Kenya’s Supreme Courtroom has been given a lesson on observing the separation of powers and never ‘usurping’ the legislative energy of Parliament. Unusually sufficient, this lesson has come from the Excessive Courtroom which had been requested to think about the constitutional validity of recent guidelines promulgated by the Supreme Courtroom. The disputed guidelines successfully prevented litigants, advocates and advocates’ brokers from commenting on the deserves, or in any other case, of a presidential election problem from the time the listening to of the matter begins till the choice is given. Although the Chief Justice strongly defended the principles, Carmel Rickard writes that the Excessive Courtroom discovered they didn’t move constitutional muster and has set them apart.

Kenyans and different observers are ready to find whether or not any authorized motion shall be delivered to problem features of nationwide elections held earlier this month. In the meantime, nevertheless, there’s been a most uncommon choice that would impression on features of any election problem.

The problem is uncommon as a result of it required the constitutional and human rights division of the Excessive Courtroom to resolve whether or not, in guaranteeing guidelines regarding election challenges, the Supreme Courtroom assumed powers it didn’t have.

In different phrases, the Excessive Courtroom was not requested to overturn a call of the Supreme Courtroom as recommended in some native media headlines. This is able to clearly have been not possible since courts are sure by selections of upper judicial our bodies. Relatively, the Excessive Courtroom was contemplating the constitutional validity of guidelines formulated and promulgated by the best courtroom.

The case was introduced by Kenyan advocate Omwanza Ombati who challenged the lawfulness, and the content material, of the brand new guidelines, saying the Supreme Courtroom had not invited, not to mention thought of, public participation earlier than making the principles. Additional, he claimed that the principles violated various constitutional rights together with freedom of expression and opinion. As well as, the Supreme Courtroom, in making the principles, usurped the position of Parliament.

What did the disputed guidelines say? Two new ‘sub-rules’ have been added to the prevailing guidelines, and so they cope with hearings of the Supreme Courtroom as soon as a presidential election petition begins. The primary stated that ‘litigants, advocates and advocates’ brokers’ will not be allowed to precise their opinion on the deserves or demerits of a petition, or predict its final result ‘in any method that may prejudice or impede courtroom proceedings, till judgment is delivered.’

Based on the second new sub-rule, any breach of the primary new sub-rule ‘shall quantity to contempt of courtroom’.

Chief Justice Martha Koome, who can also be the President of the Supreme Courtroom, opposed the petition, saying it was her responsibility, as head of the judiciary to ‘shield the independence and integrity of the judiciary’. She additionally referred to a earlier case earlier than the Supreme Courtroom wherein counsel ‘proceeded to hurl pointless diatribe, insults and speculations on a pending judgment’. It was towards such behaviour that the brand new guidelines have been aimed; they have been ‘solely meant to make sure that the dignity and independence of the courtroom is maintained’.

The primary difficulty for the Excessive Courtroom to resolve was whether or not the brand new guidelines have been a statutory instrument and thus topic to the Statutory Devices Act (SIA) or whether or not they have been made by way of the constitutional powers given to the Supreme Courtroom.

The choose who heard the matter, Mugure Thande, discovered that the brand new guidelines weren’t statutory devices inside the that means of the SIA. And that, because the CJ argued, when the Supreme Courtroom exercised its constitutional energy to make the disputed guidelines, it was not topic to the provisions of the SIA.

However what did this discovering by the courtroom imply for the declare that the principles have been unconstitutional as a result of there had not been public participation?

Ombati stated public participation was a ‘nationwide worth’ and a precept of governance enshrined within the Structure. It was a ‘sacred expression of the sovereignty of the folks … and a sacred thread operating all through the Structure.’ There had been a ‘blatant disregard of the legislation’ when the principles have been made with out informing the general public and giving the general public a possibility to make submissions.

The CJ took the alternative view, saying the principles weren’t unconstitutional due to an absence of public participation. The Supreme Courtroom had beforehand amended its guidelines in the same means, with out consulting presidential candidates or their authorized representatives. Additional, because the guidelines weren’t statutory devices, they didn’t require the traditional legislative processes resembling obligatory public participation.

Finally, nevertheless, this was a view that the courtroom rejected.

The choose stated that nationwide values and rules have been binding on all state organs, and public participation was a ‘constitutional crucial’, as could possibly be seen in various earlier courtroom judgments. Whatever the nature of the disputed guidelines, and the truth that the ability to make them flowed immediately from the Structure, ‘the letter and spirit of the Structure should be upheld within the means of enactment.’

‘Any guidelines made by any entity should be in conformity with the Structure.’

Thande stated that in promulgating the brand new guidelines, the Supreme Courtroom had an obligation to facilitate significant engagement with the general public. This engagement ought to have included entry to and dissemination of related info, with an affordable alternative to the general public and all events to know concerning the deliberate guidelines.

It was fairly evident from the fabric earlier than the courtroom that the Supreme Courtroom had not carried out any public participation earlier than promulgating the principles, opposite to the constitutional requirement that affordable alternative should be given to these prone to be affected by the principles to voice their considerations and know that they have been correctly thought of.

The courtroom’s ‘inevitable conclusion’ was that the choice of the Supreme Courtroom to exclude the ‘participatory rights of the folks earlier than promulgation of the impugned guidelines, is illegal and unconstitutional.’

What concerning the declare that the Supreme Courtroom had usurped the position of Parliament in promulgating these guidelines?

The declare was immediately associated to the truth that the principles prolonged the contempt of courtroom provisions within the penal code. The Supreme Courtroom Act already made detailed provision for contempt of courtroom together with penal provisions, stated Thande, commenting that it was not clear why the brand new guidelines have been considered obligatory.

If certainly there was a have to increase contempt of courtroom provisions to incorporate the provisions within the new sub-rules, then the Supreme Courtroom ought to have deferred to Parliament, which has the constitutional mandate to make new legislation.

Solely Parliament had the ability to make provisions with the power of legislation. ‘To this extent, I discover that the Supreme Courtroom went overboard. Such provisions can solely be made by Parliament or with its approval. Extra so, as a result of the supply has the impact of taking away rights.’

The courtroom then in a way learn a lesson to the Supreme Courtroom about solely exercising the powers given it, not usurping the powers of different constitutional entities and observing the separation of powers doctrine ‘which requires every of the three arms of presidency to stay to its lane.’

Though the petitioners had additionally claimed that the brand new guidelines infringed particular rights and freedoms contained within the Invoice of Rights, there was no want to look at this query, stated the courtroom, because the guidelines have been in any case unconstitutional for lack of public participation and due to the usurpation of the legislative powers of Parliament.

The intriguing query now, after all, is whether or not the CJ will attraction towards the discovering or whether or not she’s going to discover the reasoning convincing and settle for that maybe the entire difficulty might have been dealt with in a different way.

Judgment