IN THE REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Maraga, CJ. and P; Mwilu, DCJ and V-P; Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ)
PETITION NO 1 OF 2017
BETWEEN
RAILA AMOLO ODINGA...........................................................1ST PETITIONER
STEPHEN KALONZO MUSYOKA..............................................2ND PETITIONER
-AND-
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.........................................1ST RESPONDENT
THE CHAIRPERSON INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION.........................................2ND RESPONDENT
H.E UHURU MUIGAI KENYATTA...........................................3RD RESPONDENT
-AND-
LAW SOCIETY OF KENYA ..................................PROPOSED AMICUS CURIAE
RULING
[1] This is a Notice of Motion application dated and filed on 25th August, 2017 by the Law Society of Kenya (LSK) seeking to be admitted to this petition as amicus curiae, or friend of the Court.
[2] Pursuant to rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017, and the Practice Directions issued by the Court, this application is determined on the basis of written submissions only.
[3] The applicant, LSK, prays that upon such admission being granted, it be granted an opportunity to submit written and oral arguments, and with leave of Court, any information that the Court may deem important and relevant to allow for the just disposition of the petition.
[4] The application is premised on grounds that LSK is a public body established under the Law Society of Kenya Act, No. 21 of 2014, with various objects and function, inter alia: assist the Government and the courts in matters relating to legislation, the administration of justice and the practice of law in Kenya; and uphold the Constitution of Kenya and advance the Rule of Law and administration of justice.
[5] It is urged that because of its mandate and leadership, the LSK has significant expertise and knowledge on constitutional and electoral law matters which are relevant to the resolution of the underlying petition. That it will assist the Court with the interpretation and application of relevant constitutional principles, Kenyan jurisprudence and comparative foreign law. Particularly, that it will assist the Court by submitting on the following issues framed by the petitioners:
(a) Whether the presidential election was conducted in accordance with the Constitution and the electoral laws existing electoral jurisprudence, particularly, the constitutional obligations that IEBC is required to meet under Article 81 and 86 of the Constitution; and what interpretation or clarification ought to be made by this Court in regard to the meaning of section 83 of the Elections Act; and
(b) Whether the total number of rejected votes should be considered in ascertaining whether any candidate met the constitutional threshold.
[6] The application is supported the affidavit of Isaac Okero, the president of the LSK, in which he reiterates the grounds in the body of the application. He cites the case of Jasbir Singh Rai and 3 others v. Tarlochan Singh Rai Estate of and 4 Others [2013] eKLR and urges that LSK has been previously admitted as an amicus before this Court and that it has observed principles of impartiality whenever it has been admitted as an amicus.
[7] He urges that the Society meets criteria for admission of amicus curiae as pronounced in Trusted Society of Human Rights Alliance v. Mumo Matemu and 5 others[2015] eKLR and that it will abide by the guidelines set out in Francis Karioko Muruatetu and Another v. Republic and others [2016] eKLR.
[8] On record is also the applicant’s amicus brief, particularly on the constitutionality of section 83 of the Elections Act. He avers that no prejudice will be occasioned to any party were the application to be granted.
[9] In response to the application, there is a replying affidavit sworn by Alex Gatundu, an advocate of the High Court and a council member of the applicant, LSK. The affidavit is filed in opposition of the application by the 3rd respondent. The deponent is a senior member of the Society.
[10] He deposes to the centrality of impartiality on the part of a party seeking admission as amicus curiae and refers to the case Raila Odinga and 5 others v. Independent Electoral and Boundaries Commission and 3 others [2013] eKLR where the applicant herein was denied admission on the ground of lack of impartiality. He avers that equally, in this petition, LSK does not qualify for admission as amicus for lack of impartiality.
[11] He avers that LSK participated in the elections, subject of the petition before Court, as an accredited observer, and that its President, Isaac Okero issued a Press Release on 10thAugust, 2017 in which it was observed, inter alia that: “the electronic voter identification devices (EVID) largely functioned correctly and the process was completed without substantial disruptions in most of the polling stations. The KIEMS appears to have functioned without any operational flaws and the voting process was largely free, fair and credible”.
[12] Mr. Gatundu further avers that the LSK Council was spliton the decision whether to seek admission as amicus or not. He avers that some council members were actively involved in the election as candidates and/or nominated members to various parliamentary positions such as Edwin Sifuna and Allan Kosgey. further, that Ms. Faith Waigwa, the applicant’s Vice-President chaired the Jubilee Party’s National Elections Appeals Tribunal.
[13] There is also produced screen shots of What sApp Text communication images and transcriptions of some council members, with a certificate of production under section 106 (4) (B) of the Evidence Act, by Brian Gichana Omwenga, a technology advisor of Jubilee Party, as a demonstration of the partisan positions of some council members.
Determination
[14] The legal framework for admission of amicus is statutory embodied in Rule 54 of the Supreme Court Rules, 2012. This Court, as rightly observed by the applicant, has set out the principles in the case of Trusted Society of Human Rights Alliance v. Mumo Matemu and 5 Others, [2015] eKLR.
[15] Most important, as a friend of the Court, a party must not be partisan as he has no personal stake in the matter save for fidelity to the Constitution and assisting the Court reach a legally sound determination. The decision whether to admit apart is also as the discretion of the Court, though parties on record may be invited to response to such an application. In this regard, we note that the petitioners and the 1st and 2nd respondents have not filed responses to this application.
[16] The Law Society of Kenya is a statutory body whose objectives are provided for in section 4 of the Law Society Act, key among them, as rightly put by the applicant, being: assisting the Government and the courts in matters relating to legislation, the administration of justice and the practice of law in Kenya; and uphold the Constitution of Kenya and advance the Rule of Law and administration of justice. One of the way the Society assists courts in the administration of justice, is when it acts as amicus in matters before those courts. However, this position is not a panacea for admission of the Society as amicus in all cases. Leave must be sought and a basis satisfactorily laid.
[17] In the application before this Court, while the applicant was previously denied admission before this Court as amicus curiae, in a similar petition in 2013 that cannot be a ground for subsequent denial as urged by the 3rd respondent. Neither can the fact that Society was previously admitted by a ground for admission in subsequent proceedings as urged by the applicant. Each matter before the Court is unique and raises unique issues for determination and legal questions under different circumstances. This is the reason why an application has to be determined on its merit on a case to case basis so as to determine whether an intended applicant possesses the expertise relevant to assist the Court. The Court cannot take judicial notice of an amicus’ expertise. It is a matter fact to be pleaded and proved.
[18] For instance, the constitutional question, unconstitutionality of section 14 of the Supreme Court Act, in the Jasbir Rai case cited by applicant is not the issue now raised in this petition. Hence it cannot be a basis for admission in this matter. We have to evaluate this application on its own merit.
[19] Regarding the impartiality of the applicant, we note the contents of the replying affidavit of Alex Gatundu and the reference to the LSK President’s Press Release of 10thAugust, 2017. This Court would not delve into the internal functioning of the Society when determining applications like the one before it. Save to say that the otherwise divergent positions of the council members as averred in the affidavit are matters which need proper contextualization given that every citizen is entitled to his/her political right in Article 38 of the Constitution. This Court is not ready to pronounce that a council member cannot vie for a political office.
[20] We take note that when such an application is filed before the Court, it has to be evaluated on the basis of the Society’s objectives and not individual Society members.
[21] At the core of this petition is the interpretation and application of Articles 81 and 86 of the Constitution. This places the matter squarely within the Society’s objectives. In this petition is also the question as regards the validity or otherwise of the people’s exercise of their sovereign power. We find that nothing can be of great public interest, so as to invite the safeguarding from the LSK than a question touching on the people’s exercise of their sovereign power.
[22] Consequently, we find and hold that the Law society of Kenya has made a case for its admission as amicus curiae in this matter. As the Court reserves the right to direct the amicus on how to proceed, we direct that the Society restricts its submissions on the single issue contained in its brief, particularly: the rightful interpretation of section 83 of the Elections Act in relation to the Constitution 2010.
[20] The upshot is that the application for admission as amicus curiae is allowed.
ORDERS ACCORDINGLY
DATED, SIGNED and DELIVERED at NAIROBI on this 27th Day of August 2017.
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D. K. MARAGA P. M. MWILU
CHIEF JUSTICE and PRESIDENT DEPUTY CHIEF JUSTICE and
OF THE SUPREME COURT VICE-PRESIDENT OF THE SUPREME COURT
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M. K. IBRAHIM J.B. OJWANG
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
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S. C. WANJALA S. NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
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I. LENAOLA
JUSTICE OF THE SUPREME COURT