• Karua went to the EACJ to complain that the Kenyan courts had denied her access to justice.
• She did not sue the Kenya Judiciary or the Supreme Court at EACJ but the Kenya state because it is the party to the treaty.
The Constitution provides that the Supreme Court is the highest court in Kenya. Essentially, most matters go to the Supreme Court on appeal when parties are unhappy with the outcome at the Court of Appeal.
There are a few exceptions when a case can start at the Supreme Court, for example in matters of advisory opinions, presidential election petitions and challenges relating to a declaration of state of emergency.
But what do you do if you go to the Supreme Court and you are dissatisfied with the decision it makes? Is there anything people can do when they think the Supreme Court has been unfair in considering a matter that comes before it?
This is the dilemma that former Justice and Constitutional Affairs minister Martha Karua faced, when she believed that Kenyan courts had been unfair to her when she asked them to resolve her election petition for the gubernatorial election in Kirinyaga.
She took her complaint to the East Africa Court of Justice and, in an exceptional judgment, the court found that the Kenya State, through its judicial organ, had violated her right to access to justice, breached the rule of law principle provided for in the Treaty for the Establishment of the East African Community (‘the Treaty’) and awarded her $25,000 (Sh2.76 million) n general damages.
But how did all this come about?
FRUSTRATION IN KENYAN COURTS
Karua vied against Anne Waiguru in the 2017 General Election. Waiguru was declared elected but Karua challenged the election in court. The High Court, however, threw out her election petition before it was heard on its merits. She appealed to the Court of Appeal and that court found that High Court was wrong to throw out her petition and ordered it to hear the case.
Her case was heard at the High Court but the petition was dismissed. An interesting thing happened then. Because of having to go from court to court, this latter decision by the High Court was made over six months from the time Karua filed her petition. This is beyond the time limit set by the Constitution for the High Court to finish such cases.
Karua appealed to the Court of Appeal, where part of Waiguru’s response was that even though she had won at the High Court, the decision was not a valid decision because it was illegally made after the expiry of the six months.
The Court of Appeal — which, of course, had previously ordered the High Court to take back and hear the case — agreed with Waiguru that the High Court’s decision was illegal because it had been made outside the time allowed.
A legal rollercoaster, yes; but it was not over yet.
Karua appealed to the Supreme Court wondering why the Court of Appeal would have asked the High Court to hear the matter, even though it knew that it would almost certainly give its decision outside the six-month timeline allowed by law.
The Supreme Court agreed with her that it was not sensible for the Court of Appeal to send back her case given the timeline, but stated that it could not do anything to help Karua. Guess why? Because of the six-month timeline.
WHAT THE EACJ DECIDED
This is why Karua went to the EACJ to complain that the Kenyan courts had denied her access to justice, and violated the treaty under which Kenya undertook to observe the principle of good governance, including the rule of law and right of access to justice. An important clarification is necessary here. Karua did not sue the Kenya Judiciary or the Supreme Court at EACJ but the Kenya state because it is the party to the treaty.
Still, I should clarify further that Karua, in going to the EACJ, was not appealing the decision of the Supreme Court. The law does not allow one to do that. Instead, she was complaining about Kenya government’s failure to accord her what the treaty and Kenya’s Constitution guarantees. Essentially, the failure of Kenya’s judiciary was a failure of the Kenya state.
And she convinced the EACJ judges about this.
The EACJ found that it was wrong for the Supreme Court to lift its hands and say there is nothing it can do because Kenya lacked a law that expressly said that if an election petition is sent back to the High Court following an appeal, more time — beyond the six months — should be given to determine the appeal.
What the EACJ concluded was that Kenya’s Constitution is robust enough to require and allow the Supreme Court to find a way to resolve the issue in a manner that guarantees the right to access to justice because — in EACJ’s own words — Kenya’s law “is always speaking",
In a nutshell, EACJ was making the point that the Supreme Court and the Court of Appeal should have found a way to extend the time, especially given that the lapse of time was not Karua’s own doing.
IMPORTANCE OF THIS CASE
This judgment is highly welcome for a number of reasons.
First, while the case is not about electoral justice as such — that is whether the Kirinyaga gubernatorial election was free and fair — by the EACJ agreeing to hear this case and giving such a robust judgment, it underscored the importance of electoral justice in regard to the rule of law principle in the treaty.
This is especially important given the continuing sham we see with elections in Tanzania and Uganda —and Kenya’s own experience with fixing elections. Not that the EACJ will be hearing any case soon that would nullify a national election, but the judgment strengthens its jurisprudence indicating it can audit certain aspects of the electoral process to see whether it conforms to the Treaty whenever called upon to.
Second, and perhaps most important, is the message the judgment sends to our Supreme Court and Kenya’s Judiciary. This then takes me back to the question; who do you go to when you are convinced the Supreme Court has failed to adjudicate a matter fairly?
For me, this judgment reminds our Supreme Court that, just because it is the apex court, it is not unaccountable. True, because of the strict rules on what matters can go to regional, continental or international judicial forums, few cases will make it there and even fewer will be accepted.
However, the fact that there are judicial bodies outside Kenya that will occasionally look at whether Kenya courts are dispensing quality justice is key at reminding our Judiciary and especially the Supreme Court that it may not always have the last bite at the cherry and cannot therefore be casual about how it takes its own bite. This is not to say they were casual in this case. They did reason out the matter. But another court held they could have been more effective to avoid depriving someone in such an important case of a fair hearing.
But I reckon this is a bit more complicated, including the possibility that the judgment could trigger quiet and laser-like superiority type contests we often see between national and regional courts, especially in Europe and the Americas. Sometime such fights between regional and national courts breed more concerns for rule of law.
It is not just about courts. Remember this was a case against the State of Kenya – a government or Parliament can equally be the agency of a breach of the treaty.
Given that our Constitution is strong on incorporation of international law, we should encourage — not diminish— more use of regional and continental adjudicative forums as one additional check of trying to perfect the promise of the Constitution.
Waikwa is a constitutional lawyer