Supreme Court of Kenya declared their decisions cannot be appealed in regional courts like that of the East African Court of Justice (EACJ).
The court said EACJ does not have the power to reverse or modify decisions of national courts of member States.
Deputy Chief Justice Philomena Mwilu, Supreme Court Judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola made the declaration.
They said the Constitution of Kenya places the Supreme Court as the apex court and a court of final judicial authority with the mandate to assert the supremacy of the Constitution and the sovereignty of the people of Kenya.
“We hold and find that the EACJ does not have appellate jurisdiction or merit review jurisdiction over decisions of the Supreme Court of Kenya in matters concerning the interpretation and application of the Constitution of Kenya or any other matter arising from the latter’s decisions,” they said.
The Judges issued the advisory opinion following an application by the Attorney General on behalf of the national government.
The AG sought an opinion on whether decisions by Kenya’s Supreme Court on Kenyan law can be subjected to a review by the EACJ.
The reference was triggered by the disputed gubernatorial election results of Kirinyaga County following the 2017 general election. The Judges said the main query before them was whether such a dispute, once determined finally by Supreme Court, can be subjected to a merit review by the EACJ.
“It is obvious to us that, what international/regional courts are empowered to do, is to conduct procedural reviews on decisions of the national courts and call attention to violations only but in line with the mandate conferred by their parent Treaty or Convention and not national laws,” they said.
They argued that regional and international courts such as the EACJ should only act as agencies and tools for strengthening of local conditions, including democracy and the rule of law but not as replacements of State organs.
They reiterated that the Constitution of Kenya is the supreme law of the land. “International law reigns supreme on the international sphere. The same is to be said of municipal law within the domestic sphere.”
Narc Kenya leader Martha Karua who participated in the matter contended that the application for an advisory opinion was premature without the AG’s prior legal opinion.
In response to this, the Supreme Court judges said “it is absurd to require the office of the AG to seek a legal opinion from itself. If it had the capacity to resolve the matter on its own then it would have advised the national government expressly and not invoked this Court’s advisory opinion jurisdiction”.
“Consequently, we find that the reference is not premature for lack of the AG’s report on what advice it should have given the national government,” they added.
The Judges said decisions of the Supreme Court are not subject to appeal at the EACJ.
“The EACJ also does not have a merit review jurisdiction over decisions of the Supreme Court. We so find,” they said.
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