such as finance, budget and planning, public service, land ownership and management, elections, administration of justice – operate in unity. We hold that election date is a question so central to county government, as to lie within the jurisdiction of this Court.

5) Should the applicant first have sought the schemes of remedy available within the ambit of the Executive, in this case, the advice of the Attorney-General?

It is a matter of which we take judicial notice that the real purpose of the “independence clause”, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government.  Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual.  The Constitution established the several independent Commissions, alongside the Judicial Branch, entrusting to them special governance-mandates of critical importance in the new dispensation; they are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation. The several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences, fear or favour:  this, indeed, is the purpose of the “independence clause”.

While bearing in mind that the various Commissions and independent offices are required to function free of subjection to “direction or control by any person or authority”, we hold that this expression is to be accorded its ordinary and natural meaning; and it means that the Commissions and independent offices, in carrying out their functions, are not to take orders or instructions from organs or persons outside their ambit. These Commissions or independent offices must, however, operate within the terms of the Constitution and the law: the “independence clause” does not accord them carte blanche to act or conduct themselves on whim; their independence is, by design, configured to the execution of their mandate, and performance of their functions as prescribed in the Constitution and the law. For due operation in the matrix, “independence” does not mean “detachment”, “isolation” or “disengagement” from other players in public governance.  Indeed, for practical purposes, an independent Commission will often find it necessary to co-ordinate and harmonize its activities with those of other institutions of government, or other Commissions, so as to maximize results, in the public interest. Constant consultation and co-ordination with other organs of government, and with civil society as may be necessary, will ensure a seamless, and an efficient and effective rendering of service to the people in whose name the Constitution has instituted the safeguards in question.  The moral of this recognition is that Commissions and independent offices are not to plead “independence” as an end in itself; for public-governance tasks are apt to be severely strained by possible “clashes of independences”.

It is our opinion that, seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, does not compromise the independence of a State organ in any way, nor does it vest a veto power in that office.  Advice from the office of the Attorney-General is not necessarily binding, for the purpose of this Court, but the fact that such advice was sought in the first place, will demonstrate the applicant’s commitment, as well as fidelity to due process.

6) What is the effect of an advisory opinion from the Supreme Court?

The Supreme Court’s decisions in this domain may significantly touch on legal, policy, political, social and economic situations. On this account, it is inappropriate that the Supreme Court’s Advisory Opinion should be sought as mere advice.  Where a government or State organ makes a request for an Opinion, it is to be supposed that such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and to enable it to act in accordance with the law.  If the applicant were not to be bound in this way, then it would be seeking an Opinion merely in the hope that the Court would endorse its position and, otherwise, the applicant would consider itself free to disregard the Opinion. This is not fair, and cannot be right. Such an advisory opinion is binding as much as any other decision of the Supreme Court.

7) What is the finding of the Supreme Court in this particular preliminary objection?

Notwithstanding that the Supreme Court, indeed, has the jurisdiction to hear the reference application, we uphold the preliminary objection, and decline to give an Advisory Opinion on the date of the next general election. The High Court shall proceed, on the basis of priority, to hear and determine the several petitions pending before it, in which the issue as to the date of the next general election has been raised in substantive pleadings.

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