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.

But even as some quarters call for more action from Supreme Court, there are those who argue that it’s role has been misinterpreted, not only by the public, but other key constitutional bodies, giving rise to ‘misplaced’ criticism of the Court.

More confusion

“We are unlikely to hear much from this court since the public wrongly assumes  you can simply go straight to the Supreme Court to deliberate an issue. This court mainly handles issues that come to it by way of appeals and its unfortunate that some key constitutional offices are fuelling the confusion over the court’s role,” says a senior judicial officer. Attorney General Githu Muigai is among those who have proposed that parties aggrieved by amendments made to the Political Parties and Election Act seek redress from the Supreme Court.

He cited the differences in opinion on the amendments between the Commission on Implementation of the Constitution (CIC) and the parliamentary Constitutional Implementation Oversight Committee, adding that the Supreme Court could offer authoritative interpretation on the matter.

Although interpretation of the Constitution largely rests on the shoulders of the High Court, it can also be undertaken at a higher level by the Court of Appeal and Supreme Court. For instance in its decision to refer the matter of determining an election date to the High Court, the Supreme Court argued that the former had original jurisdiction over the matter, which means the High Court is often the first port of call on interpretation of the Constitution.

Although the Supreme Court has the mandate to give an advisory opinion, it largely relates to county governments as provided for in Article 163 (6). Other parties that can request for an advisory opinion from the Supreme Court are the national government, or a State organ. It is also possible for other persons or institutions to be enjoined in the proceedings, with leave of the court.

Those pushing for greater involvement of the court in guiding the country under the new constitutional dispensation, however, say it remains ‘untested’ in making proactive moves that would clear the air on matters causing public anxiety.

“It is the practice the world over when there is a new constitutional dispensation. The active body in providing direction is the Judiciary, and more so the Supreme Court, as has been the case in South Africa and the US,” says Mutua.

University of Dodoma political science lecturer Amukowa Anangwe refers to the ‘inescapable duty’ of the Supreme Court to step up to the challenge of interpreting issues of a Constitutional nature’.

“During implementation various stakeholders will have different interpretations and its only fair that there must be a branch bestowed with the mandate to make decisions with finality,” says Prof Anangwe.

Wainaina points to challenges faced by the Judiciary including heightened scrutiny and huge expectations from the public, ongoing internal renewal processes, and a ‘narrowed mandate’ of the Supreme Court to explain why not much may have been heard from the Court.

“At what stage does the court come in to help resolve the social and political crisis the country is currently facing? Had the court made a decision on the election date there would be no uncertainty on the matter,” says Wainaina.