Understanding the Supreme Court of Kenya 12 years Later
In celebration of its 12 years, the Supreme Court of Kenya is holding a conference during this month of November. This event aims to reflect on its achievements and challenges while discussing about the future direction for Justice in Kenya.
The Supreme Court serves as the highest court in the land. It is made up of seven Judges, including the Chief Justice and the Deputy Chief Justice. The Court is tasked with interpreting the Constitution, developing Jurisprudence (an understanding of what the law is and what it is meant to be) and enhancing access to justice.
Background and Considerations For Formation:
The Supreme Court of Kenya was established under the 2010 Constitution, marking a transformative period in Kenya’s history. Prior to this, the Judiciary faced widespread issues that included:
- Political Influence and Corruption: There were allegations of political interference and corruption within the Judiciary, which compromised judicial independence and public trust.
- Post Election Violence of 2007-2008: The disputed 2007 election and subsequent violence highlighted the need for credible legal recourse in electoral disputes. The failure of the judiciary to resolve election disputes in a fair and transparent manner exposed the weaknesses in the status quo.
- Lack of Judicial Review Mechanisms: Kenya lacked a high level court with final Judicial authority on constitutional interpretation. This created inconsistencies in the application of the law.
- Right to Appeal: The absence of a way to appeal decisions on important constitutional matters was seen as a denial of justice.
The 2010 Constitution aimed to overhaul the Judiciary and restore public confidence. As a result, the Supreme Court was established under Article 163 with a jurisdiction that provided a comprehensive system to safeguard constitutional governance.
The Role and Jurisdiction of the Supreme Court:
The Role of the Supreme Court is detailed under Article 163 of the Constitution and includes the following key functions:
- Exclusive Jurisdiction over Presidential Election Petitions: The Supreme Court has exclusive jurisdiction to hear and determine presidential election petitions. This has made it central to Kenya’s election process and the upholding of democratic principles.
- Appellate Jurisdiction on Constitutional Matters: It is the final appellate court for cases involving the interpretation and application of the Constitution. This includes cases from the Court of Appeal on any constitutional matters, ensuring uniformity in the law.
- Advisory Opinions: The Court can provide advisory opinions (legal interpretations) to the national government, the county governments or any state organ on matters concerning the county government. This is to clarify legal issues that would otherwise cause a conflict between the different levels of government.
- Review of Decisions from Other Courts: The Supreme Court reviews decisions from the Court of Appeal when issues of great public importance are raised. This helps to clarify legal principles for lower courts, maintaining judicial consistency.
Major Accomplishments of the Supreme Court:
The Supreme Court has achieved several notable milestones since its inception:
- The 2017 Presidential Election Petition: The Court handled the landmark case that challenged the validity of the Presidential election results in 2017. The Court nullified the election results due to irregularities and ordered a rerun. This was an unprecedented decision in Africa and underscored the Court’s role in upholding electoral integrity.
- Jurisprudence on Fundamental Rights: The Supreme Court has delivered landmark rulings on issues like gender equality, access to justice, and protection of minority rights. For instance, it has made progressive judgements involving gender quotas and land rights, reinforcing Kenya’s commitment to social justice and human rights.
Challenges and Recommendations for Improvement:
Despite its achievements, the Supreme Court faces a number of challenges. First, there is a need to enhance the transparency of the judicial appointment process to ensure that only the most qualified and independent judges serve on the Court. Second, the Court could benefit from increased resources and technological capacity to handle cases more efficiently and to reduce backlogs.
To make the Supreme Court better, there are several measures that could be implemented. The Court’s financial independence could be strengthened to protect it from external influence. There could be more robust mechanisms for public participation in the Court’s processes, including improved access to Court proceedings and decisions.
The Court could benefit from enhanced public communication and civic education about its role and functions. Many Kenyans still don’t fully understand the Court’s mandate and importance in the country’s democratic space. Improved public understanding would lead to better engagement with Court and a greater confidence in its decisions would result.
