The supreme court proceedings have taken Kenya by storm and words such as ‘amicus curiae’ largely featuring in the proceedings. who exactly is an ‘Amicus Curiae’ and what is the function in such high profile proceedings.
A short survey among the Kenyans will equate the ‘amicus curiae’ to the Attorney general who has always applied to be Amicus curiae in all presidential petitions, but what exactly does the term mean. It is loosely translated to friend of the court but why does a court need friends?
A’ friend of the court’ is a phenomenon that was brought by Kenya’s 2010 constitution which opened the space for people allowed to institute proceedings under Article of the constitution which is defined as legal standing.
The court therefore on its own motion allows a friend of the court to participate in proceedings especially as an expert to give guidance with regards to proceedings that are a matter of public interest such as the presidential elections.
Amicus Curiae and Bias
A person applying to be amicus curiae should be impartial and have no affiliation whatsoever to the petitioners or respondents,their proceedings should be issue based rather than party based.This is because the amicus curiae should be deemed to be an expert in a specific area of law.
However there are instances where implied bias is allowed. If the amicus curiae has written publications and has closely worked with the applicant but the level of bias is only limited to his expertise dependent on publications the friend of the court.It is difficult for a court to admit an friend of the court who is an alleged expert but has no publications on the area of expertise.
At times it is good to understand the functions and procedures in court as the spirit the 2010 constitution prescribes that ‘Wanjiku’ the common mwananchi should know the constitution as sovereignty is derived from the people.
The supreme court sits for the second time to determine whether the presidential election was held in accordance to the constitution and the elections law.
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