Supreme Court to decide if it has jurisdiction to give Advisory Opinion on Chapter Six

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BY JOAN WANJIKU,NAIROBI,17TH JULY 2018-The Attorney General, Ethics and Anti Corruption Commission, Director of Public Prosecution and the IEBC have supported the Kenya National Commission on Human Right’s position that the Supreme Court should hear the Advisory Opinion reference on Chapter Six of the Constitution.

Through MMC Africa Law, the seven judge bench of the Supreme Court of Kenya led by Chief Justice David Maraga today heard submissions for an Advisory Reference on the interpretation and application of provisions of Chapter 6 of the Constitution on Leadership and Integrity.

The Kenya National Commission on Human Rights (KNCHR) through their lawyers MMC Africa Law led by the lead counsel Daniel Musyoka submitted that the issues raised in the advisory reference are of immense importance to the general public.

Daniel Musyoka of MMC Africa Law pointed out that the advisory reference includes provisions that affect the governance of public institutions in both elected and appointive offices. KNCHR also sought to have the Supreme Court determine whether vetting and appointing bodies or persons have an obligation to objectively and positively determine if a person seeking elective or appointive is fit and proper.

Mr Okiya Omtata had filed a preliminary objection stating that the Supreme Court did not have the jurisdiction to hear appeals under Article 163 (6) of the constitution. He argued that he had filed two cases in the Court of Appeal and the High Court that looked into the same issues that the advisory reference wanted to seek the determination on.

“These are matters that are in the Court of Appeal and the High Court. This is a matter for the High Court to determine despite who has filed the matter to the court,” Omtata told the court.

MMC Africa Law lead counsel Daniel Musyoka responded saying the issue in the advisory opinion were not and are not subject of lower court proceedings and are therefore not an appeal to the decisions that have been rendered by courts. He further submitted that a number of courts in the High Court and the Court of Appeal have repeatedly given conflicting judgments on the interpretation of the chapter on the criteria to be used and the bodies responsible for establishing a person’s integrity.

“These decisions are conflicting and do not give the proper guidance on the criteria to be applied with a view to enforcing the provisions of Chapter 6 of the constitution in relation to elective and public appointive offices” Mr Musyoka said.

The Supreme Court will deliver the ruling on notice.

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