Key Takeaways from the IEBC vs Attorney General Case and What It Means for Independent Commissions in Kenya
The Supreme Court of Kenya, in its ruling dated December 13, 2024, in Independent Electoral and Boundaries Commission v Attorney General & Another (Election Petition (Reference Application) E004 of 2024), addressed the application by the Centre for Legal Aid and Clinical Legal Education (CLACLE) at Kabarak University Law School seeking to be admitted as amicus curiae in the proceedings.
What is Amicus Curiae? Amicus curiae is a Latin term that translates to “friend of the court.” It refers to a person or organization that is not a party to a case but is allowed to provide the court with expertise, information, or legal arguments that may aid in decision-making. The role of an amicus curiae is to assist the court in reaching a fair and just ruling by offering perspectives that may not be fully represented by the parties involved in the case.
Background of the Case
The case arose from a reference by the Independent Electoral and Boundaries Commission (IEBC) seeking the Supreme Court’s advisory opinion on:
- Whether the IEBC could undertake the process of delimitation of electoral boundaries in the absence of Commissioners.
- Whether the IEBC could conduct a review of constituency and ward boundaries after the constitutional timelines had lapsed.
- Whether the constitutional timelines for delimitation could be extended and by whom.
During the proceedings, CLACLE sought to be admitted as amicus curiae to make submissions on whether the secretariat of an independent commission could undertake constitutional functions in the absence of commissioners.
Issues for Determination
- What are the guiding principles for admitting an amicus curiae in a Supreme Court reference?
- Did CLACLE meet the threshold for admission as amicus curiae?
Court’s Ruling
The Supreme Court dismissed CLACLE’s application for admission as amicus curiae on the basis that it failed to meet the established threshold. The ruling emphasized that:
- The role of amicus curiae must be neutral and must not duplicate arguments already presented by the parties.
- The applicant must demonstrate expertise relevant to the specific issues before the court.
- CLACLE, as an institution, failed to provide sufficient research papers or publications demonstrating expertise in the subject matter.
- The draft amicus curiae brief did not introduce new legal perspectives that would otherwise not have been considered by the court.
Legal Precedents and Authorities
The ruling relied on various judicial precedents, including:
- Muruatetu & Another v Republic [2016] KESC 12 (KLR), which established the principle that an amicus curiaemust provide a distinct and beneficial perspective to the case.
- Trusted Society of Human Rights Alliance v Matemo & 3 Others [2015] KESC 26 (KLR), which set the neutrality and expertise standards for amicus curiae.
- In the Matter of Interim Independent Electoral Commission [2011] KESC 3 (KLR), which highlighted the Supreme Court’s advisory jurisdiction under Article 163(6) of the Constitution.
Implications of the Ruling
1. Strengthening the Role of Amicus Curiae
The judgment reaffirmed the Supreme Court’s stringent criteria for admitting amicus curiae applications, ensuring that only institutions or individuals with proven expertise and neutrality contribute to constitutional interpretation.
2. IEBC Operations in the Absence of Commissioners
While the court did not directly rule on the substantive reference by IEBC in this decision, the ruling underscored the urgency of resolving governance gaps in independent commissions. The absence of commissioners has direct implications on key electoral processes, including boundary delimitation and election preparedness.
3. Institutional Autonomy and Governance
The ruling has significant implications for independent institutions in Kenya. It highlights the necessity of clear legal frameworks on whether secretariats of constitutional bodies can exercise certain functions in the absence of appointed commissioners.
Conclusion
The Supreme Court’s ruling in this case reinforces the principles governing amicus curiae participation and highlights critical governance concerns within independent commissions like the IEBC. While the dismissal of CLACLE’s application was procedural, the broader issues raised such as the operational challenges of the IEBC and the constitutionality of its secretariat performing commission functions remain crucial considerations for Kenya’s electoral and governance framework.
