Azimio Principal Martha Karua on Friday suffered a setback after the Supreme Court ruled that  decisions of the Apex Court  on Kenyan law cannot be subject to a merit review by the East African Court of Justice

Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and supreme court judges Ibrahim Mohammed, Smokin Wanjala,  Njoki Ndug’u and Isaac  Lenaola in an advisory opinion stated that the  Supreme Court exercises its mandate as provided for under the Constitution while EACJ exercises its mandate under the EAC Treaty.

“The EACJ is not part of the hierarchy of courts in Kenya and therefore, the Court cannot fail to issue an advisory opinion regarding matters pending or concluded at the EACJ, because of the difference in jurisdiction and authority,” said the judges.

Attorney General Justin Mutur had sought an advisory opinion on behalf of the National Government on whether the decisions by the Supreme Court on Kenyan law may be subject to a merit review by the EACJ.

The AG further sought what would be the legal consequences upon the Government of Kenya and the sovereignty of the people of Kenya if orders of the EACJ premised on a differing interpretation of the Kenyan Law from that held by the Supreme Court.

The advisory opinion was preceded by Azimio Principal Martha Karua filing a case at EACJ following her loss of the Kirinyaga gubernatorial seat in the 2017 general election.

Karua objected to the advisory opinion saying the court should not proffer an advisory opinion on matters pending litigation or concluded litigation at the EACJ.

However the judges stated the issues raised by the Attorney General in the Reference constituted matters of great public importance as they concerned the question whether decisions of this Court can be subject to merit review by a regional or international court given the finality of such decisions under the Constitution.

“The matters in question could not also be settled through ordinary litigation, and therefore, an advisory opinion represented an avenue for clarification of the issues raised by the Attorney General,” said the judges.

It was their opinion that regional and international courts such as the EACJ are, by Treaty or Convention, granted the mandate to examine how State organs satisfy regional or international obligations of the State to interpret and apply national laws save in the matter mentioned.

“Such courts should only act as agencies and tools for strengthening of local conditions, including democracy and the rule of law but not as substitutes of State organs particularly national courts,” they said.