John N. Michuki & another v Attorney-General & 2 others
High Court, at Nairobi
May 10, 2002
Msagha & Juma JJ
Miscellaneous Application No 975 of 2001
Constitutional Law – fundamental rights and freedoms – enforcement of – creation of districts and provinces under the Constitution – whether the creation thereof is unconstitutional - whether creation infringes on fundamental rights – act purporting to amend the Constitution – The District and Provinces Act, 1992 section 5 and the National Assembly and Presidential Elections Act (cap 7)
Constitutional Law - amendments of the constitution - how constitution amended - Act of Parliament purporting to create new districts - Constitution prescribing number of districts - whether Act unconstitutional for purporting to amend the Constitution.
Election Law – Electoral Commission – powers and duties of the Commission – orders against Electoral Commission – duty of the Electoral Commission to effect one-person one-vote principle.
Civil Practice and Procedure - court - order of court - court not to grant order which it cannot supervise - court declining to grant order because its result could be devastating.
The applicant by an originating motion filed an application for declarations inter alia that, Kenya has only 40 districts and that The Districts and Provinces Act 1992 was ultra vires the Constitution and therefore null and void. The respondents to the motion were the Attorney-General, the Electoral Commission of Kenya and the Constitution of Kenya Review Commission.
The respondent also sought orders requiring the Electoral Commission to re-draw the constituency boundaries. The basis for the application was that by their actions and or omissions the respondents had breached or were about to breach his constitutional rights.
Held:
1. An Act of Parliament cannot amend the Constitution which requires 65% or more members of the assembly to do so.
2. The Districts and Provinces Act, 1992, section 5 thereof is unconstitutional, null and void, in purporting to amend or repeal section 4 of the Constitution of Kenya (Amendment) Act, 1968.
3. The Districts and Provinces Act, 1992 was unconstitutional to the extent of its provision purporting to amend the Constitution , but not so in the creation of the disputed districts.
4. The creation of districts under the Districts and Provinces Act, 1992 is not unconstitutional as the power is derived from the Constitution itself which in 1968, conferred the said powers upon an Act of parliament.
5. The creation of the districts was not unlawful and therefore any breaches founded thereon cannot be sustained and any declarations related thereto cannot be issued.
6. The Electoral Commission is a creature of the Constitution with power to prescribe the boundaries and names of constituencies. The Electoral Commission has no national criteria for determining the size of a constituency and no system of weighing the criteria set out in section 42(3) of the Constitution. As a result of this arbitrary exercise of its powers it has infringed on freedom of assembly and the principle of one person-one vote. There is some imbalance in representation.
7. Although it is clear to the court that there is some imbalance in representation, the court cannot grant the order sought by the applicant as the order could be devastating. The court can only give an order that it is able to supervise in default thereof.
8. The applicant has faulted the Electoral Commission sufficiently enough to require the Commission to address the issues.
9. (Obiter) The best the court can do with the material before it is to require that the Electoral Commission should take it upon itself to address the issues raised by the applicant to avoid future litigation of this nature.
Application against the 1st and 2nd respondent succeeds accordingly. Application against the 3rd respondent dismissed.
Cases
No cases referred to.
Statutes
1. Constitution of Kenya sections 1, 27, 32(2), 42, 78, 80, 82, 84, 123,
2. Judicature Act (cap 8) section 3
3. Constitution of Kenya Review Act (cap 3A) section 27
4. Civil Procedure Act (cap 21) section 3A
5. District and Provinces Act 1992 (Act No 5 of 1992) section 5
6. Constution of Kenya (Amendment) Act No 16 of 1968
8. National Assembly and Presidential Elections Act (cap 7) sections 4, 4A