Partial victory for Sonko in push to run for office after impeachment
Former Nairobi Governor Mike Mbuvi Sonko.
What you need to know:
- According to Kenya’s Attorney-General, the jurisdiction of the court is confined to the interpretation and application of the Treaty and does not extend to oversight of judicial decisions by partner municipal courts.
- She also argued that the dispute is domestic and does not involve the interpretation or application of the Treaty.
The East African Court of Justice has agreed to hear a dispute filed by former Nairobi governor Mike Mbuvi Sonko over a legal decision in Kenya to bar him from holding public office.
The move is a partial victory for Mr Sonko who has tried to overturn the political hurdles mounted by a Kenyan court.
The EACJ said it had jurisdiction to hear and determine aspects of the application that allegedly breached the East African Community Treaty, which Kenya has domesticated as law.
“The applicant has demonstrated that the Supreme Court could have failed to adhere to its own procedural rules, which if proved, would be in violation of Article 25 of the Constitution of Kenya and Articles 6 and 7 of the Treaty,” said the court, which is presided over by Justice Yahane B Masara.
According to the court, Sonko, who was impeached in 2020, demonstrated that he would suffer irreparable harm if the orders sought are not granted.
Sonko argued that the Supreme Court in Kenya barred him from participating in politics, which has had profound and far-reaching consequences.
“The impact on his political rights, reputation and capacity to engage in public services underscores the irreparable nature of the harm he faces,” said the regional court.
Sonko was removed as the governor of Nairobi County on November 26, 2020, and he moved to the High Court where he filed several petitions to challenge his ouster.
The petitions were dismissed and the matter ended up at the Supreme Court.
He filed the case before the East African court, arguing that, in the final decision, the Supreme Court effectively barred him from participating in the subsequent elections and holding public office.
He submitted that the proceedings before the Supreme Court were conducted in a manner that violated the rule of law, natural justice, and the principles of transparency and accountability.
Sonko said that Chief Justice Martha Koome publicly expressed opinions on his case before the ruling was made, thereby undermining impartiality.
The actions, he said, undermined Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
Mr Sonko argued that the judicial arm of the Kenyan government abdicated its mandate and duties as independent organs by disregarding the purpose of the Constitution and the principles of the treaty establishing the EAC.
He said he was selectively persecuted and his fundamental political rights and freedoms illegally, unlawfully and unjustifiably curtailed in a flawed judicial process
Attorney-General Dorcas Oduor challenged the jurisdiction of the court, submitting that the East African Court of Justice lacks the jurisdiction to hear the case as it cannot review or overturn decisions of national courts, specifically the Supreme Court of Kenya.
According to Kenya’s Attorney-General, the jurisdiction of the court is confined to the interpretation and application of the Treaty and does not extend to oversight or reversal of judicial decisions by partner municipal courts.
She also argued that the dispute is domestic and does not involve the interpretation or application of the Treaty.
But Mr Sonko maintained that the court is an appropriate forum for determining whether Kenya’s judicial actions align with its obligations under the Treaty. He argued that this is essential to uphold justice and provide him with the avenue for redress that is consistent with the objectives of the EAC.
In the decision, the court said that whereas Articles 27(1), 6(d) and 7(2) of the Treaty as well as Article 33(2) of the treaty confer the court the authority to interpret and determine issues arising under the treaty, the court does not possess jurisdiction to conduct appellate merit reviews of court decisions of partner states.
“While the court can inquire into whether the impugned decision or conduct violated the Treaty, it cannot engage in a substantive review of the merits or correctness of the decision,” it said.
The judges said that while Kenya’s Supreme Court and other apex courts of partner states are the ultimate judicial authorities within their respective jurisdictions, the courts remain subject to obligations arising under the international treaty law.
“The international commitments undertaken by the partner states under the Treaty do not conflict with nor are they subordinate to domestic constitutional principles,” said Judges Masara, Dr Charles Nyawello, Richard Muhumuza, Richard Wabwire and Dr Leonard Gacuko.
The court said the treaty does not undermine the constitutional supremacy of the Supreme Court of Kenya but rather complements it by providing a framework for addressing matters of treaty interpretation as agreed upon by the partner states.
“In that regard, Articles 23, 27 and 33(2) of the Treaty grant and delineate the court’s mandate to interpret the Treaty and to ensure compliance with its provisions, with Article 33(2) unequivocally asserting the court’s supremacy over municipal courts in that regard,” added the judges.
The judges allowed Mr Sonko to amend the petition to incorporate materials from the proceedings of the Supreme Court of Kenya.
Ms Martha Karua, the former Justice Minister and 2022 Azimio La Umoja Coalition deputy president candidate, successfully sued Kenya at the EACJ. But the decision was challenged before the Supreme Court by the Attorney-General.
In a decision in May, the Supreme Court said its decisions cannot be subjected to review before the East African court.
The apex court dealt a blow to the Narc-Kenya leader as it stated that decisions rendered by the regional court over judgments that have been finalised by the Supreme Court have no legal consequences.
“We further hold that domestic courts and regional courts, in this case, the EACJ, do not have a vertical relationship, meaning that decisions of the Supreme Court are not subject to appeal at the EACJ. The EACJ also does not have a merit review jurisdiction over decisions of the Supreme Court,” said the bench, presided over by CJ Koome.
Lawyer Ahmednasir Abdullahi has equally filed a petition at the East African court following his indefinite ban by Kenya’s apex court.
