Constitutional Application 2 of 2011

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In the Matter of Interim Independent Electoral Commission [2011] eKLR

Case Metadata

Case Number:

Constitutional Application 2 of 2011

Parties:

In the Matter of Interim Independent Electoral Commission

Date Delivered:

15 Nov 2011

Case Class:

Civil

Court:

Supreme Court of Kenya

Case Action:

Order

Judge(s):

Philip Kiptoo Tunoi, Jackton Boma Ojwang, Willy Munywoki Mutunga

Citation:

In the Matter of Interim Independent Electoral Commission [2011] eKLR

Case Summary:

Guiding principles in issuing Advisory opinions

By Njeri Githang’a

Advisory opinions –supreme courts advisory opinion- jurisdiction of the Supreme Court to issue an advisory opinion-guiding principles.

Issues:

Nature of the jurisdiction of the High Court in determining a justiciable matter when seen in parallel with the invocation of the Supreme Court’s Advisory Opinion jurisdiction;
Situations in which the Constitution authorizes the giving of an Advisory Opinion;
Practical considerations that should guide the Court’s decision to render an Advisory Opinion.

Held:

1. The Supreme Court was guided by the following principles;

a) The High Court was, by Article 165(3)(d) of the Constitution, entrusted with the original jurisdiction to hear and determine any question entailing the interpretation of the Constitution;

b) It was the obligation of the Supreme Court, as the ultimate interpreter of the Constitution, to protect and reinforce the conferment of first-instance jurisdiction upon the High Court;

c) The Supreme Court had provided in its Rules that those organs entitled to seek an Advisory Opinion, were to exhaust their internal recourses before seeking an Opinion;

d) Subject to the principles above, the Supreme Court would exercise its discretion appropriately, on a case-to-case basis, in accepting requests for an Advisory Opinion.

Advisory Opinion on the next general election declined; reasons, to be set out in a Ruling upon notice.

Swahili Summary:

Kanuni ongozi katika kutoa maoni ya Ushauri

Masuala:

Asili ya mamlaka ya Mahakama Kuu katika kuamua suala linalostahili kuwa kesi wakati linapoangaliwa sambamba na matumizi ya mamlaka ya Maoni ya Ushauri wa Mahakama ya Juu Zaidi;
Hali ambazo Katiba inaidhinisha ule otoaji wa Maoni ya Ushauri;
Utiliaji maanani wa kimatendo ambao unafaa kuongoza uamuzi wa Mahakama katika kutoa Maoni ya Ushauri.

Uamuzi:

Mahakama ya Juu Zaidi iliongozwa na kanuni zifuatazo;
1. Mahakama Kuu ilikuwa, kulingana na Kifungu cha 165(3)(d) cha Katiba, imekabidhiwa mamlaka asilia ya kusikiliza na kuamua swali lolote linalohusu ufasiri wa Katiba;
2. Ni wajibu wa Mahakama ya Juu Zaidi, kama mfasiri mkuu wa Katiba, kulinda na kutilia mkazo majadiliano ya mamlaka ya tukio la kwanza katika Mahakama Kuu;
3. Mahakama ya Juu Zaidi ilielezea katika Masharti yake kwamba vile vyombo ambavyo vimewajibishwa kutafuta Maoni ya Ushauri, vilifaa kutumia mikondo yao ya ndani kwa ndani kabla ya kutafuta Maoni;
4. Kwa mujibu wa kanuni zilizotajwa hapo juu, Mahakama ya Juu Zaidi ingeonyesha uhuru wake wa uamuzi ifaavyo, kwa misingi ya kesi-baada ya-kesi katika kukubali maombi ya Moani ya Ushauri.

Maoni ya Ushauri katika uchaguzi mkuu ujao yamekataliwa; sababu kuwekwa wazi, katika Uamuzi pindi arifa itakapotoka.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

AT NAIROBI

(Coram: W.M. MUTUNGA, CJ; NANCY BARAZA, DCJ; TUNOI, IBRAHIM, OJWANG, WANJALA & NDUNG’U, SCJJ)

CONSTITUTIONAL APPLICATION NO. 2 OF 2011

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

ORDERS

The implementation process of the Constitution of Kenya, 2010 has given rise to several motions in Court, beginning with a Petition in the High Court, of 19^th April, 2011, by which the petitioners sought a declaration that the next general election for President, National Assembly, Senate, County Assemblies and County Governors “shall be held at the same time, on the second Tuesday of August, 2012” [Constitutional Petition No. 65 of 2011]; followed by an application, the Notice of Motion of 28^th April, 2011 in the Supreme Court [Constitutional Application No. 2 of 2011] seeking the Supreme Court’s Advisory Opinion interpreting Articles 101(1), 136(2)(a), 177(1)(a) and 180(1) of the Constitution, and Clause 9(1) of the Sixth Schedule to the Constitution, and further seeking a determination of the election date.

What has come up for consideration today is a Preliminary Objection to the application. We have no doubt that the subject-matter of the application is an important and urgent one, and, to set the stage for further progress in that regard, we will today determine the Preliminary Objection, while reserving our reasons to a later date, upon notice.

Upon reading the application and attendant affidavits, as well as the written submissions, and upon hearing the oral submissions by learned counsel, we have focused our attention firstly, on the nature of the jurisdiction of the High Court in determining a justiciable matter when seen in parallel with the invocation of the Supreme Court’s Advisory Opinion jurisdiction; secondly, on the situations in which the Constitution authorizes the giving of an Advisory Opinion; and thirdly, on the practical considerations that should guide the Court’s decision to render an Advisory Opinion.

We will be guided by certain principles which have clearly emerged from the submissions: the High Court is, by Article 165(3)(d) of the Constitution, entrusted with the original jurisdiction to hear and determine any question entailing the interpretation of the Constitution; it is the obligation of the Supreme Court, as the ultimate interpreter of the Constitution, to protect and reinforce the conferment of first-instance jurisdiction upon the High Court; the Supreme Court has provided in its Rules that those organs entitled to seek an Advisory Opinion, are to exhaust their internal recourses before seeking an Opinion; subject to those principles, the Supreme Court will exercise its discretion appropriately, on a case-to-case basis, in accepting requests for an Advisory Opinion.

We hereby Order and direct as follows:

(1)We decline to give our Advisory Opinion on the next general election.

(2)We reserve the reasons, to be set out in a Ruling upon notice.

(3)Responding to the High Court’s request, of 13^th October, 2011 for directions, the matter herein shall be placed before the Constitutional and Human Rights Division of that Court, for hearing on priority and on a day-to-day basis.

(4)High Court Petition Nos. 123 of 2011, 65 of 2011 and 185 of 2011 shall be listed for mention and directions before the Head of the High Court’s Constitutional and Human Rights Division on 18^th November, 2011.

DATED and DELIVERED at NAIROBI this 15^th day of November, 2011.

…………………………………………….. ……………………………………………..

W.M. MUTUNGA NANCY BARAZA

CHIEF JUSTICE & PRESIDENT OF DEPUTY CHIEF-JUSTICE AND DEPUTY

THE SUPREME COURT PRESIDENT OF THE SUPREME COURT

……………………………………………… …………………………………………………….

P.K. TUNOI M.K. IBRAHIM

JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT

………………………………………………… ………………………………………………………

J.B. OJWANG S.C. WANJALA

JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT

………………………………………………

N.S. NDUNGU

JUDGE OF THE SUPREME COURT

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