2016 Global Review of Constitutional Law

Kenya 2010 that sought not just to reform
the judiciary and the electoral body but other
(if not every) aspects of Kenya’s public regulation
including human rights, institutions,
public finance, land, and national security. 11
Regarding courts, Kenya does not have a
specialized court to address constitutional
matters called a “Constitutional Court,”
as South Africa and Germany have. All the
superior courts in Kenya (the High Court,
Employment and Labor Relations Court,
Environment and Land Court, Court of Appeal
and Supreme Court) have the authority
to make interpretations and determinations
on the Constitution. 12 Ordinarily, the High
Court has the explicit original jurisdiction
to (a) determine questions of violations of
rights and also (b) interpret the Constitution.
13 This jurisdiction is exercised either by
a single judge or by an even number of judges
(more than three) if the dispute concerns
a novel point of law. 14 A decision from the
High Court can be appealed against to the
Court of Appeal. The High Court at Nairobi
in Kenya has a division designated to hear
and determine petitions on human rights and
constitutional matters. Other High Court stations
can hear any petition—the arrangement
in Nairobi is purely administrative.
At the apex of the judicial system is the Supreme
Court. 15 The Court has both original
and appellate jurisdiction. It has original jurisdiction
to determine (a) presidential elections
and (b) request for advisory opinions
at the instance of the national government,
state organ or county government on a matter
that concerns a county government. 16 It
does have appellate jurisdiction to hear and
determine appeals from the Court of Appeal
in cases of interpretation of the Constitution
and in cases in which it or the Court
of Appeal certifies a matter to be of general
public importance- though a certification
by the Court of Appeal can be reviewed or
set aside. 17 Thus, the Supreme Court is the
court with the final authority on constitutional
interpretation, but that authority can only
be exercised if a matter falls within its jurisdiction.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
There were two significant controversies in
2016- one purely political and another case
based. The political one concerned the tenure
of commissioners of the electoral body, the
Independent Electoral and Boundaries Commission
(IEBC). It started when opposition
leaders called for the resignation of IEBC
commissioners that presided over the 2013
general elections. 18 The opposition circulated
an article titled The Kenyan People’s Case
against IEBC setting out their grievances
against the electoral body and called upon
Kenyans to attend (weekly) protests until the
commissioners—and more so its then chair
Ahmed Issack Hassan—vacates office. 19 The
government responded first by suppressing
the protests through the security forces and
the president declined at first to cede to the
opposition demands requiring that the constitutional
procedures be followed first. 20
The opposition insisted and promised more
protests, and following increased violence,
deaths, and destruction of property, the
commissioners resigned on their own and
through a parliamentary initiative involving
major political parties a process was set up to
oversee their substitution. 21
However, the most pronounced controversy
in 2016 was perhaps one that surrounded
the succession of the Supreme Court judges,
profiled as the “Retirement Age Cases.” The
subject matter started around 2015 but became
a subject of Supreme Court determination
in 2016. It was principally a judicial dispute
on when the judges of Superior Court
should retire. The Judicial Service Commission,
the constitutional agency responsible
for the hiring of judges, issued retirement
letters to some judges on the basis that they
were about to get to 70 years which was the
constitutional timeline for judges appointed
under the new Constitution. The judges reacted
by filing a number of Petitions at the
High Court, the lead petition being Philip
K. Tunoi & Another v. The Judicial Service
Commission & Another. 22 The main contention
was about the lawful period of service
of Superior Court judges who were already
duly appointed and were in service under the
repealed Constitution (the Constitution of
Kenya 1969), and who then continued in service
under the Constitution of Kenya, 2010.
Supplemental to the dispute was a claim by
11
See e.g. Karuti Kanyinga and James D. Long, “The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution,” 55
(1) 35, Afr. St. Rev. (2012).
12
See Constitution of Kenya, Chapter 10.
13
Constitution of Kenya, 2010 art. 162.
14
Ibid.
15
Constitution of Kenya, 2010 art. 163.
16
Ibid.
17
Art. 163.
18
Standard Team, Raila Odinga, “Why we are holding mass protests against IEBC,”
available at https://www.standardmedia.co.ke/article/2000201969/raila-odinga-why-we-are-holding-mass-protests-against-iebc (accessed 20 April 2017).
19
Judie Kaberia, “CORD vows to continue Monday protests against IEBC,” May 22, 2016, http://www.capitalfm.co.ke/news/2016/05/cord-vows-continuemonday-protests-iebc/
accessed 20 April 2017.
20
Nancy Agutu, “We will not allow destructive protests, Uhuru tells Raila,” The Star available at http://www.the-star.co.ke/news/2016/06/10/we-will-not-allow-destructive-protests-uhuru-tells-raila_c1367112
21
Francis Gachuri, “IEBC commissioners agree to leave office on negotiated settlement,” https://citizentv.co.ke/news/iebc-commissioners-agree-to-leave-office-on-negotiated-settlement-135774/.
22
Petition No. 244 of 2014. Others included Petition No 495 of 2014, Justice Leonard Njagi v. The Judicial Service Commission, the Judiciary and The Attorney
General; and Petition No 386 of 2015, Lady Justice Kalpana Rawal v. the Judicial Service Commission, the Secretary of the Judicial Service Commission;
Okiya Okoiti Omtatah.
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