Supreme Court declines to rule on election date - Daily Nation

Supreme Court declines to rule on election date

Tuesday November 15 2011

Supreme Court judges from left: Njoki Ndung'u, Jackton Ojwang, Philip Tunoi and Chief Justice Willy Mutunga during a November 15, 2011 sitting. The Court declined to give directions on the date of the next General Election. PAUL WAWERU

Supreme Court judges from left: Njoki Ndung'u, Jackton Ojwang, Philip Tunoi and Chief Justice Willy Mutunga during a November 15, 2011 sitting. The Court declined to give directions on the date of the next General Election. PAUL WAWERU 

By PAUL OGEMBA [email protected]

The Supreme Court has declined to give directions on the date of the next General Election.

Instead, it referred the matter to the High Court.

In a ruling delivered by the Supreme Court president Dr Willy Mutunga on behalf of the full bench Tuesday, the court declared that even though they have jurisdiction to give advisory opinion in the matter, they declined to exercise that discretion.

“We decline to exercise our discretion to give such an opinion with regard to the date of the next general and reserve our reasons which will be given in a ruling upon notice to the parties,” said Justice Mutunga.

The court directed that petitions filed in the High Court by Kilome MP Harun Mwau and lawyer Mugambi  Imanyara which had been stopped pending the direction of the Supreme Court be taken back to the Constitutional and Human Rights Division for hearing on priority and on a day-to-day basis.

Mr Mwau and Mr Imanyara had filed petitions in the High Court seeking a determination of the date of the next polls, but they were stayed to wait the outcome of the same application filed by the Interim Independent Electoral Commission before the Supreme Court.

The electoral body wanted the court to determine the election dates of the president, members of the national assembly, the senate, governors and members of the County Assemblies as provided for in the Constitution.

It argued that the confusion raging as to when the elections shall be held must be resolved immediately to enable it begin planning for the conduct of the General Election and that there is ambiguity in interpreting the Constitution as it gives conflicting formula.

The application was opposed by Mr Mwau who submitted that the Supreme Court has no authority to give advisory opinion on matters of Constitutional interpretation, which he argued was a reserve of the High Court.

He argued that Article 163 (6) of the Constitution limits the advisory opinion of the Supreme Court to matters relating to the running of County government, and that it will be usurping powers of the High Court.

Through lawyer Ian Maina, the Kilome MP submitted that if the court went ahead to issue its advisory opinion, it will be non-binding since it wouldn’t have any precedential value and that the decision could lead to the dissolution of Parliament.