Determination on the date of the first general election under a new constitution

Reported by Michael M. Murungi

Constitutional Law –– interpretation of the Constitution – determination of the date of the first general election under a new constitution - rules of interpretation - schedule to a constitution – status of a schedule vis a’ vis the other provisions of a constitution – whether the election was to be held on the 2nd Tuesday of August in 2012 or within 60 days after the end of the term of the serving Parliament in 2013 - Constitution of Kenya 2010 Articles 101, 262; Sixth Schedule sections 2, 3, 9, 10, 12

Civil Procedure –– appeal – parties to an appeal in the Court of Appeal - whether a person who is not a party to the proceedings in the High Court has locus standi to lodge an appeal – whether such a person may be heard de bene esse – matters the court will consider – Constitution of Kenya 2010 section 164 – Court of Appeal Rules 2010 rule 75, 77

Civil Procedure –– jurisdiction – Court of Appeal - whether the Court of Appeal has jurisdiction to decide upon a matter which was not canvassed in the High Court and adjudicated upon 

Held

1. On the locus standi of one of the appellants:

2. Even though in the first instance appeals to the Court of Appeal will invariably be brought by persons who were parties in the suit from which the appeal emanates, this is not to say that a person who was not party to the suit cannot go to the Court on appeal. Each case must be considered on its own merit.

3. A person who was not a party in the original suit has the obligation to establish that it is affected by the judgment or order, subject of the appeal - and the required interest is not to be restricted to proprietary or financial interest only - and to establish that there are good reasons for not having pursued its interest in the High Court. Where a matter is of public interest and relates to the protection and promotion of the Constitution, it may be in the interest of justice to admit such a party.

4. However, it would not be proper for such a party to canvass matters in the Court of Appeal which were not the subject of the litigation in the High Court.

5. On the principles of interpreting a constitution:

6. Some of the important principles which apply to the interpretation of a constitution are:

7. A court should avoid a construction that produces an absurd, unworkable or impracticable result;

8. A court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result;

9. The court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise.

10.The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration.

11. On the merits of the appeals:

12. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution.

13. It was not within the province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule.

14. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms.

15. The High Court was right in its second finding that the first elections under the new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2012.

Per Martha Koome JA, dissenting:

Held:

1. A party before the High Court has to demonstrate how they are affected by the decision being appealed against. The appellant should have first sought leave before the High Court so as to demonstrate the general public interest it was pursuing and given reasons why it did not appear before the High Court to agitate its case.

2. Having also considered that the life of Parliament is five years as per the Section 59 (5) of the repealed Constitution, which was saved by section 10 of the Sixth Schedule to the new Constitution, then section 9(1) of the Sixth Schedule should not have been read as a stand-alone leaving out the provisions of Section 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed Constitution.

3. If Sections 9 and 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed constitution were read conjunctively and given their purposeful meaning within the prevailing context that traditionally general elections are held within five years, the National Assembly should dissolve sixty days before the expiration of term. The dissolution of Parliament sixty days after the expiry of its term would contradict section 10 of the Sixth Schedule as it extended the period of the National Assembly beyond the term of five years.

4. The National Assembly should have been dissolved sixty days before the expiration of its term - that should have been on or about 14th November, 2012. This way, the current National Assembly would not go beyond its lifespan of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15 2013.

5. By majority decision: The order of the High Court providing that the general elections could be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the Accord was set aside.

6. The order of the High Court providing that the general elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat - which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008 and the term therefore expires on 14th January, 2013 - so that the election shall be held within sixty days of 15th January, 2013, was confirmed.

..

..