CommentaryJURIST Guest Columnist Miano Maina, an LL.M. candidate from the University of Pittsburgh School of Law Class of 2013, argues that the High Court of Kenya exceeded its jurisdiction when adjudicating an integrity suit against International Criminal Court indictees Uhuru Kenyatta and William Ruto…
On February 15, 2013, the High Court of Kenya dismissed a lawsuit challenging the eligibility of Uhuru Kenyatta and William Ruto to seek the offices of president and deputy president, respectively, during the upcoming March 4 elections. The two are currently facing charges for alleged crimes against humanity at the International Criminal Court (ICC).
The judgment has been hailed by the two major protagonists in the Kenyan elections as politically correct. From the outset, it is important to note that the final outcome of the case was appropriate to the extent that barring Kenyatta and Ruto from running for office at this point in time would amount to disenfranchisement of the electorate. However, the approach of the court in relation to the issues canvassed is wanting and very confusing. In particular, the approach of the court towards the question of jurisdiction and the political question doctrine is hazy. This commentary analyzes the key issues arising from the decision and the approach taken by the High Court of Kenya.
The five-judge bench ultimately ruled that it does not have jurisdiction to deal with the nomination and election of presidential candidates. The High Court ruled that the jurisdiction to adjudicate the dispute is vested in the Supreme Court of Kenya. Specifically, Article 163(3) of the Constitution of Kenya vests the Supreme Court with the exclusive, original jurisdiction to hear and determine disputes relating to elections to the office of president:
[The] declarations sought boils down to asking the court to make declarations whose ultimate aim would result in the determination of the question, whether Uhuru Kenyatta and William Ruto are qualified to offer their candidature for the office of President and Deputy President respectively.
The court acknowledged the essence of jurisdiction in adjudication of disputes and cited the decision of Owners of Motor Vessel “Lillian S” v. Caltex Oil Kenya, Ltd. [PDF] from the Kenyan Court of Appeals:
Jurisdiction is everything. Without it, a court has no power to make one step, where a court has no Jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.
At this point, one would expect the court to decline to proceed on the substantive merits of the issues. Despite indicating the lack of adjudicatory jurisdiction, the court proceeded to carry out an interesting legal analysis of the substantive merits of the issues — purportedly exercising its powers under Article 165(3), which vests the High Court with the authority to interpret the constitution. There is a problem with the way the court exercises these powers for two reasons. Initially, in the course of exercising the powers, the court tangentially usurped the powers of the Supreme Court under Article 163(3) — the very powers it sought not to usurp. Second, in light of the dispute the court was not the right forum to interpret the constitution. Is the High Court of Kenya the only court with the powers to interpret the constitution? No, the Supreme Court of Kenya held that it may take its position as guided by its own interpretation of the constitution. The Supreme Court held that it may, while rendering an advisory opinion under Article 163(6) of the constitution, undertake any necessary constitutional interpretation. By logical analogy and in light of this dispute, the Supreme Court would have been the right forum to interpret Chapter Six of the constitution while exercising its powers under Article 163(3).
Postulating a standard of integrity is not an easy venture. The court acknowledged this fact and stated that the public sector is not like the private sector. The enforcement of general standards of ethical conduct or professional responsibilities in the private sector are, by their nature, generally collegial exercises wherein peers must judge the conduct of those within their own group, profession or organization.
Nevertheless, the court embarked on a “journey” to interpret Chapter Six of the constitution. At the beginning of this zealous journey, one imagines that Kenya would get a clear standard on the threshold of integrity; a threshold clothed with predictability and certainty. The court embraced the standard articulated in Democratic Alliance vs. The President of the Republic of South Africa & Three Others:
[F]or purposes of the integrity test in our Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not.
One gets the impression that the applicable threshold under Chapter Six is lower than that of criminality or, rather, proof beyond reasonable doubt. The court observed that even those aspiring to a state office should be like Caesar’s wife: beyond reproach. Conversely, the court later sought to find out the interplay between the Bill of Rights and Chapter Six of the constitution. This is quite in order as the constitution should be interpreted as a whole document. Competing interests have to be balanced. The court cited Article 50(2)(a) of the constitution which provides that an accused person is presumed innocent until proved guilty. It also cited Article 25 which provides that the right to a fair hearing cannot be limited or derogated from. So, is proof of guilt the threshold? The court then stated that no evidence was placed before it to show that Kenyatta and Ruto had been imprisoned for more than six months. Is imprisonment for six months the threshold? By carrying out this analysis, isn’t the High Court usurping the powers of the Supreme Court and tangentially determining the eligibility of Kenyatta and Ruto to run for the offices of the president and the deputy president, respectively?
The court’s approach in characterizing the dispute as justiciable is narrow. A fundamental principle of constitutional law is that a political question is not justiciable. The characterization of a dispute as political or justiciable is, therefore, imperative. An issue whose determination rests with a political department is political in nature and the judiciary should defer the issue to the political department. After citing numerous precedents, the court characterized the dispute as justiciable. However, the court later retracted that determination and held that it should not descend into the arena of inquiring into a candidate’s integrity. The court thus held that the institutions tasked with the duty of inquiring in to the integrity of a candidate are the Independent Electoral and Boundaries Commission (IEBC) and the Ethics and Anti-Corruption Commission (EACC). In essence, the court agreed that the issue should be deferred to a political department of the state and is not justiciable. The decision to defer the matter to the IEBC and EACC is legally accurate, but the characterization of the dispute as justiciable is wanting.
The only coherent legal theory the High Court has advanced is the centrality of people in governance. The court acknowledged that the constitution is a living instrument that has a soul and consciousness of its own. The court acknowledged that issues touching on political integrity cannot be considered outside the context of the elections. The Constitution of Kenya makes numerous references to the people of Kenya. Article 1 provides that all sovereign power belongs to the people of Kenya. This power is exercised through universal suffrage. To bar Kenyatta and Ruto from running for public office two weeks before the election would amount to disenfranchisement of the electorate.
Judges sometimes find themselves in precarious positions. Their decisions may have serious political ramifications. However, they must not allow their analysis to be informed by a disjointed concoction of inconsistent theories. A good lawyer preparing for a case will have a theory for every stage while prosecuting his claim. Such theories may not be consistent and lawyers sometimes postulate theories on a “without prejudice” basis. Judges should not adopt these theories without carrying out an adequate legal analysis. Judges must not rush to be efficient at the expense of developing the law. The tumultuous “journey” of the High Court in this case only operates to crowd the competing jurisprudence between the High Court and the Supreme Court of Kenya in the exercise of the powers conferred to them by the Constitution of Kenya.
Miano Maina is a H.J. Heinz Fellow and an LL.M candidate at the University of Pittsburgh. He is admitted to the Kenyan Bar and holds a Bachelor of Laws from Moi University in Kenya. He also holds a Post-Graduate Diploma in Law from the Kenya School of Law. He is a Chartered Accountant (ACCA-UK) and a Certified Public Secretary (CPS-K). Miano has previously worked with PricewaterhouseCoopers (PwC) in Nairobi, Kenya and Johannesburg, South Africa.
Suggested citation: Miano Maina, Jurisdiction and the Political Question Doctrine: Integrity Suit against Kenyatta and Ruto, JURIST – Dateline, Feb. 20, 2013, http://jurist.org/dateline/2013/02/miano-maina-kenya-elections.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org
