alexa Mwau: Supreme Court has no power to rule on polls date - Daily Nation

Mwau: Supreme Court has no power to rule on polls date

Thursday November 3 2011

By PAUL OGEMBA [email protected]

An MP has challenged the power of the Supreme Court to determine the date of the next General Election.

Kilome’s Harun Mwau filed an application seeking to stop the Supreme Court from giving an advisory opinion on the election date, saying, it has no authority to determine matters of constitutional interpretation.

He argues that Article 163 (6) of the Constitution limits the advisory opinion of the Supreme Court to matters relating to the running of county governments, adding that by admitting an application by the Interim Independent Electoral Commission, it was usurping powers of the High Court.

Last week, the Supreme Court admitted the petition after ruling that it is a matter of great public importance, which should be determined by a full bench of not less than five judges. (READ: Court gives nod to election date case)

The polls commission wants the court to determine the date for electing the President, members of the National Assembly, the Senate, governors and members of County Assemblies as provided for in the Constitution.

It argues that the confusion raging as to when voting will be held must be resolved immediately to enable it to begin planning for the conduct of the General Election and that there is ambiguity in interpreting the Constitution.

In his application, Mr Mwau disagrees with the electoral agency, stating that it does not represent the voters and leaders who have interest in the elections.

He argues that although the Supreme Court is duty-bound to issue authoritative and binding decisions, it has no authority to give advisory opinion on the election date and that it will be inappropriate for the court to hear the matter.

“Exercise of advisory jurisdiction will affect fundamental rights and freedom of Kenyans and their political representatives who have petitions in the High Court for determination of the issue of elections,” Mr Mwau said.

The Kilome MP submitted that if the court goes ahead and gives its advisory opinion, it will be non-binding since it would not have any precedential value.


He said that advisory opinion of the court should be exercised sparingly and cautiously, having regard to the implications its decision might have on the government and the people.

He proposes that the Supreme Court should await the outcome of a similar application he has made in the High Court before coming in as an appellate court if parties are not satisfied with the lower court’s interpretation.

Although he agreed that the date of the next General Election is of great concern, he submitted that it is not so urgent as to cause the Supreme Court to usurp the powers of other courts.

He wants the court to reject and dismiss the case and refer the polls team to High Court for proper constitutional interpretation.