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KNCHR's petition on interpretation of constitution dismissed

28 February 2014, 09:03 Millicent Kawii

Nairobi - The Kenya National Commission on Human Rights (KNCHR) on Thursday suffered a setback on the inclusion of more parties to seek interpretations of the constitution at the top Court.

Supreme Court judges Phillip Tunoi, Jackton Ojwang, Smokin Wanjala and Njoki Ndungu dismissed KNCHR’s application seeking inclusion of more parties other than the national government, a state organ or a county government from approaching the top Court for constitutional interpretation.

The five judge bench ruled that any other party or institution that seeks to have an interpretation should do so as an interested party or amicus curiae as it is the rule.

“It is clear on the meaning of the rule on who should seek constitutional interpretation as per Article 163, that is not restrictive or discriminatory in any manner,” ruled the bench.

According to Article 163, the Supreme Court may give an interpretation at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

The judges said that the High Court is at the disposal of handling very many suits and therefore constitutional interpretation remains a role of the Supreme Court.

The judges also said that holistic interpretation of the constitution refers to comparing the constitution with other laws while maintaining a balance in considering what has happened in the past, the issues involved in the dispute and the existing circumstances.

They added that such a scheme is not limiting in arriving at desired results in interpreting the constitution as well as solving disputes.

KNCHR had sued the Attorney General and the Commission on Administrative Justice, over who should seek an interpretation of the constitution.

Through Senior Counsel Nzamba Kitonga, KNCHR claimed that this rule may be erroneously, wrongly and irregularly interpreted to mean that no person whether human or corporate, other than a national government, a State organ or a county government can seek an advisory opinion before the top Court on any matter concerning county government resulting to restricted access to justice.

KNCHR argued that they intended to raise questions related to provincial administration, county governance and devolution but were told to keep off this bracket as it does not concern them.

However the Attorney General insisted that only county governments are limited to matters concerning county government.

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