Wakilii

Ariviza and Another v A.G. of Republic of Kenya and Another (Reference 7 of 2010)

East African Court of Justice · [2011] EACJ 11 · 2011 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging the legality of Kenya's constitutional referendum process and promulgation of the new Constitution
Decision
Reference dismissed with no order as to costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The East African Court of Justice held that it lacked jurisdiction to review judicial decisions of Kenya's Interim Independent Constitutional Dispute Resolution Court under Article 30(1) of the EAC Treaty. The Court found that due process was followed in Kenya's constitutional referendum process, that the IICDRC had heard and determined the claimants' petition, and that the publication of the final referendum results and promulgation of the new Constitution did not breach the rule of law or violate the Treaty. The reference was dismissed.

Outcome

Reference dismissed with no order as to costs

Facts

Mary Ariviza and Okotch Mondoh, Kenyan voters, challenged Kenya's constitutional referendum process held on 4 August 2010. They filed a petition in Kenya's Interim Independent Constitutional Dispute Resolution Court (IICDRC) on 19 August 2010 alleging irregularities in the referendum. On 24 August 2010, they filed an application for interim orders to suspend promulgation of the new Constitution. The IICDRC dismissed the application by majority decision, finding the underlying petition invalid for failure to deposit the required security for costs within the prescribed time. The Interim Independent Electoral Commission published the final referendum results on 23 August 2010, and the new Constitution was promulgated on 27 August 2010. The claimants then filed this reference before the East African Court of Justice alleging violations of the EAC Treaty, particularly the rule of law and principles of good governance.

Issues

  1. Whether due process was followed in the presentation of the draft Constitution to the Referendum and if not, did this amount to a violation of the rule of law in Kenya and, by extension, a violation of the East African Community Treaty?
  2. Whether there was failure of resolution of Petition No. 7 of 2010 by the Interim Independent Constitutional Dispute Resolution Court which violated the provisions of peaceful resolution of disputes?
  3. Whether or not the publication of Gazette Notice No. 10019 on 23rd August 2010 and the subsequent promulgation of the new Constitution of Kenya on 27th August 2010 was a breach of the rule of law and, therefore, a violation of the Treaty?
  4. Whether or not the parties are entitled to the remedies sought?

Orders

  • Reference dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Jurisdiction of Regional Courts — Review of National Judicial Decisions
The East African Court of Justice, in exercise of its original jurisdiction under Article 30(1) of the EAC Treaty, does not have competence to inquire into or review judicial decisions of national courts of Partner States. Such decisions can only be subjected to inquiry or review in exercise of appellate or review jurisdiction, which the EACJ does not possess.
Due Process and Rule of Law — Burden of Proof
A party alleging that due process was not followed in a constitutional process bears the burden of proving that allegation on a balance of probability. General allegations without specific evidence or examples are insufficient to discharge this burden.
Rule of Law — Definition and Components
The rule of law refers to a principle of governance in which all persons, institutions and entities are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated. It requires adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Due process of law is a core component of the rule of law.
Scope of Article 30(1) EAC Treaty — Acts Subject to Review
Article 30(1) of the EAC Treaty empowers the East African Court of Justice to determine the legality of any act, regulation, directive, decision or action of a Partner State or an institution of the Community. This provision does not extend to judicial decisions of national courts, which fall outside the scope of the Court's original jurisdiction under that Article.

Legislation cited (23)

  • Treaty for the Establishment of the East African Community Article 5(1)
  • Treaty for the Establishment of the East African Community Article 6(c)
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Constitution of Kenya Section 47A
  • Constitution of Kenya Section 60
  • Constitution of Kenya Section 60A
  • Constitution of Kenya (Amendment) Act No. 10 of 2008 Section 60A
  • Constitution of Kenya Review Act No. 9 of 2008
  • Constitution of Kenya Review Act Section 34
  • Constitution of Kenya Review Act Section 43
  • Constitution of Kenya Review Act Section 44
  • Statute Law (Miscellaneous Amendment) Act No. 6 of 2009
  • African Charter on Human and People's Rights Article 1
  • African Charter on Human and People's Rights Article 3
  • African Charter on Human and People's Rights Article 7(1)
  • African Charter on Human and People's Rights Article 9(2)
  • East African Court of Justice Rules of Procedure Rule 48(a)
  • East African Court of Justice Rules of Procedure Rule 111(1)

Cases cited (1)

  • Kiska Ltd v De Angelis (1969) EA 6

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Ariviza and Another v A.G. of Republic of Kenya and Another (Reference 7 of 2010) [2011] EACJ 11 (30 November 2011)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.