Nairobi, Kenya: Following the declaration of Uhuru Kenyatta as the winner of the March 4, presidential election by the Independent Electoral and Boundaries Commission (IEBC), his main competitor former Prime Minister Raila Odinga filed a petition at the Supreme Court challenging the outcome.
Law Society Kenya (LSK) Chairman Eric Mutua
Two more related petitions were also filed at the court. The three petitions were consolidated and heard together as Petition No.5 of 2013. Eventually, the Supreme Court upheld the decision of IEBC and declared Uhuru the winner and the forth President of Kenya.
Due to the intense public debate and media commentaries on the cases, the Supreme Court issued orders on March 20, directing the petitioners, respondents, their agents, supporters and advisers to desist from prosecuting the merits of the cases in any forum other than the court.
However, on March 28, one of the local dailies published a news item quoting the Law Society of Kenya (LSK) chairman Eric Mutua as having “faulted a ruling by the Supreme Court to reject additional evidence from Raila’s party CORD”.
The newspaper quoted Mutua as having said that the decision of the court to expunge an 839-page affidavit filed by CORD could set a precedent for future rulings.
Further, Mutua was quoted saying the LSK wanted to determine circumstances that led to the alleged failure of the technology system used during the elections. He was said to have made the remarks after the LSK had unveiled a committee to audit the General Election.
That same day, the Supreme Court issued summons for Mutua to appear before it at a date that was to be communicated to him.
He was then issued with summons by the Registrar of the Supreme Court on July 22, directing him to appear before the court on August 1.
The court said the reason for summoning Mutua was to give him an opportunity to confirm or deny the newspaper reports. It also informed him in the presence of other interested parties, that he was not facing contempt proceedings.
LSK lawyers, however, raised preliminary issues, which they wanted determined even before the court could proceed to hear the clarification from Mutua. The court directed all the parties to file written submissions.
Legal scope
In the submissions, LSK questioned the jurisdiction of the Supreme Court to deal with the matter given that the Presidential Election Petition had already been determined and the issue was out of its hands.
They also questioned whether the LSK chairman was the right person to summon over a news item published by a newspaper that was not summoned by the court.
First, the Supreme Court decided that the second issue did not fall within the legal scope of a preliminary objection. The judges then considered the issue raised regarding the jurisdiction of the court. Next was for the court to give an analysis of a legal concept called “functus officio”, which loosely means “having performed his office or duty”.
The LSK had relied on this doctrine in their objection, which implies that as a general rule, once a decision maker has exercised his powers in determining a certain issue, he can’t revisit it again. The decision-making powers of a body are exercised only once. The decision can’t be revoked or varied by the decision maker; it can only be appealed against to a higher body.
“In our view, the objections being raised as to this court’s jurisdiction to issue the summons dated July 22 must be regarded as separate and distinct from the question whether this court had, in the first place, jurisdiction to issue the order made on March 28,” the seven judges of the Supreme Court argued.
“Indeed, it is to be taken that, had the summons been issued before the final determination of Petition No.5 of 2013, the parties would most probably not have raised the objection now before us. Thus, the real contention made as to the court’s jurisdiction, is hinged on the supposition that because Petition No.5 of 2013 has been heard and determined, the court has become functus officio, and so has no further authority to hear or determine any matter attendant on any proceeding in the said petition.”
The judges pointed out that though the petition had long been finalised, the issue before them emanated not from the substantive facts or issues raised in the petition, but from an ancillary order issued during the proceedings, which was totally unrelated to the main petition.
“That order has not been acted upon or perfected, and the summons issued pursuant thereto by the Registrar of the Supreme Court, were meant to give effect to the court’s observation and consequent directions made on March 28,” the judges noted.
They said any court had a legal and constitutional obligation to preserve and protect the adjudicatory forum of governance, and to uphold decorum and integrity in the scheme of justice delivery.
Judicial process
“It follows that the court’s jurisdiction, in oversight of the question of conscientious and dignified management of the judicial process, and in safeguarding the scheme of the rendering of justice, will not be exhausted until the court is satisfied and it declares as much,” they added.
They said even if the court had concluded the hearing of the petition by delivering a judgement, its jurisdiction for upholding the dignity of the judicial process, and in relation to the proceedings of the petition, remained uncompromised, hence it could issue summons on orders made during the main hearing.
On Thursday, the court ruled that the matter was not out of their hands and they had jurisdiction to entertain the proceeding before them. That meant that Mutua will now be required to appear before the Supreme Court to give his side of the story regarding the news article attributed to him.
By Wahome Thuku, The Standard
