The Justice and Legal Affairs Committee of the National Assembly wants the Supreme Court removed from hearing matters arising from political party disputes.
The committee argues that jurisdiction of the court is provided for under Article 163 of the Constitution and the Political Parties’ Act conferring additional mandate amounts to amending the Law through an Act of Parliament.
In a series of amendments to the controversial Political Parties’ (Amendment) Bill, 2021, the committee says the Court of Appeal should have the final say on all matters arising from political party disputes.
Additionally, the MPs want the decisions of the Political Parties Tribunal to have the same force as those of the High Court in terms of punishing any acts or omissions amounting to contempt.
In justifying the amendment, the committee argues that the timeline within which a dispute has to be heard from a political party internal disputes resolution mechanism all the way to the court of appeal translates into a difficulty in implementing court orders much as it delays electoral activities.
Section 41 of the Political Parties Act establishes the five –member tribunal, whose mandate is to determine disputes between the members of a political party; between a member of a political party and a political party, between political parties, between an independent candidate and a political party, between coalition partners.
The Act provides that an appeal shall lie from the decision of the tribunal to the High Court on points of law and facts, and on points of law to both the Court of Appeal and the Supreme Court.
While the chairperson of the tribunal has similar qualification with those of a High Court judge, its decisions have been enforced in the same manner as decisions of a magistrate’s court.
The National Assembly will meet on Wednesday in a special sitting to consider amendments to the bill that has enhanced the political differences between President Uhuru Kenyatta and his deputy William Ruto.
While President Kenyatta and ODM leader Raila Odinga support the bill, Dr Ruto and his allies have opposed it, arguing that the amendments are aimed at killing the UDA party on whose ticket Mr Ruto will seek to contest the presidency in the next general election.
The committee will meet tomorrow to consider the amendments MPs have proposed on the bill and then develop a harmonised version, which will be submitted to the House during the sitting in line with the directive given by Deputy Speaker Moses Cheboi when he adjourned the sitting last week.
Dr Wamuti Ndegwa, a law lecturer at the University of Nairobi, argues that the amendment on the Supreme Court is a waste of effort as the disputes under the Act will remain entitled to appeal to the Supreme Court.
“I expect courts to promptly declare the amendment unconstitutional as soon as it is enacted,” Dr Ndegwa said yesterday.
Article 163 (4) of the constitution restricts the powers of the Supreme Court to two types of appeals: disputes on interpreting or applying the Constitution, and disputes that are of general public importance because their outcome affects the legal rights of the public at large.
“The effect of Article 163(4) is that litigants in disputes arising from the Political Parties Act will remain entitled to appeal to the Supreme Court. The court will also retain the power to hear the appeals so long as the dispute involves interpreting or applying the Constitution or is of general public importance,” he added.
Futile as the proposed amendment may be, Dr Ndegwa argues that courts should see it as realisation that politicians are finally pushing back against what they see as unwelcome involvement of courts in politics.
“The proposal represents the strong political undercurrents seeking to oust courts of law from all disputes that are political in nature. On this, politicians could have a legitimate complaint since the constitution cannot have intended that courts have the final word on which politician may be a member of which political party, nominated to run for what office, hold what office in the party or which politician will be expelled.”
To expedite resolutions of disputes filed in the tribunal, the committee also wants the Judicial Service Commission (JSC) given power to appoint 18 ad hoc members to join the tribunal at least six months before the date of the general election.
