Not favor formalistic or positivistic approach plus non legal considerations (the value and principles)
The interim independent electoral commission were seeking a declaration that the next general election of the president, for the president, national assembly, county assembly and county government shall be held at the same time, on the 2nd Tuesday August 2012.
The applicant cited:
Article 101(1) a general election of Member of Parliament shall be held on Tuesday in August in every 5 years.
Article 136(2)(a) an election for the president shall be held on the same day as a general election of members of parliament, being the 2nd Tuesday in august in every 5th year.
Article 177(1)(a) a county assembly consist of members elected by registered voters of the ward, each word consisting a single member of constituency on the same day as a general election of members of parliament being on the 2nd Tuesday of August in every 5th year.
Article 180(1) the county government shall be directly elected by the voters registered in the county. On same day on general election of members of parliament, being 2nd Tuesday in august in every 5th year
Thus stating the election date was equivocal in light clause 9(1) of the 6th schedule of the constitution which stated that : the 1st election for the president, the national assembly ,the senate, county assembly and county government under constitution shall be held at the same time, within 60 days after the dissolution of the national assembly at the end of the term
Also cited clause 10 of the 6th schedule of the constitution as further evidence of such ambiguity stating:
the national assembly existing immediately before the effective date shall continue at the national assembly for the purpose of this constitution for its unexpired term.
Some of the issues that arose from this oral argument were:
1.if the Supreme Court had jurisdiction that was required for it to interpret the constitution? The court answered that the Supreme Court has jurisdiction to interpret the constitution, certainly in respect of matter at the 1st instant resolved by the high court.
- If the applicant had legal standings to seek advisory opinion? The court answered that according to art 163(6) the advisory opinion should be given to national government, the state organ and county government. If the interim independent electoral commission was a state organ? Article 260 of the constitution ‘a commission, office, agency or anybody under the constitution and it is clear that it is a state organ and indeed has the capacity to seek advisory opinion in virtue of article 163(6).
- To whom should the Supreme Court lender advisory opinion? to any who fall under any 4 corners of article 163 (6) parties that can make request on advisory opinion are the national government ,a state organ or county government and any other person or institution ,many only enjoy in proceeding with leave of the court either as an intervener (interested party) or as amicus curiae.
- What is the effect of the advisory opinion from the Supreme Court? The Supreme Court advisory opinion should not be sought as just mere advice. Where a government or state organ makes a request for an opinion, it is supposed that such organ would abide to the opinion; the opinion is sought to clarify doubt, and enable it to act in accordance with the law. If the applicant were not to be bound in this way, then it would be seeking an opinion merely in the hope that the court would endorse its position and otherwise, the applicant would consider itself free if disregard the opinion. This is not fair and cannot be right. Such advisory opinion is binding as any other decision of the Supreme Court.
The Supreme Court decided that the Supreme Court has jurisdiction to hear reference application they upheld preliminary objection and declined to give an advisory opinion on the date of the next general election
My opinion is that the Supreme Court has the right to give advisory opinion on constitutional implementation as in article 163 (6) and that election for the president, national assembly, county assembly and county government should be held on the same day.