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Attorney-General Justin Muturi yesterday told the Supreme Court that the move by Kenyans to challenge its decision at the East African Court of Justice (EACJ) is causing constitutional havoc.

In a petition that stemmed from two cases filed by opposition politician Martha Karua at the regional court four years ago seeking damages over decisions of the Supreme Court, the AG said decisions by the Supreme Court on Kenyan law should not be subject to a merit review by EACJ.

In one case, the Arusha-based regional court awarded her compensation in general damages of $25,000 following a finding that the Supreme Court violated her rights during a dispute involving Kirinyaga 2017 governorship elections.

“The Chief Justice and the judges of the court, the AG seeks advisory opinion on whether a decision by the Supreme Court can be challenged at the East Africa Court of Justice by a dissatisfied party since our Constitution is very clear the decision of the our apex court are final and not subject to appeal,” Muturi through lawyer Mohat Somane stated.

“The purported exercise of ability jurisdiction by the EACJ poses a serious conflict of Kenya commitment to the rule of law. By dint of determination of conflicting on similar issues of law by the Supreme Court and the EACJ,” Somane added.

Kenyans sovereignty

The AG urged the full bench of the Supreme Court, led Chief Justice Martha Koome, to determine several questions including “what would be the legal consequence upon the Government of Kenya and the sovereignty of the people of Kenya, of orders of the EACJ premised on different interpretation of Kenyan law from that held by the Supreme Court”.

Secondly, the AG wants the court 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, including the Supreme Court”.

Third, Muturi wants the seven judges to determine whether the matter is of great public importance requiring an agent resolution through this advisory opinion.

“Under Article 159 of the Constitution delegated judicial authority to this apex court by the Constitution and whether the court is subject to supervisory jurisdiction by any other tribunal or any other court.

The advisory seeks a resolution of the question whether the decision of the apex court in Kenya (Supreme Court of the republic) can form the rights of review in a regional court by an aggrieved party,” Somane said.

The AG further submitted that the President under Article 132(1)(c)(3) is obligated under the Constitution to submit once every year to the National Assembly to debate on the progress made on the international obligations of the public.