EACJ hands Sonko relief in impeachment fight against Supreme Court

East African Court of Justice has ruled that it has jurisdiction to hear and determine some aspects of an application filed by Former Nairobi Governor Mike Mbuvi Sonko challenging a decision barring him from holding public office in Kenya.

Sonko had moved to EACJ to challenge the Supreme Court verdict on his impeachment as Nairobi Governor saying it breached the East African Community Treaty.

EACJ in their ruling stated that Sonko had demonstrated that the Supreme Court could have failed to adhere to its own procedural rules.

The Judges ruled that if the claims are proved, it would violate Article 25 of the Kenyan Constitution and Articles 6 and 7 of the Treaty.

“The applicant has established that there is a cause of action that depicts substance and reality. His allegations of procedural irregularities and denial of a fair trial are substantiated by evidence, including admissions by the SCOK of its procedural errors,” stated the regional Court, presided over by Justice Yahane B Masara.

Other Judges who made the ruling are Dr Charles Nyawello, Richard Muhumuza, Richard Wabwire and Dr. Leonard Gacuko

Sonko was impeached as the Governor of Nairobi on November 26, 2020 and he moved to the High Court to challenge his ouster.

However, his petitions were dismissed all the way to the Supreme Court.

The former Governor was later barred from contesting the 2022 polls after declaring his bid for the Mombasa Gubernatorial seat.

The move forced Sonko to file a case at the regional court.

Sonko in his petition argued that the proceedings at the Supreme Court of Kenya were conducted in a manner that violates the rule of law, natural justice and the principles of transparency and accountability.

He added that the Judicial arm of the government abdicated its mandate and duties as an independent organ by disregarding the purpose of the Constitution and principles of the treaty setting up the EACJ.

Kenya's Attorney General, however, filed a preliminary objection to the decision by Sonko to sue at the East African Court of Justice citing a lack of jurisdiction.

The AG noted that the dispute in question is strictly domestic and does not involve the interpretation and application of the Treaty.

The AG argued that EACJ has no mandate to review and or overturn judgements of national courts of member states including the Supreme Court of Kenya.

Kenya's AG averred that the EACJ is limited to the interpretation and application of the Treaty, a mandate that does not allow it to oversight, review and reverse judicial decisions by partners' municipal courts.

In a rejoinder, the former governor reiterated that EACJ is the right forum for determining whether the Supreme Court of Kenya's actions align with its obligation under the treaty.

In their ruling, the judges noted that Sonko had demonstrated that he would suffer irreparable harm if the orders sought were not granted.

“The Supreme Court decision to bar him for life from participating in political activities has profound and far-reaching consequences,” they stated

“Such harm cannot be adequately remedied by damages or any other form of post-facto chief."

The judges agreed that the Sonko had demonstrated that the Supreme Court of Kenya could have failed to adhere to its own procedural rules.

This, they said, if proved, would be in violation of the Article 25 of the Constitution of Kenya and Articles 6 and 7 of the Treaty

They at the same time greedy in that they have no jurisdiction to conduct appellate merit reviews of court decisions of partner states.

They added that the Supreme Court of Kenya and other apex courts of other states remain ultimate judicial authorities in their respective jurisdiction.

However, the EACJ ruled that the same courts remain subject to obligations that arise under the international treaty law.

"The International commitment undertaken by the partner states under the treaty do not conflict with nor are they subordinate to domestic constitutional principles," the judges ruled.

They added that the treaty does not undermine the constitutional supremacy of the Supreme Court of Kenya but complements it by providing the framework for addressing the matters of treaty interpretation as agreed by the partner states.

 “The court affirms that while it lacks jurisdiction to conduct an appellate merit review of the Supreme Court of Kenya's decision, it retains jurisdiction to address allegations of contravention of Articles 6 and 7 of the Treaty. The preliminary objection is therefore upheld in part and dismissed in part,” the judges concluded.