The Apex Court, Regional Review, and the Supremacy of the Constitution: An Analysis of the Supreme Court of Kenya’s Advisory Opinion on EACJ Jurisdiction

Attorney General (On Behalf of the National Government) v Karua (Reference E001 of 2022) KESC 21 (KLR) (31 May 2024) (Advisory Opinion) Delivered by the Supreme Court of Kenya: MK Koome, CJ, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ.

Introduction and Factual Background

This legal article examines the recent Advisory Opinion rendered by the Supreme Court of Kenya in the case of Attorney General (On Behalf of the National Government) v Karua (Reference E001 of 2022). The reference arose from a dispute originating in the Kirinyaga County gubernatorial elections held in August 2017. Hon. Martha Karua, a contestant, was dissatisfied with the declared result and pursued domestic judicial remedies through the High Court, Court of Appeal, and finally, the Supreme Court of Kenya. After exhausting these avenues, she filed a case at the East Africa Court of Justice (EACJ).

The EACJ’s First Instance Division found that the Supreme Court of Kenya’s interpretation of the Constitution was wrong and that the Republic of Kenya had violated Hon. Karua’s right to access to justice through its judicial organ. The EACJ further held that Kenya violated fundamental EAC Treaty principles, specifically the rule of law, by not properly interpreting and giving effect to the Constitution. Consequently, the EACJ awarded Hon. Karua compensation in general damages and costs. The Attorney General (AG) appealed this decision to the EACJ’s Appellate Division, which dismissed the appeal and upheld the First Instance Division’s findings. Following this, similar cases were instituted at the EACJ arising from the 2022 Presidential Election, filed based on the precedent set by the EACJ’s decision concerning the Kirinyaga gubernatorial dispute.

Apprehensive that the EACJ’s purported exercise of appellate jurisdiction over decisions by national courts could conflict with Kenya’s commitment to the rule of law and create contradictory binding decisions, the Attorney General sought an advisory opinion from the Supreme Court of Kenya. The core aim was to clarify the line between the jurisdiction of domestic courts, particularly the Supreme Court, and that of regional courts like the EACJ, citing the sovereignty of the people of Kenya and the supremacy of the Constitution. Hon. Martha Karua was enjoined as an intervener.

Key Legal Issues

The Supreme Court identified the following primary issues for its determination:

1. Whether the Supreme Court had jurisdiction to render the advisory opinion.
2. Whether the advisory opinion was premature for lack of prior advice from the Attorney General.
3. Whether decisions of the Supreme Court on the interpretation of Kenyan law can be subject to a merit review by the East African Court of Justice, and what the effect of such decisions is.

Judgment Analysis

The Supreme Court proceeded to analyze each issue in turn.

i. Jurisdiction to Render an Advisory Opinion

The court first addressed Hon. Karua’s preliminary objection that the Supreme Court lacked jurisdiction because the matter did not concern county government under Article 163(6) of the Constitution. The court noted that its jurisdiction to issue an advisory opinion is anchored in Article 163(6), which states it “may issue an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government”.

The court reiterated the guidelines for exercising this jurisdiction, as previously set out in In the Matter of the Interim Independent Electoral Commission (Applicant) Constitutional Application 2 of 2011 KESC 1 (KLR). These guidelines include that the reference must be a matter concerning county government, though this is determined on a case-by-case basis. Only the national government, a state organ, or a county government can make the request. The court is hesitant to offer opinions on matters pending in lower courts but may do so for later-instituted proceedings if in the public interest. An opinion may also be rendered if the matter is of great public importance, requires urgent resolution, and is not amenable to expeditious resolution through adversarial processes. The court applies these essentials with appropriate restraint, considering whether the requesting party has locus standi.

The court confirmed that the AG has the locus standi to request an advisory opinion by virtue of Article 156 of the Constitution, which creates the office and bestows powers upon it.

Regarding whether the matter concerned a county government, the court referred to its decision in In the Matter of the Speaker of the Senate & Senate of the Republic of Kenya Advisory Opinions Application 2 of 2013; KESC 7 (KLR), which defined a matter concerning county government as one in terms of the Constitution or statute law, or in the court’s perception based on the function or relation between national and county governments. The court highlighted Article 180 of the Constitution, which contemplates the election of a county governor. Since Hon. Karua participated in the gubernatorial elections under Article 180 and the dispute arose from this election, leading to the Supreme Court’s judgment that was then challenged at the EACJ, the “real substratum” of the dispute remained the gubernatorial contest. The fact that the matter ended up at the EACJ did not remove the county element. The court found that the reference was triggered by the disputed Kirinyaga gubernatorial election results and whether such disputes, finally determined by the Supreme Court, can be subjected to EACJ merit review, which is a question concerning a county government.

The court also addressed the point about pending litigation, noting that the questions raised by the AG had not been subjected to or were pending determination in any lower court within Kenya. The pending matters before the EACJ were not of concern because the EACJ is not part of the hierarchy of courts in Kenya, exercising its mandate under the EAC Treaty, distinct from Kenyan courts which exercise their mandate under the Constitution. Therefore, the court was not prevented from issuing an advisory opinion regarding matters pending or concluded at the EACJ due to this difference in jurisdiction and authority.

Furthermore, the court found that the issues raised by the AG constituted matters of great public importance concerning whether Supreme Court decisions are subject to merit review by regional/international courts, given the finality of the Supreme Court as Kenya’s apex court. These matters could not be settled through ordinary litigation, making an advisory opinion an appropriate avenue for clarification.

Based on these findings, the court concluded that the reference met the guidelines for exercising its advisory opinion jurisdiction and overruled Hon. Karua’s preliminary objection regarding jurisdiction.

ii. Prematurity for Want of Attorney General’s Prior Advice

Hon. Karua also contended that the reference was premature because the AG had not first issued a legal opinion on the issue. The court noted that Article 156(4)(a) of the Constitution designates the AG as the principal legal advisor of the Government. Rule 53(1)(c) of the Supreme Court Rules, 2020, allows the court to reject a reference if the matter could be resolved by the AG’s advice and such advice has not been sought.

However, the court found it illogical to require the office of the AG to seek a legal opinion from itself. If the AG had the capacity to resolve the matter alone, it would have advised the government directly instead of invoking the court’s advisory jurisdiction. While acknowledging its previous holdings in Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017 eKLR and Matter of the National Gender and Equality Commission, Reference No 1 of 2013; eKLR that it is a matter of good practice to first seek the AG’s opinion, and reaffirming this practice in Matter of the County Government of Nairobi vs Attorney General, (Reference 1 (E001) of 2021) KESC 65 (KLR), the court concluded that in this specific instance, the reference by the AG was not premature for lack of the AG’s report on advice it should have given. Hon. Karua’s preliminary objection on this ground was similarly overruled.

iii. EACJ Jurisdiction and the Effect of its Decisions on Kenyan Law

This was the central question posed by the AG. The court unequivocally stated that Article 2(1) of the Constitution establishes it as the supreme law of Kenya. Furthermore, Article 163(7) stipulates that Supreme Court decisions are binding on all courts in Kenya and are final, not subject to further appeal.

The court addressed the interplay between domestic and international law. Article 2(5) and (6) of the Constitution state that general rules of international law and ratified treaties form part of the law of Kenya. The EAC Treaty, ratified by Kenya, is thus part of Kenyan law. However, this is subject to the Constitution. If there is any conflict regarding the hierarchy of Kenyan courts and courts created by the Treaty, the provisions of the Constitution take precedence. The court cited Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) KESC 34 (KLR), where it held that international law applies in Kenya as long as it does not conflict with the Constitution, local statutes, or a final judicial pronouncement. This implies the primacy of domestic laws and the subsidiarity of international laws. The principle of subsidiarity respects national sovereignty, which in Kenya belongs to the people and is exercised only in accordance with the Constitution (Article 1). The Constitution reigns supreme domestically, while international law reigns internationally.

The court noted that while Article 33(2) of the EAC Treaty gives precedence to EACJ decisions in the application of the Treaty over national courts on similar matters, there is no explicit provision granting the EACJ jurisdiction to interpret the substance of national laws of partner states in a way that contradicts their apex courts’ declarations.

The court asserted that a state’s electoral laws fall within the municipal competency of its courts. It is “juridically inconceivable” that a regional tribunal, established by a treaty, could arrogate appellate jurisdiction in matters involving the interpretation of a member state’s Constitution by its own courts. Judicial supra-nationality must be categorically provided for in a treaty. The Supreme Court, as the apex court and court of final judicial authority under Article 163(7), has the mandate to assert the supremacy of the Constitution and the sovereignty of the people of Kenya, as further elaborated in Section 3 of the Supreme Court Act, 2011.

The court examined the EACJ’s mandate as set out in the EAC Treaty. Article 23 defines the EACJ’s role as ensuring adherence to law in the interpretation, application, and compliance with the Treaty. Article 27(1) grants jurisdiction initially over the interpretation and application of the Treaty, with a proviso that this does not include applying such interpretation to jurisdiction conferred by the Treaty on organs of partner states. The court interpreted this to mean the EACJ is specifically mandated to interpret and apply the EAC Treaty but expressly prohibited from interpreting national laws of partner states outside the Treaty’s purview, as national laws are beyond its jurisdiction. Conversely, national courts are not vested with jurisdiction to interpret or apply the EAC Treaty.

The court drew on comparative jurisprudence from other regional human rights courts, including the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights (IACtHR), and the ECOWAS Court. These courts have exercised restraint and deference, employing doctrines like the margin of appreciation (ECHR), which recognizes the primary role of contracting states in securing Convention rights within their jurisdiction. The IACtHR does not act as an appellate or judicial review court for domestic rulings but calls attention to procedural violations. The ECOWAS Court is similarly not a court of appeal or cassation vis-a-vis national courts. This jurisprudence shows that the relationship between regional/international courts and national courts is not vertical.

The court noted that the EACJ itself has acknowledged this position. It cited Dr Mpozayo Christophe v The Attorney General of the Republic of Rwanda Reference 10 of 2014, where the EACJ cited with approval a case emphasizing the respect due to decisions of a civilized country’s highest courts. More directly, the court cited Honourable Sitenda Sebalu vs The Secretary General of the EAC & 3 Others Reference No 1 of 2010, where the EACJ held that Article 27 of the Treaty does not confer appellate jurisdiction over decisions of the Supreme Court of Uganda. The Kenyan Supreme Court had previously held the same in Peter Odiwuor Ngoge t/a OP Ngoge & Associates vs Josephine Akoth Onyango & 5 Others, SC Petition No 18 of 2015.

The court concluded that regional/international courts conduct procedural reviews and call attention to violations only in line with their parent treaty or convention, not national laws. Therefore, in accordance with the EAC Treaty, the EACJ’s mandate is limited to interpreting and applying the Treaty.

The Supreme Court held and found 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. The court reasoned that the Constitution envisages the Supreme Court as the final judicial authority, and its role in asserting the supremacy of the Constitution and the sovereignty of the people of Kenya would be undermined if the converse were true. Mere disagreement with domestic court interpretations of pertinent legal provisions does not constitute violations of the EAC Treaty. Interpreting the Constitution or national laws and weighing evidence is the mandate of domestic courts and cannot be replaced by the EACJ. Regional and international courts should act as agencies and tools for strengthening local conditions, not substitutes for state organs.

Addressing the legal effect of an EACJ decision amounting to a merit review of a final national court decision, the Supreme Court held that such a decision would be of no legal consequence. The court noted that the EAC Treaty acknowledges this position in Article 9(4), which states that EAC organs shall act only and perform such functions as are conferred by or under the Treaty provisions.

Conclusion and Implications

In conclusion, the Supreme Court re-affirmed the supremacy of the Constitution of Kenya, acknowledging regional and international obligations but holding them subject to the Constitution. International law, though a source of law in Kenya, cannot be applied to upstage clear constitutional norms.

The court held that the Supreme Court, as the apex court, has the final judicial authority regarding the interpretation and application of the Constitution. Domestic courts and regional courts, including the EACJ, do not have a vertical relationship, meaning Supreme Court decisions are not subject to appeal at the EACJ. The EACJ also lacks merit review jurisdiction over Supreme Court decisions.

The implications of this advisory opinion are significant:

• Reinforcement of Constitutional Supremacy and Sovereignty: The decision strongly asserts the supremacy of the Kenyan Constitution and the sovereignty of the Kenyan people as vested in their constitutional organs, particularly the Supreme Court as the final judicial authority.
• Clarification of Judicial Hierarchy: It explicitly clarifies that the EACJ is not part of Kenya’s domestic judicial hierarchy and has no appellate or merit review authority over final decisions of the Supreme Court. This resolves the potential “legal dilemma” the AG was apprehensive about regarding conflicting binding decisions.
• Limitations on EACJ Mandate: The opinion narrows the scope of the EACJ’s acceptable intervention in matters already decided by Kenyan courts. While the EACJ retains jurisdiction to interpret and apply the EAC Treaty, its mandate does not extend to interpreting Kenyan national laws in a manner that constitutes a merit review of Kenyan apex court decisions.
• Effect of EACJ Decisions: Critically, the court determined that any EACJ decision amounting to a merit review of a final Supreme Court decision would be of no legal consequence in Kenya. This provides the Kenyan government and state organs with a clear legal position on how to treat such decisions.
• Impact on Individuals and Government: For individuals like Hon. Karua who seek recourse at the EACJ after exhausting domestic remedies, the decision clarifies that an EACJ judgment reviewing the merits of a Supreme Court ruling is not binding in Kenya insofar as it purports to overturn or review the Supreme Court’s interpretation of Kenyan law. For the government, it means they are not compelled to comply with EACJ orders that stem from such merit reviews.
• Influence on Future Litigation: This advisory opinion will heavily influence future legal arguments involving the interplay between domestic Kenyan law, especially constitutional interpretation by the Supreme Court, and the jurisdiction of the EACJ. It will likely limit the grounds upon which parties can successfully challenge Kenyan final judicial decisions before the EACJ, potentially steering future arguments towards procedural violations of the Treaty rather than substantive merit review of domestic legal interpretations.
• Regional Integration Context: While asserting domestic supremacy, the decision frames regional courts as agencies for strengthening local conditions. This positions Kenya’s approach to regional judicial mechanisms as one of cooperation within defined treaty mandates, rather than automatic judicial subordination to regional tribunals in matters conclusively determined domestically. It emphasizes adherence to treaty obligations, but within the bounds of constitutional supremacy.

In essence, the Supreme Court’s advisory opinion firmly establishes the finality and supremacy of its decisions within the Kenyan legal framework, asserting that the EACJ, as a regional court, lacks the jurisdiction for merit review over these domestic rulings. This ruling aims to provide legal certainty and uphold the constitutional order while navigating Kenya’s obligations under the EAC Treaty.