AG seeks to be enjoined in CORD petition

By Wahome Thuku

Nairobi, Kenya: The Attorney General (AG) is seeking to be enjoined in the presidential election petition filed by Prime Minister Raila Odinga at the Supreme Court.

Though the AG had not formerly lodged the application at the court registry by Monday afternoon, sources at the State Law Office indicated that he intends to apply to be enjoined as amicus curiae (friend of the court).

“We have not received it here but we have heard that the AG is filing an application,” said an official at the court registry.

The application would, however, be determined next week when the parties go before the judges for the pre-trial conference. Anyone admitted as a friend of the court in a case does not take any side but only assists the judges with legal opinion and advice on the issues before the court.

Legal opinion

Article 156(5) of the Constitution provides that the AG shall have authority with the permission of the court to appear as a friend of the court in any civil proceedings to which the Government is not a party.

Various parties against the Independent Electoral and Boundaries Commission file the petitions before the court, its chairman Issack Hassan, President-elect Uhuru Kenyatta and his deputy William Ruto. Mr Hassan is involved in the case because under the law he is the Returning Officer in presidential elections.

Though there is no likelihood that the court could reject the AG’s application, the Supreme Court is often reluctant to admit parties as friends of the court.

Under its rules, the court may allow in an amicus curiae, appoint a legal expert to assist it in legal submissions or, at the request of a party or on its own initiative, appoint an independent expert to assist it on any technical matter.

The rules, require the court to vet an application for enjoinment as friend of the court and to take into consideration the expertise, independence and impartiality of the applicant.