Supreme Court and (No) Election Date

Posted by on 19th November 2011

Categories:   Uncategorized

On Tuesday this week Chief Justice and President of the Supreme Court, Willy Mutunga, declared that the Supreme Court declined to give an opinion with regard to the date of the next election. The Supreme Court reserved its reasons, which will be given in a ruling upon notice to the parties.
In the mean time the Supreme Court has passed the case down to the High Court and requested that it be dealt with expeditiously. After more than a month of waiting for the Supreme Court’s determination on the date of the next election, the Court’s decision to not to give its opinion on the said date is underwhelming. However the decision may not be surprising given the constitutional mandate of the court.
According to Article 163 (3) (a) of the constitution the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President under Article 140. A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. The election date issue is not such a matter and therefore does not trigger the Supreme Court’s exclusive original jurisdiction.

Though the Supreme Court can make rules for the exercise of its jurisdiction, Article 163 (8), it appears the constitution intends that the Supreme Court be an appellate court or court of last resort. Article 163 (3) (b) states that the Supreme Count has appellate jurisdiction i.e. the power to review and change decisions from the Court of Appeal and any other court or tribunal. The Supreme Court can hear appeals in any case involving the interpretation or application of the Constitution. The Supreme Court can also hear appeals cases in which it, or the Court of Appeal, certifies is matter of general public importance, Article 163 (4).

As far as advisory opinions go, constitutionally the Supreme Court may give an advisory opinion at the request of the government or state organ with respect to any matter concerning county governments. Though the issue on the date of the next election could seen as a matter concerning county government, a decision on the date of county election would on be problematic and it is probably wise of the Supreme Court not to go down this route i.e. would the opinion apply only county government elections? What about the fact that constitution provides for county and national elections to be held on the same day? Would the national government be bound by an opinion on county government elections?

The case now rests with High Court that according to Article 165 (3) (d) of the constitution has “jurisdiction to hear any question respecting the interpretation of the Constitution”. Since the matter has been sent to the High Court that also has to make a decision it would be interesting to see the content of the reserved opinion.

In my opinion since the Supreme Court can make rules for the exercise of its jurisdiction and Chief Justice stated that the court had jurisdiction over the matter, the finality of a Supreme court opinion on the date of the next election would have put the matter to rest considering time is of the essence.