By Lillian Aluanga-Delvaux
The courts are headed for a busy season as differences over interpretation of the Constitution continue to attract legal action.
Legislation on devolution, elections, and political parties has elicited a litany of suits with about a dozen cases yet to be determined by the High Court and Court of Appeal.
Last week’s passage of the Statute Law (Miscelleneous Amendments) Bill 2012 by Parliament was the latest to elicit threats of court action from the civil society and some constitutional commissions.
The Bill proposed changes that would have allowed party hopping and required those seeking parliamentary seats to have a university degree. It was however returned to Parliament following President Kibaki’s refusal to assent to it, on the basis that some of the amendments to electoral and political party laws were the subject of pending court cases. Parliament later voted to disallow party hopping, but struck out the degree requirement rule.
Although the Independent Electoral Boundaries Commission (IEBC) has settled on a March 2013 date for the election, the matter remains unresolved since an appeal challenging the same is yet to be determined. There are also pending disputes over electoral boundaries as delimited by IEBC, and debate over whether persons expected to stand trial at the ICC should be allowed to run for public office.
Such matters- considered to be of huge public interest- are fuelling calls by a section of lawyers and the civil society to the Supreme Court to ‘save’ the country from crisis arising out of the Constitution’s interpretation by giving direction on issues.
Dispute resolution
“The Supreme Court is an important tool in dispute resolution, especially when it comes to interpreting the Constitution. We would like to hear more from it on serious issues facing this nation,” says Law Society of Kenya Chair Eric Mutua.
International Centre for Policy and Conflict Executive Director Ndung’u Wainaina says there is need for the highest court in the land to minimise grey areas that exist in the Constitution by giving clear interpretation on issues to avoid causing unnecessary public anxiety.
“The Supreme Court is yet to come out clearly in shepherding the nation on matters of Constitutional interpretation. We have seen similar courts take up this task in other jurisdictions such as Pakistan, India, South Africa and even the United States, laying to rest matters of huge public interest,” says Mr Wainaina.
An example is the US Supreme Court’s recent decision to uphold President Barack Obama’s healthcare plan-one of the most divisive issues in this year’s campaigns.
