A controversy has been brewing regarding the status of Environment and Land courts. The genesis of this is traceable to the adoption of the 2010 Constitution. That process led to the creation of two new categories of courts of similar status as the High Court. One of this was the Environment and Land Court.
The creation of the court though had a longer history. It was borne out of the need to have specialised courts to deal with environment and land matters.
Despite this noble aim, there was public argument that the creation of specialised courts to deal with land and environment cases was leading to inconvenience in resolving legal disputes and limiting the mandate and stature of judges appointed to these courts.
The status of these courts continued being contested resulting in practice directions being issued by former Chief Justice Willy Mutunga, amendment to legislation and court cases on this issue.
One of the cases resulted from a decision to clear backlog of criminal appeals in October, 2013. One of the panels had a judge of the High Court and that of the Environment and Land Court.
The issue formed the basis of litigation contesting the jurisdiction of the Environment and Land Court Judge to hear criminal appeals. These matters started in Malindi High Court, went to the Court of Appeal and finally to the Supreme Court.
In a judgement delivered on 26th May, 2017, the full Bench of the Supreme Court issued a judgement confirming that the Environment and Land Court while a court of equal status is not the same as the High Court. Consequently, judges of that court can only handle environment and land matters.
That decision has sparked controversy. There are those who laud the decision. Others, however, criticise it. This is healthy. In the critique though we need to underscore an important aspect of the ruling.
First, this is amongst the first decisions by the full Bench of the Supreme Court since Chief Justice David Maraga became the President of the Supreme Court.
It is important to start interrogating the quality of the jurisprudence captured in that judgement and its implications. The court navigated the controversial issue of relationship between environment and land courts and the High Court and affirmed the Constitutional provisions of Article 162 of the Constitution whose intention was to separate the High Court from specialised Labour, and Environment and Land Courts.
The above constitutional architecture brought with it challenges to the administration of justice. However, the courts themselves have since 2010 proved through numerous constitutional references and other cases that the structure of governance have been reorganised and reoriented by the 2010 Constitution.
Many institutions have complained about these changes and their implications on their work. At the initial stages of the roll out of the constitutional architecture, for example, national government ministries have turf wars with county governments over distribution of functions despite the provisions of the Fourth Schedule of the Constitution.
The Senate and the National Assembly are ending the first term under the 2010 Constitution without unanimity on their relationship, an issue that even found its way to the Supreme Court. Independent constitutional commissions too have had relationship debates with ministries.
The Constitution was intended and actually has resulted in transformation of the Kenyan society and the manner in which it is organised and managed.
The arguments that had obtained till the Supreme Court decision in the case of Republic versus Karisa Chengo and others were largely an attempt to circumvent the clear provisions of the Constitution by sacrificing them at the altar of convenience.
Granted, as the Supreme Court itself confirmed in the judgment, the implications of its decision would create backlog of criminal cases since the cases that had already been determined by a High Court Bench comprising an Environment and Land Court Judge were a nullity and had to be heard afresh. But this is a small price to pay in the process of ensuring fidelity to the Constitution.
There are several other cases before the Supreme Court which have huge constitutional implications. In this first one, it has set on a sound jurisprudential path.