NAIROBI, Kenya Apr 16 – The Supreme Court has has allowed an appeal filed by the National Assembly seeking to overturn an Appellate Court Judgement on the legal framework for operation of tribunals.
In the Said Appeal the National Assembly had disputed an earlier Court of Appeal Judgement, that had found Parliament to be at fault over alleged failure to enact legislation to transit all local tribunals from the Executive to the Judiciary.
In its judgement, the Supreme Court, set aside the orders (on structural interdict) with regard to culpability of Parliament – as initially granted by the High Court and subsequently affirmed by the Court of Appeal – as there were no constitutionally stipulated timelines for the transit of tribuals from the Executive to the Judiciary.
A draft Bill on the same was also already before the Judicial Service Commission and the Office of the Attorney General by the time the matter got to the Court of Appeal
The Supreme Court held that the structural interdict issued in this case was not an appropriate remedy since it was not demonstrated that Parliament was unwilling or persistently indifferent to its constitutional duty, particularly as the legislative process for the enactment of the Tribunals Bill was already underway as at the time of institution of the appeal before the Court of Appeal.
The Apex Court thus issued fresh directions on the way forward in resolution of the dispute at heart, with involvement of all relevant stakeholders.
Among the key directions on the way forward, was a finding by the Apex Court that Parliament bears a mandatory constitutional obligation under Article 169(2) of the Constitution to enact legislation conferring jurisdiction, functions and powers upon local tribunals, an obligation that must be discharged within a reasonable time.
Additionally, the Supreme Court directed that for a statutory body to qualify as a “local tribunal” under Article 169(1)(d) of the Constitution, it must exercise judicial, quasi-judicial, or adjudicative power.
At the heart of the dispute was a Petition filed in the High Court on December 18th 2018, by current Busia Senator Okiya Omtatah faulting Parliament’s failure to enact the legislation required to transit all local tribunals from the Executive to the Judiciary.
The Amended Petition was supported by Katiba Institute.
In a judgment dated 11th March 2021, the High Court held that the nature of the local tribunals under Article 169(1)(d) of the Constitution was that they were “courts of law which are subordinate to superior courts”; and were not advisory or administrative in nature as was the case.
In the present appeal, the Supreme Court agreed with Parliament and held that for a statutory body to qualify as a “local tribunal” under such a tribunal must exercise judicial, quasi-judicial, or adjudicative power as opposed to administrative, regulatory, or advisory power.
Concequently, it must thus be subordinate to the superior courts and must resolve disputes through a structured manner and must be established by an Act of Parliament.
The National Assembly told the Supreme Court that a draft Tribunal Bill was before the JSC and the Hon. Attorney General for stakeholder consultation.