, NAIROBI, Kenya, Mar 26 – The Supreme Court on Tuesday afternoon rejected an application by civil society group Katiba Institute, which sought to be admitted as amicus curiae in Petition 4.
According to the court, the institute would not be enjoined following issues of impartiality raised by all the respondents in the cases.
The court ruled that the application did not have a correlation to the matters before it.
“While it is true that the Katiba Institute has previously enjoyed the status of amicus before this court it is clear to us that the adversarial matter before this court is different from a matter in which an advisory opinion is sought from this court,” the judges ruled.
“Where in adversarial proceedings parties allege that a proposed applicant for amicus is biased or hostile to one or more parties or where in the applicant in previous conduct appears biased on the issues before court we must take the objection seriously. This court is convinced that the perception of bias and partisanship on the part of the applicant exists,” Justice Njoki Ndung’u who read the ruling outlined.
The Katiba Institute is an organisation under the Kenyans for Peace with Truth and Justice Coalition which consists of up to 30 legal human rights and governance organisations which were convened after the 2007-8 post election violence.
The institute and Prof Yash Pal Ghai had told the court that they had been granted the status of amicus in other matters and that the case at the Supreme Court was not any different.
Lawyers representing three voters, the Independent Electoral and Boundaries Commission (IEBC) and those acting for the President-elect Uhuru Kenyatta and his deputy elect William Ruto had objected to the application saying that the organisation was not impartial.
Lawyer Njoroge Regeru representing the three voters, Dennis Itumbi, Moses Kuria and Florence Sergon insisted that the institute had already adopted known positions to some of the parties in the petition particularly President- elect Kenyatta and his deputy William Ruto.
“From the foregoing, the Katiba Institute does not qualify as amicus as it does not wear the neutral face of an amicus; they already have a stated agenda and interests,” submitted Regeru.
Lawyer Kamau Karori appearing for the IEBC said that the institute had failed to disclose all its published articles, which he insisted communicated, an attitude the institute had formed on the commission.
According to Karori, Ghai, a former chairman of the Constitution Review of Kenya Commission, had a personal dilemma with IEBC chairman Issack Hassan.
“The applicant is a person who should file his own complaint; there was a duty on the applicant to disclose the attitude he holds on any of the parties already before court,” Karori said adding that the institute had nothing new to present to the court.
Lawyers Fred Ngatia and Katwa Kigen appearing for Kenyatta and Ruto told the court that the Katiba Institute could not meet the test of impartiality following an article published late in 2012 talking of the implications of Kenyatta’s presidency with his indictment at the International Criminal Court (ICC).