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Michael Otieno Oyombe V Eco Bank Kenya Limited [2017] eKLR

Case Number: Cause 137 of 2015 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Michael Otieno Oyombe v Eco Bank Kenya Limited

Citation: Michael Otieno Oyombe V Eco Bank Kenya Limited [2017] eKLR

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James Finlay (K) Ltd V Roseline Atieno George [2017] eKLR

Case Number: Appeal 2 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: James Finlay (K) Ltd v Roseline Atieno George

Citation: James Finlay (K) Ltd V Roseline Atieno George [2017] eKLR

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James Finlay (K) Ltd V George Odhiambo Ogolla [2017] eKLR

Case Number: Employment and Labour Relation Appeal 6 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: James Finlay (K) Ltd v George Odhiambo Ogolla

Citation: James Finlay (K) Ltd V George Odhiambo Ogolla [2017] eKLR

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James Finlay (K) Ltd V Joseph Ombati Nyaanga [2017] eKLR

Case Number: Employment & Labour Relations Appeal 7 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: James Finlay (K) Ltd v Joseph Ombati Nyaanga

Citation: James Finlay (K) Ltd V Joseph Ombati Nyaanga [2017] eKLR

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J.M. Muingai V Charles Muchiri Ng’ang’a & 2 Others [2017] eKLR

Case Number: Civil Appeal 96of 2013 Date Delivered: 26 Apr 2017

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J.M. Muingai v Charles Muchiri Ng’ang’a, Philip Gitonga & Attorney General

Citation: J.M. Muingai V Charles Muchiri Ng’ang’a & 2 Others [2017] eKLR

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L M K Republic [2017] eKLR

Case Number: Criminal Appeal 16 of 2016 Date Delivered: 26 Apr 2017

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: L M K Republic

Citation: L M K Republic [2017] eKLR

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Nimrod Muriuki Njoroge V Robert Mwangi Mburu [2017] eKLR

Case Number: Civil Appeal 660 of 2007 Date Delivered: 26 Apr 2017

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Nimrod Muriuki Njoroge v Robert Mwangi Mburu

Citation: Nimrod Muriuki Njoroge V Robert Mwangi Mburu [2017] eKLR

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Vincent Kipchumba Tum V Jalaram Merchadise Limited [2017] eKLR

Case Number: Cause 135 of 2015 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Vincent Kipchumba Tum v Jalaram Merchadise Limited

Citation: Vincent Kipchumba Tum V Jalaram Merchadise Limited [2017] eKLR

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Kionyo Tea Co Ltd & 4 Others V Japhet M'mburugu [2017] eKLR

Case Number: Civil Appeal 73 of 2012 Date Delivered: 26 Apr 2017

Judge: Lucy Ngima Mbugua

Court: Environment and Land Court at Meru

Parties: Kionyo Tea Co Ltd, William Mbaabu Manyara, Samuel Murithi, Kimathi Nkabu & Antony Muthuguchi v Japhet M'mburugu

Citation: Kionyo Tea Co Ltd & 4 Others V Japhet M'mburugu [2017] eKLR

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Kenya Union Of Commercial Food And Allied Workers V Kisii Bottlers Limited [2017] eKLR

Case Number: Cause 87 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Limited

Citation: Kenya Union Of Commercial Food And Allied Workers V Kisii Bottlers Limited [2017] eKLR

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P M V Republic [2017] eKLR

Case Number: Criminal Appeal 72 of 2014 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: P M v Republic

Citation: P M V Republic [2017] eKLR

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Mathiu M'nabea V Republic [2017] eKLR

Case Number: Criminal Appeal 123 of 2013 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Mathiu M'nabea v Republic

Citation: Mathiu M'nabea V Republic [2017] eKLR

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Jotham Gikundi V Republic [2017] eKLR

Case Number: Criminal Appeal 51 of 2015 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Jotham Gikundi v Republic

Citation: Jotham Gikundi V Republic [2017] eKLR

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Al Ghurair Printing And Publishing LLC V Coalition For Reforms And Democracy & 2 Others [2017] eKLR

Case Number: Civil Appeal 63 of 2017 Date Delivered: 26 Apr 2017

Judge: Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Al Ghurair Printing And Publishing LLC v Coalition for Reforms and Democracy , Independent Electoral and Boundaries Commission & Public Procurement Administrative Review Board

Citation: Al Ghurair Printing And Publishing LLC V Coalition For Reforms And Democracy & 2 Others [2017] eKLR

 

Court of Appeal upholds High Court decision to quash the award of a tender for the supply of election materials on grounds of non-compliance with electoral laws & the Constitution.

 

Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & another

Civil Appeal No 63 of 2017

Court of Appeal at Nairobi

Musinga, Gatembu & Murgor, JJ A

April 26, 2017

 

Reported by Beryl A Ikamari

Constitutional Law-public interest-whether public interest in having General Elections within a certain timeline would defeat the grant of orders sought for non-compliance with the Constitution and statute in the award of a tender-Constitution of Kenya 2010, article 227.

Jurisdiction-jurisdiction of the High Court-supervisory jurisdiction of the High Court-difference between judicial review under Order 53 of the Civil Procedure Rules and section 175 of the Public Procurement and Asset Disposal Act-Civil Procedure Rules, Order 53;  Public Procurement and Asset Disposal Act, section 175.

Constitutional Law-constitution of the Independent Electoral and Boundaries Commission (IEBC)-effects of vacancies at the offices of chairperson and commissioners-whether the secretariat of the IEBC could function without any commissioners or a chairperson in office-whether the IEBC could award a tender in the face of such vacancies-Independent Electoral and Boundaries Commissions Act, No 9 of 2011, section 7(3) & 11A.

Statutes-Public Procurement and Asset Disposal Act -interpretation of statutes-meaning of an 'aggrieved party' under section 175 of the Public Procurement and Asset Disposal Act-whether an interested party to Review Board proceedings under the Public Procurement and Asset Disposal Act could be an aggrieved party-Public Procurement and Asset Disposal Act, section 167(1) & 175.

 

Brief facts

An appeal was lodged against a High Court decision in which the order granted included an order of certiorari to quash the decision of the 2nd respondent to award Tender Number IEBC/01/2016-2017 for the supply and delivery of ballot papers for elections, election result declaration forms and poll registers to the appellant.

The basis of the High Court application was that the specification of the ballot papers for elections, election result declaration forms and poll registers as contained in the tender documents were not in conformity with the requirements of the Election Laws (Amendment) Act 2016 and the integrated electronic electoral system as established by law. The High Court application was also based on the assertion that the Independent Electoral and Boundaries Commission (the 2nd respondent) was not duly constituted as required under the provisions of section 31 of the Election Laws (Amendment) Act, 2016 and it was unable to make or implement decisions as from October 4, 2016. It could therefore not award a tender.

The Election Laws (Amendment) Act established an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results and required that the use of technology be simple, accurate, verifiable, secure, accountable and transparent. It also required that the acquisition and disposal of information and communication technology assets and systems be done in a transparent manner.

The High Court application included an assertion that the tender award included item IEBC 131:2015 described as a “Principal Register of Voters”. That register was not recognized or referred to under the election laws. Contrary to the requirements of the amendments, it had no features allowing for the existence of biometric data relating to the identities and attributes of voters which were capable of being read by an electronic device to identify individual voters, either during inspection or at the time of voting. There was also no evidence that the Principal Register of Voters was capable of being maintained on a public web portal in a format that could be inspected or verified for accuracy and could exhibit the biometric data of voters. Generally, the register did not meet the requirements of the Elections Laws (Amendment) Act 2016.

At the High Court, an issue was also raised about the constitution of the IEBC. Section 31 of the Elections Laws (Amendment) Act 2016, reduced the number of IEBC commissioners from 9 to 7, inclusive of the chairperson. Vacancies had been declared in the offices of the commissioner at the time of the award of the tender and it was contended that the IEBC could not undertake major activities without the existence of the legitimate members of the Commission.

The IEBC contended that the High Court had no jurisdiction to entertain the judicial review application filed by CORD outside the 14 days period stipulated under section 175(1) of the Public Procurement and Asset Disposal Act. Additionally, the IEBC explained that the tender could not conform to the amendments which came into force a month after the close of the impugned tender.

The IEBC also stated that the General Elections of August 8, 2017 would not be wholly electronic but it would be substantially manual. Physical ballot papers were still required and election result declaration forms and poll registers were still necessary. It stated that section 44 (7) of the Elections Act, 2011 as amended provided that technology used for the purpose of the first election upon the commencement of the amendments was to be restricted to the process of voter registration, identification of voters and results transmission.

The IEBC added that it was in public interest for the next General Elections to be held on August 8, 2017 and the Court proceedings were likely to occasion delay in procuring the necessary materials.

According to the Appellant the Election Laws (Amendment) Act, 2016, did not have the effect of nullifying the usage of the materials under the subject tender. The Appellant explained that the technology required under the amendments was to be used together with the materials being procured and there was no chance of contradiction, confusion or violation of the applicable law. The Appellant also stated that the election materials procured met the required legal standards and contained the requisite features, including security features and other features to ensure accuracy, transparency and accountability.

 

Issues

  1. Whether the High Court had jurisdiction to deal with the Judicial Review application, (under Order 53 of the Civil Procedure Rules) filed outside of the 14 days limit stipulated under section 175 of the Public Procurement and Asset Disposal Act.
  2. Whether the IEBC was properly constituted at the time of making the impugned tender award given that there were vacancies in the offices of the Chairperson and Commissioners of the IEBC.
  3. Whether the impugned tender award failed to comply with the provisions of the Election Laws (Amendment) Act, 2016.
  4. Whether public interest in having the General Elections on August 8, 2017, militated against the grant of the orders sought in the Judicial Review application.

 

Relevant provisions of the law

Constitution of Kenya 2010, article 165(6);

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

Constitution of Kenya 2010, article 227;

227. (1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

Independent Electoral and Boundaries Commissions Act, No 9 of 2011, section 11A;

11A. Relationship between the Commissioners and Secretariat

For the effective performance of the functions of the Commission —

(a) the chairperson and members of the Commission shall perform their functions in accordance with the Constitution and in particular, shall be responsible for the formulation of policy and strategy of the Commission and oversight; and

(b) the secretariat shall perform the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission.

Independent Electoral and Boundaries Commissions Act, No 9 of 2011, section 7(3);

(3) The Commission shall be properly constituted notwithstanding a vacancy in its membership.

Public Procurement and Asset Disposal Act, No 33 of 2015, section 167(1);

167. Request for a review

(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.

Public Procurement and Asset Disposal Act, No 33 of 2015, section 175;

175. Right to judicial review to procurement

(1) A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.

 

Held

D K Musinga, J A

  1. Under article 165(6) of the Constitution, the High Court had jurisdiction over subordinate Courts or any person, body or authority exercising a judicial or quasi-judicial function. However, that jurisdiction depended on the applicable law and the matter which the Court was called upon to determine. The High Court's jurisdiction therefore, depended on not only the law but also the facts and circumstances of the case.
  2. If the 1st respondent filed an application based on the provisions of the Public Procurement and Asset Disposal Act only in order to challenge the decision of the Review Board, the 1st respondent would qualify to be referred to as an aggrieved party. However, the Review Board and the IEBC acknowledged that some of the issues raised by the 1st respondent were outside the jurisdiction of the Review Board and only the High Court was able to determine them. Given the orders sought by the 1st respondent, the High Court had jurisdiction to deal with the judicial review application.
  3. Pursuant to article 227 of the Constitution and the preamble to the Public Procurement and Asset Disposal Act, 2015, a State organ or public entity contracting for goods and services was to do so in accordance with a system that was fair, equitable, transparent, competitive and cost-effective.
  4. There was a vacancy in the office of the chairperson and commissioners of the IEBC. Gazette Notice No. 8113 published in the Kenya Gazette 6th October 2016 contained a declaration with respect to the vacancies. The declaration followed the voluntary resignation from office of the chairperson and all the members of the Commission.
  5. Upon tender of a notice of resignation to the appointing authority and acceptance of the resignation notice and declaration of a vacancy, the person who resigned would not continue to hold that office, even if his/her successor was yet to be appointed. There would be a vacancy and nobody would be serving the functions of that office.
  6. Section 11A of the Independent Electoral and Boundaries Commission Act set out the relationship between the commissioners and the Secretariat. The chairperson and members of the Commission were responsible for the formulation of policy and strategy of the Commission and oversight. The Secretariat performed day-to-day administrative functions of the Commission and implemented the policies and strategies formulated by the Commission. Therefore, the Secretariat could not legally function in the absence of the chairperson and commissioners.
  7. Section 7(3) of the Independent Electoral and Boundaries Commission Act stated that the Commission was properly constituted notwithstanding a vacancy in its membership. However, there was a difference between the existence of a vacancy in the Commission’s membership and the total absence of members of the Commission.
  8. The Commission was not properly constituted as at November 30, 2016 when the procurement contract in issue was executed by the Commission’s secretary and accounting officer. The contract was therefore void in law. In the absence of the chairperson and the commissioners, the secretary acted ultra vires and the decision of the IEBC was therefore properly quashed. It matters not that the decision of the Review Board was not quashed; as long as the procurement process was unconstitutional and contra statute, the decision to award the said tender was void.
  9. The election materials to be supplied had to comply with the dictates of the Constitution and the applicable law at the time of placing the tender. However, they were to be supplied over the two (2) years contract period on an “as and when required” basis. The materials would only be supplied when the IEBC placed an order stating the specifications and the standards of the materials to be supplied. If within the contract period the election laws required a different format of election materials, the IEBC would give the supplier the new specifications.
  10. Public interest would not justify a contravention of the Constitution or a statute. Under article 165(3)(d) of the Constitution, the determinations of any question on the interpretation of the Constitution, including whether any law contravened or was inconsistent with the Constitution, or whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution, had to be done in accordance with the values, principles and spirit of the Constitution. Public interest would not override the Constitution.

A K Murgor, concurring opinion

  1. Section 167(1) of the Public Procurement and Asset Disposal Act provided that administrative review under the Act was limited to candidates and tenderers. Therefore, at the review, Paarl was the tenderer and the applicant while IEBC was the procuring entity. Despite having been admitted as an interested party to the Review Board proceedings, the 1st respondent was neither a tenderer nor a procuring entity. Therefore, it could not be described as an applicant for purposes of instituting or participating in review proceedings.
  2. Under section 175 of the Public Procurement and Asset Disposal Act, in order to be an aggrieved person, one would have to have had the status of either an applicant or procuring entity. Without the status of an applicant, the 1st respondent could not be an aggrieved party with respect to the Review Board decision. Therefore, it had no capacity to institute Judicial Review proceedings as contemplated under section 175 of the Public Procurement and Asset Disposal Act.
  3. The framed issues for the Review Board's consideration and the Review Board's decision were not concerned with and did not address the 1st respondent's complaints with respect to the specifications for ballot papers for elections, election result declaration forms or the poll registers. The 1st respondent’s foray into the Review Board’s proceedings amounted to an unfortunate misadventure into a forum that had no mandate or jurisdiction to determine matters concerning its grievances on the application of the Constitution, the Election Act, and the Election Laws (Amendment) Act to the election material tender award.
  4. Effectively, the 1st respondent was shut out of Review Board proceedings and was left unable to challenge the IEBC tender award. The 1st respondent was also estopped from instituting judicial review proceedings under section 175 of the Public Procurement and Asset Disposal Act as it was not an aggrieved party and had to seek an alternative forum for redress. The 1st respondent had the liberty to institute judicial review proceedings under Order 53 of the Civil Procedure Rules.
  5. The 1st respondent rightfully sought to remedy the situation by instituting judicial review proceedings against the IEBC under Order 53 of the Civil Procedure Rules and section 8 of the Law Reform Act, for purposes of reviewing the IEBC's tender award. The application was concerned with the IEBC's decision and not the Review Board's decision.
  6. Judicial review under Order 53 of the Civil Procedure Rules differed from judicial review under section 175 of the Public Procurement and Asset Disposal Act. The 14 day timeline for instituting judicial review proceedings under section 175 of the Public Procurement and Asset Disposal Act did not apply to judicial review under Order 53 of the Civil Procedure Rules.

Gatembu, J A, dissenting opinion

  1. When the tender was awarded to the Appellant by the IEBC, Paarl Media (PTY) Limited, an unsuccessful tenderer applied to the Review Board, for review and the 1st respondent successfully applied to be joined as an interested party to those proceedings. The 1st respondent was therefore a party to the proceedings before the Review Board.
  2. Section 175 of the Public Procurement and Asset Disposal Act provided for timelines with respect to proceedings before the Review Board. In order to seek judicial review against the decision of the Review Board an application for judicial review had to be made at the High Court within 14 days of the decision of the Review Board. Additionally, an appeal from the High Court in relation to a Review Board decision had to be made within 7 days of the High Court decision and the Court of Appeal would have to make a decision on the appeal within 45 days. Under section 175(5), the importance of the timelines was that the Review Board decision would be final and binding if the High Court or Court of Appeal failed to make a decision within the prescribed timelines.
  3. Once a person was made a party to the Review Board proceedings, the provisions of the Public Procurement and Asset Disposal Act on review of the Review Board decision were applicable to that person. The provisions of section 175 of the Public Procurement and Asset Disposal Act did not go against the Constitution and were not likely to lessen or adversely undermine the constitutional underpinning of the remedy of judicial review.
  4. The 1st respondent was obliged, if it was an aggrieved person under section 175 of the Public Procurement and Asset Disposal Act to exhaust the mechanisms and remedies available under the Act before invoking the jurisdiction of the High Court under article 165 of the Constitution, the Law Reform Act and the common law.
  5. The Review Board said that it was outside its mandate to determine whether the procurement process in respect to the tender was compliant with the Election Act and the Election Laws (Amendment) Act, 2016. However, it was within the mandate of the Review Board to assess whether the tender process complied with the law. Under article 1(3) and article 3 of the Constitution, the Review Board was required to comply with, respect, uphold and defend the Constitution. It had powers to deal with procurement matters relating to the Constitution.
  6. The question of compliance or non-compliance with the Election Laws (Amendment) Act 2016 arose in the context of the procurement dispute. The difficulty of dealing with the issue outside the framework of the Public Procurement and Asset Disposal Act was clear. It resulted in a situation wherein the Review Board decision remained in place whilst the award of the tender to the appellant was quashed.
  7. When the invitations for the tender were published, on August 17, 2016, the Commissioners were in office and the mandate to invite the tenders existed. However, whether that mandate was also a mandate allowing the Secretariat to award and execute the tender, was a matter of evidence but that evidence was not offered at the High Court.
  8. The Elections Laws (Amendment) Act became operational after the invitation for tenders was done. Anything done subsequent to the enactment would have to comply with those amendments. Nonetheless, it was noteworthy that the tender was for the supply of electoral materials as and when required. When placing the orders for the materials, the IEBC was to ensure that the specifications and standards of such materials were compliant with the legal requirements in place as at the time of making such orders.

Appeal dismissed (as per the majority holding of Musinga & Murgor, JJ A)

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Eliud Gitari Kabuga V Republic [2017] eKLR

Case Number: Criminal Appeal 139 of 2014 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Eliud Gitari Kabuga v Republic

Citation: Eliud Gitari Kabuga V Republic [2017] eKLR

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James Finlay (K) Ltd V Joseph Kipruto Rotich [2017] eKLR

Case Number: Civil Appeal 10 of 2009 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: James Finlay (K) Ltd v Joseph Kipruto Rotich

Citation: James Finlay (K) Ltd V Joseph Kipruto Rotich [2017] eKLR

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Joseph Aura V China Jiangxi International (K) Limited [2017] eKLR

Case Number: Cause 267 of 2015 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Joseph Aura v China Jiangxi International (K) Limited

Citation: Joseph Aura V China Jiangxi International (K) Limited [2017] eKLR

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Kenya Private Universities Workers Union V University Of Eastern Africa Baraton [2017] eKLR

Case Number: Cause 138 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Kenya Private Universities Workers Union v University of Eastern Africa Baraton

Citation: Kenya Private Universities Workers Union V University Of Eastern Africa Baraton [2017] eKLR

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Simon Mugambi Mwambi V Republic [2017] eKLR

Case Number: Criminal Appeal 97 of 2014 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Simon Mugambi Mwambi v Republic

Citation: Simon Mugambi Mwambi V Republic [2017] eKLR

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Khadija Omar V Republic [2017] eKLR

Case Number: Criminal Appeal 114 of 2016 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Khadija Omar v Republic

Citation: Khadija Omar V Republic [2017] eKLR

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David Kimathi Kimotho V Republic [2017] eKLR

Case Number: Criminal Appeal 59 of 2015 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: David Kimathi Kimotho v Republic

Citation: David Kimathi Kimotho V Republic [2017] eKLR

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Nicholas Mureithi V Republic [2017] eKLR

Case Number: Criminal Appeal 75 of 2015 Date Delivered: 26 Apr 2017

Judge: Kiarie Waweru Kiarie

Court: High Court at Meru

Parties: Nicholas Mureithi v Republic

Citation: Nicholas Mureithi V Republic [2017] eKLR

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Barak Guyo Sarana V Luqman Petroleum Company [2017] eKLR

Case Number: Cause 117 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Barak Guyo Sarana v Luqman Petroleum Company

Citation: Barak Guyo Sarana V Luqman Petroleum Company [2017] eKLR

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Fredrick Wandera V Letshego Kenya Limited [2017] eKLR

Case Number: Cause 137 of 2016 Date Delivered: 26 Apr 2017

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Fredrick Wandera v Letshego Kenya Limited

Citation: Fredrick Wandera V Letshego Kenya Limited [2017] eKLR

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Republic V M S M [2017] eKLR

Case Number: Criminal Case 11 of 2016 Date Delivered: 25 Apr 2017

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Republic v M S M

Citation: Republic V M S M [2017] eKLR

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Muiruri Kamau & 4 Others V Titus Kinyanjui Kamau & 2 Others [2017] eKLR

Case Number: Civil Appeal 446 of 2008 Date Delivered: 25 Apr 2017

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Nairobi

Parties: Muiruri Kamau, Peter Kamau Muiruri, Evan Ngugi Muiruri, David Kinyanjui Muiruri & Hurun Njega Muiruri v Titus Kinyanjui Kamau, Esther Wanjeri Ng’ang’a & Samuel Kamau Njeri

Citation: Muiruri Kamau & 4 Others V Titus Kinyanjui Kamau & 2 Others [2017] eKLR

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Epainuto Furukha Sumba V Samuel Owuor Ouma & 3 Others [2017] eKLR

Case Number: Civil Appeal 234 of 2014 Date Delivered: 25 Apr 2017

Judge: Erastus Mwaniki Githinji, Hannah Magondi Okwengu, Jamila Mohammed

Court: Court of Appeal at Eldoret

Parties: Epainuto Furukha Sumba v Samuel Owuor Ouma,Mary Anyango Ouma ,Thomas Osir Ouma & Gerald Oluoch Ouma

Citation: Epainuto Furukha Sumba V Samuel Owuor Ouma & 3 Others [2017] eKLR

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Mohamed Ahmed Noor V Republic [2017] eKLR

Case Number: Criminal Appeal 43 of 2015 Date Delivered: 25 Apr 2017

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Mohamed Ahmed Noor v Republic

Citation: Mohamed Ahmed Noor V Republic [2017] eKLR

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Kyalo Mwalya V Republic [2017] eKLR

Case Number: Criminal Appeal 68 of 2014 Date Delivered: 25 Apr 2017

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Kyalo Mwalya v Republic

Citation: Kyalo Mwalya V Republic [2017] eKLR

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Kyalo Kioko V Republic [2017] eKLR

Case Number: Criminal Appeal 168 of 2015 Date Delivered: 25 Apr 2017

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Kyalo Kioko v Republic

Citation: Kyalo Kioko V Republic [2017] eKLR

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Evans Momanyi Amenya V Republic [2017] eKLR

Case Number: Criminal Appeal 54 of 2015 Date Delivered: 25 Apr 2017

Judge: Mrima Antony Charo

Court: High Court at Migori

Parties: Evans Momanyi Amenya v Republic

Citation: Evans Momanyi Amenya V Republic [2017] eKLR

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Republic V Daniel Mwomole Adebe [2017] eKLR

Case Number: Criminal Case 60 of 2010 Date Delivered: 25 Apr 2017

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Republic v Daniel Mwomole Adebe

Citation: Republic V Daniel Mwomole Adebe [2017] eKLR

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Justus Musyoka Mutia V Republic [2017] eKLR

Case Number: Criminal Appeal 13 of 2013 Date Delivered: 25 Apr 2017

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Justus Musyoka Mutia v Republic

Citation: Justus Musyoka Mutia V Republic [2017] eKLR

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Council Of County Governors V Attorney General & Another [2017] eKLR

Case Number: Constitutional Petition 56 of 2017 Date Delivered: 25 Apr 2017

Judge: John Muting'a Mativo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Council of County Governors v Attorney General & Independent Electoral and Boundaries Commission

Citation: Council Of County Governors V Attorney General & Another [2017] 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 [2017] eKLR

Constitutional Petition 56 of 2017

High Court of Kenya at Nairobi

Mativo J

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

Brief Facts

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.

Issues

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

Article 36(1)

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

Section 28

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

Section 10

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.

 

Held

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.

East Africa

Cases

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 [2001] E A 495 – (Mentioned)

5.    Njoya and others v Attorney General [2004] 1 KLR 232; [2008] 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 [1997] UGCC 3 – (Mentioned)

South Africa

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 [1991] 20 SA 805 – (Mentioned)

India

1.    Advocates on Record Association & others v Union of India [1993] 3SCC 441 – (Followed)

2.    Hamdarddawa Khana v Union of India & others [1960] AIR 554, 1960 SCR (2) 671- (Followed)

3.     K Bhagirathi G Shenoy & others v  K P Ballakuraya and another [1999] 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 [1979] – (Followed)

2.    Roberts v United states Jaycees 486 US 609 [1984] – (Cited)

3.     Tashjian v Republican Party 479 US 208 [1986] – (Cited)

United Kingdom

1. Minister for Home Affairs & another v Fischer [1979] 3 AII ER 21; [1980] AC 319; [1979] 2 WLR 889 - (Followed)

East Africa

Statutes

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

International Instruments

1. Universal Declaration of Human Rights (UDHR) 1948

Advocates

Non Mentioned

 

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