Ahmednasir, Sonko casualties of Supreme Court verdict on EACJ's role

Senior Counsel Ahmednasir Abdullahi and former Nairobi Governor Mike Sonko could be among the casualties of yesterday’s Supreme Court advisory on whether Kenyans can challenge Supreme Court decisions before the East Africa Court of Justice (EACJ).

The advisory by the apex court is also a blow to Narc Kenya leader Martha Karua who was central to the advisory sought by Attorney General Justin Muturi.

In reaction to the unanimous verdict, Karua lawyer Dudley Ochiel told The Standard on Saturday that they will again move to the EACJ to seek an interpretation on whether the Supreme Court is right by locking out Kenyans from the regional court.

“We will consider asking the EACJ to determine if the Supreme Court of Kenya is right on this issue. As a national organ to a State party, every Supreme Court of Kenya decision must comply with the EAC Treaty. That’s the irony in this situation,” said Ochiel.

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She then sued Kenya at the EACJ and was awarded Sh2.7 million.

EACJ judges Monica Mugenyi, Charles Nyawello and Charles Nyachae (who has since left) found that the Kenyan Supreme Court did not give the former Gichugu Member of Parliament a fair trial.

Aggrieved, the AG appealed before the EACJ which affirmed the first instant division’s award and which was to attract six per cent per annum interest.

Again, when Azimio la Umoja lost the Supreme Court petition against William Ruto’s victory in the 2022 presidential election, Karua and the Muslims for Human Rights (Muhuri) chairperson filed another case before the Arusha court.

Perhaps Karua’s initial win in the regional court inspired Sonko to challenge his impeachment and court rulings in Kenya. In the EACJ case, Sonko’s lawyer Arnold Oginga argues that his client had been “unjustly persecuted” adding that the verdict was by a flawed judicial process.

“The decision by the Supreme Court of Kenya and the Courts of Kenya was arrived at in an unjust manner,” Oginga argued.

“The decision by the Kenya Judiciary system is tainted by an illegality as the decision of the High Court as upheld by the Supreme court vitiated and influenced through corrupt means,” he added.

LSK also has a case against Kenya before the regional court.

In its case against the Attorney General, LSK is accusing the Supreme Court of violating Kenyan law and the East Africa Community (EAC) treaty by dismissing the appeal it filed before the highest court in Kenya.

According to the lobby, the Supreme Court failed to correctly define who a ‘person’ in a case is, by limiting it to only the parties that were involved in a dispute.

The case on Device Management System (DMS) initially involved Busia Senator Okiya Omtatah against the AG and the Communications Authority (CA).

Safaricom, Telkom, and Airtel were interested parties.

LSK came in after the Court of Appeal overturned the High Court’s decision barring CA from installing DSM.

Non-parties

Omtatah did not appeal the case. However, LSK moved to the Supreme Court arguing that the Court of Appeal failed to factor in the evidence submitted to show that the device would allow third parties access crucial information about callers.

However, Supreme Court Justices Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola dismissed the case.

In the EAC, LSK argues that Kenya’s highest court unfairly locked it out from accessing justice. At the same time, it argues that the Supreme Court also threw out Omtatah’s case.

“The Supreme Court of Kenya’s decision suffers wrongs to be without remedy by foreclosing all possibility of appeals by aggrieved non-parties despite Articles 22 and 258 of the Constitution and despite Rule 36 of the Supreme 20 Court of Kenya Rules, 2020,” court papers before the regional court read in part.

They add: “The Supreme Court further inequitably allowed a wrong to be without remedy by dismissing the cross-appeal by Okoiti - a main party,”

In the Court of Appeal in Kenya, Justices Martha Koome (current Chief Justice) William Ouko (now a Supreme Court judge), and Daniel Musinga overturned a High Court’s judgment which outlawed the installation of DSM.

The three judges faulted Justice John Mativo (now Court of Appeal judge) saying he failed to appreciate there was no credible evidence to demonstrate the system was meant to spy on consumers’ private information.

The High Court had scuttled plans by the regulatory body to install the system and force mobile service companies to connect their systems to it.

Fears were that CA would listen in on mobile phone conversations but it insisted DSM will help to detect fake mobile devices.

In the meantime, Ahmednasir is the latest Kenyan to go the EACJ way after the apex court decided to ban him and his law firm from appearing before it.

Ahmednasir sought Sh200 million arguing that he was not given audience before he was banned alongside his law firm from appearing before Kenya’s apex court.

“The respondent manipulated the law on contempt to achieve a result that favoured impunity and limited the applicant’s freedom of expression,” argued Ahmednasir.

On Friday, a six-judge bench composed of the Chief Justice, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola threw out Karua’s argument that it could not issue an advisory since there were pending cases before the EACJ.

They ruled that EACJ is not part of the hierarchy of courts in Kenya.

The idea to have a regional court came about in 1902 when the Eastern African Court of Appeal was established.

The court, which was initially housed at the Supreme Court building in Nairobi, was to sit as an appellate court for the then-High Courts of British Kenya, Uganda protectorate and Nyasaland (current Malawi).

It was then renamed East African Court of Appeal, the Court of Appeal for East Africa or the Court of Appeal for Eastern Africa and had jurisdiction over Tanganyika, British Somaliland, Federation of South Arabia, British Mauritius and British Seychelles.

Regional treaty

One could move to the court only if the judicial committee of the privy council (JCPC) authorized.

The system was, however, disestablished in 1977 as the British colonies went their way after independence but Kenya, Uganda and Tanzania retained the court to deal with EACJ treaty.

Supreme Court Judges were of the view that if the three partners wanted to retain the court in the appeal mechanism, then they would have provided the same in their respective constitutions and the treaty itself.

“It is juridically inconceivable that a regional tribunal, established by a regional Treaty, whose objectives are clearly decreed as in the EAC Treaty, can arrogate to itself an appellate jurisdiction,” the bench headed by Justice Koome ruled.

“Judicial supra-nationality in a regional or international community is a precept that must be categorically provided in a Treaty to which states have signified their consent,” the court ruled.

The advisory was a stopper for Kenyans trooping to the EACJ having lost in the Kenyan court system.

Supreme Court was of the view that Kenya’s constitution is supreme and has placed it at the apex as the final arbiter of disputes revolving around Kenya and her citizens.

They also observed that the EAC treaty expressly bars the court from interpreting national laws of partner states. They argued that the cases before that court are therefore beyond its jurisdiction.

They likened EACJ to European Court of Justice, the Inter-American Court of Human Rights, the European Court of Human Rights and the ECOWAS and noted that these courts do not entertain cases from partner states’ court systems.

 “It is obvious to us that, what international or regional courts are empowered to do, is to conduct procedural reviews on decisions of the national courts and call attention to violations only but in line with the mandate conferred by their parent Treaty or Convention and not national laws,” the Supreme Court said.

In the case, the AG had asked the top court to determine what would be the legal consequence upon the Government of Kenya and the sovereignty of the people of Kenya, if orders of the EACJ are based on different interpretations of Kenyan law.

“The court also needs to determine the legal effect of a finding by the EACJ that a national court, including the Supreme Court, did not adhere to legal principles including natural justice and the rule of law, in a case heard and determined by the national court,” said the AG in his application.