By Emmanuel Wetang’ula and Gabriel Mwangi, Advocates of the High Court of Kenya
As the nation prepares for the General Election scheduled for 4th March 2013, perhaps no other governmental institution has been as conspicuous recently as the Judiciary in asserting its preparedness for the election. Commendably, a Judiciary Working Committee on Election Preparations (“the Committee”) was unveiled on 10th May 2012 well in advance of the General Election and was tasked with assisting the Judiciary to prepare for electoral dispute resolution.
The Committee released its Interim Report in September 2012. On 28th February 2013, it released its final Pre-Election Report (“the Pre-Election Report”) which confirmed lingering fears on a jurisdictional position that seems to have been taken throughout the process, which position is unsettling for a matter of such gravity.
Exposition of the Problem
In the Pre-Election Report, specifically at page 24 under the heading “Training for Land and Environment Court and Industrial Court Judges”, it is confirmed that the Judiciary anticipates the involvement of judges of the two courts in hearing and determining election disputes. It is also anticipated that there could be a controversy on whether these courts could hear matters falling outside the purview of disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land. However, the resolution of this controversy is remarkably unsatisfactory.
In its own words, the Committee took the position that
“…it was important to train all the judges of these two courts to increase the pool of judicial officers from which the election court can be constituted. In the event that it is finally resolved that they have no jurisdiction to hear these disputes, they could still be called upon to relieve the High Court of the increased strain placed on it by the influx of electoral disputes anticipated after the 4th March 2013 elections.”
There are at least three problematic statements in the above position all of which illumine the Committee’s obliviousness to the importance of the jurisdictional issue. We shall begin by identifying and faulting those statements, after which we will advance our arguments on the reason that the Land and Environment Court and the Industrial Court are not the proper forums to ventilate election disputes.
The first statement is to the effect that the training of judges of those two courts served to increase the pool from which the election court can be constituted. This exposes the Committee’s loose understanding of the legal creation known as the ‘election court’. The Committee assumes that it may be composed of any judicial officers for which reason it is important to train the judges of the two courts to increase the numbers.
The election court is specifically defined in the Elections Act, 2011 to mean the Supreme Court in exercise of the jurisdiction conferred upon it by Article 163 (3) (a) or the High Court in the exercise of the jurisdiction conferred upon it by Article 165 (3) (a) of the Constitution and the Resident Magistrate’s Court designated by the Chief Justice in accordance with section 75 of this Act. Notably, this definition does not include the Land and Environment Court or the Industrial Court.
The second statement relates to the ‘final’ resolution of the jurisdictional controversy by postponing it to an indeterminate future. The Committee does not state when or by what means the controversy will be ‘finally resolved’, the impression being that there will be a tidy and harmonious process of settling the question. This is hardly credible because it is expected that there will be a large number of election petitions relating to presidential and county elections throughout the country.
The question may then be posed whether in the face of this multiplicity of petitions, the Judiciary will wait for the resolution of the jurisdictional issue in one of those petitions before deciding whether the judges of those two courts will continue to sit in election petitions. A more sinister possibility is that the Judiciary has predetermined that judges of those two courts have jurisdiction to hear election disputes. The uncertainty of this position is potentially dangerous bearing in mind the fragility of the political context within which election disputes are resolved as well as the stringent timelines on their resolution.
Thirdly, the Committee states that in the event it is finally resolved that the judges of those two courts do not have jurisdiction to hear election disputes, they may be called upon to relieve the High Court of its strain from the influx of electoral disputes. Here, it is assumed that what is being relieved of the High Court relates to its other cases so as to allow the High Court to exclusively hear electoral disputes. This statement confuses the jurisdictions of the three courts by assuming that the judges of the Land & Environment Court and the Industrial Court can hear and determine matters being dealt with by the High Court. This leads us to the issue of the jurisdiction of the Land and Environment Court and the Industrial Court and whether they may hear election disputes.
Jurisdiction of the Land & Environment Court and the Industrial Court
As a preface to what follows, it would be useful to underscore the importance of the question of jurisdiction for a court of law, as recently emphasized by the highest court in the land in the case of Samuel Kamau Macharia & another v. Kenya Commercial Bank and two others  eKLR, where the Supreme Court stated,
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”
Article 162 of the Constitution contemplates a system of courts consisting of superior courts and subordinate courts. The superior courts, according to Article 162 (1), consist of the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2). The latter courts are courts established by Parliament with the status of the High Court to hear and determine disputes relating to employment and labour relations, and the environment and the use and occupation of, and title to, land. Pursuant to Article 162 (2) of the Constitution, Parliament established these latter courts as the Environment and Land Court and the Industrial Court through the Environment and Land Court Act, 2011 and the Industrial Court Act, 2011 respectively.
The jurisdiction of the Environment and Land Court is set out in section 13 of the Environment and Land Court Act, 2011, as being original and appellate in matters relating to environment and land. On the other hand, the jurisdiction of the Industrial Court is set out in section 12 of the Industrial Court Act, 2011 as being exclusively original and appellate in matters relating to employment and labour relations.
In view of the above, the question is whether these two courts can exercise jurisdiction that exceeds that which is conferred by the above constitutional and statutory provisions. The obvious answer, if the Supreme Court’s reasoning is sound, is that they cannot. It would therefore be equally obvious that the Environment and Land Court and the Industrial Court are not competent to hear and determine election disputes. This is reinforced by the fact that these two courts are not contemplated within the definition of an election court as already alluded to above.
Although the Judiciary’s efforts to prepare itself for a possibly overwhelming number of elections dispute matters is appreciated, it needs to be conscious of the rudimentary jurisdictional considerations which, in the words of the Supreme Court in the S.K. Macharia case, go to the very heart of those matters. Jurisdiction, being so important as to paralyse a court from taking one more step, is not a matter that can be dealt with in the half-hearted and half-minded manner that the Committee did. It would be prudent to exclude the judges of the Environment and Land Court and the Industrial Court from hearing and determining election disputes.