Supreme Court 101

Posted by on 13th June 2011

Categories:   Kenya Constitution

By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

It’s been a busy week for judicial reform – the parliamentary vetting committee vetted the Public Service and Judicial Service Commission nominees for the positions of Chief Justice, Deputy Chief Justice and Director of Public Prosecutions. The COIC approved the candidates (the candidates will now wait for the approval of parliament before they are confirmed). Parliament approved the Supreme Court Bill without amendments (the bill now awaits presidential assent). The Judicial Service Commission is now in the process of whittling down to 5 the 26 candidates  (10 of whom are women), shortlisted for the positions of the Supreme Court Justice.

Though the constitutional deadline for the Supreme Court is not until the 26th of August this year, given the controversy over interpretation constitutional issues e.g.

  • The initial presidential nominations of candidates for Chief Justice, Attorney General and Director of Public Prosecutions
  • When the next elections should be held, August 2012, December 2012, February 2013
  • Whether or not the Finance Minister should have read the budget etc, etc.

Some would say the say the formation of the Supreme Court not only much needed but is overdue as well.

So what exactly is the Supreme Court? The Supreme Court will be Kenya’s new top court. All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court 163 (7).  It will be headed by the Chief Justice and will have six other judges but will require only five judges to sit at any one time.

The Supreme Court will hear appeals from the Appeal Court and any other court or tribunal as prescribed by national legislation. Though it will be able to determine its jurisdiction i.e. what cases to hear. Kenyans do have the right to appeal to the Supreme Court particularly with regard to constitutional matters or rights. So, if your rights are violated and you dissatisfied with the Appeal Court’s decision, your case must be heard by the Supreme Court. The potential for strategic litigation, and formation of new jurisprudence through the Supreme Court is immense.

The Supreme Court will also have two other specific roles: It will have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President. In layman’s terms disputes regarding the election of the of President go directly to the Supreme Court, which will then be required to resolve the dispute within 14 days.

The Supreme court will also give advisory opinions on matters concerning county governments i.e. if there is uncertainty about which arm of devolved government is responsible for a particular function or about funding continue the Supreme Court could be asked for an opinion).

Article 14 of the recently approved Supreme Court Bill also gives the court a ‘Special Jurisdiction’ to within 12 months of the commencement of the Act review the judgments of any judge, removed by a presidentially appointed tribunal, or by the vetting process or who resigns or opts to retire as a result of a complaint of misconduct, or misbehaviour.