Council of County Governors v Attorney General & Independent Electoral and Boundaries Commission
Council Of County Governors V Attorney General & Another  eKLR
Law that required political parties to file a list of party members within a set time frame prior to elections is necessary to the integrity of the electoral process
Council of County Governors v Attorney General & another  eKLR
Constitutional Petition 56 of 2017
High Court of Kenya at Nairobi
April 25, 2017
Reported by Ribia John
Constitutional Law – Fundamental Rights and Freedoms – Freedom of Association – limitation of the Freedom of Association – where section 10 of the Election Laws (Amendment) Act, 2017amended section 28 of the Elections Act to the effect that it limited the freedom of making political choices and it limited the freedom of association before the lawful deadline for the conduct of party primaries - whether section 28 of the Elections Act as amended by section 28 of the Elections Laws (Amendment) Act, 2016, that limited the freedom of making political choices and the freedom of association before the lawful deadline for the conduct of party primaries were justifiable – Constitution of Kenya, 2010 article 36(1) - section 28 of the Elections Act - section 28 of the Elections Laws (Amendment) Act, 2016
Statutes – constitutionality of statutes - section 10 of the Election Laws (Amendment) Act, 2017- section 28 of the Elections Act – where section 10 of the Election Laws (Amendment) Act, 2017amended section 28 of the Elections Act - whether section 28 of the Elections Act as amended by section 10 of the Election Laws (Amendment) Act, 2017was unconstitutional
Statutes – interpretation of statutes – interpretation of the Constitution - principles applicable in interpreting a statutory provisions – principles applicable in interpreting Constitutional provisions - what were the principles applicable in interpreting the Constitution - what were the principles applicable in interpreting Statutory Provisions – what were the principles applicable in interpreting statutory provisions vis – a – vis Constitutional provisions
The Petitioners challenged the constitutionality of section 10 of the Election Laws (Amendment) Act, 2017which amended section 28 of the Elections Act. The above provision limited freedom of making political choices and freedom of association under article 36 (1) of the Constitution of Kenya, 2010 (the Constitution) before the lawful deadline for the conduct of party primaries.
The Petitioner’s case was that persons dissatisfied with the outcome of party primaries or nominations would not by law be able to defect to other political parties within the nomination deadline as their names would have already been submitted by the earlier political party within the 120 days deadline. The crux of their case was that the law limited a genuine right to political party defection and that such limitation was not justifiable.
The Respondents’ inter alia presented that submission of party lists referred to in the challenged section was a constitutionally recognised way of regulating political parties; that the Petition offended the doctrine of constitutionality; that the petition had not set out with certainty the rights that had been violated; that the challenged provision was meant to give effect to articles 36, 38, 91 and 92 of the Constitution; and that the section was meant to instil discipline among members of a political party.
1. What were the principles applicable in:
a. Interpreting the Constitution?
b. Interpreting Statutory Provisions?
c. Interpreting statutory provisions vis – a – vis the Constitution?
2. What was the rationale behind the Supremacy of the Constitution?
3. Whether section 28 of the Elections Act as amended by section 10 of the Election Laws (Amendment) Act, 2017was unconstitutional?
4. Whether section 28 of the Elections Act as amended by section 28 of the Elections Laws (Amendment) Act, 2016, that limited the freedom of making political choices and the freedom of association before the lawful deadline for the conduct of party primaries were justifiable
Relevant Provisions of the Law
Constitution of Kenya, 201o
Freedom of association
(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
Election Act, 2011
Submission of party membership lists
(1) A political party that nominates a person for an election under this Act shall submit to the Commission a membership list of the party—
(a) in the case of a general election, at least one hundred and twenty days before the date of the election; and
(b) in the case of a by-election, forty-five days before the date of the by-election.
(2) The Commission shall publicize the membership lists as received from political parties
Election Laws (Amendment) Act, 2017
Elections Act, 2011 is amended by deleting section 28 and substituting therefor the following section—
28. (1) A political party that nominates a person for an election under this Act shall submit to the Commission a membership list of the party —
(a) in the case of a general election, at least one hundred and twenty days before the date of the election; and
(b) in the case of a by-election, forty five days before the date of the by-election.
(2) The Commission shall publicize the membership lists as received from political parties.
1. Under article 259 of the Constitution of Kenya, 2010, the Court was enjoined to interpret the Constitution in a manner that promoted its purposes, values and principles, in a manner that advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights and in a manner that contributed to good governance. In exercising its judicial authority, the Court was obliged under article 159 (2) (e) of the Constitution to protect and promote the purposes and principles of the Constitution.
2. The general presumption was that every Act of Parliament was constitutional and the burden of proof lay on every person who alleged otherwise.
3. A determination of whether a statute was constitutional or not involved the determination of the object and purpose of the impugned statute. It was important to discern the intention expressed in the Act itself. It involved having regard not only to its purpose but also its effect. The Constitution was to be given a purposive, liberal interpretation. The provisions of the Constitution were to be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other. It was important to bear in mind that the spirit of the Constitution had to preside and permeate the process of judicial interpretation and judicial discretion.
4. Constitutional questions were to be determined in formidable terms guided by some constitutional principles that transcended the instant case and which were applicable to all comparable cases. Court decisions could not be ad hoc but were to be justified and perceived as justifiable on more general grounds reflected in previous case law and other authorities that applied to the instant case.
5. A constitutional order is a sui generis document to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. It was important to give full recognition and effect to the fundamental rights and freedoms.
6. A Constitution was a legal instrument that gave rise to individual rights capable of enforcement in a court of law. Respect had to be paid to the language which had been used and to the traditions and usages which had given meaning to the language. It was quite consistent with that, and with the recognition that rules of interpretation could have applied, to take as a point of departure for the process of interpretation recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to the fundamental rights and freedoms.
7. The recognition of the sanctity of the Constitution and its special character called for special rules of interpretation. The Constitution was the citadel where good governance under the rule of law by all three organs of the state machinery was secured. The very structure of separation of powers and independence of the three organs called for judicial review by checking and supervising the functions, obligations and powers of the two organs, namely the executive, and the legislature. The judiciary was not omnipotent, it was obligated to observe and uphold the spirit and the majesty of the Constitution and the rule of law.
8. The Constitution was a living document and not like an Act of Parliament. The Constitution was the supreme law of the land; it was a living instrument with a soul and a consciousness; it embodied certain fundamental values and principles and had to be construed broadly, liberally and purposely or teleologically to give effect to those values and principles.
9. In interpreting the Constitution, the Court is to attach such meaning and interpretation that meets the purpose of guaranteeing Constitutionalism, non-discrimination, separation of powers, and enjoyment of fundamental rights and freedoms.
10. Statutory interpretation is the process by which courts interpreted and applied legislation. The Court interprets how legislation is to apply in a particular case as no legislation unambiguously and specifically addressed all matters. Legislation may contain uncertainties for a variety of reasons such as:-
a. Words are imperfect symbols to communicate intent. They could be ambiguous and change in meaning over time.
b. Unforeseen situations are inevitable, and new technologies and cultures made application of existing laws difficult.
c. Uncertainties may have been added to the statute in the course of enactment, such as the need to compromise or catering for certain groups.
11. A determination of how a statute is to be enforced is to consider sweeping changes that may have been made in the operation of the law to enable a careful exercise of judicial power.
12. There were numerous rules of interpreting a statute. The most important rule was the rule dealing with the statutes plain language. The starting point of interpreting a statute was the language itself. In the absence of an expressed legislative intention to the contrary, the language had to ordinarily be taken as conclusive. In any event, one possible suggestion of the indeterminacy of canons was that statutory construction was to be a narrow pursuit, not a broader one. In interpreting statutes there was to be a presumption that a legislature said in a statute what it meant and meant in a statute what it said there. Where the words of a statute were unambiguous, then the judicial inquiry was complete.
13. When the language was clear, then it was not necessary to belabour examining other rules of statutory interpretation. Interpretation had to depend on the text and the context. The text and the context were the bases of interpretation. If the text was the texture, context was what gave the colour, neither could be ignored, both were important. Interpretation was best which made the textual interpretation match the contextual.
14. A word in a statutory provision was to be read in collocation with its companion words. The pristine principle based on the maxim noscitur a sociis (meaning of a word should be known from its accompanying or associating words) had much relevance in understanding the import of words in a statutory provision.
15. One key function of the court in interpreting a statute was the creation of certainty in law. Certainty in law enabled planning of human affairs in reliance on the law, and the realization of expectations based on such planning. It made for uniformity in the administration of justice, and prevented the unbridled discretion of the judiciary. It made available the tested legal experience of the past. Changing and adapting the law to new and unforeseen conditions was necessary in interpreting the law. The Courts were to resolve uncertainties and assist in adapting the law to new conditions.
16. While interpreting the law, the court was to bear in mind that they were to make laws when necessary to make the ends of justice. Legal systems world over could not grow as had been the case without a great amount of judicial law making in all fields. However, to the extent that judges make laws, they were to do so with wisdom and understanding. Judges were to be informed on the factual data necessary to good policy making. That included not only the facts peculiar to the controversy between the litigants before them, but also enough of an understanding of how our society worked so that they could gauge the effect of the various alternative legal solutions available in deciding a case.
17. Article 165 (3) (d) (i) & (ii) of the Constitution provided that the High Court had power to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law was inconsistent with or in contravention of the Constitution and also the question whether anything said to be done under the authority of the Constitution or of any law was in consistent with, or in contravention of, the Constitution. An unconstitutional statute was not law; and more important judicial function included the power to determine and apply the law, and that necessarily included the power to determine the legality of purported statutes.
18. In the case of a law that infringed a right in the Bill of Rights, the primary source of the dispute was the breach of a right. The instant dispute flowed directly from the infringement of a right in the Bill of Rights. It was to be clear that the challenged provision infringed the right in question and that the infringement was not permitted by the law or it was not reasonably justifiable in a democratic society.
19. Every law had to pass through the test of constitutionality which was stated to be nothing but a formal test of rationality. The foundation of the power of judicial review was the theory that the Constitution which was the fundamental law of the land, was the will of the people, while a statute was only the creation of the elected representatives of the people. When the will of the legislature as declared in the statute, stood in opposition to that of the people as declared in the Constitution, the will of the people had to prevail.
20. A law which violated the Constitution was void. In such cases, the Court had to examine as to what factors the Court was to weigh while determining the constitutionality of a statute. The court was to examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law was challenged on grounds that it infringed the Constitution, what the Court had to consider was the direct and inevitable effect of such law. In order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration was the object and reasons as well as legislative history of the statute.
21. The history behind the enactment in question was to be borne in mind. Any interpretation of statutory provisions was to bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vested the sovereign power, bearing in mind that sovereign power was only delegated to the institutions which exercised it and that the said institutions which included Parliament, the National Executive and executive structures in the County Governments, and the Judiciary had to exercise this power only in accordance with the Constitution.
22. Political parties were essential to the development and sustenance of any pluralistic democracy. They were crucial instruments in ensuring participation in political life and the expression of the will of the people, which formed the basis of the authority of the government in a democratic state.
23. The international framework for protecting the rights of political parties was based mainly on the rights to freedom of association and freedom of expression, and the right to assemble peacefully. Those three principles were stipulated in the 1948 Universal Declaration of Human Rights and had subsequently been transformed into binding legal obligations through a number of international, regional and national human rights instruments. Most notably, both the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms included provisions that contained the rights and freedoms that safeguarded the free functioning of political parties.
24. The freedom to associate was not absolute. A law requiring political parties to file a list of party members within a set time frame prior to a general election or by-elections or a law regulating internal party nominations was necessary to the integrity of the electoral process and could not be said to be unconstitutional.
25. Section 10 of the Election Laws (Amendment) Act, 2017that amended section 28 of the Elections Act advanced a compelling state interest to manage the electoral process efficiently as opposed to the individual interests of petitioners who seemed to be interested in looking for an opportunity to shift party allegiance after losing nominations. A law aimed at promoting the legitimate state interest in fair, honest, and orderly elections was consistent with the provisions of the Constitution that required elections to be credible.
26. The provisions of the Constitution had to be read and interpreted in a wholesome manner. The freedom of association had to be read and appreciated with the Constitutional Rights that guaranteed a free, fair, credible and transparent election and the provisions that mandated the Independent Electoral and Boundaries Commission (IEBC) to manage elections in accordance with the Constitution and best practices possible. The time frames for presenting party lists were to be construed as part of the IEBC's constitutional mandate to prepare for the electoral process sufficiently in time which was absolutely necessary.
27. The challenged section did not in any manner reveal any infringement of the provisions of the Constitution. The challenged provisions were clear and precise, and unambiguous. However, if at all any limitations were imposed on the rights of the Petitioners, such a limitation was proportionate considering the purpose of the law in question. The challenged provision was necessary in a democratic society to ensure proper preparation and management of the electoral process.
28. What seemed to be important was that the pre-selection process within a political party was such that it was transparent and transparently exercised free of any taint of electoral fraud or coercion, and one in which party voters at plebiscites and voters at general elections could know with confidence that fair means produced a candidate.
29. Persons that aspired for elective offices had to embrace systems that promoted democratic values and practices that were consistent with the spirit and intent of the Constitution or an ethical system of candidate selection. Thus, if an individual was not successfully nominated, his inability to shift his allegiance to another party within the time frame spelt out by IEBC could not be said to be a limitation of his rights. Individual rights had to, where circumstances so permitted, give way to public interests.
30. The Petitioners had not addressed themselves to the provisions of section 14 (5) of the Political Parties Act which provided that a person was not to be a member of more than one political party at the same time and the clear provisions of section 14 (1) thereof which provided for resignation from a political party.
31. An important consideration was the freedom of individual candidates who had no political party association to seek and obtain political or public office without facing any form of undue obstacles. There was no provision in the challenged law barring the Petitioners from participating in the elections as independent candidates.
32. The instant Petition was premised on a clear misapprehension of the law. The Petitioners had failed to demonstrate that the challenged section was unconstitutional or in any manner infringed any provisions of the Constitution.
Petition dismissed with costs to the Respondents.
1. Gitari, Eirc v Non-Governmental Organization Board & 4 others Petition 440 of 2013– (Cited)
2. Institute of Social Accountability & another v National Assembly & 4 others Petition No 71 of 2013 – (Mentioned)
3. Mwangi, Anthony Ritho & 7 others v Attorney General Criminal Application No 701 0f 2001– (Followed)
4. Ndyanabo v Attorney General of Tanzania  E A 495 – (Mentioned)
5. Njoya and others v Attorney General  1 KLR 232;  2 KLR (EP) 624 (HCK) – (Followed)
6. Omondi, William v Independent Electoral & Boundaries Commission & 2 others Petition No 288 of 2014 –(Cited)
7. Tinyefunza v Attorney General of Uganda  UGCC 3 – (Mentioned)
1. Counsel cited UDM vs President of the Republic of South Africa & Others 2002, 11 BCLR (CC); 2003 1 SA 495 (CC) – (Cited)
2. State v Acheson  20 SA 805 – (Mentioned)
1. Advocates on Record Association & others v Union of India  3SCC 441 – (Followed)
2. Hamdarddawa Khana v Union of India & others  AIR 554, 1960 SCR (2) 671- (Followed)
3. K Bhagirathi G Shenoy & others v K P Ballakuraya and another  4 SCC 135
4. Reserve Bank of India v Peerless General Finance and Investment Co Ltd & others [1987 ] AIR 1023, 1987 SCR (2) 1- (Followed)
United States of America
1. Marchioro v Chaney 442 US 191  – (Followed)
2. Roberts v United states Jaycees 486 US 609  – (Cited)
3. Tashjian v Republican Party 479 US 208  – (Cited)
1. Minister for Home Affairs & another v Fischer  3 AII ER 21;  AC 319;  2 WLR 889 - (Followed)
1. Constitution of Kenya, 2010 article 36 (1) (2); 38 (1); 88(4);91; 92; 159 (2) (e); 165 (3) (d) (i) (ii); 259 – (Interpreted)
2. Elections Act, 2011 (Act No 24 of 2011) section 28 – (Interpreted)
3. Elections Laws (Amendment) Act, 2016 section 28
4. Political Parties Act, 2011 (Act No 11 of 2011) section 14 (1) (5) – (Interpreted)
Texts & Journal
1. Woolman, SC., (Ed) (2002) Constitutional Law of South Africa Cape Town: Juta 3rd Edn
2. Wechsler, H., (Ed) (1959) Towards Neutral Principles of Constitutional Law Havard Law Review Cambridge; Massachusetts Vol 73 p 1
1. Universal Declaration of Human Rights (UDHR) 1948