High Court at Nairobi (Milimani Law Courts)
Sumba & 4 others v Independent Electoral & Boundaries Commission & another
Sumba & 4 others v Independent Electoral & Boundaries Commission & another (Constitutional Petition E435 of 2022)  KEHC 13196 (KLR) (Constitutional and Human Rights) (30 September 2022) (Judgment)
Consent of the IEBC was a prerequisite for effecting a voters transfer of registration.
The petition sought to scrutinize the constitutionality of the statutory requirements in transfer of registration by voters. The 1st to 5th petitioners desired to transfer their voter registration from their previous polling stations as registered in the general election of 2017 to other polling stations. The petitioners were, however, turned down by the respective registration clerks and instead, were asked to lodge their applications before the 1st respondents (Independent Electoral and Boundaries Commission (IEBC)) constituency offices. It was contended that the registration centers were only registering new voters and could not handle voter transfers. The petitioners contended that they were called upon to comply with regulation 13C of the Elections (Voter Registration of Voters) Regulations 2012, (the impugned regulation).
Aggrieved the petitioners filed the instant petition. They contended that the impugned regulation unreasonably disenfranchised them and other eligible voters in the mass registration, hence, unconstitutional.
- What principles should the courts consider when:
- interpreting the Constitution;
- interpreting statute;
- interpreting statute vis--vis statute; and
- determining if a limitation on a right or fundamental freedom was justified.
- Whether the consent of the IEBC was a prerequisite for effecting a voters transfer of registration.
- Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 which called for a voter to make a formal application for transfer of registration was in violation of section 7 of the Elections Act which only called for such a voter to notify the IEBC.
- Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 was in violation of articles 27 and 38 of the Constitution for unreasonably restricting voters right to transfer their votes freely.
- Whether regulation 13C of the Elections (Registration of Voters) Regulations, 2012 was in violation of articles 10 and 47 of the Constitution for want of public participation and fair administrative procedures.
Relevant provisions of the law
Elections (Registration of Voters) Regulations, 2012
13C. Transfer of registration:
A voter is not qualified to transfer his or her registration unless at the date of his or her application to be transferred he or she was ordinarily resident in that constituency six months immediately preceding the date of his or her application for transfer.
Elections Act, No. 24 of 2011
7. Transfer of registration
(1) Where a voter wishes to transfer the voter's registration to an electoral area other than the one the voter is registered in, the voter shall notify the Commission, in the prescribed manner, of the intention to transfer the registration to the preferred electoral area not less than ninety days preceding an election.
(2) Upon receipt of the notification referred to in subsection (1), the Commission shall transfer the voter's registration particulars to the register of the preferred constituency not later than sixty days preceding the election.
Constitution of Kenya, 2010
38. Political rights:
(1) Every citizen is free to make political choices, which includes the right
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions-
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
- Articles 20(4) and 259(1) of the Constitution gave guidelines on how the Constitution was to be interpreted. The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms and in a manner that contributed to good governance.
- The Constitution should be interpreted in a holistic manner, within its context, and in its spirit. The approach to interpret the Constitution should be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution.
- Courts utilized a three-pronged criteria in determining whether a fundamental right or freedom could be justified.
- The objective test established that a limit was reasonable and demonstrably justified in a free and democratic society, the objective, which the measures responsible for a limit on a charter right or freedom were designed to serve, had to be of sufficient importance to warrant overriding a constitutionally protected right or freedom.
- The proportionality test where once a sufficiently significant objective was recognized, then the party invoking had to show that the means chosen were reasonable and demonstrably justified. That involved a form of proportionality test. A proportionality test had three important components:
- the measures adopted had to be carefully designed to achieve the objective in question. They were not to be arbitrary, unfair or based on irrational considerations. They had to be rationally connected to the objective.
- The means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question.
- There had to be a proportionality between the effects of the measures which were responsible for limiting the Charter right or freedom, and the objective which had been identified as of sufficient importance.
- Regulation 13C of the Elections (Registration of Voters) Regulations, 2012 ( the impugned regulation), section 7 of the Elections Act and article 38 of the Constitution made provisions which had a bearing on the transfer of registration by voters. The Constitution, unlike the Elections Act and the impugned regulation, did not make express provisions on the transfer of registration. However, the provisions of the Elections Act and the impugned regulation in a way impacted upon article 38 of the Constitution.
- On one hand, the Elections Act spoke of the Commission to be notified by a registered voter of the voters intention to transfer the registration. On the other hand, the impugned regulation spoke of making of an application to the Commission for transfer of registration.
- Application meant to make a formal request or motion. Notify meant to inform (a person or group) in writing or by any method that was understood or to give notice of; to make known. In applying one made a formal request to the IEBC for the IEBCs permission or consent to effect the transfer. It, therefore, meant that if the IEBC declined the application then that was the end of the road for the voter. The consent of the IEBC was a prerequisite for effecting the transfer of registration.
- A voter was just required to inform the IEBC of the intention to transfer the registration. Once the IEBC received the notification, then it had to make the changes. No permission of the IEBC was required in the case of a party notifying the IEBC.
- Section 7 of the Elections Act was different from that of the impugned regulation. The application requirement under the impugned regulation overrode the notification called under the Elections Act. The impugned regulation was in conflict with the Elections Act.
- The Elections Act was a substantive Act of Parliament. It was a parent Act. It made provision for the IEBC to make subsidiary legislation under section 109. The Elections (Registration of Voters) Regulations, 2012 which derived life from the Elections Act, was a subsidiary legislation or delegated legislation. The subsidiary legislation was in contrast with the parent Act. That called for reconciliation by the court.
- Sections 2, 29 and 31(b) of the Interpretation and General Provisions Act amplified the need for harmony in meanings between the parent Act and a subsidiary legislation. The law abhorred inconsistencies. The only instance where the law allowed any variance was where the parent Act expressly stated that the subsidiary legislation was to provide to the contrary. No subsidiary legislation shall be inconsistent with an Act of Parliament.
- Before the court decided that a particular instrument or subsidiary legislation was inconsistent with the Act, it had to be satisfied that the two provisions could not stand together. What the court was required to do was to construe the instrument with the necessary alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Act. It was only when the instrument could not, despite such construction, conform to the Act that the court would be entitled to nullify the instrument. If the choice was between two strongly competing interpretations, the advantage could lie with that which produced the fairer and more convenient operation so long as it conformed to the legislative intention.
- The impugned regulation which called for a voter to make a formal application for transfer of registration could not be read into section 7 of the Elections Act which only called for such a voter to just notify the Commission. The two requirements were worlds apart. The Elections Act made no provision or intention for a contrary meaning of section 7 in the subsidiary legislation. The impugned regulation was irredeemably inconsistent with section 7 of the Elections Act and as such, the impugned regulation had to give way to the parent Act.
- Whereas the impugned regulation seemed to be aimed at curtailing the commission of some election offences, there was a law in place dealing with all forms of electoral offences and malpractices. The Elections Act and other regulations made thereunder had provisions on when voter registration and transfer was suspended. Further, the Constitution and the Elections Act put a lot of premium on avoiding unreasonable restrictions in voter registration and voting. The objective of the impugned regulation could not relate to concerns which were pressing and substantial in a free and democratic society.
- The impugned regulation could not be characterized as sufficiently important to limit a right. The impugned regulation could not be proportional to the alleged mischief. The mischief, if any, was already and sufficiently taken care of by other existing laws.
- The impugned regulation had the effect of constricting the right to register as a voter rather than creating an enabling environment for the greater realization of the right. The impugned regulation did not stand the threshold in article 24 of the Constitution to limit the right of a voter to transfer registration. In essence, the impugned regulation was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The impugned regulation infringed on article 38 of the Constitution to the extent that it curtailed a voters right to freely make political choices and to transfer registration. Likewise, the impugned regulation infringed on article 27(1) and (2) of the Constitution to the extent that it did not accord a voter the right to equal protection and benefit of the law. The impugned regulation contravened articles 27(1) and (2) and 38 of the Constitution.
- The amendments that brought forth the impugned regulation were originated by the IEBC. The amendments were made pursuant to section 109 of the Elections Act. The provision granted power to IEBC to make regulations generally for the better carrying out of the purposes and provisions of the Act. The Elections (Registration of Voters) (Amendment) Regulations, 2017, was, hence, a subsidiary legislation. As such, it had to strictly comply with the Constitution and the Statutory Instruments Act.
- There was need for all persons, state organs and public bodies to undertake public participation in appropriate cases for their actions or decisions to gain constitutional validity. Whereas an allegation of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
- The impugned regulation was so germane that it went into root of inter alia the political rights of citizens. As such, it was a matter that called for appropriate engagement especially on the clarity of the subject matter for the public to understand, the medium of engagement ought to have been clear and simple; there ought to be an opportunity for balanced influence from the public in general; the commitment to the process could not be overemphasized; inclusive and effective representation was necessary; the integrity and transparency of the process was to be guaranteed; the capacity to engage on the part of the public was cardinal, including that the public must be first sensitized on the subject matter. The IEBC was under a duty to satisfy the court that the above had been undertaken. That called for evidence. However there was no such evidence tendered. The hollow averments could only amount to hearsay.
- Given the effect of the impugned regulation on the general public, it was incumbent upon the IEBC to undertake a robust public engagement, a duty which IEBC failed to discharge. The lack of engagement ran contra articles 10 and 47 of the Constitution as well as the Statutory Instruments Act and the Fair Administrative Actions Act for want of public participation and fair administrative procedures.