Why the Supreme Court was wrong about Martha Karua’s EACJ ruling

The Supreme Court of Kenya (SCORK) has recently declared, in an advisory opinion, that the East African Court of Justice (EACJ) has no legal authority to review decisions of domestic courts of member states.

In the May 31, 2024 opinion, the SCORK said that under the East Africa Community EAC treaty, the regional court cannot review decisions reached by courts in countries that comprise the EAC.

“On the effect of a decision amounting to a merit review by the EACJ of a decision by a final national court such as this one, such a decision would be of no legal consequence," the SCORK said.

The advisory opinion resulted from a request by Kenya’s Attorney General (AG). 

On December 9, 2022, Kenya’s AG sought an advisory opinion from the Supreme Court of Kenya to determine whether its decisions can be subjected to a merit review by EACJ.

In questions framed by the AG, he asked the SCORK to invoke its constitutional authority under Article 163 (6) of the Kenyan Constitution to determine the legal consequences of such a review (by EACJ) and establish if it impinges upon the sovereignty of the Kenyan people.

The AG also sought the apex court’s opinion on the legal effect of a judgment by the EACJ that a finding of a Kenyan court “did not adhere to legal principles, including natural justice and the rule of law, in a case heard and determined by a national court, including the Supreme Court.”

The AG’s application was sparked by an EACJ judgment in 2019 that Kenya’s courts, including the Supreme Court, violated the constitutional rights of former Justice Minister Martha Karua in her failed legal challenge against her loss in the 2017 Kirinyaga gubernatorial race.

EACJ held that the violation breached Kenya’s obligation under the EAC Treaty and ordered Kenya to pay her Sh2.7 million in compensation. Kenya lost an appeal at EACJ.

Successful suit

Kenya lost two preliminary objection applications seeking to quash Karua’s application on the grounds that EACJ was trying to sit in the appeal of decisions of Kenya’s court yet its mandate was only to interpret the Treaty but the grounds were dismissed.

In the 2022 application at SCORK, Karua was joined as an intervener because the primate cause of the AG’s application was her successful suit at EACJ. 

She sought to strike out the AG’s application, citing, among other grounds, that as per Article 163(6) of the Constitution of Kenya, an advisory opinion could only be sought from the SCORK on a matter involving counties.

This objection alone should have terminated the application. But the Supreme Court upheld the AG’s contention that the application involved counties, merely because the issue at hand arose from a gubernatorial election.

This controversial assumption of jurisdiction was not lost on the Supreme Court because, in its May 31 decision, it appears to acknowledge its tenuous grounds by citing its past ruling that SCORK can assert jurisdiction if it was the “perception of the court” that the matter at hand concerns counties.

Several questions arise from that. One is whether SCORK is right in concluding that the issue framed by the AG concerned counties. 

The second is whether the real issue that should have concerned the AG is a constitutional question on hierarchy and conflict of laws to be heard at the High Court first.

Could a framing of questions in a different manner have affected the trajectory of arguments and reach the same conclusion?

Does the May 31, 2024 finding affect all other matters referred to EACJ by natural persons from Kenya or does this finding only affect Karua’s case? 

Competitive jurisdiction

SCORK is categorical that its judgment applies to all matters filed by Kenyans at EACJ to the extent that they purport to render a merit review of domestic courts.

Clearly the assumption of jurisdiction was the narrowest and weakest ever for the AG appears to be aggrieved by the fact that treaty law and a foreign court are asserting competitive jurisdiction on Kenya’s sovereign institutions.

The AG resurrected a matter concluded and extinguished at EACJ. And the SCORK accepted it as a legal question on weak, inductive logic that does not fit the four corners of Article 163(6). Without a doubt, a different framing of questions would result in a different conclusion.

In summation, SCORK appears fixated with the hypothesis that EACJ is asserting merit review of Kenyan court decisions and acting in appeal. 

These are also questions that have been settled at the EACJ and are no longer contentious.

SCORK framed an unnecessary question on merit view but failed to explain what entails this concept.

In accusing EACJ of acting as an appeals court or conducting merit review and usurping sovereignty of the Kenyans state, SCORK dwells much on Article 27 of the EAC Treaty which says EACJ only has jurisdiction over the interpretation and application of the Treaty.

SCORK also argues that EACJ is prohibited from interpretation of national laws of EAC member states.

And the SCORK adopts an interpretation that treaty law is inferior to Kenya’s constitution from the judges’ assessment of that Article 1(6). 

Adherence to the rule of law

This part of the Constitution says any treaty or convention ratified by Kenya shall form part of the law of Kenya UNDER THIS CONSTITUTION (my emphasis)

But the judges are silent on the role and place of general rules of international law within the hierarchy of Kenyan laws per Article 1(5).

The regional court, itself, has addressed most of these matters before and settled the law. 

It has, repeatedly, ruled against accusations that it is asserting illegal appellate powers and as indicated above the AG’s attempt to raise this motion was defeated in the Karua case.

In this judgment, SCORK and the Kenyan AG appear to be appealing Kenya’s past losses at EACJ.

Significantly SCORK in its judgment makes scant or no reference to Article 6 of the EAC Treaty that enjoins EAC member states to embrace “good governance, including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality as well as recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples Rights.”

EACJ has often cited Article 6 (besides Article 23) that compels member states to ensure adherence to the rule of law in the interpretation and application of, and compliance with the Treaty to justify its intervention.

SCORK also does not mention that Kenya signed the EAC Treaty without reservations to Articles 6 and 23, and hence is bound by them. 

EACJ’s jurisprudence allowing applications by natural persons is also based on Article 27 of the Treaty, which says the regional court shall have initial jurisdiction over interpretation and application of the Treaty and “such other original, appellate, human rights and other jurisdiction, as will be determined by the Council at a suitable subsequent date.”

Procedural violations

Clearly, member states envisaged an expanded jurisdiction for EACJ but SCORK does not indicate whether an additional protocol was signed to expand EACJ jurisdiction or was rejected.

SCORK reinterprets and Articles 6 (by default) and 27 for the EACJ and member states in a restrictive manner. 

It encroaches on EACJ’s interpretive mandate and in a manner that mischaracterises EACJ’s juridical practice and history.

SCORK cites rulings of other supranational courts to demonstrate EACJ cannot review decisions of domestic courts to determine whether they conform to the rule of law.

In the case of Genie Lacayo vs Nicaragua, 1997, the Inter American Court of Human Rights held that regional courts do not “act as appellate court or court of Judicial Review of rulings handed by domestic courts.”

But in the same case law cited by EACJ, the Inter American Court, rightly, also held that it “is empowered to…call to attention the procedural violations of the rights enshrined in the Convention.”

Citing procedural violations in the conduct of a trial in domestic courts or other organs of a member state by a regional court as EACJ has done does not amount to conducting an appeal or merit review.

An appeal ousts the substantive finding of a lower court. In the 2019 case, EACJ made no such decision.

That SCORK is the final court in Kenya is not in dispute. SCORK as an organ of state also must act within the Constitution and law, which is an obligation to Kenyans and to the EAC Treaty.

SCORK should have demonstrated what aspects of the EAC Treaty conflict with Kenya’s laws to justify some of its conclusions.

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Ochami is an advocate of the High Court of Kenya and a journalist based in Mombasa