EACJ dismisses appeal over Kenya’s constitution

THE East African Court of Justice’s (EACJ) Appellate Division in Arusha has dismissed an appeal by Mr Okotch Mondoh in the case that sought to challenge the promulgation of the new Kenyan constitution.

Mr Mondoh was seeking to overturn a decision of the First Instance Division for grounds that the Division, in its judgment, did not consider all the facts that were presented before it in the process to declare Kenya’s new constitution, which took place on August 27, 2010.

The court, in its decision stated, “We are satisfied that in reaching its findings and conclusions in this case, the First Instance Division exercised its discretion judiciously, not capriciously; and fairly, not unreasonably.

Accordingly, even if, for argument’s sake, those conclusions were wrong, they would not be reviewable by or appealable to, this Appellate Division.”

Justice James Ogoola, while reading the judgment, remarked that neither the First Instance Division nor the Appellate Division had jurisdiction to review the judicial decisions and judgments of municipal courts and tribunals, adding that the EACJ was not a court of appeal in relation to decisions of municipal courts and tribunals of the partner states.

The Secretary General of the East African Community (EAC) and the Attorney General of Kenya had previously asked the EACJ’s Appellate Division to dismiss the appeal by Okotch Mondoh.

The appellant, Mr Okotch Mondoh, who was represented by Mrs Judith Wambui, had asked the Appellate Court to determine whether the decision of the First Instance Division considered the facts presented before it, especially on a petition that was pending determination before the promulgation of the new Kenyan constitution. She emphasised that the lower court should have put this into consideration.

The First Instance Division, in its decision, stated that it found there was no valid petition, hence dismissed the matter. Dr Anthony Kafumbe, representing the EAC Secretary General, had asked the Appellate Court to uphold the decision of the First Instance Division, arguing that its decision was consistent with Rule 68 (5) of the East African Court of Justice Rules of Procedure.

He added that the First Instance Division did not have the jurisdiction to review the judicial decisions in the partner states, a position echoed by Kenya’s Attorney General, who was represented by Mr Emmanuel Bitta, Principal State Attorney from Kenya.

The latter also argued that the suit was not in the public interest and asked the court to dismiss the appeal with costs. Under Articles 27 (1) and 30 of the EAC Treaty, the initial jurisdiction of the EACJ pertains only to the interpretation and application of the provisions of the Treaty.

Article 27 (2) makes it crystal clear that the wider ‘appellate’ jurisdiction for the EACJ over decisions of the municipal courts and tribunals of the partner states will be determined by the Council of Ministers only at “a suitable subsequent date,” for which the partner states “shall conclude a protocol to operationalise the extended jurisdiction.”

The court has had occasion to pronounce itself on the question of appeals on points of law, excluding facts. The court went further, stating that the matter before it should not be treated as an appeal of the electoral petition which formed the judicial process that took place in the Kenyan courts.

He continued that, accordingly, the First Instance Division was right in holding that it had no jurisdiction to review the decisions of the Kenyan courts in the matter. Even Kenya’s High Court had declined jurisdiction and left the matter to the IICDRC, pursuant to Sections 60 – 60A of the replaced Constitution of Kenya.

The Appellate Division also said that, the respective causes of action in the present case were quite distinct. In the Kenyan courts, including the IICDRC, the cause of action was the alleged lack of propriety of the constitutional process for promulgating the new constitution of Kenya.

However, the case before the EACJ was totally different, which was the alleged violation, infringement and breach of Article 6 (c ) and (d) and Article 7 (2) of the EAC Treaty – in effect, a violation of a partner state’s treaty obligations and undertakings to ensure adherence to the rule of law in its territory.

Daily News Tanzania.