The Apex Court of Kenya could soon cede its privilege as the final arbitrator in legal matters if a proposal mooted in the senate to have ‘Wanjiku’ have the final say, is passed.
Although the constitution of Kenya 2010 created the Supreme Court as the final arbitrator, aggrieved parties have questioned the independence of the highest court in the land, case in point, the presidential petition challenging the election of President William Ruto in the August 2022 polls.
Despite previous determinations that didn’t sit well with the political class since 2013 in the presidential petition pitting retired president Uhuru Kenyatta and Opposition leader Raila Odinga, the current controversial verdict on the LGBTQI is ‘the straw that broke the camel’s back.
This judgment has irked President William Ruto, Deputy President Rigathi Gachagua and Raila who have traded their ‘guns’ at the apex court for a judgement viewed as going against traditions and cultural norms.
Vihiga senator Godfrey Osotsi, a Raila ally has taken the first step and written to speaker Amason Kingi seeking to introduce an amendment to the constitution to give ‘wanjiku’ power to review and take a vote on supreme court decisions of national importance.
According to Osotsi, the proposed changes to the supreme law do not require a referendum but a two-thirds majority in both Houses of Parliament to have Kenyans have the final say.
“I am convinced that where the people of Kenya are extremely dissatisfied by a decision of the supreme court, the inherent power to review that decision, especially with regards to a presidential election petition,” reads Osotsi’s letter dated March 3rd seeking to sponsor a legislative proposal.
He continues, “ …or the interpretation and application of the Bill of Rights, especially with regards to family values that we hold as a nation.”
The senator argues that under the constitution’s legal framework, any person dissatisfied by the decisions made by the Executive or Bills passed by parliament can approach the judiciary for review, but who oversees the judiciary?
He regrets to note that Kenyans have no right to recourse over judiciary overreach in the current dispensation.
“….no right of review exists with regard to decisions made by the judiciary, especially at the Supreme Court,” said the Vihiga senator.
In his proposal, which he seeks the senate’s guidance to formulate into a Bill, Osotsi states that a person who wishes to contest the decision by the apex court shall be required to demonstrate the level of dissatisfaction by collecting the signatures of at least two million Kenyans in support of the move.
He adds, “The sponsor will be requiring the Independent Electoral and Boundaries Commission (IEBC) to conduct a referendum on the matter.”
The senator references Article 1 of the constitution, which expressly states that “All sovereign power belongs to the people of Kenya and that ‘the people may exercise their sovereign power directly or through their democratically elected representatives.”
The SCOK judges found themselves in a difficult position as Justice Isaac Lenaola dealt with the matter at the High Court, the same to Chief Justice Martha Koome while at the Appellate court.
The first judges to interact with the matter included Deputy Chief Justice phenomena Mwili, Mohammed Ibrahim, Smokin Wanjala and Njoki Ndungu. Justice William Ouko was also that the Appellate court when the matter was heard and determined.
The move by the senator comes at a time Raila and his Azimio la Umoja One Kenya coalition running mate Martha Karua has sustained their onslaught on the Apex court over its decision to uphold the Ruto win.
The two have taken issue with the utterance of the honorable judges in dismissing their petition.
They claimed the judiciary is under state capture and therefore some of the decisions are in favor of the Executive.
But the LGBTQI verdict has shocked many from the political class, the clergy and other civil society groups, even as International Courts of Jurists (ICJ) lauded the decision arguing it is core of fundamental rights.
Apart from the LQBTQI case, the SCOK has come under criticism over the judgement on the nullification of the 2017 presidential polls pitting Uhuru and Raila, the questionable academic papers of former Wajir governor Mohammed Abdi, Karua’s gubernatorial contest against Kirinyaga governor Ann Waiguru and Building Bridges Initiative (BBI) and former Nairobi governor Mike Sonko’s impeachment.
Some aggrieved parties such as Karua and Sonko have even escalated the matter and challenged the court’s judgment at the East Africa Court of Justice.
The parties also have a window to seek a review of the judgment by the Apex court.
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