Section 2(2)(a) of the Independent Electoral and Boundaries Commission Amendment Act, on the nomination by the Parliamentary Service Commission of 4 out of 7 members of the selection panel for the appointment of the Independent Electoral and Boundaries Commission, is unconstitutional.

Brief facts

The petitioner impugned sections 2(2)(a) and 3 of the Independent Electoral and Boundaries Commissions Amendment Act No. 18 of 2020 (IEBC Amendment Act) on grounds that it unconstitutionally assigned four out of the seven slots in the selection panel for the selection of the nominees for the appointment of members of the IEBC (the selection panel) to the Parliamentary Service Commission (PSC). The petitioner contended that that section 3 of the IEBC Amendment Act unconstitutionally assigned the PSC with administrative responsibilities of co-ordinating the IEBC Commissioners recruitment process and at the same time, the same body, was vested with the duty of appointing four members of the selection panel. 

The petitioner contended that the impugned provisions violated the rule of law, the principles of separation of powers and further contended that Parliament in enacting the IEBC Amendment Act abused its power and failed to adhere to the principle of good governance.

Issues

1. What principles did the court consider in:
   1. Interpreting the constitution?
   2. Interpreting statutory provisions?
   3. Interpreting statutory provision vis--vis constitutional provisions?
2. What principles were applicable in the construction of statutes?
3. Whether Parliament and the Parliamentary Service Commission were the same entity.
4. Whether the Parliamentary Service Commissions role of providing services and facilities to ensure the efficient and effective functioning of Parliament inter alia made it a subordinate of Parliament.
5. What was the role of the Parliamentary Service Commission?
6. Whether Parliament in enacting the IEBC Amendment Act violated the principle of separation of powers:
7. Whether sections 2(2)(a) and 3 of the IEBC Amendment Act that provided for a selection panel to nominate candidates for appointment as commissioners would have 4 of its 7 panelists appointed by the Parliamentary Service Commission were unconstitutional to the extent that it infringed rule of law, was an abuse of power, violated the independence of constitutional commissions.
8. Whether sections 2(2)(a) and 3 of the IEBC Amendment Act that provided for a selection panel to nominate candidates for appointment as commissioners would have 4 of its 7 panelists appointed by the Parliamentary Service Commission was unconstitutional to the extent that it violated equity, equality, non-discrimination and fairness and violated political rights of Kenyans.
9. Whether Parliament erred in legislating one organ to occupy 4 out of 7 slots in the selection panel to nominate persons to be appointed as commissioners of an independent commission.
10. Whether the High Court could stop or vary a timeline set out in the Constitution.
11. Whether a selection panel which had majority of its members nominated by one entity could pass the threshold of being portrayed as independent and fair.
12. Whether a court could grant a specific relief when the relief had not been pleaded.
13. Whether, with an election 5 months away, the court could order that the selection panel that appointed commissioners of the Independent Electoral and Boundaries Commission was illegally constituted and order for the re-composition of the selection panel and the nullification of the appointment of the commissioners.
14. Whether a court could issue orders against third parties not included as parties to the suit.

Held

1. The Constitution was a document sui generis. It was the ultimate source of law in the land. It commanded superiority and dominance in every aspect and its interpretation as of necessity had to be in a manner that all other laws bowed to. The Constitution was to be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. The Constitution was to be interpreted in a holistic manner, within its context, and in its spirit. Holistic interpretation meant interpreting the Constitution in context.
2. The contextual analysis of a constitutional provision meant reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution had to be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.
3. The principles of interpretation also applied to the construction of statutes. There were other important principles which applied to the construction of statues as well as to the construction of a Constitution such as:
   1. presumption against absurdity a court was to avoid a construction that produced an absurd result;
   2. the presumption against unworkable or impracticable result - a court was to find against a construction which produced unworkable or impracticable result;
   3. presumption against anomalous or illogical result - a court was to find against a construction that created an anomaly or otherwise produced an irrational or illogical result;
   4. the presumption against artificial result a court was to find against a construction that produced artificial result and,
   5. the principle that the law should serve public interest the court was to strive to avoid adopting a construction which was in any way adverse to public interest, economic, social and political or otherwise.
4. The Constitution had to be read as an integrated whole with no one particular provision destroying the other so as to effectuate the harmonization principle. In determining whether a statute was constitutional, the court had to determine the object and purpose of the impugned statute for it was important to discern the intention expressed in the Act itself. In examining whether a particular statutory provision was unconstitutional, the court had to have regard not only to its purpose but also its effect.
5. Both purpose and effect were relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect could invalidate legislation. All legislation was animated by an object the legislature intended to achieve. That object was realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislations object and its ultimate impact, were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislations object and the validity.
6. The Constitution was to be given a purposive, liberal interpretation that promoted the rule of law and had jurisprudential value that had to take into account the spirit of the Constitution.
7. In ascertaining the manner in which a limitation to a right or fundamental freedom may be justified, courts were to consider a three-pronged criteria;
   1. the objective which the limitation was designed to serve;
   2. the means chosen to attain the objective must be reasonable and demonstrably justified, the proportionality test; and,
   3. the effect of the limitation.
8. To establish 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 right or freedom were designed to serve, had to be of sufficient importance to warrant overriding a constitutionally protected right or freedom. The standard had to be high in order to ensure that objectives which were trivial or discordant with the principles integral to a free and democratic society were not upheld. It was necessary, at a minimum, that an objective related to concerns which were pressing and substantial in a free and democratic society before it could be characterized as sufficiently important.
9. On the proportionality test, one had to show that the means chosen were reasonable and demonstrably justified. That involved a form of proportionality test: although the nature of the proportionality test would vary depending on the circumstances, in each case courts would be required to balance the interests of society with those of individuals and groups. There were three important components of a proportionality test: -
   1. 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.
   2. The means, even if rationally connected to the objective in the first sense, should impair as little as possible the right or freedom in question.
   3. 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.
10. On the third test, the effect of the limitation, the general effect of any measure impugned would be the infringement of a right or freedom.
11. Even if an objective was of sufficient importance, and the first two elements of the proportionality test were satisfied, it was possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure would not be justified by the purposes it was intended to serve. The more severe the deleterious effects of a measure, the more important the objective had to be if the measure was to be reasonable and demonstrably justified in a free and democratic society.
12. Chapter 15 of the Constitution was on commissions and independent offices. The Parliamentary Service Commission (PSC) was among the commissions. Under article 253 of the Constitution, each commission was a body corporate with perpetual succession and a seal. It was capable of suing and being sued in its corporate name. In discharging their mandates, commissions and independent offices were independent and not subject to direction or control by any person or authority, but were only subject to the Constitution and the law.
13. There was a deliberate pattern of design adopted in the Constitution relating to the arms of government and the commissions associated with the mandates of aiding such arms of government to properly operate. Such commissions were usually provided for under the same chapter as the arm of government. For instance, the Judicial Service Commission was closely associated with the Judiciary as the arm of government. That commission was provided for under chapter 10 of the Constitution which dealt with the Judiciary. Likewise, the PSC was provided for under chapter 8 on the Legislature. Another example was the Office of the Attorney General and that of the Director of Public Prosecutions which were provided for under chapter 9 of the Constitution which was on the Executive.
14. Resulting from such a constitutional formatting, it appeared as though such commissions and organs were subordinate to the respective arms of government. That was not the position. Each of the commissions, independent offices or state organs were independent and only subject to the Constitution and the law.
15. Whereas the PSCs main role was to provide services and facilities to ensure the efficient and effective functioning of Parliament, that did not make it subordinate to Parliament. PSC remained independent and was only subject to the Constitution and the law. Whereas PSC and Parliament were inter-dependent, they were distinct constitutional entities.
16. The court would be reluctant to question parliamentary procedures, as long as they did not breach the Constitution. Parliament was guided by both the Constitution and the Standing Orders in its legislative process. The functions of Parliament and the PSC were different. There was nowhere any of their powers overlapped.
17. To adopt an interpretation that PSC was a subordinate of Parliament would be to adopt a formalistic or positivistic approach. Courts while interpreting the Constitution, were to favour a purposive approach as opposed to formalism.
18. The unique circumstances of the instant case did not support the contention that Parliament in enacting the IEBC Amendment Act violated the principle of separation of powers. Parliament discharged its constitutional duty in enacting the IEBC Amendment Act.
19. A petitioner ought to demonstrate with some degree of precision the right it alleged had been violated, the manner it had been violated, and the relief it sought for that violation. A party invoking article 22(1) of the Constitution had to show the rights said to be infringed, as well as the basis of his or her grievance. The petitioner had failed in proving that the IEBC Amendment Act infringed the rule of law.
20. Under the impugned IEBC Amendment Act, PSC nominated four out of the seven nominees for appointment into the Selection Panel for the selection of the nominees for the appointment of members of the Independent Electoral and Boundaries Commission (IEBC). The composition of the selection panel was provided for in the first schedule to the Act. The Selection Panel comprised of 7 members. None of them was nominated by the PSC. The IEBC Act was later amended by the enactment of Election Laws (Amendment) Act, No. 36 of 2016. Then, the Independent Electoral and Boundaries Commission (Amendment) (No. 3) Bill, 2019 proposed some other amendments to the selection panel.  The Bill was dealt with by both Houses of Parliament. It then resulted into the enactment of the IEBC Amendment Act.
21. Unlike in the Election Laws (Amendment) Act, No. 36 of 2016 where 4 out of 9 of the members were nominated by PSC and in the Independent Electoral and Boundaries Commission (Amendment) (No. 3) Bill, 2019 where 4 out of the 11 members were to be nominated by PSC, the IEBC Amendment Act provided that out of the 7 members, 4 of them were to be nominated by PSC.
22. One of the reasons why previously the number of nominees by PSC into the selection panel was not more than one half of the nominees was that the perception of independence of the selection panel. A selection panel which had majority of its members nominated by one entity could not pass the threshold of being portrayed as inter alia independent and fair. The dominance of the members appointed by one entity into the selection panel definitely raised legal eye brows.
23. On the objective test, it was necessary, at a minimum, that an objective related to concerns which were pressing and substantial in a free and democratic society before it could be characterized as sufficiently important.
24. From the history of constitution making in Kenya and the quest for free and fair elections, the objective of the IEBC Amendment Act ought to further the realization of the goal that IEBC would eventually conduct fair, free and credible elections and referenda. The IEBC Amendment Act ran counter that objective. The IEBC Amendment Act instead created a scenario of suspicion not only on the commissioners to be appointed, but also the eventual independence of the IEBC. The selection panel was dominated by the nominee selected by PSC. That dominance ran contrary to good governance, transparency, integrity, social justice, equity, inclusiveness, equality, patriotism, national unity among like principles.
25. It was not far-fetched to imagine the likelihood of the majority of the members of the selection panel nominated by PSC to favour some candidates during the nomination process. Such preferred candidates could eventually become commissioners of IEBC and their impendence would be put to question.
26. The Constitution gave Parliament powers to allocate any other functions to PSC through legislation. The IEBC Amendment Act did not infringe the principle of rule of law.
27. The objective of the impugned composition of the membership of the IEBC Amendment Act was not to address the concerns which were pressing and substantial in a free and democratic society. Instead, the membership of 4 out of 7 members nominated by PSC favoured a process which did not fully uphold the Constitution. The membership of the IEBC Amendment Act failed the objective test. The proportionality and the effect of the statutory provision, could not be subject of further discussion once the statute or the provision failed to pass the objective muster. Section 2(2)(a) of the IEBC Amendment Act variously offended the principles of good governance, transparency, integrity, social justice, equity, inclusiveness, equality, patriotism, national unity.
28. There was need for a legislation that would take such principles into account without losing sight of the fact that Kenyans were looking upon Parliament to pass legislations which would foster free, fair and credible elections and referenda. To the extent that section 2(2)(a) of the IEBC Amendment Act provided for the nomination of 4 out of 7 members of the selection panel, then the impugned section 2(2)(a) of the IEBC Amendment Act was unconstitutional.
29. Even in instances where a party failed to ask for a specific relief, a court, depending on the nature of the matter ought to craft an appropriate relief. Even in instances where there were express provisions on specific reliefs a court was not precluded from making any other orders under its inherent jurisdiction for the ends of justice to be met. Article 23 of the Constitution did not expressly bar the court from granting conservatory orders where a challenge was taken on the constitutionality of legislation.
30. While protecting fundamental rights, the court had power to fashion new remedies as there was no limitation on what the court could do. Any limitation of its powers could only derive from the Constitution itself. Not only could the court enlarge old remedies, it could invent new ones as well if that was what it took or was necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the court itself, instead of being the protector, defender, and guarantor of the constitutional rights would be guilty of the most serious betrayal. The court was always faced with variety of facts and circumstances and to place it into a straight jacket of a procedure, especially in the field of very important, sensitive and special jurisdiction touching on liberties and rights of subjects were to be a blot on independence and many facetted jurisdiction and discretionary powers of the High Court.
31. The selection panel completed its mandate and recommended persons who were eventually appointed as commissioners of IEBC. The said persons were in office. One of the reliefs expected in the instant matter in view of the declaration of unconstitutionality of section 2(2)(a) of the IEBC Amendment Act had to do with the aftermath of what the selection panel yielded. The court declined to nullify the nomination process and to nullify the appointment of the commissioners on grounds that they were deemed as fruits of a poisoned tree. The court declined to order Parliament to come up with a new law and to order that the nomination process be undertaken again for reasons related to non-joinder and on the effect of such orders to the country.
32. On non-joinder, the petition was filed when the IEBC Amendment Act had been passed into law, but the selection panel was yet to be appointed. Later, the selection panel was put in place. On learning of that development, the petitioner filed the notice of motion dated April 27, 2021. There was no attempt to amend the petition. The petitioner was using the application to expand the petition without properly amending it. The status of the members of the selection panel sought to be served through the Hon. Attorney General was not clear.
33. The correct procedure to have been adopted by the petitioner was to apply to court to amend the petition and introduce the new cause of action which was the appointment of the selection panel. The petitioner would then have indicated how the members of the selection panel would participate in the matter and the amended petition would have had concise prayers for the new cause of action. The petitioner would have taken the game to a level playing field. As the petitioner failed to do so, the court did not find any justification to deal with that application first or to issue any interim conservatory orders. The court directed that the application be heard together with the petition.
34. Given that the members of the selection panel were not enjoined as parties in the instant matter, the court could not, at the tail-end of the proceedings, issue any orders to the detriment of any of them. If the court did so then it would infringe on the members right to a fair trial which was guaranteed under article 50(1) of the Constitution. The right to a fair trial was one of the rights which could not be limited in any manner whatsoever as provided for under article 25 of the Constitution.
35. IEBC was at the heart of preparing for the next general elections. The elections were expected to be conducted in the next 8 months. If the court made an order that the four new commissioners vacate office, IEBC would lack quorum to conduct its affairs. The effect of such an order would mean that Parliament would have to come up with another piece of legislation and the process of selecting the four commissioners would begin afresh. If the court allowed that to happen, then the chances that IEBC would not be able to prepare and conduct the next general elections would be high.
36. The general elections were constitutionally-provided and no court could tamper with constitutional timelines. If the court put IEBC in a situation where it could not prepare and conduct the next general elections, then it would be creating a constitutional crisis. A court of law had to uphold the Constitution. A court was not to create a constitutional crisis. It remained the cardinal duty of a court to foresee such a crisis and take steps to avoid it.
37. The fact that four commissioners of IEBC resigned and their positions remained vacant for a while, was due to the fact that there was no law in place on how other commissioners were to be appointed. The scenario resulted from the amendments which were made through section 6 of the Election Laws (Amendment) Act, No. 36 of 2016, which stated that the selection panel shall stand dissolved upon the requisite appointments being made under paragraph 4. The selection panel was wound up when the seven commissioners (which included the chairperson) were appointed on January 17, 2017. The next law on the appointments was the IEBC Amendment Act which came into effect on November 13, 2020. Interestingly, the Selection Panel provided for in the IEBC Amendment Act also stood dissolved on the appointment of the four commissioners.
38. There was no standing selection panel for nominees for appointment as IEBC Commissioners. Whenever a vacancy in the IEBC Commissioners arose, Parliament would first have to come up with the law on the next selection panel. There was need for Parliament to relook at the law on the selection panel. Even though the selection panel did not necessarily have to be a standing committee, the law could provide for the manner in which the next selection panel could be constituted without the need to first enact a new law to that end.
39. In order to aid IEBC to operate without any legal hitches on its quorum, there was need for Parliament to consider the period within which any vacancies which may arise in IEBC Commissioners had to be filled.