R v Speaker of the National Assembly & another ex parte Aboubakar

High Court, at Mombasa

March 25, 2002

 Otieno & Ouna JJ

Civil Miscellaneous Application No 184 of 2002

Parliament – parliamentary party – defection from parliamentary party – meaning of resignation – resignation by conduct – constructive resignation – requirement that Speaker should declare the parliamentary seat vacant upon resignation from parliamentary party – duty of Speaker – action to be taken by Speaker – proper procedure – whether Speaker can be compelled by an order of mandamus to declare a seat vacant – manner of bringing the resignation to the attention of Speaker – process of declaring seat vacant – Constitution section 40.

Judicial Review – mandamus – order of mandamus compelling the Speaker to declare a parliamentary seat vacant upon resignation from a parliamentary party - whether such order can be granted.

The applicants filed an application seeking an order of mandamus against the Speaker of the National Assembly compelling him to declare the Likoni parliamentary seat held by the 2nd respondent vacant. The application also sought an order prohibiting the 2nd respondent from continuing to occupy the Likoni parliamentary seat party and from holding himself out as a member of parliament on a Shirikisho Party ticket. The applicants argued that the 2nd respondent had, in a highly publicized function, issued a statement that he had defected from the party that sponsored him to parliament. The respondents in response to the application argued that the Court had no jurisdiction to grant the prayers and orders sought.

Held:

1. The claim as to whether or not the respondent resigned from his original political party falls under section 40 of the Constitution and should have been brought to court constitutionally under the procedures spelt out under section 44 (1) (b) and section 44 (3) (b).

2. It is the High Court that hears and determines any question as to whether the seat is vacant or not under section 40 and not Speaker. The Speaker would then, under section 18, if he has reason to believe that the seat has become vacant call such evidence as he thinks necessary and thereafter declare the seat vacant.

3. Any person who feels that a Member of Parliament has resigned from the party on whose platform he went to Parliament and has been caught up by the provisions of section 40 of the Constitution should initiate action in the High court.

 4. If the High Court after investigation comes to a conclusion that indeed such a member has resigned from the party (whether in writing or by implication) then the order or judgment of the High court will be placed before the Speaker who will proceed under section 18 of the National Assembly and Presidential Elections Act and declare the seat vacant.

5. There is no provision in law and it would be improper for the Speaker himself, whether under his public duty or his administrative duty, to go out of his way and initiate investigations based on what he has seen in the media.

6. It was the duty of the applicants if they felt the 2nd respondent had resigned constructively from his party while the same party was still a parliamentary party and was caught up by the provisions of section 40 of the Constitution to initiate action in the High Court to seek a determination to that effect.

7. The applicant’s action by way of judicial Review was not in law the proper procedure. The applicants should have first initiated action in the High Court to determine whether or not the 2nd respondent had been caught by the provisions of section 40. The determination of the High Court should have been forwarded to the speaker and only after his refusal to act they would take action in court.

8. The duty of the Speaker to declare a parliamentary seat vacant is a discretionary power and an order of mandamus would interfere with the Speaker’s discretion on the matter and would scuttle all the other procedures the Speaker needs to go through before he can take action to declare the seat vacant.

9. The Speaker can only declare a seat vacant after he has called evidence and has established that the seat has become vacant. The Speaker can only call evidence if he has reason to believe that the seat has become vacant. If the Speaker is not so satisfied, he can refuse to so declare. The court cannot compel the Speaker to declare as to do so would ignore the statutory requirements that he has to first have reasons to believe the seat has become vacant and that after he has the same reasons he would call for evidence on the matter and then he has to be satisfied that the seat has become vacant and only thereafter would he declare the seat vacant.

10. In the instant case there was no tangible evidence availed to the court to prove that the 2nd respondent had resigned from the party that sponsored him to Parliament. Even if such evidence existed there was no proof that the same had been brought to the attention of the Speaker. The applicants have not shown that they had brought the same to the attention of the Speaker and that their rights were being violated and that they had demanded performance. The orders of madamus and prohibition could not be available to the applicants.

11. What amounts to resignation from a party will depend on the provisions of the Constitution of that party. If according to the party’s constitution certain conduct amount to resignation then if the member commits such conduct then he would be considered to have resigned from that party.

12. In order for the conduct of an individual to amount to resignation it must be an overt conduct that any reasonable person will see it as a conduct that leaves no one with any other conclusion but that the member is for all intents and purposes no longer a member of the party that sponsored him. It will be up to the court receiving evidence to decide if the conduct of the person amounts to constructive criticism.

13. There was no evidence that the 2nd respondent had constructively resigned. At the time of this ruling Parliament had already been dissolved. The court orders sought could not be granted in vain even if application had succeeded.

Orders accordingly.

Cases

1. Kenya National Examinations Council v R Ex Parte Geoffrey Gathenji Njoroge & 9 others Court of Appeal Civil Appeal No 266 of 1996

2. Shah, Prabhulal Gulabchand v The Attorney General and Erastus Gathondu Miano Civil Appeal No 24 of 1985

3. R v Dunsheath Ex Parte Meredith [1950] 2 All ER 741; [1951] 1 KB 127

Texts

Hailsham Lord et al (Eds) (1974) Halsbury’s Laws of England London: Butterworths 4th Ed Vol. VI P 111 paras 89 and 90

Statutes

1. National Assembly and Presidential Elections Act (cap 7) sections 18, 34

2. Civil Procedure Rules (cap 21 Sub Leg) order LIII

3. Law Reform Act (cap 26) section 9

4. Constitution of Kenya sections 5, 4, 40, 44(1), (3)(b), 84

 Advocates

Mr Mungatana for the Applicants

Mr Khanna for the 1st Respondent

Mr Brayant for the 2nd Respondent