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The East African Court of Justice (EACJ) Appellate Division issued a landmark decision affirming an earlier ruling by the First Instance Division to find that Kenya, through the Supreme Court of Kenya, infringed on Martha Karua’s (Ms Karua) right of access to justice. It is the first time the EACJ Appellate division has determined election-related disputes arising from a decision (s) of the Supreme Court of Kenya (Petition No. 3 of 2019).
Background of the Case
In Kenya’s General Elections on 8 August 2017, Ms Karua contested for Governor of Kirinyaga County. Her principal rival for the position was Anne Waiguru. Following the tabulation of votes, Ms Waiguru emerged victorious after garnering 161,343 votes, while Ms Karua came second with 122,091 votes.
Aggrieved by the conduct and outcome of the elections, Ms Karua filed an election petition at the High Court in Kenya on 5 September 2017. Ms Karua alleged that the polls were not credible, free, fair, or verifiable. Ms Karua further alleged there was massive cheating, intimidation, voter bribery, use of unauthorized persons to man polling stations, tampering with ballot boxes, forgery of ballot papers and breach of constitutional requirements in the voting, counting, tallying and transmission of votes across the County. Ms Karua, therefore, sought a declaration that Ms Waiguru was not duly elected as the Governor of Kirinyaga and a further order that the election was null and void and that a fresh one is conducted.
The High Court struck out the petition on a technicality that the petition did not state the election results and the date of declaration of such results. Dissatisfied with the High Court’s decision, Ms Karua appealed to the Court of Appeal. On 2 May 2018, the Court of Appeal allowed her appeal, set aside the High Court’s decision, and remitted the petition back to the High Court for hearing on merits. It is worth noting that the Elections Act, 2011 provides for a six-month statutory timeline within which to lodge and dispose of election petitions – meaning that Ms Karua’s petition ought to have been determined by 5 March 2018, being six months from the filing at the High Court.
Ms Karua argued, and Ms Waiguru took objection to the petition before the High Court as directed by the Court of Appeal. On 14 June 2018, the High Court dismissed her petition because she had failed to prove the allegations pleaded in it to the required threshold.
Ms Karua lodged another appeal at the Court of Appeal, challenging the dismissal of her petition on merits. Interestingly, the Court of Appeal took issue with the petition being heard and determined beyond the timelines provided in the Elections Act. On 20 December 2018, the Court of Appeal dismissed her appeal, holding that the High Court lacked jurisdiction to hear and dispose of the election petition upon expiry of the six-month statutory period.
Aggrieved by the decision of the Court of Appeal, Ms Karua moved to the Supreme Court on 25 January 2019, challenging the judgment of the Court of Appeal. She contended that she was not at fault for the breach of the six-month statutory timeline. The Supreme Court, however, affirmed the Court of Appeal’s finding that the said High Court proceedings were a nullity, albeit through no fault of Ms Karua. It was against this background that Ms Karua moved to the EACJ on 4 October 2019 by filing a reference against the Attorney-General as principal legal adviser to the Government of Kenya.
Proceedings at the First Instance Division of the EACJ Ms Karua’s Case
In her Reference to the First Instance Division, Ms Karua contended that whereas the Elections Act restricts the hearing and determination of election petitions to six months from the date of filing and another six months for the resolution of any subsequent appeal to the Court of Appeal, the law is silent on timelines within which remitted petitions upon a successful appeal should be heard.
It was thus Ms Karua’s case that the Supreme Court of Kenya failed to uphold the rule of law while acknowledging that running afoul of the election timelines was not her fault.
The Republic of Kenya’s Response
The Attorney General of Kenya opposed the Reference and sought its dismissal because (a) the EACJ lacked jurisdiction to entertain appeals from decisions of domestic courts; (b) the Reference was time-barred; (c) the matters raised in the Reference were res judicata (i.e., had been previously determined by the Supreme Court of Kenya) and (d) the Reference is a disguised appeal.
Ms Waiguru and her Deputy-Governor Peter Ndambiri took part in the proceedings at the EACJ as interveners. They supported the Attorney-General’s arguments that the EACJ lacked appellate jurisdiction over decisions of the Supreme Court of Kenya.
Judgment of the First Instance Division
On 30 November 2020, the First Instance Division, sitting in Arusha- Tanzania, delivered a judgment declaring Kenya to have infringed on Ms Karua’s right to access to justice contrary to Articles 6 (d) and 7 (2) of the Treaty for the Establishment of the East African Community (the EAC Treaty). Kenya’s judicial organ has violated its commitments to the fundamental and operational principles of the EAC.
First Instance Division relied on Article 4 (1) of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts and its previous determination in East African Civil Society Organisations Forum (EASCOF) v Attorney General of the Republic of Burundi & Others to make a finding that it had jurisdiction to entertain a challenge to the judicial decision of municipal courts, including apex courts.
On whether Ms Karua’s Reference was time-barred and raised a valid cause of action, the First Instance Division found Ms Karua filed the Reference within time, and her cause of action was based on the Supreme Court’s decision. Ms Karua filed her Reference within two months of the Supreme Court of Kenya decision as prescribed by the EACJ Rules of Procedure. The First Instance Division further found that Ms Karua had raised a valid cause of action as the Reference raised legitimate questions about the Supreme Court’s compliance with the Treaty, particularly regarding the right to access to justice and fair trial contemplated under Article 6 (d) of the EAC Treaty.
The First Instance Division further found that the Supreme Court of Kenya made its decision, curtailed Ms Karua’s right to access justice, considering that Kenya’s Elections Act did not have any express provision regarding a time limitation for cases remitted from the Court of Appeal to the High Court for trial. Therefore, there was a duty upon the Supreme Court to redress the identified gap in the law to promote access to justice, equity, and social justice.
The First Instance Division, consequent to its findings above, granted Ms Karua various declaratory orders, general damages in the sum of USD 25,000 and costs of the Reference.
Proceedings at the Appellate Division
Dissatisfied with the judgment of the First Instance Division on 9 February 2021, the Attorney-General of the Republic of Kenya appealed to the Appellate Division of the EACJ on the grounds that
Judgment of the Appellate Division
On 28 February 2022, the Appellate Division dismissed Kenya’s appeal and regurgitated the findings of the First Instance Division. In doing so, the Appellate Division found that:
The EACJ has jurisdiction to interrogate matters on EAC Treaty interpretation, notwithstanding a previous decision of a superior court of a Partner State. In this regard, Kenya’s argument that First Instance Division exercised appellate jurisdiction over the Supreme Court did not stand.
The EAC Treaty establishes the EACJ as the judicial arm of the EAC regional economic block. The Treaty mandates the EACJ to, among others, ensure the adherence of Partner States to the rule of law and the Treaty. The decisions by both divisions of the EACJ in this suit underline the essential role that regional courts such as the EACJ play in upholding the rule of law and ensuring that decisions of municipal courts are consistent with their respective Partner States’ obligations under the Treaty.
We are keen to see the Kenyan courts’ reception of this decision and the treatment of election petitions that have lapsed in time through no fault of the parties. The Kenyan Government has not amended the Elections Act; therefore, the six-month limitation period to lodge and dispose of election petitions is still in place. The decisions of Kenyan courts after the general elections on 9 August 2022 will test the harmony among EAC nations and the willingness to be bound by regional courts.
Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Faith M. Macharia.