On Friday, May 31, the Supreme Court ruled that decisions made by Kenya’s highest court could not be overturned by the East African Court of Justice (EACJ).
This ruling followed an advisory opinion sought by Attorney General Justin Muturi on behalf of the National Government. Muturi asked whether the Supreme Court’s decisions on Kenyan law could be reviewed on merit by the EACJ. He also questioned the legal consequences for the Government of Kenya and the sovereignty of the Kenyan people if the EACJ issued orders based on a different interpretation of Kenyan law than that of the Supreme Court.
The advisory opinion request came after Azimio Principal Martha Karua filed a case at the EACJ. Karua had previously lost her bid to overturn Governor Anne Waiguru’s win in the 2017 Kirinyaga gubernatorial election at the Supreme Court. Waiguru was elected on a Jubilee Party ticket.
The Supreme Court’s ruling emphasized the supremacy of the Kenyan Constitution, stating that while international law is a source of law under Article 2(5), it cannot override the clear normative and procedural prescriptions of the Constitution. Thus, the court asserted its final judicial authority in the interpretation and application of the Constitution’s provisions.
The Supreme Court also clarified that domestic and regional courts do not have a vertical relationship, meaning its decisions are not subject to appeal at the EACJ. The court did not make any orders regarding the costs of the advisory opinion.
Disagreeing with the ruling, Martha Karua stated, “The Supreme Court in this case acted as judges in their own cause and gave a convenient advisory that is supposed to protect them from accountability. Otherwise, why would they purport to interpret the East African Community treaty, which is solely the preserve of the EACJ?
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