ARUSHA
I won’t make any excuses for not posting. It’s been a busy term. I was at Arusha last week attending a matter at the East Africa Court of Justice. The case concerned Kenya’s nominated MP’s to the East Africa Legislative Council. While the substance of the case basically deals with the political fallout between the NARC coalition partners, the legal issues raised are interesting.
Under the Treaty, all questions concerning elections are left to “an institution of the partner state.” It was the contention of the Attorney General that sovereignty of in respect of elections had not been ceded to the community. The thrust of the applicants arguments was what had occurred was not an “election” as envisaged by the treaty. They argued, that court could decide what constituted an election after which the domestic court would deal with the elections as defined by the court. The applicants also argued that they did not a proper an adequate remedy within Kenyan law. They argued that they could not challenge the election with the National and Presidential Elections Act. The respondents countered this argument by stating that Act could accommodate disputes relating to EALC members. If authority were needed for this, it is to be found in the case of Kipkalya Kones vs Kimani Wanyoike and Others where, notwithstanding the fact that the National and Presidential Elections Act deals only with elected members of Parliament, the Act was read to include nominated members. Moreover, even where a right is granted by the treaty, which forms part of the laws of Kenya, then a party can approach the High Court by any procedure that is acceptable to the High Court.
The court would have to answer the whether the definition of elections amount to a “question corning elections” and therefore a matter subject of the jurisdiction. If the court is of the view that it can interpret the word “elections” then its jurisdiction over elections over the member states will be extended. We will all look forward to seeing more electoral disputes before the court.
The learned judges of the court had tough questioning for the parties. Justice Warioba was particularly tough and incisive. I would also not that the Kenya Attorney General presented the case on behalf of the government. I think this is the first time the Hon. Wako has appeared before any court to argue a matter for the state. I was impressed by his command of the facts, the law and persuasiveness. I would also say that he put forth the political implications of the case very well.
More on the case later ……..
Under the Treaty, all questions concerning elections are left to “an institution of the partner state.” It was the contention of the Attorney General that sovereignty of in respect of elections had not been ceded to the community. The thrust of the applicants arguments was what had occurred was not an “election” as envisaged by the treaty. They argued, that court could decide what constituted an election after which the domestic court would deal with the elections as defined by the court. The applicants also argued that they did not a proper an adequate remedy within Kenyan law. They argued that they could not challenge the election with the National and Presidential Elections Act. The respondents countered this argument by stating that Act could accommodate disputes relating to EALC members. If authority were needed for this, it is to be found in the case of Kipkalya Kones vs Kimani Wanyoike and Others where, notwithstanding the fact that the National and Presidential Elections Act deals only with elected members of Parliament, the Act was read to include nominated members. Moreover, even where a right is granted by the treaty, which forms part of the laws of Kenya, then a party can approach the High Court by any procedure that is acceptable to the High Court.
The court would have to answer the whether the definition of elections amount to a “question corning elections” and therefore a matter subject of the jurisdiction. If the court is of the view that it can interpret the word “elections” then its jurisdiction over elections over the member states will be extended. We will all look forward to seeing more electoral disputes before the court.
The learned judges of the court had tough questioning for the parties. Justice Warioba was particularly tough and incisive. I would also not that the Kenya Attorney General presented the case on behalf of the government. I think this is the first time the Hon. Wako has appeared before any court to argue a matter for the state. I was impressed by his command of the facts, the law and persuasiveness. I would also say that he put forth the political implications of the case very well.
More on the case later ……..
posted by jurist at 3:21 AM
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