'Law and Politics in Three Courts' Conference
Flagship Events at the Bonavero Institute
This workshop brought together scholars studying the courts in Kenya, the United Kingdom, and the International Criminal Court. The event focussed on three cases in which law and politics sharply intersected, and considered the ways in which the judges sought to meet the challenges raised.
From the International Criminal Court, the discussion examined the Decision of the ICC Appeals Chamber in Jordan’s appeal against the decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir (ICC-02/05-01/09 OA2) decided on 6 May 2019. The appeal is one of a series of ICC decisions concerning the immunity of sitting heads of state from arrest and surrender under the Rome Statute.
Turning tothe Kenyan system, the 2017 presidential elections case (Raila Odinga and Another v IEBC and Others) was also analysed. This case offered one of the rare examples of a supreme court overturning the results of a presidential election and requiring fresh elections, within the narrow timeline required by the constitution. It raised questions about the role courts play in democracies, and particularly, the role in supervising elections.
Finally, from the UK system R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 provided the focus for discussion. In Privacy International the Supreme Court was faced with a statutory ouster clause that appeared to prevent the court from judicially reviewing the decisions of a tribunal. In their judgments, the Supreme Court was compelled to consider the competing values of democracy and the rule of law, and the constitutional relationship of the courts and the legislature.
These three contrasting cases drawn from contrasting systems allows us to examine and assess the strategies and devices used by judges to navigate politically loaded disputes. Not only did the seminars provide a close analysis of these important cases, but also led to broader reflections about the purpose and possibilities of courts within constitutional orders.