Okiya Omtatah Okoiti,
Room 4, Floor B1, Western Wing,
Block A, Social Security House,
Bishops Road, Community Area,
P. O. Box 60286-00200,
December 5, 2011
Hon. Dr. Willy Mutunga,
The Chief Justice of Kenya,
C/o The Supreme Court, By hand delivery
Ref: Infringement on my Right of Access to the Supreme Court and the Court’s Unconstitutional Rules
It pleases me to humbly draw your attention to the fact that on October 27, 2011, in total disregard of Articles 48 and 258 of the Constitution, which grant individuals and groups the automatic right of access to any court, and also the right to a fair hearing under article 50(1), the two-judge bench of Justices Jackton B. Ojwang and Njoki S. Ndung’u relied on the recently published Supreme Court Rules 2011 to deny me (and the Kenya Institute of Governance) the right to access the Supreme Court, in Constitutional Application No. 2 of 2011.
The Kenya Institute of Governance was not given audience because, according to the judges, it did not give reasons why it wanted to be admitted. On my part, I was denied audience because the judges found that I had not stated which of my rights were likely to be violated, as required under Rule 23 of the Supreme Court Rules.
That denial woke me to the brazen manner in which some of the Rules violate the Constitution as though the Supreme Court was an exclusive Court. To my humble understanding, the Supreme Court is not an exclusive court; it is an integral part of the structure and the court system of the Judiciary as established by the Constitution of Kenya, 2010.
Your Lordship, Article 258 categorically states: “(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members.
I had filed a Preliminary Objection in the Supreme Court, as an interested party, opposing the Interim Independent Electoral Commission’s petition asking the Court to give an advisory opinion on the date for the next general elections. The basis of my objection was that, as the “highest” court in the land, the Supreme Court of Kenya only had appellate and not original jurisdiction in the matter, and that the Court’s advisory opinions, anticipated in Article 163(6), were strictly limited to matters that involve a ‘county government question’.
I had instructed my advocates to object and persuade the Court using the Constitution, previous drafts of the Constitution, and taking into account Comparative Practice in Supreme Courts elsewhere with similar provisions, that the Court’s mandate in 163(6) is limited to matters concerning county governments. Indeed, Article 163(6) reads, “The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
I was not heard and, most unfortunately, no other party raised similar concerns to help the Court with its findings. And, even though the matter was rightly referred to the High Court for the determination of a similar case filed by one Harun Mau and that was pending there, the Supreme Court ruled that Article 163(6) gives it discretion to give advisory opinions on any issue, including on the date of the next general elections.
Your Lordship, the new Constitution goes to great lengths to stop mischievous courts from locking out anybody on pretence such as of locus standi. Hence, this particular rule of the Supreme Court takes us back to the dark KANU days, where locus standi was used to deny justice to aggrieved parties. For example, when the courts claimed erroneously, in Wagare Maathai vs. Kenya Times Media Trust, that the late Prof. Wangari Maathai had no locus standi to challenge former President Moi’s and KANU’s attempt to grab Uhuru Park.
Further, the gatekeeper two-judge bench created by the Supreme Court Rules, such as Rule 40(4), is itself unconstitutional. I posit that there is no two-judge bench in the Supreme Court! Article 163(2) is categorical: “The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.”
Nobody or authority can change that constitutional requirement, and the very existence of the gatekeeper two-judge bench violates the Constitution by denying an applicant or interested party their constitutionally guaranteed automatic right of access to the five-judge bench.
Some of the Court’s other rules are also of an unconstitutional character and need to be revised in line with the Constitution of Kenya, 2010.
In order to protect our rights, the Supreme Court should follow the law in its rules, and avoid adjudicating on matters as if the Court was a lower court or the High Court, because when it makes mistakes, as it did in my specific case cited above, the aggrieved has nowhere to seek recourse other than in the court of public opinion that lacks the force of law.
By this letter, therefore, I draw Your Lordship’s attention to the anomalies cited above and I shall be most obliged, if within the next fourteen (14) days, Your Lordship will advise me, in writing, of the steps you will take to rectify the said anomalies.
Otherwise, I will be left with no option but to take the constitutionally slippery and most embarrassing route of petitioning the High Court to determine the constitutionality of the said Supreme Court Rules.
Thanking you and looking forward to your prompt favourable response, I remain,
Okiya Omtatah Okoiti
0722 684 777
1. The Attorney General
2. The Minister of Justice and Constitutional Affairs
3. Constitution Oversight Implementation Committee
4. Kenya Law Society
5. Kenya National Commission on Human Rights
6. The Commission on Administrative Justice
7. The Kenyan Public