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Plea to amend Supreme Court rule

By PAMELA CHEPKEMEI | November 22nd 2013


The Kenya National Commission on Human Rights (KNCHR) wants a rule that restricts litigants who file cases at the Supreme Court amended.

A lawyer told five judges of the Supreme Court yesterday that the rule that allows only county governments, the Attorney General and State organs to seek advisory opinion at the Supreme Court was discriminatory.

Lawyer Nzamba Kitonga was making submissions during the hearing of a reference filed by KNCHR seeking an advisory opinion on the amendment of Rule 40(1) of the Supreme Court rules.

The lobby wants the court to allow amendments of the rule so that litigants, including the public, civil society, professional groups, religious groups and political parties can file cases at the Supreme Court.

“What form of discrimination can be worse than to exclude the majority of the Kenyan population from seeking advisory opinion from their own Supreme Court? asked Kitonga.

The lawyer said the committee that drafted the Supreme Court rules would have drawn a different conclusion if it had taken into account the Bill of Rights.

He said access to all courts by all people is a cardinal pillar of the Constitution.

“We come from a dark and bitter past where justice was the preserve of a few. Access to the courts was hindered by all manner of technical roadblocks that made us develop what is famously know as technical jurisprudence. We must not go back there,” said Kitonga.

He submitted that the AG could not represent interests of various groups in court because he was mainly an agent of the national government.

But a State counsel representing the AG asked the court not to give an advisory opinion on the matter because the reference seeks to amend Article 163(6) of the Constitution, which the court has no mandate to do.

The Commission on Administrative Justice, which is an interested party to the case, asked the court to dismiss it. The commission said the application lacked merit.

The judges will give a ruling on notice.


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