Let Kenyans veto Supreme Court in a referendum, Raila ally on LGBTQ+ ruling

Supreme Court

The Supreme Court building in Nairobi. A Raila ally now wants Kenyans to veto Supreme Court rulings in a referendum. According to the MP, the changes they are proposing only require a two-thirds majority in both Houses of parliament to pass.

Photo credit: File | Nation Media Group

The Apex Court of Kenya could soon cede its privilege as the final arbitrator in legal matters if a proposal mooted in the Senate to have ‘Wanjiku’ have the final say, is passed.

Although the Constitution of Kenya 2010 created the Supreme Court of Kenya (SCoK) as the final arbitrator, aggrieved parties have questioned the independence of the highest court in the land, case in point, the Presidential election petition challenging the win of President William Ruto in the August 2022 polls.

Despite previous determinations that did not sit well with the political class since the 2013 presidential petition pitting retired President Uhuru Kenyatta and opposition leader Raila Odinga, the current controversial verdict on the LGBTQ+ is ‘the straw that broke the camel's back.’

This judgment has irked Dr Ruto, Deputy President Rigathi Gachagua, and Mr Odinga, all of who have trained their ‘guns’ at the apex court for a judgment viewed as going against traditions and cultural norms.

Vihiga Senator Godfrey Osotsi, an ally of Mr Odinga, has taken the first step and written to Senate Speaker Amason Kingi seeking to introduce an amendment to the constitution to give ‘Wanjiku’ power to review and take a vote on Supreme Court decisions of national importance.

According to Mr Osotsi, the proposed changes to the supreme law do not require a referendum but a two-thirds majority in both Houses of Parliament to have Kenyans have the final say.

Sovereign power

The Senator argues that under the legal framework of the Constitution, any person who is dissatisfied with the decisions made by the Executive or Bills passed by parliament can approach the Judiciary for review. However, nobody oversights the Judiciary. He adds that it is unfortunate that Kenyans have no right to recourse over Judiciary overreach in the current dispensation.

“….no right of review exists with regard to decisions made by the Judiciary, especially at the Supreme Court,” said the Vihiga senator. 

In his proposal, which he seeks the Senate’s guidance to formulate into a Bill, Osotsi states that a person who wishes to contest the decision by the apex court shall be required to demonstrate the level of dissatisfaction by collecting the signatures of at least two million Kenyans in support of the move.

He adds: “the sponsor will be requiring the Independent Electoral and Boundaries Commission (IEBC) to conduct a referendum on the matter.”

The senator makes reference to Article 1 of the constitution, which expressly provides that “All sovereign power belongs to the people of Kenya and that ‘the people may exercise their sovereign power directly or through their democratically elected representatives.”

The SCoK judges found themselves in a difficult position as Justice Isaac Lenaola dealt with the matter at the High Court, the same to Chief Justice Martha Koome while at the Court of Appeal.

The only judges who were interacting with the matter for the first time were Deputy Chief Justice Philomena Mwili, Justice Mohammed Ibrahim, Justice Smoken Wanjala, and Justice Njoki Ndungu.

Justice William Ouko was also at the Appellate court when the matter was heard and determined.

The move by the Senator comes at a time Mr Odinga and his Azimio la Umoja One Kenya coalition co-principal Martha Karua have called out the Apex court over its decision to uphold Dr Ruto’s win.

The two have taken issue with the utterance of the honorable judges in dismissing their petition.   They claimed the Judiciary is under state capture and, therefore, some of the decisions are in favour of the Executive.

SCok criticism

But the LGBTQ+ verdict has shocked many, from the political class, and the clergy to civil society groups, even as International Courts of Jurists (ICJ) lauded the decision arguing it is the core of fundamental rights.

Apart from the LQBTQ+ case, the SCoK has come under criticism over the judgment on the nullification of the 2017 presidential polls pitting Uhuru and Raila, the questionable academic papers of former Wajir governor Mohammed Abdi, Karua’s gubernatorial contest against Kirinyaga governor Ann Waiguru and Building Bridges Initiative (BBI) and former Nairobi governor Mike Sonko’s impeachment.

Some aggrieved parties such as Ms Karua and Mr Sonko since escalated their matters and challenged the court’s judgment at the East Africa Court of Justice.

Then President Uhuru and his then deputy, Dr Ruto, had also promised to revisit the SCoK after the nullification of the presidential results in 2017.