the exhaustion of local remedies before filing a Reference in this Court. Under
Article 27(1) of the Treaty, matters requiring interpretation and application of the
Treaty such as the instant Reference are admissible in this Court.
This Court dealt with this issue in Reference No. 1 of 2006, Professor Peter
Anyang Nyongo & Ors vs The Attorney General Of Kenya and Others and the
Court stated as follows at pages 20 to 21 of the judgment:
Under Article 33(2), the Treaty obliquely envisages the interpretation of the Treaty
provisions by national courts. However, reading the pertinent provisions with
Article 34 leaves no doubt about the supremacy of this Court’s jurisdiction over
the interpretation of provisions of the Treaty.
For clarity, the provisions of the two Articles were reproduced. Article 33 provides
that:
‘’1. Except where jurisdiction is conferred on the Court by the Treaty,
disputes in which the Community is a party shall not on that ground alone
be excluded from the jurisdiction of the national courts of the Partner
States.
2. Decisions of the Court on the interpretation and application of this
Treaty shall have precedence over decisions of the national courts on a
similar matter.’’
Article 34 provides that:
“Where a question is raised before any court or tribunal of a Partner State
concerning the interpretation or application of this Treaty or the validity of
the regulations, directives, decisions or actions of the Community, that
court or tribunal shall, if it considers that a ruling on the question is
necessary to enable it to give judgment, request the Court to give a
preliminary ruling on the question”.
The Court said that the purpose of these provisions is obviously to ensure uniform
interpretation and avoid possible conflicting decisions and uncertainty in the
interpretation of the same provisions of the Treaty.
8