Blazing The Trail: Kenya’s Supreme Court Rejects the Regional Court’s Merit Review of its Judgments

by | Jun 25, 2024

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About Godfrey Mwango and Brooksharon Mwango

Godfrey Mwango is a reader in law based in Mombasa-Kenya. He specialises in comparative constitutional law (with a focus on emerging jurisdictions), horizontal human rights, and judicial review and is currently supervised by Professor PLO Lumumba. Previously, Godfrey received training under the Honourable Peter Kaluma and George Miyare (Kenya's leading constitutional litigation experts). He is skilled in constitutional litigation and judicial review and can be contacted at| Brooksharon Mwango reads for her Bachelor of Laws (LL.B) degree. Her research interests lie in the intersection of law, human rights, and governance, primarily focusing on law as a tool for policy change to address social inequalities and injustice. In this quest, she intends to apply the law in stimulating social change, thereby positively impacting the marginalised and the vulnerable, including people with disability, children, women, and the youth in society.

On 31 May 2024, Kenya’s Supreme Court (‘the Court’) delivered the Advisory Opinion in AG v Karua, Reference E001 of 2022 (‘the reference’), which rejected the intrusive approach of the East African Court of Justice (EACJ). Crucially, the Court applied the harmonisation approach to rule that, under the constitution, EACJ lacked appellate jurisdiction over decisions of final national courts of Member States. This ruling upholds constitutional supremacy and facilitates citizens’ beneficial enjoyment of rights through domestic courts which can competently and progressively adjudicate rights as they are constitutionally mandated. Predictably perhaps, critiques have surfaced in the wake of the advisory opinion (for instance, see here and here). This commentary gives a constitutional (and human rights) perspective of the opinion.

Brief Facts

The reference was traceable to the gubernatorial election in Kirinyaga County where Hon. Martha Karua, SC (the Intervener) successfully challenged before the EACJ the result declared against her, on the ground that the State violated her right to a fair trial and justice access. Given this ruling by the EACJ, the Attorney General sought the Court’s advisory opinion on the EACJ’s review powers. The Intervener argued that the Court lacked jurisdiction to hear and determine the reference because it did not concern county government under Article 163(6) of the constitution. Moreover, the issues raised in the reference were either concluded or pending litigation before EACJ and were either resolved or unripe for an advisory opinion. Therefore, the Intervener argued that the reference invited the Court to usurp a role reserved by the Treaty of the EACJ [3].

Issues and Determination

The issues included: i. Whether the Court had advisory opinion jurisdiction in the matter; and, ii. Whether the decisions of the Court on the interpretation of Kenyan law were subject to EACJ’s merit review?

On issue (i), the Court observed that its advisory opinion jurisdiction was anchored in Article 163(6) of the constitution [29]. Therefore, since the dispute that birthed the Reference concerned an election dispute in Kirinyaga County, the Court had advisory opinion jurisdiction [32]-[34].

On issue (ii), the Court affirmed that based on Article 2(6) of the constitution, international law, including treaty law, applied in Kenya provided they were not in conflict with the constitution. The principle of constitutional supremacy embodied the primacy of domestic laws and the subsidiarity of international laws as informative of state sovereignty [54]. Accordingly, Kenya’s electoral laws fell squarely within the municipal competency of its courts. It was juridically inconceivable that a regional tribunal such as EACJ could assume appellate jurisdiction to interpret a member state’s constitution [56]. Ultimately, the Court held that the constitution placed it as the final judicial authority [59]. If any provision of a treaty conflicted with the constitution, the latter prevailed.


Regional courts have undertaken more progressive interpretations of rights by broadening their jurisdiction to promote human rights. EACJ had justified that it had both interpretive and enforcement jurisdiction under Article 23(1) of the Treaty to adjudicate on a violation of municipal law involving access to justice and fair trial which gave rise to this cause of action. However, under Article 27, EACJ’s jurisdiction is limited to the interpretation and application of the provisions of the Treaty, which impliedly prohibits the interpretation of national laws of partner states.

Bearing this in mind, the Court appreciated the normative tension under the constitution’s supremacy clause(s) and (rightly) applied the harmonisation principle to resolve the conflict between domestic and international law. Notably, Article 2(5) of the constitution domesticates general rules of international law as part of Kenyan law. Article 2(6) facilitates the applicability of ratified treaties as part of Kenyan law. Article 2(1) declares constitutional supremacy, while Article 2(4) stipulates that any law that is inconsistent with the constitution is invalid. This constitutional discordance birthed debate on whether international or municipal law enjoys normative precedence. As a compromise, the harmonisation approach, which impliedly guided the Court’s determination, defers to the jurisdictional rules to resolve a conflict between the legal systems. The jurisprudential lesson emerging from the Court (which esteemed constitutional law scholars such as Professor Ben Sihanya would agree with) is that the constitution ranks highest in the hierarchy of norms. Treaty provisions cannot suspend [express] provisions of the constitution designating the Court as the final arbiter in national law matters.


In summary, the Court wisely harmonised the conflict between international and municipal law by deferring to Kenyan jurisdictional rules to find that the hierarchical relationship between regional and national courts was not vertical. As such, EACJ lacked appellate jurisdiction over decisions of the Court. This finding is laudable as the Court is competent to adjudicate national laws and facilitate the progressive enjoyment of rights, and its ruling in this reference promotes respect for the constitution and its principles. For now, EACJ’s pronouncements amounting to a merit review of the Court would be of no legal consequence and unenforceable in Kenya.

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