In the Matter of Interim Independent Electoral Commission [2011] eKLR

Key Facts

Issues

• The court evaluated practical considerations guiding the decision to render an Advisory Opinion, including principles such as the requirement for requesting organs to exhaust internal resources before seeking an opinion, and the Supreme Court's discretion to accept or decline requests on a case-by-case basis while adhering to constitutional obligations.
• The court considered the nature of the High Court's jurisdiction in determining justiciable matters when parallel with the Supreme Court's Advisory Opinion jurisdiction under Article 163(3) of the Constitution. This includes whether the High Court can exercise original jurisdiction over constitutional interpretations while the Supreme Court provides advisory opinions, and the obligations of the Supreme Court to reinforce this jurisdictional framework.
• The court examined the specific situations outlined in the Constitution of Kenya that authorize the Supreme Court to provide an Advisory Opinion, particularly under Article 163(3) and the conditions for invoking this jurisdiction. This included evaluating the scope of such authorizations in relation to the application's request for interpretations of Articles 101(1), 136(2)(a), 177(1)(a), 180(1), and Clause 9(1) of the Sixth Schedule.

Holdings

• The Supreme Court declined to provide an Advisory Opinion on the next general election.
• The matter is to be placed before the Constitutional and Human Rights Division of the High Court for priority hearing on a day-to-day basis.
• The High Court petitions (Nos. 123, 65, and 185 of 2011) are to be listed for mention and directions on 18th November, 2011.
• The reasons for the decision are reserved and will be set out in a Ruling upon notice.

Remedies

• Responding to the High Court's request, the matter shall be placed before the Constitutional and Human Rights Division of that Court, for hearing on priority and on a day-to-day basis.
• Decline to give Advisory Opinion on the next general election.
• High Court Petition Nos. 123 of 2011, 65 of 2011 and 185 of 2011 shall be listed for mention and directions before the Head of the High Court's Constitutional and Human Rights Division on 18th November, 2011.
• Reserve the reasons for a Ruling upon notice.

Legal Principles

• The Supreme Court Rules stipulate that organs seeking an Advisory Opinion must first exhaust their internal resources before approaching the court for directions.
• The High Court is entrusted with original jurisdiction to hear and determine constitutional matters under Article 165(3)(d) of the Constitution. The Supreme Court, as the ultimate interpreter, must protect and reinforce this allocation of first-instance jurisdiction to the High Court.
• The Supreme Court exercises its discretion in accepting Advisory Opinion requests while upholding the High Court's constitutional role. The court emphasized its duty to interpret the Constitution and ensure proper jurisdictional allocation.

Cited Statute

Judge Name

• Tunoi
• W.M. Mutunga
• Ndung'u
• Nancy Baraza
• Ojwang
• Ibrahim
• Wanjala

Passage Text

• (2)We reserve the reasons, to be set out in a Ruling upon notice.
• We hereby Order and direct as follows: (1)We decline to give our Advisory Opinion on the next general election.
• (3)Responding to the High Court's request, of 13th October, 2011 for directions, the matter herein shall be placed before the Constitutional and Human Rights Division of that Court, for hearing on priority and on a day-to-day basis.