Rethinking the Supreme Court’s appellate jurisdiction on questions involving interpretation or application of the constitution: A reply to Walter Khobe

Abstract

The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the ‘Interpretation and Application of the Constitution’ lauds the Supreme Court for adopting the unbound normative derivative doctrine to justify its enlarged jurisdiction under article 163(4)(a) of the Constitution, 2010 in matters arising from interpretation or application of the Constitution, including election petitions. Whereas I agree in principle that the doctrine is firmly embedded in the Constitution, I submit that invoking the doctrine as a means to exercise appellate jurisdiction specifically in election disputes is inconsistent with a holistic reading of the Constitution and election laws. Besides, the sui generis nature of election disputes and the capacity constraints of the Supreme Court, among other factors, militate against a blanket application of the doctrine in exercise of appellate jurisdiction in election petitions. In the end, I recommend that to foreground the broad transforma- tive goals of the Constitution, the Supreme Court should decline any invitation to exercise appellate jurisdiction in election petitions, especially under article 163(4) (a).