Section 14 of the Political Parties Act declared unconstitutional to the extent that it required a sitting member of county assembly to resign as a precondition to switching political parties for purposes of general elections within 180 days preceding the date of the general elections
The petitioner was a sitting member of the County Assembly of Nakuru County (the County Assembly). He filed the instant petition seeking among others; a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly and the National Assembly to resign from their respective seats as a precondition to moving from one political party to another for purposes of an election within the timelines set by the law and the Independent Electoral and Boundaries Commission (IEBC) for such change of membership ahead of a general election, that section was unconstitutional; and a reading in order in section 14 that a Member of Parliament or a county assembly who resigned from one political party to the other on the last day of the times lines set by the law and the IEBC for purposes of participation in a general election needed not thereby resign from and/or lose his seat by reason of such change of party membership.
The petition was centered on an alleged unconstitutionality of section 14 of the Political Parties Act in light of articles 194(1) of the Constitution of Kenya, 2010 (Constitution) articles 38 and 101(4)-(5) of the Constitution as read together. In particular, the petitioner was aggrieved by the 1st respondent's interpretation of the material provisions. The 1st respondent as the Speaker of the County Assembly of Nakuru (the Speaker) interpreted article 194 as read together with section 14 as revealed in the communication made to the Nakuru County Assembly on February 22, 2022 (the impugned communication).
The petitioner argued that the Speaker fell into error when he read article 194(1)(e) of the Constitution in isolation to require that any time a member of the County Assembly resigned from the party that sponsored him or her, the office of the member of the County Assembly fell vacant. Instead, the petitioner argued, when read together with articles 38 and 101(4)-(5) of the Constitution, article 194(1)(e) did not mandate that such a seat of the member of the County Assembly would fall vacant at the end of the electoral cycle when a by-election could not be held by virtue of article 101(5) of the Constitution. According to the petitioner, that was the necessary interpretation to preserve and promote the objects, purposes and principles of the Constitution.
- Whether to the extent that section 14 of the Political Parties Act required a sitting member of county assembly to resign as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional.
- Whether political rights of the electorate in a ward would be violated if a ward was left with no representative as a result of the resignation of the representative from the political party he used during the election within one hundred and eighty (180) days preceding the date of the general elections.
- Whether articles 101(4) and (5) of the Constitution which described what happened when a vacancy arose in Parliament applied mutatis mutandis to vacancies in the county assemblies.
- Whether a sitting member of a county assembly could request for an advisory opinion at the Supreme Court.
- What were the canons of interpretation of the Constitution of Kenya, 2010?
- What was the nature of the element of party discipline anticipated by the Constitution?
- What was a purposeful reading of the Constitution that harmonized article 194 on vacation of office of member of county assembly, article 101 on election of Members of Parliament and article 38 on political rights expected to do?
- What was the effect of mass resignations by members of county assemblies at the tail end of the electoral cycle?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 101 - Election of members of Parliament
(1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.
(2) Whenever a vacancy occurs in the office of a member of the National Assembly under Article 97(1)(c), or of the Senate under Article 98(1)(b), (c) or (d), the respective Speaker shall, within twenty-one days of the occurrence of the vacancy, give notice in writing of the vacancy to—
(a) the Independent Electoral and Boundaries Commission; and
(b) the political party on whose party list the member was elected or nominated.
(3) A vacancy referred to in clause (2) shall, subject to clause (5), be filled in the manner prescribed by an Act of Parliament within twenty-one days of the notification by the respective Speaker.
(4) Whenever a vacancy occurs in the office of a member of the National Assembly elected under Article 97(1)(a) or (b), or of the Senate elected under Article 98(1)(a)—
(a) the respective Speaker shall, within twenty-one days after the occurrence of the vacancy, give notice in writing of the vacancy to the Independent Electoral and Boundaries Commission; and
(b) a by-election shall be held within ninety days of the occurrence of the vacancy, subject to clause (5).
(5) A vacancy referred to in clause (4) shall not be filled within the three months immediately before a general election.
Article 194 - Vacation of office of member of county assembly
(1) The office of a member of a county assembly becomes vacant—
(a) if the member dies;
(b) if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;
(c) if the member is removed from office under this Constitution or legislation enacted under Article 80;
(d) if the member resigns in writing addressed to the speaker of the assembly;
(e) if, having been elected to the assembly—
(i) as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or
(ii) as an independent candidate, the member joins a political party;
(f) at the end of the term of the assembly; or
(g) if the member becomes disqualified for election on grounds specified in Article 193(2).
(2) Parliament shall enact legislation providing for the circumstances under which a member of a political party shall be deemed, for the purposes of clause (1)(e), to have resigned from the party.
Political Parties Act, 2011
Section 14 - Resignation from political party
(1) A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to—
(a) the political party;
(b) the clerk of the relevant House of Parliament, if the member is a member of Parliament; or
(c) the clerk of a county assembly, if the member is a member of a county assembly.
(2) The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or county assembly.
(3) The political party of which the person is a member, the member, or the clerk of the relevant House of Parliament or of a county assembly of which the person is a member shall notify the Registrar of such resignation within seven days of the resignation.
(3A) Upon receiving the notification under subsection (3), the Registrar shall cause the name of such member to be removed from the membership list of that political party.
(4) A person shall not be a member of more than one political party at the same time.
- Article 194(1)(e) of the Constitution was Kenya’s constitutionalized anti-defection or party-hopping law. In many countries throughout the world, anti-defection or party-hopping laws required any elected Member of Parliament or representative who left the party in which he or she was elected to also leave his or her seat in the legislative body and seek a new mandate from the electorate. The aim of the law was to instill party discipline by preventing political defections which could be prompted by reward of office or other similar unprincipled considerations. Article 194(1)(e) stipulated that a member of the county assembly who defected or changed his or her party from the one that sponsored him or her to the county assembly would lose his or her seat: the seat would become vacant upon such defection or switch of parties.
- The legislation contemplated in article 194(2) as well as article 92(c), (d), (e) and (i) of the Constitution was the Political Parties Act that aimed at clarifying the party-hopping clause as well as effectuating the regulation of political parties. Articles 101(4) and (5) of the Constitution described what happened when a vacancy arose whether by resignation of a member or through defection or death. While the two provisions spoke directly about vacancies in the National Assembly and the Senate, they applied mutatis mutandis to vacancies in the county assemblies.
- The locus standi to a request for an advisory opinion vested on the National Government, any State organ, or any county government. The petitioner was not any of those. The petitioner could not be denied access to the court for the determination of the matters raised as it was a right that was guaranteed under article 48 of the Constitution. The original jurisdiction to determine issues of the interpretation and implementation of the Constitution and of threats to rights and fundamental freedoms, was vested in the High Court under article 165 of the Constitution.
- It was not sufficient for a party to cursorily state in its submissions that a matter should have been submitted for an advisory opinion; a party ought to demonstrate from the set of facts how the matter was not suitable for that court, which was clothed with the constitutional mandate to interpret the Constitution. The petitioner had demonstrated that that was a matter for constitutional interpretation and not one suitably amenable to a request for an advisory opinion as envisaged by article 163(6) of the Constitution.
- The Supreme Court did not have jurisdiction to declare any part of the Constitution as unconstitutional.
- The provisions of article 2 of the Constitution were plain that the Constitution was the supreme law of Kenya and bound all. Its validity/legality could not be the subject of a challenge before the court or any State organ, the petition was not a challenge to any part of the Constitution. It was, instead, a call for the court to exercise its interpretive jurisdiction granted by article 165 of the Constitution to give an interpretation of the Constitution that harmonized articles 38, 101, and 194 of the Constitution in light of the interpretive commands given to the court by articles 4(2), 10, 19, 20 and 259 of the Constitution.
- There was a penumbral and apparent conflict capable of judicial interpretive resolution between article 38 of the Constitution (on political rights of citizens) on the one hand and articles 101 and 194 of the Constitution as read together with section 14 of the Political Parties Act (aimed at achieving political parties’ discipline and overall good governance through a vibrant multi-party system) on the other hand.
- The petitioner was not asking for any part of the Constitution to be declared unconstitutional. Constitutional provision sustained the other and none was greater than the other. That was what had been popularly known as the harmonization principle.
- The facts of the petition were precise and the articles of the Constitution at issue specifically identified. The petition had described the factual issues and defined the legal issues at stake sufficiently to both notify the respondents the case at bar and to enable the determination by the court without the embarrassment which could be caused by vagueness.
- The canons of constitutional interpretation were that:
- the Constitution had to be interpreted in a manner that promoted its purposes, values and principles and contributed to good governance. That was the express provision of article 259(1)(a) and (d). Those constitutional purposes, values and principles were expressly stated in the Preamble and in article 10 of the Constitution. They were also discoverable through purposive interpretation of the Constitution;
- the Constitution had to be interpreted and be given a construction which was purposeful;
- the Constitution had to be interpreted holistically; only a structural holistic approach breathed life into the Constitution in the way it was intended by the framers;
- the Constitution had to be given a liberal and organic not a mechanistic and positivistic interpretation. It should not be interpreted as one would a mere statute;
- the Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes; and
- in interpreting the Constitution, non-legal considerations were important to give its true meaning and values.
- Articles 194(1)(e) and 103(1)(e) of the Constitution served the important constitutional value of instilling party discipline. The element of party discipline anticipated by the provisions of the Constitution was a two-edged sword: on one hand it worked to instill discipline on the party and its elected members to the county assembly; on the other hand, it was considered a boon to the electorates as it enhanced democracy both in the party and in the county assembly.
- Knowing how political parties were managed, the Constitution gave room to the dissatisfied and or disgruntled member(s) to make a choice of either staying in the party or opting out. It would for instance have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.
- The Political Parties Act did not allow dual membership in political parties by an individual. The democratic space provided ensured that a member of the county assembly was either loyal to his sponsoring party or if not he conscientiously resigned from the party, otherwise, the member was deemed to have resigned from the political party. The other purpose of articles 194(1)(e) and 101(4) and (5) of the Constitution was the right to political representation.
- Articles 194(1)(e) and 101(4) and (5) of the Constitution ensured that even if an elected member resigned from the party and thus lost his or her seat his electorate would have another chance of electing a new representative within 90 days as provided by the Constitution. It would violate the political rights of the electorate for the affected ward to be left with no representative for the remainder of the term in the event that their representative resigned from the political vehicle used during the election. The Constitution, however, contained the rider that no by-election should be conducted within three months to the general elections.
- Articles 194(1)(e) and 101(4) and (5) of the Constitution enhanced the right to freedom and association. Article 38 of the Constitution provided for political rights, including the right to make political choices by forming, participating in, and campaigning for a political party. It also provided for the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors as well as the right to be registered as a voter, to vote, to be a candidate for public office, or office within a political party and to hold office if elected. Those eternal rights were sacrosanct and at all costs had to be enhanced and protected especially in Kenya’s young multi-party democracy.
- The rights were sacrosanct and at all costs must be enhanced and protected especially in our young multi-party democracy. The high handedness exercised by political parties has in effect stifled freedom of individuals to exercise their democratic rights and thus the Constitution had insulated them from such tendencies. In effect one had the liberty of resigning from such political party whose ideologies had changed or were no longer in tandem with what he believed in and was guaranteed the opportunity to seek fresh mandate from the electorates.
- The road map of resigning from the political party had enough checks and balances to ensure that it was only those members of the county assembly that were serious who would want to take that route.
- Kenya had elected the republican form of government and articles 38, 194(1)(e) and 101(4) and (5) of the Constitution encouraged growth and the aspirations of the founding fathers. That system of democracy granted the ultimate opportunity to the electorates to make their choice.
- From history, Kenyans intended that;
- elected leaders were at liberty to switch parties according to their conscience;
- the only penalty such an elected leader would suffer for switching parties would be to lose their elected seat;
- both the electorate and the elected leader would have an opportunity to vet the (defected) elected leader’s new ideology (reflected in their new party) through a by-election; and
- the by-election would protect the electorate both from having an elected leader whose vision and ideology no longer represented the electorate’s own vision and ideology as well as from remaining un-represented in the legislative body. That aligned with the very strong political rights entrenched in the Constitution at article 38: the right to political representation. The right enshrined in that article was protected even when an elected representative defected from their party or, if independent, joined a political party, by providing for a by-election within ninety days of the vacancy caused by the defection.
- The Constitution explicitly envisioned that the only time that a by-election would not be held was the ninety days before a general election ring-fenced to ensure that the IEBC had sufficient time and resources to prepare for the general elections. The constitutional intention was that no ward, constituency or county would remain unrepresented in the county assembly or Parliament for more than ninety days. A purposeful reading of the Constitution was, therefore, one that cohered the disparate provisions of the Constitution to yield that result.
- A purposeful reading of the Constitution was one that harmonized articles 194, 101 and 38 of the Constitution. Such a construction of the Constitution would optimally do at least four things at the same time;
- it had to maximize the constitutional goal of instilling party discipline (through the operationalization of the anti-defection clause);
- it had to incentivize political parties to enhance internal democracy (through the opportunity for an elected official to seek re-election in a different party);
- it had to minimize the risk of non-representation of the electorate due to the effect of the anti-defection clause to the least possible period which the Constitution envisaged as 90 days (through the by-election provisions); and
- it had to remove the potential for legislative paralysis in the county assemblies or Parliament (by ensuring that the interpretation of articles 194, 101 and 38 of the Constitution did not lead to a possibility that the legislative bodies would be left inquorate for more than 90 days due to the effects of the anti-defection provision).
- The constitutional interpretation proposed by the Speaker failed to achieve the four-fold goal of purposeful interpretation. Conversely, the interpretation suggested by the petitioner did. That was because, in addition to the constitutional history;
- the constitutional interpretation suggested by the Speaker in the impugned communication harmed the affected wards by denying them representation for more than 180 days contrary to the constitutional intention; and
- the constitutional interpretation suggested by the Speaker in the impugned communication potentially harmed the county (and country) by precipitating a possible constitutional crisis through a paralysis of the County Assembly.
- The constitutional interpretation preferred by the Speaker in the impugned communication would result in situations where a ward electorate was left unrepresented for a period of more than 180 days at the county assembly. That was because there could be no by-election in the period of 90 days immediately preceding the general elections by dint of article 101(5) of the Constitution. The interpretation suggested by the Speaker in the impugned communication would harm wards affected by members of county assemblies who chose or were compelled to switch parties within 180 days to the general elections. Such wards would remain unrepresented for the entire period of 180 days preceding the general elections.
- The effect of the constitutional interpretation suggested by the Speaker, the constitutional conundrum it led to and the suggested alternative constitutional construction could be stated in the following series of twelve deductive statements:
- The impugned communication would require members of county assemblies wishing to switch parties to write to the Speaker of the County Assembly announcing their resignations from the parties which sponsored them to the County Assembly whereupon their seats would automatically fall vacant.
- The Constitution, in article 101(4)(b), mandated the IEBC to arrange for a by-election to fill the vacancy within ninety (90) days (of the seats falling vacant).
- The Constitution in article 101(5), provided that any such vacancy could not be filled within three months (that was 90 days) immediately before a general election.
- (b) and (c) above meant that if a vacancy either in Parliament or county assembly arose within 180 days immediately before a general election that was the 90 maximum days for IEBC to organize for a by-election and the 90 days ring-fenced by the Constitution in article 101(4)(b), no by-election could be held.
- The implication of (d) above was that if a vacancy arose within 180 days immediately before a general election, the ward, constituency or county in the case of member of county assembly, Member of Parliament, or senator respectively, would remain unrepresented for that period (of up to 180 days).
- The Constitution, at article 101(4)(b) envisaged that the maximum period that a ward, constituency or county in the case of member of county assembly, Member of National Assembly, or senator respectively, could remain unrepresented was no more than 90 days.
- A constitutional interpretation that yielded the outcome that an action (of resignation) taken by a of member of county assembly, Member of Parliament, or senator would result in a ward, constituency or county remaining without representation for a period exceeding 90 days was, therefore, impermissibly restrictive given the outer limits set by article 101(4)(b) of the Constitution.
- The interpretation of article 194 of the Constitution and section 14 of the Political Parties Act given by the Speaker in the impugned communication would have the effect of bestowing on the members of the County Assembly who switched parties within the 180 days immediately preceding the general elections in 2022 with the ability and capacity to deny their wards representation for a period exceeding the maximum 90 days allowed by the Constitution. By the same token, such members of the County Assembly would have induced the democratic disability of non-representation on their ward electorate for a period of more than the 90 days which was constitutionally stipulated. Such an interpretation would, ipso facto, have the effect of needlessly diminishing the political rights guaranteed in article 38 of the Constitution of the electorate in the affected wards.
- For that reason, an alternative interpretation of the Constitution was constitutionally required to forestall the possibility stipulated in (h) above.
- The constitutionally-compliant interpretation which would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.
- The constitutionally-compliant interpretation in (j) above would have to be operationalized through a read in order to section 14 of the Political Parties Act to provide that a Member of Parliament or a county assembly who resigned from one political party to another at the tail end of the electoral cycle (that was within 180 days immediately preceding the general elections) needed not resign from and/or lose his seat by reason of such change of party membership.
- That the constitutional interpretation suggested by the petitioner as well as the relief suggested in (k) above would also forestall the possibility that mass resignations of members of county assemblies at the tail end of the electoral cycle when no by-elections could be held to re-fill the vacancies would lead to operational paralysis of the County Assembly as explained below.
- What section 19 of the County Governments Act meant was that while section 14(2) of the County Governments Act insulated the validity of county assembly proceedings and actions despite there being a vacancy, the county assembly had to meet the quorum threshold in order to function or for its proceedings to be valid. If members of the county assembly resigned in big enough numbers to dip below the statutory third, then the county assembly would no longer be legally quorate and would be incapable of transacting business. The consequence would be that all the functions of the county assembly would come to a standstill.
- It could be gleaned from section 14 of the County Governments Act that county assemblies were essentially run through committees. Therefore, since the County Assembly was generally run by committees, should there be mass resignation of members at the tail end of the electoral cycle, many committees or sub-committees would be paralyzed further compounding the Assemblies’ problems.
- The incidence of mass resignations leading to mass vacancies in county assemblies if the interpretation assigned to the impugned communication held sway was more than a fantastical possibility; it was a plausible probability. The consequences and implications for such a probable event were so dire for the functioning of the County that the petitioner was right to invoke article 258 of the Constitution which obligated the court to act where there was a credible threat of violation of the Constitution. The probability of quorum hitched in the whole County Assembly as well as the various committees of the Assembly constituted sufficient, cogent threat of violation of the Constitution to warrant the court to prefer an interpretation of the constitutional provisions which was more in line with the Constitution’s overall purposes, objects and principles.
- The constitutional interpretation taken in the impugned communication failed to cohere and harmonize all the constitutional provisions. In particular, that interpretation needlessly privileged article 194 of the Constitution and sought to have it trump over article 38 of the Constitution. That interpretation had the inimical effect of potentially harming both the ward electorate of a resigning member of the County Assembly (by leaving the ward unrepresented in the County Assembly for a period of up to 180 days – and beyond the constitutionally sanctioned maximum 90 days) as well as the whole County (by paralysing the operations and functions of the County Assembly or its committees should there be mass resignations dipping the numbers below a third of the members of the County Assembly).
- The only interpretation that was constitutionally sound as derived from a faithful application of the canon of constitutional interpretation applicable in Kenya was one that avoided the constitutional harm by reading the Constitution holistically and in a way that aggrandized its purposes, objects and principles. That interpretation was one that would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days. Differently put, the constitutionally-compliant interpretation was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.
- The constitutionally-compliant interpretation was not the one taken by the impugned communication and section 14 of the Political Parties Act. Therefore, both the impugned communication and section 14 were constitutionally deficient.
- The interpretation to article 194(1)(e) of the Constitution as read with section 14 of the Political Parties Act taken by the Speaker in the impugned communication negated and derogated from the objects and purposes of articles 101(4) and 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19; and 20 of the Constitution.
- To cure the unconstitutionality inherent in section 14 of the Political Parties Act, the court had jurisdiction to read in a proviso to section 14 of the Political Parties Act to provide that a vacancy did not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a general election so as to bring that statute in line with the Constitution. The instant matter was a proper case for reading in to save the legislative scheme from a declaration of unconstitutionality. Besides, the curative measure suggested was not fundamentally at odds with the intent of the legislation in question.