To the extent that the Electoral Code vested powers in the IEBCs Enforcement Committee to summon witnesses and to conduct hearings was contrary to the Constitution

Brief facts

The petitioner, who was a member of the National Assembly, was indicted by the respondent, the Independent Electoral and Boundaries Commission (IEBC), on allegations that she made utterances at a public rally in contravention of the Electoral Code of Conduct. The petitioner was summoned to appear before the IEBCs Electoral Code of Conduct Enforcement Committee (the Enforcement Committee) for hearing of the complaint against her. At the hearing, the petitioner unsuccessfully raised some preliminary issues some which hinged on the jurisdiction of the IEBC to conduct the hearing. The petitioner subsequently instituted the instant proceedings.

The petitioner claimed that the IEBC was not one of the Chapter Fifteen Commissions of the Constitution of Kenya, 2010 (Constitution) with legal authority to issue summons to a witness hence it could not conduct the hearing, but could only investigate any complaint and then move the High Court. It was posited that article 88 of the Constitution, the Elections Act as well as the Independent Electoral and Boundaries Commission Act did not grant the IEBC the power to conduct judicial proceedings of whatever kind. As such, the Code of Conduct under Schedule Two of the Elections Act in so far as they granted power to the IEBC, to investigate, prosecute and preside over a trial were unconstitutional.

Issues

1. Whether the vesting of powers to summon witnesses and to conduct hearings in respect of complaints relating to breach of the Electoral Code on the Enforcement Committee was contrary to the Constitution?
2. What was the nature of constitutional and statutory instruments?
3. Whether a schedule to a statute was part of that statute. 
4. What were the ways in which the Electoral Code was to be enforced? 
5. What was the distinction between interpretation and construction of a legal provision? 
6. Whether the IEBC had the power to issue summonses to witnesses in the course of undertaking investigations into complaints. 
7. What was the procedure to be followed once IEBC had carried out investigations on a complaint?
8. What were the factors to consider in determining whether one was bound by IEBCs Electoral Code?

Held

1. Jurisdiction was defined in Halsburys Laws of England (4^th Ed.) Vol. 9 as the authority which a court had to decide matters that were litigated before it or to take cognizance of matters presented in a formal way for decision. Jurisdiction was everything, without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings.
2. The issue of jurisdiction could be raised at any stage of the proceedings. Jurisdiction either existed or it did not. Neither could it be acquiesced or granted by consent of the parties. It was a threshold question and best taken at inception. It was definitive and determinative and prompt pronouncement on it once it appeared to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that would end in barren cui-de-sac. Courts, like nature, should not sit in vain.
3. A courts jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality, it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.
4. Where the Constitution exhaustively provided for the jurisdiction of a court of law, the court had to operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a court of law or tribunal, the Legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
5. The term constitutional instruments was neither provided for nor defined in the Constitution and the law. It was a term which the instant court had crafted for purposes of identifying such instruments which had the force of law, but did not include the Constitution per se, the legislations passed by Parliament or county assemblies, the statutory instruments or subsidiary legislation, international instruments, common law or customary law.
6. In a general sense, constitutional instruments could be described as special kind of instruments which directly derived their basis and legitimacy from the Constitution and not from a statute. The power to make such instruments was usually, directly conferred to a person or entity by the Constitution. The instruments were also not subject to the rigours of the law-making processes as provided for in the Constitution and the law.
7. The holders of the powers to formulate constitutional instruments were usually not called upon to comply with the legislative processes provided in the Constitution and the law, but the resultant instrument had to measure to the expected constitutional parameters and had to embrace the spirit of the Constitution.
8. In Kenya, the Constitution made provision for constitutional instruments. An example was in article 22(3). Article 22(3) specifically mandated the Chief Justice to make certain rules. In coming up the rules, the Chief Justice was, for instance, not called upon to subject the rules to parliamentary approval. Article 22(3) granted the Chief Justice the power to directly come up with the rules. In the process of coming up with rules, the Chief Justice had to, however, be alive to the calling that the rules had to be within the Constitution.
9. Statutes were the creation of Parliament and county assemblies. Such had to undergo specific processes in the Parliament and county assemblies and could only assume the sanctity of the law with the assent of the President, in the case of national laws, and that of a county governor in the case of a county legislation.
10. The Constitution could make provisions for Parliament or county assemblies to make certain laws or the Parliament and county assemblies could do so on their own volition and in discharging their cardinal mandates. The statutes passed by Parliament or the county assemblies which eventually became law could contain schedules. A schedule to a statute was part of that statute.
11. Statutory instruments were instruments deriving their basis and legality directly from Acts of Parliament or county legislations. The parent statute specifically granted the power to an entity or a person to come up with a subsidiary legislation or statutory instruments. Statutory instruments were further subject to the Statutory Instruments Act, No. 23 of 2013. Section 2 of the Act defined a statutory instrument to mean any rule, order, regulation, direction, form, tariff of costs or fees, letters, patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation was expressly authorized to be issued.
12. The Electoral Code had a constitutional basis. Article 88(5) of the Constitution commanded the IEBC to exercise its powers and perform its functions in accordance with the Constitution and national legislation. The law expressly provided for the applicability of and subscription to the Electoral Code. The Electoral Code further provided that its applicability and binding nature would be on the basis of subscription. Therefore, the Electoral Code only applied to those who subscribed to it; such included political parties, candidates and members of the referendum committees.
13. Failure by a political party, a candidate and members of the referendum committees to execute and subscribe to the Electoral Code or any other breach of the Electoral Code constituted offences. Sections 7 to 12 of the Electoral Code provided for the enforcement of the Electoral Code. The Electoral Code by itself provided for two ways in which it could be enforced. That could be by the IEBC itself or through the High Court. The Electoral Code also provided that the enforcement could be on the basis of the IEBC on its own motion or on a complaint lodged. Another way in which the Code could be enforced was in section 21 of the Elections Offences Act which provided that the Director of Public Prosecutions (DPP) would have the power to order investigations and to prosecute offences under the Act.
14. One of the offences under the Elections Offences Act was the breach of the Electoral Code in section 20. From the face of it, it stood out that it was the DPP who was vested with the duty and power to order investigations and prosecute offences under the Electoral Code. A further manner in which the Electoral Code could be enforced was provided for in the Rules of Procedure on Settlement Disputes (the Rules of Procedure) which were promulgated by the IEBC vide Legal Notice No. 139 of 2012.
15. The basis of the Rules of Procedure was section 109 of the Elections Act which accorded the IEBC the power to make regulations. The Rules of Procedure were, hence, a subsidiary legislation or a statutory instrument. While discharging its mandate, the Enforcement Committee was empowered by rule 17(3) of the Rules of Procedure to conduct its own investigations to enable it arrive at a reasonable decision.
16. Article 259 of the Constitution obligated the court to interpret the Constitution in a manner that promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. Constitutional interpretation included both interpretation and construction. Interpretation entailed discovering the meaning of words used in a statutory or other written document. Construction of a legal provision on the other hand was wider in scope than interpretation, and was directed at the legal effect or consequences of the provision in question. Interpretation had to, of necessity, come before construction, and having ascertained the meaning of the words, one construed them to determine how they fit into the scheme of the law or legal document in question.
17. A holistic and purposive interpretation of the Constitution that called for the investigation of the historical, economic, social, cultural and political background of the provision in question had been consistently affirmed by the courts.
18. The IEBC was one of the constitutional commissions in Kenya and as so provided for in article 248(2) of the Constitution. The IEBC was established under article 88(1) of the Constitution. The IEBC and other commissions and independent offices were called upon under article 249 of the Constitution, while discharging their duties, to protect the sovereignty of the people, to secure the observance by all State organs of democratic values and principles and to promote constitutionalism. It was for that reason that the IEBC and other commissions and independent offices were clothed with both financial and operational independence under article 249.
19. Article 252 of the Constitution was on the general functions and powers of the constitutional commissions and independent offices. According to article 252, any constitutional commission had the powers to conduct investigations either on its own initiative or on the basis of a complaint made by a member of the public. The IEBC was not an exception. In the course of undertaking such investigations, the Constitution limited the power of the constitutional commissions and independent offices to issue summonses to a witness to only four such entities. The entities were the Kenya National Human Rights and Equality Commission, the Judicial Service Commission, the National Land Commission and the Auditor-General.
20. The IEBC was not one of such entities which the Constitution bestowed any powers to summon witnesses in the course of undertaking its investigations. As a result, any law or statutory instrument that conferred the IEBC with the powers to issue summonses to a witness could only be running afoul the Constitution. Any such law or statutory instrument, would to that extent, stand in contravention of the Constitution, hence, null and void.
21. The IEBC could carry out the investigations in the manner it settled for and could even involve the Peace Committees established under section 17 of the Electoral Code. Once the IEBC completed such investigations it could refer the matter to the DPP or it could opt to institute appropriate proceedings in the High Court. The IEBC could also involve its Peace Committees in conciliation and mediation.
22. By juxtaposing the nature and objects of the Enforcement Committee and the manner in which the Constitution ought to be interpreted and in light of article 252 of the Constitution, the Enforcement Committee was vested with powers to summon witnesses and to conduct hearings in respect of complaints relating to breach of the Electoral Code. The vesting of the powers to the Enforcement Committee was not by the Constitution, but by the Electoral Code under the Elections Act. In such a case, and to that extent, the Electoral Code in vesting powers to the Enforcement Committee to summon witnesses and to conduct hearings could only be contrary to the Constitution more so article 2(4).
23. The provisions of the Elections Act, the Electoral Code and the Rules of Procedure that conferred upon the IEBC any powers to summon any witness in the course of its investigation and to conduct hearings could not stand in the face of the Constitution. Those provisions included parts of sections 7, 8 10 and 15 of the Electoral Code as well as rules 15(4) and 17(1) and (2) of the Rules of Procedure.
24. The constitutional design for the IEBC was that its main duty was conducting or supervising referenda and elections. In doing so, disputes were bound to arise. In order to shield the IEBC from venturing into the arena of taking active part in disputes, the Constitution intentionally excluded the IEBC from those commissions and independent offices with powers to summon witnesses in the course of carrying out investigations. It was quite disturbing that despite such clear constitutional dimensions, the Electoral Code circumvented the Constitution in an attempt to give the IEBC the very powers which the Constitution declined.
25. The burden which was already on the shoulders of the IEBC in inter alia conducting and supervising fair and transparent elections and referenda was heavy enough and the IEBC ought to contend with that. Infact, the IEBC was struggling to fully discharge its mandate. There was no justification whatsoever for the IEBC to look for more work to engage in. In fact, if the IEBC was to enforce the Electoral Code as it intended in the instant case, many a times it would be locked up in instances where it was the complainant, the witness, the prosecutor and the arbiter. That was the exact prevailing position in the instant matter. Such can only be in violation of article 50 of the Constitution.
26. The IEBC had no jurisdiction to either summon any witness or to conduct any hearing in relation to a complaint on breach of the Electoral Code or at all. The Enforcement Committee had no jurisdiction to enforce the Electoral Code by summoning any witness or conducting any hearing in relation to a complaint on breach of the Electoral Code or at all. The Enforcement Committee was an unconstitutional outfit and lacked any legality.
27. There was in place an Electoral Code courtesy of the Elections Act and the Second Schedule thereto. The Electoral Code had operational timelines. The IEBC contended that the petitioner was bound by the Electoral Code on the basis of being a member of the Jubilee Party and also a candidate in the forthcoming general elections. It appeared that the IEBCs argument ran contrary to the law. The law provided that whether it was a political party or a candidate or a member of the Referendum Committee taking part in an election or referenda, the first port of call was subscription to the Electoral Code.
28. The IEBC had not adduced any evidence to confirm that indeed the petitioner or the Jubilee Party subscribed to the Electoral Code for the current election period running from January 20, 2022 to the declaration of the results of the general election to be held on August 9, 2022. There was also no evidence that the Jubilee Party or the petitioner were charged and convicted for failing to subscribe to the Electoral Code.
29. Section 2 of the Elections Act defined a candidate as meaning a person contesting for an elective post while nomination was defined as meaning the submission to the IEBC of the name of a candidate in accordance with the Constitution and the Act. It was in public purview that according to the notices and the election timetable released by the IEBC, party nominations were yet to be conducted and there had yet to be formal submission of nominations to the IEBC. As a result, the petitioner could not be deemed to be a candidate in the forthcoming elections.
30. On the basis of lack of subscription to the Electoral Code by the petitioner and the Jubilee Party, there being no evidence of conviction of the petitioner or the Jubilee Party for failing to subscribe to the Electoral Code and there being no evidence that the petitioner was a candidate in the forthcoming elections, there was no basis of holding that the Electoral Code bound the petitioner.
31. If an act was void, then it was in law a nullity. It was not only bad, but incurably bad. There was no need for an order of the court to set it aside. It was automatically null and void without more ado, although it was sometimes convenient to have the court declare it to be so. Therefore, it did not matter whether the Chairperson of the IEBC rightly so chaired the Enforcement Committee or otherwise. The Chairperson was riding on a constitutionally-dead horse.
32. In the unique circumstances of the instant matter, article 2(4) of the Constitution was violated to the extent that the Enforcement Committee was contrary to article 252 of the Constitution, article 3(1) of the Constitution was contravened in the IEBCs not upholding the Constitution, article 27(1) of the Constitution was infringed for not according the petitioner equal protection and equal benefit of the law. Article 33 of the Constitution was not infringed since the freedom of expression was qualified and the IEBC could, going forward, properly so deal with the complaint.
33. There was evidence that the petitioner was not availed with all the necessary evidence against her to be able to properly prepare for her defence. That was so since the IEBC received the alleged footage from the Communications Commission of Kenya vide a letter dated February 15, 2022, the very day the petitioner appeared before the Enforcement Committee and proceedings began. The state of affairs further contravened articles 47 and 50 of the Constitution.