East African Court of Justice and the Supreme Court of Kenya – A Case of Two Judicial Monologues

Adherence to the Rule of Law is one of the fundamental principles of the East African Community (EAC), anchored in the Treaty establishing the Community. The main judicial organ of the EAC—the East African Court of Justice (EACJ)—and the Supreme Court of Kenya, one of the EAC’s Partner States, are in disagreement regarding the competence of the EACJ to review decisions of the Supreme Court of Kenya for compliance with the rule of law principle. The Supreme Court resists the EACJ’s case law assuming such competence and the manner in which the EACJ exercises it. We argue that both courts should abandon their orthodox positions and engage in judicial dialogue. The Supreme Court should acknowledge that the EACJ may determine the international responsibility of a Partner State for a violation of the Rule of Law principle, even if such a violation originates from a decision made by a court of that State, including the Supreme Court of Kenya. On the other hand, the EACJ should adopt an adequate standard of deference toward the judicial organs of Partner States.