Section 34(fd) of the Political Parties Act 2022 was unconstitutional as regulation of political party nominations was the mandate of Independent Electoral and Boundaries Commission and not the Registrar of Political Parties.
The petitioners challenged the legality of the Political Parties (Amendment) Act, 2022 (the Act) that was assented to on January 27, 2022 on multiple grounds. Among them were the grounds that there was no sufficient public participation undertaken as the stakeholders were not consulted, that the Act was discriminatory, that the Act was unconstitutional for taking away the Auditor General’s constitutionally mandated role of auditing and reporting on the accounts of political parties funded from public funds; and that the Act was vague, ambiguous and uncertain.
- What was the definition of a political party?
- Whether creation of a coalition political party without dissolving the constituent political parties curtailed the enjoyment of the citizens’ political rights under article 38 of Constitution.
- Whether the Political Parties (Amendment) Act, 2022 was unconstitutional for lack of meaningful public participation.
- Whether provisions of the Political Parties (Amendment) Act, 2022 were vague, ambiguous and uncertain.
- Whether section 22 of the Political Parties (Amendment) Act 2022 that removed the obligation by the Auditor General to audit accounts of political parties was contrary to the constitutional obligation on the Auditor General to audit and report on the accounts of political parties funded from public funds.
- Whether section 4 of the Political Parties (Amendment) Act, 2022 in so far as it made it discretionary for political parties to promote gender parity and representation in Parliament of youth, persons with disabilities, ethnic and other marginalized communities was unconstitutional.
- Whether section 24 of the Political Parties (Amendment) Act 2022 in so far as it did not require participation of registered party members in selection of delegates for purposes of indirect nominations was a violation of political rights and public participation.
- Whether the implementation of significant changes to the structure of political parties at the later stage of the election process undermined the reliability and credibility of the election process.
Relevant provisions of the law
Constitution of Kenya, 2010
Articles 91, 260
1. Every political party shall--
a) have a national character as prescribed by an Act of Parliament;
b) have a democratically elected governing body;
c) promote and uphold national unity;
d) abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party;
e) respect the right of all persons to participate in the political process, including minorities and marginalised groups;
f) respect and promote human rights and fundamental freedoms, and gender equality and equity;
g) promote the objects and principles of this Constitution and the rule of law; and
h) subscribe to and observe the code of conduct for political parties.
2. A political party shall not--
a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis;
b) engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person;
c) establish or maintain a paramilitary force, militia or similar organisation;
d) engage in bribery or other forms of corruption; or
e) except as is provided under this Chapter or by an Act of Parliament, accept or use public resources to promote its interests or its candidates in elections.
“political party” means an association contemplated in Part 3 of Chapter Seven of the Constitution.
(1) A person qualifies to be nominated by a political party for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person—
(a) is selected in the manner provided for in the constitution or rules of the political party concerned relating to members of that party who wish to contest presidential, parliamentary and county elections.
- Previously the Political Parties Act defined a political party as having the meaning assigned to it under article 260 of the Constitution of Kenya, 2010. The Political Parties (Amendment) Act, 2022 defined it as an association of citizens with an identifiable ideology or programme that was constituted for the purpose of influencing public policy of nominating candidates to contest elections; and included a coalition political party.
- Article 260 of the Constitution did not give a definition of a political party as such. Instead it made reference to chapter 7 part 3 of the Constitution. Article 91 which dealt with political parties only gave direction on what a political party should be or not be. It did not give a direct definition of what a political party was.
- The Political Parties Act was enacted to give effect to article 92 of the Constitution. The Act did not provide a definition of a political party and instead it referred to article 260 of the Constitution. Parliament must have noted the lacuna in both the Constitution and the Political Parties Act 2011, and so it gave the definition in the amended Act. The definition assigned to the political party in section 2 of the Political Parties (Amendment) Act, 2022, resonated with the ordinary and general meaning of a political party. There was no inconsistency in the definition of political party as stated in section 2 of the Political Parties (Amendment) Act and articles 260 of the Constitution.
- The general and ordinary meaning of a political party would require it to have an ideology, meaning the principles and policies that it stood for or advocated. Although articles 91(1) and 260 of the Constitution did not make mention of the word ideology, the court was bound by article 10(1)(a) and 259 of the Constitution to interpret the Constitution in a manner that promoted its purposes, values, rule of law, permitted the development of the law and contributed to good governance. The requirement for parties to have an ideology would enhance Kenya's democracy. Nothing in the Constitution prohibited a political party from having an a ideology as long as such ideology was not founded on a religious, linguistic, racial, ethnic, gender or regional basis or sought to engage in advocacy of hatred on any such basis.
- As for coalitions, the same had always existed in the law as they were provided for in section 10 of the Political Parties Act, 2011. There had been coalition political parties in existence Kenya. Examples included the Jubilee Political Party which comprised parties like TNA, URP among others. The only difference was that at that time the constituent parties would be dissolved, but in the new definition the constituent parties would retain their individual identities. Therefore all that the amendment had done was to formalize those practices through legislation. The creation of a coalition political party, did not curtail the enjoyment of the citizens’ political rights under article 38 of the Constitution because each constituent political party remained in existence with its operational constitution, its rights and status. Members of the parties retained their right to participate in the activities of their respective parties.
- The indirect nomination under section 38A(b) of the Political Parties Act was not unconstitutional for reasons that each political party had to have its own delegate system entrenched in its own constitution as required in Schedule II of the Political Parties Act. It was expected that it was members of political parties who would select the delegates. In that way they would have exercised their political rights under article 38 of the Constitution. The amendment would develop the law, more so section 31(1)(a) of the Elections Act.
- The word “shall”, could be construed to mean “may” and vice versa, depending on the circumstances. Statute had to be interpreted within the legal context in which the words were used. The legal context was to be derived from Kenya’s national values and principles and articles 27 and 91 of the Constitution, which all gave a mandatory meaning. The word “may” had to be interpreted to conform to articles 27 and 91 of the Constitution. Political parties were bound by the national values and principles of the Constitution as well as the Constitution itself. It was also instructive that section 7(2) of the Political Parties Act which was not affected by the amendment required a political party to comply with gender parity before being registered. The mere use of the word “may” was not a good reason for striking out the amendment.
- There was no dispute to the fact that all political parties had to comply and be duly registered under the aforementioned provisions. A coalition political party was made up of political parties who had already been registered. The coalition political party did not have a list of individual members. The list it had was of political parties that made up its membership. The coalition political party was a sui generis organ. That being the case the rules of formation of ordinary political parties could not apply to it. There was no discrimination in the amended section.
- Section 14A(1) to (6) of the Political Parties Act confirmed that any party allegedly deemed to have resigned was given an opportunity to be heard on the issue. The deeming resignation was not automatic. Even where the political party notified the Registrar of the resignation and the Registrar was not satisfied that section 14A (2) of the Political Parties Act had been complied with, he/she would refer it back to the party for reconsideration. That was not cast in stone. Section14A was therefore not unconstitutional.
- With the new amendment, the constitutional obligation of the Auditor General to audit the accounts of political parties funded through public funds was lost. The section ought to have been amended to align it to article 229 of the Constitution. The deletion of section 31(3) of the Political Parties Act was in conflict with article 229 of the Constitution and was unconstitutional.
- There was no conflict between the roles of the Independent Electoral and Boundaries Commission and the Registrar of Political Parties. In the Amendment the role of the Registrar was limited to only certifying whether the symbol of an independent candidate resembled that of any other political party. The Independent Electoral and Boundaries Commission retained the power and duty to accept or reject the symbol as set out in section 32 of the Elections Act as the same was not amended. There wasn’t any usurpation of the power of Independent Electoral and Boundaries Commission as far as section 34(fb) of the Political Parties Act was concerned. The court made a similar finding in respect to the amendments in section 34(da), (fa), (fc), and (fe).
- Section 34(fd) of the Political Parties (Amendment) Act was in contravention of article 88(4)(d) and (k) of the Constitution, which vested the power to regulate political party nominations in the Independent Electoral and Boundaries Commission. Statute could not purport to bestow the same powers in the Registrar of the Political Parties. That would amount to usurpation of Independent Electoral and Boundaries Commission’s constitutional mandate. That was unconstitutional.
- Section 38E of the Political Parties Act did not include any usurpation of the Independent Electoral and Boundaries Commission’s powers by the Registrar of the Political Parties. All that a political party was required to do was to notify the Registrar in writing of all the requirements under the section. The section did not give the Registrar any power to make any decisions in regard to that information. Following receipt of the notification the Registrar only published it in its website
- Section 27 of the Elections Act provided that nomination rules were submitted to the Independent Electoral and Boundaries Commission, and not the Registrar. The powers of the Independent Electoral and Boundaries Commission had not been affected and had not been usurped by the Registrar of Political Parties.
- Nowhere in the impugned amendment did the Act exempt a coalition political party from the jurisdiction of the Political Parties Disputes Tribunal. A political party was defined to include a coalition political party, hence a dispute between a political party and a coalition political party was deemed to be a dispute between political parties under section 40(1) (c) of the Act. It was deemed to be a dispute subject to trial by the Tribunal. The plea by the petitioners in respect of that amendment could not stand.
- The amendment to section 41 of the Political Parties Act was not unconstitutional. It did not deny disputants the right of appeal to the Supreme Court. The right of appeal to the Supreme Court was not automatic it was subject to the provisions of article 163(4) of the Constitution.
- It was impractical for political party candidates to enjoy the same timelines as independent candidates for the following reasons:
- Unlike independent candidates, the party nominations elicited disputes and reasonable time had to be allocated for the disputes to be resolved.
- There had to be discipline in political parties activities, hence need for compliance with the timelines.
- IEBC had a timetable which enabled them to work on their activities such as preparation of registers, printing ballot papers, undertaking trainings for the agents and other officials.
- There was no element of unfair discrimination in the provisions of sections 28(1) and 28A of the Elections Act.
- Public participation was enshrined in articles 10(2)(a) and 232(1)(d) of the Constitution as one of the values and principles of governance. Article 259 (1)(a) of the Constitution enjoined courts to interpret the Constitution in a manner that promoted its values, principles and purposes.
- Public participation and consultation was a living constitutional principle that went to the constitutional tenet of the sovereignty of the people. It was through public participation that the people continued to find their sovereign place in the governance they had delegated to both the National and County Governments.
- The guiding principles for public participation were:
- Public participation applied to all aspects of governance.
- The public officer and or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
- The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to that constitutional principle using reasonable means.
- Public participation had to be real and not illusory. It was not a cosmetic or a public relations act. It was not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
- Public participation was not an abstract notion; it had to be purposive and meaningful.
- Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness would be determined on a case to case basis.
- Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
- Allegations of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation would be determined on a case to case basis.
- Components of meaningful public participation included the following:
- clarity of the subject matter for the public to understand;
- structures and processes (medium of engagement) of participation that were clear and simple;
- opportunity for balanced influence from the public in general;
- commitment to the process;
- inclusive and effective representation;
- integrity and transparency of the process;
- capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.
- Consultative meetings were held since 2017 after the general elections to January 2022. The 1st interested party invited a good number of participants in good time and even facilitated their attendance. There was clarity about the matters under discussion and resolutions were made. The lists of the invitees and attendants confirmed that there was inclusivity.
- The court took judicial notice of the fact that even during the Covid -19 pandemic and the Ministry of Health in its protocols had prohibited receipt of hard copies of documents. Even the Judiciary was not receiving hard copies of submissions and pleadings which had to be sent electronically or through email.
- There was meaningful public participation prior to the enactment of the impugned Political Parties (Amendment) Act. The ground of lack of public participation had not been demonstrated.
- Vagueness could have constitutional significance and one such significance was that a law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty could arise either from the generality of the discretion conferred on the donee of the power or from the use of language that was so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools.
- The impugned amendment and creation of the coalition political party did not affect the meaning of a political party as stipulated under article 260 as read with article 91 of the Constitution. The court did not find any ambiguity, confusion or uncertainty. There was a clear distinction between a political party and a coalition political party in both their formation and operation. The amendment showed what the mind of Parliament was on the formation of a political party, a coalition and coalition political party. There was no doubt about what Parliament intended.
- The Kreigler recommendation considered the fact that people needed time to participate in the entire process, to raise any objections, interact with the changes inter alia. The changes were made slightly more than six(6) months to the general election which resonated well with the Kreigler recommendation. It had not been demonstrated how the amendments on timelines would affect the elections. Those timelines were meant to enable the political parties, candidates and the Independent Electoral Boundaries Commission manage their timetables so as not to affect the election date.
- The interest of an individual(s) could not outweigh or override public interest. It was within the public domain that parts of the principal Political Parties Act, Political Parties (Amendment) Act and the Elections Act in relation to the August 9, 2022 general elections had been implemented. Many parties had done their primaries and nominations.
- The 2nd to 5th petitioners had failed to prove any vagueness or uncertainty in the impugned amendments, which were very clear on their intent.
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