The Judicial Authority And Legal System In Kenya
Any keen student of jurisprudence and
legal theory would, invariably, be attracted to the provisions of Chapter Ten
of the Constitution of Kenya under Article 159 thereto.
Article 159 clause (1) Clearly
stipulates that judicial authority is derived from the people and vests in, and
shall be exercised by, the court and tribunals established by or under the
constitution of Kenya.
The supremacy of the Constitution of
Kenya is enshrined under Article 2 clause (1) stating that:-
This Constitution is the Supreme law of
the Republic of Kenya, and binds all persons and State organs at both levels of
government.
It is noteworthy that there are two
levels of government in Kenya, i.e. the national government and the county
governments. County governments are established under Article 176 (1) which
state that: There shall be a county government for each county consisting of a
county assembly and a county executive. Under Article 94 (1), the legislative
authority of the Republic is derived from the people and, at the national
level, is vested in and exercised by parliament.
Under Article 185 (1), the legislative
authority of a county is vested in , and exercised by, its county assembly. The
representation of the people is enshrined under Article 81, respecting the
general principles for the electoral system.
Article 10(1) enshrines the national
values and principles of government that bind all state organs, state officers,
public officers and all persons-- whenever any of them:-
(a)
Applies or interprets the constitution
of Kenya:
(b) Enacts,
applies or interprets any law; or
(c)
Makes or implements public policy
decisions.
Under Article 2 clause 2, no person may
claim or exercise state authority except as authorized under this Constitution.
Article 2 clause 3 states that: - The
validity and legality of this Constitution is not subject to challenge by or
before any court or other state organ.
Article 2 clause 4 states that: - Any
law, including customary law, that is inconsistent with this constitution, is
void to the extent of that inconsistency, and any act or omission in
contravention of this constitution is invalid.
Construing the constitution
Under Article 259 (1) respecting the
construing of the Constitution, it is stated that:-
Clause (1), This constitution shall be
interpreted in a manner that:-
(a)
Promotes its purposes, values and
principles;
(b) Advances
the rule of law, and the human rights and fundamental freedoms in the Bill of
Rights;
(c)
Permits the development of law; and
(d) Contributes
to good governance.
Article 259 clause 3further provides
that:-
Clause
(3), every provision of this Constitution shall be construed according to the
doctrine of interpretation that the law is always speaking and, therefore,
among other things:-
(a)
A function or power conferred by this
Constitution on an Office may be performed or exercised as occasion requires,
by the person holding the office;
(b) Any
reference in this Constitution to a State or other public office or officer, or
person holding such an office, includes reference to the person acting in or
otherwise perform the function of the office at any particular time;
(c)
A reference in this Constitution to an
office, state organ or locality named in this Constitution shall be read with
any formal alteration necessary to make it applicable in the circumstances; and
(d) A
reference in this Constitution to an office, body or organization is, if the
office, body or organization has ceased to exist, a reference to its successor
or to the equivalent office, body or organization.
Article 259 clause 4 state that: In
this Constitution, unless the context otherwise requires:-
(a)
If a word or expression is defined in
this Constitution, any grammatical variation or cognate expression of the word
or expression has corresponding meaning, read with the changes required by the
context”, and
(b) The
word “includes means, but not limited to”.
Article 258 (1), respecting the
enforcement of this Constitution, state that: - clause (1), every person has
the right to institute court proceedings, claiming that the Constitution has
been contravened, or is threatened with
contravention.
Under Article 3, respecting the Defense
of the Constitution, clause (1) states that:- Every person has an obligation to
respect, uphold and defend this Constitution.
Interpretation of the Constitution
Under the provisions of Article 165(1)
of the Constitution establishes the High Court, which has
(d) Jurisdiction
to hear any question respecting the interpretation of the constitution
including the determination of:-
i.
The question whether any law is
inconsistent with or in contravention of this Constitution;
ii.
The question whether anything said to be done under authority of this Constitution
or any law is inconsistent with, or in contravention of, this Constitution;
However,
under Article 165 clause 5, it clearly states that the High Court shall not
have jurisdiction in respect of matters:-
(a) Reserved
for the exclusive jurisdiction of the Supreme Court under this constitution.
The Supreme Court
Article
163(1) establishes the Supreme Court and vests it with:-
Clause
(3) (a), exclusive original jurisdiction to hear and determine disputes
relating to the elections to the office of President arising under Article 140,
respecting to Questions as to validity of presidential election.
Under
clause (8) of Article 163, the Supreme Court shall make rules for the exercise
of its jurisdiction.
Thus,
the Supreme Court Act, No. 7 of 2011 was duly enacted to operationalize the Letter
and spirit of Article 163 of the Constitution of Kenya.
These
rules are now cited as the Supreme Court (Presidential Election) Rules, 2013.
ARRANGEMENT
OF RULES
Rules
1-short
title
2-Interpretation
3-Objectives of the Rules
4-Scope of the Rules
5-Petitions generally
6- pre-polling petition
7- Filling of pre-polling petition
8-Service of pre-polling petition
9- Response to the petition
10-Pre-trial conference
11-Hearing and determination of
petition
Post-Polling conference
12-Post-polling petition
13-Filling of Post-polling Petition
14-Service of petition
15-Response to petition
16-Post-polling petition
17-Hearing of the petition
General provisions
18-constitution of the Court
19-Ground for election petition
20-Security for costs
21-Notification of filling of petition
22-Substitution of a petitioner
23-Joider of a respondent
24-Amicus
curiae
25-Issues for determination during
pre-trial conference
26-Withdrawal of the petition and
substitution of a petitioner
27-Hearing to proceed uninterrupted
28-Abatement
29-Orders of the court
30-Determination of a petition
31-Fees and Costs
32-Practice directions
33-Review of Rules
Under the General provision respecting
Grounds for Petition as is provided under Rule 19 of the rules:-
19(1) - A person may file a petition
calling into question the validity of the election of the president-elect/
(2) The ground upon which a petition
under sub-rule (1) may be filed include:-
(a) The
validity of the conduct of presidential election;
(b) The
validity of the qualification of a president elect;
(c) The
commission of an election offence as provided under Part VI of the Election
Act; or
(d) Any
other ground that the court deems sufficient, provided such ground shall not be
frivolous, vexatious or scandalous
a) The
FIRST SCHEDULE stipulates provisions relating to Petitions and Affidavits.
Under Rule 2 respecting the
interpretation of the Act, a ‘petition’ means a petition filed in court in
relation to Presidential elections pursuant to Article 136,137,138,139 and 140
of the Constitution.
Under Rule 5 respecting Petitions generally,
it is stipulated that: - Every petition under these rules shall comply with the
provisions of the First Schedule and shall be in Form A set out in the Second
Schedule.
Under the Provisions Relating to
Petitions and Affidavits,
1.
A petition is considered filed upon:-
a. Depositing
the prescribed court fee
b. Depositing the security of costs; and
c. Stamping
by the registry.
2.
A petition may be filed by several persons who may be joined
as co-petitioners. The petition shall be signed by the petitioners or all the
petitioners if they are more than one, or by the duly authorized advocate.
3.
The petition shall be divided into
paragraphs, numbered consecutively, each paragraph being confined to a distinct
portion of the subject and shall be printed or typed legibly.
4.
The petition shall briefly set out the
facts and grounds relied on to sustain the relief claimed.
5.
The petitioner shall lodge along with
the petition, at least eight copies of the petition and all documents which
accompany it.
6.
The Affidavit in Support of the
petition is made personally by the petitioner or by one of the petitioners --if
more than one and shall;
(a) Contain the grounds on which relief
is sought, setting out with sufficient particularity of the facts relied on by
the petitioner or petitioners.
(b) Be divided into paragraphs, each of
which, as nearly as may be, shall be contained to a distinct portion of the
subject, and every paragraph shall be numbered consecutively.
(c) Conclude with a statement setting
out particulars of the relief claimed, as for instance, that some specified
person should be declared duly returned or elected or the election should be
declared void, as the case may be.
OVERVIEW
in the next related blog post, I will
attempt to objectively analyze the high jurisprudence that went into the
hearing and determination of the first ever Presidential Election Petition
under the provisions of the recently enacted Constitution of Kenya that was
promulgated on the 27th day of August 2010.
In the meantime, one the greatest
lesson of jurisprudence I learnt therefrom is that you, invariably, cannot use
a subsidiary legislation to construe the Constitution which, in fact, is the
Supreme law of the Republic. – Mfalme
Davis
