The Supreme Court has declined to hear advisory opinion applications filed by Nandi, Kericho and Makueni counties seeking clarification on legality of the proposed amendments of the constitution under the Building Bridges Initiative (BBI).
The three counties wanted the apex court to interpret role of county assemblies in the process when dealing with a constitution amendment Bill and whether a proposed amendment to the Constitution should only be limited to one issue. They also wanted the court to interpret whether national or county governments or State and public officers can promote constitutional amendment through a popular initiative.
Petition at High Court
But the court, in a ruling read virtually by justice Smokin Wanjala, said though it has the authority to hear the applications, it will not exercise its powers because the issues raised are similar to those pending determination at the High Court in a consolidated petition.
The hearing of the High Court petition is scheduled to start tomorrow before a five-judge bench presided by judge professor Joel Ngugi.
In declining to hear the Advisory Opinion applications, the Supreme Court a perusal of the High Court file disclosed that the issues highlighted for determination are substantively similar and there is possibility of both courts rendering their declarations at the same time.
This also pose possibility of a confusion to the public on judicial pronouncements, said justice Wanjala while noting that the matters before the two courts are of great public interest and urgent.
"We have considered import of issues for determination in the references (Advisory Opinion applications) and in the pending petitions. They need deep interpretation. We do not see how the High Court can determine the issues without addressing the questions at the Supreme Court," said the apex court. The High Court petitions were filed before the advisory opinion references.
The issue of similarity of matters was raised by Attorney General Kihara Kariuki's counsel, Emmanuel Bitta, who had also urged the court to down its tools on the references.
The counsel expressed fear that there could be confusing and conflicting pronouncements on the matter by the two courts.
"The questions posed in the applications are the same being determined at High Court. It is interesting to have concurrent proceedings to determine same matters," said Mr Bitta while responding to a question by the Acting Chief Justice Philomena Mwilu on whether 'whatever is happening at the High Court has a bearing on the advisory opinions?'.
However, lawyers Elisha Ongoya for Nandi and Kericho county assemblies had a different opinion saying the cases at the Supreme Court and the High Court can run simultaneously.
Among the issues that the Attorney General pointed out as similar and could lead to conflicting findings by the two superior courts, is a question on whether the government can be promoter of Constitutional changes through popular initiative (under article 257) instead of using the parliamentary initiative as provided in article 256 of the Constitution.
Another contentious issue is on the decision of the government to use public resources to advocate for a referendum and collection of endorsement signatures by administration officers, a benefit that is not available to civilians who are pushing for the same.
The other question that is similar is whether under provisions of Article 257 (5) and (7 ) of the Constitution the term “consideration” and “approve” provides room to County Assemblies and Parliament to alter and improve the contents of the Bill so as to incorporate divergent views raised through public participation.
Currently, the county assemblies are supposed to just vote as pro or against a constitutional amendment Bill but not amending.
Another similar issue is on whether a single question or multi-choice referendum should ensue when the amendment Bill contains a multiplicity of issues addressing different constitutional matters.