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Lichete v Independent Electoral and Boundaries Commission & another; Attorney General (Interested Party) (Constitutional Petition E275 of 2022) [2022] KEHC 13244 (KLR) (Constitutional and Human Rights) (18 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 13244 (KLR)
Republic of Kenya
Constitutional Petition E275 of 2022
AC Mrima, J
July 18, 2022
Between
Reuben Kigame Lichete
Petitioner
and
Independent Electoral and Boundaries Commission
1st Respondent
Wafula Wanyonyi Chebukati
2nd Respondent
and
Attorney General
Interested Party
Judgment
1.This matter largely calls upon the court to interrogate a case of a person living with disability and who seeks to stand for the elective position of the President of the Republic of Kenya in the forthcoming general election.
2.The person in this case is the petitioner herein, one Reuben Kigame Lichete, who is said to have developed totally blindness as from the age of 3 years old. Despite the disability, the petitioner is currently a Doctor of Philosophy student and a lecturer at the African International University in Nairobi. He is also registered with the National Council of Persons with Disability under Membership No NCPWD/P/xxxx.
3.The petitioner calls upon the court to interrogate the manner in which the respondents declined to clear him to stand for the position of the president on two main fronts. First, that the Independent Electoral and Boundaries Commission Dispute Resolution Committee (hereinafter referred to as ‘the DRC’) erred in upholding the decision of the returning officer, the 2nd respondent herein, rejecting to clear the petitioner. Second, that the respondents failed to uphold the Constitution and the law in not considering the fact that the petitioner is a person living with a disability and ought to be accorded an opportunity to stand for the election.
4.The petition is vehemently opposed by the respondents.
The Petition:
5.The petitioner filed a petition dated June 6, 2022 which he amended, with the leave of this court. The amended petition is dated July 4, 2022. The amendments were made after the DRC delivered its decision dated June 18, 2022 on the June 20, 2022.
6.Concurrently with the filing of the petition was the filing of an application by way of notice of motion dated June 6, 2022 which application was also amended on July 4, 2022.
7.The amended petition and the application were supported by the dispositions of the petitioner together with written submissions dated July 13, 2022.
8.The application sought for conservatory orders inter alia ‘…barring the respondents from processing the papers for the other presidential candidates for the upcoming general election on August 9, 2022….’
9.The petitioner deposed to the hardship he underwent as he sought the clearance by the respondents. He contended that the collective actions of the respondents variously infringed articles 27, 38, 47, 54, 56, 83 and 137 of the Constitution and section 11 of the Persons with Disabilities Act, No 14 of 2003 (hereinafter referred to as ‘the Disabilities Act’), sections 22, 23 and 33 of the Elections Act, and Regulations 16, 17 and 18 of the Elections (General) Regulations, 2012.
10.It was further contended that the respondents violated the Declaration of the Rights of Disabled Persons, 1975, the convention and Optional Protocol on the Rights of Persons with Disabilities, 2006, the International Covenant on Civil and Political Rights, 1966, the Universal Declaration of Human Rights, 1948, African Charter on Human and People’s Rights, 1981 and the African Charter on Democracy and Governance, 2007.
11.In the end, the Petition sought the following orders: -1.A Declarationthat the Respondents have violated the petitioner’s constitutional rights as enshrined under Article 27 as read with Article 54 of the Constitution of Kenya, 2010.2.An Order of Certiorarido issue against the 1st and 2nd Respondents quashing their decision that the petitioner did not qualify to proceed to the next level to be considered for registration as a Presidential candidate.3.A Declarationthat the petitioner’s Right to be treated with dignity as provided for under Article 28 and 54(1) of the Constitution of Kenya, 2010 has been and remains violated by the 1st and 2nd Respondent.4.An Order of Mandamus quashing the decision of the 1st Respondent Internal Dispute Resolution Committee delivered on the 18th June, 2022 dismissing the Petitioner’s complaint No. O3B between Reuben Kigame and Independent Electoral and Boundaries & 2 Others.5.An Order of Mandamus do issue compelling the 1st and 2nd Respondent to accept the petitioner’s documents which are in compliance with the requirements and his name be included among the other presidential candidates.6.An Order of Prohibitionstopping the 1st and 2nd Respondents form taking any further discriminatory action against the petitioner.7.An order do issue for Compensation as the court may deem fit.8.Exemplary and aggravated damages.9.Order to compel IEBC to comply with affirmative action that would promote inclusiveness.10.Any other orders that this Honourable court will deem fir to grant.11.Costs of this petition with interests to be awarded to the petitioner.
The Response:
12.In opposition to the Amended Petition and the application, the Respondents filed a joint Replying Affidavit sworn by one Chrispine Owiye, the Independent Electoral and Boundaries Commission’s (hereinafter referred to as ‘the IEBC’, ‘the Commission’ or ‘the 1st Respondent’) Director, Legal and Public Affairs on 12th July, 2022.
13.The Respondents had, before the DRC rendered its decision and the Petition amended, filed a Notice of Preliminary Objection on the jurisdiction of this Court on the basis of the doctrine of exhaustion.
14.On the delivery of the decision by the DRC and the amendment of the Petition, the Respondents, nevertheless, maintained the objection. As the matter involves the upcoming General election, the Court directed that the application, the objection and the Petition be heard together.
15.The objection then mutated in the submissions to be that the Court has no jurisdiction since there is no provision for an appeal to the High Court from the DRC. Several decisions of the High Court were referred to in support.
16.On the Petition and the application, the Respondents deposed that they complied with the law that guides the nomination of candidates and on verification of the papers presented by the Petitioner, it turned out that the Petitioner had not fully complied with the law in relation to the presentation of signatures of his supporters from at least 24 counties in Kenya, hence, the disqualification.
17.As a result, the Respondents further deposed that there was no wrong doing on their part as they simply complied with the law. They contended that the decisions by the Respondents were within the law and could not be flouted.
18.The Respondents also contended that the Petition lacked specificity and could not stand in law and that there was no indication as to how the alleged rights were flouted.
19.On whether the prayers of mandamus ought to issue, it was submitted that the threshold for grant of such orders was not attained and further the Court cannot usurp the role of the DRC.
20.On the basis of various decisions, the Respondents buttressed the foregoing positions.
21.In the end, the Court was urged to dismiss the Petition.
Issues for Determination:
22.From the material before Court, the following issues arise for determination: -i.Whether the Court has jurisdiction over the dispute.ii.In the event issue (i) is answered in the affirmative, the principles of constitutional interpretation.iii.Whether the Respondents rightly exercised their mandates in declining to register the Petitioner as a Presidential candidate and in view of his disability.iv.What remedies ought to issue, if any?
23.The issues shall be dealt with in seriatim.Analysis:a.Whether the High Court has jurisdiction over the dispute:
24.The Supreme Court of Kenya in a judgment in Petition No. 11 (E008) of 2022 Hon. Mike Mbuvi Sonko vs The Clerk, County Assembly of Nairobi City & 11 Others which was delivered on 15th July, 2022 aptly captured the aspect of jurisdiction in the following words: -
25.The issue as to whether the High Court has jurisdiction to entertain any pre-election dispute by a party dissatisfied by a decision of the DRC was recently dealt with by this Court in Nairobi High Court Constitutional Petition No. E321 of 2022 David Gakuu Dennis Gakuu Wahome vs. Independent Electoral and Boundaries Commission & Others (unreported).
26.In the above matter, the contention was that the High Court did not have any jurisdiction to entertain any matter from a decision of the RDC save when the dispute is lodged by way of an appeal.
27.In rejecting the objection, this Court rendered itself as follows: -165.This Court has, in the first sub-issue, referred to the decision in Sammy Ndung'u Waity vs. Independent Electoral and Boundaries Commission & 3 others case (supra) where the Court made it clear that the High Court may exercise jurisdiction in instances of a party being aggrieved by a decision of the DRC.166.The Apex Court provided two ways in which the challenge may be mounted to the High Court. The two ways are either vide judicial review or the High Court in exercise of its supervisory jurisdiction.167.The Black’s Law Dictionary, 10th Edition, defines ‘supervisory control’ at page 1667 as follows: –The control exercised by a higher Court over a lower Court, as by prohibiting the lower Court from acting interjurisdictionally and by reversing its interjurisdictional acts.168.The US Legal Inc., a leading American legal destination site for consumers, businesses, attorneys, corporations, and anyone interested in the law, or in need of legal information, products or services defines ‘supervisory jurisdiction’ as follows: –Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation.169.In India, the Supreme Court in Mohd Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566 observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”. The Court further held that the supervisory jurisdiction is ‘not to correct an error apparent on the face of the record, or anything that is much less than an error of law’.170.The High Court in Australia in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [99]-[100] held that the supervisory jurisdiction is a “defining characteristic” of the Court, and cannot be ousted by statute.171.In Kenya, the supervisory jurisdiction of the High Court is provided for under Article 165(6) of the Constitution as follows: -The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.172.From the foregoing, it can be summed that the High Court exercises supervisory jurisdiction for purposes of keeping the subordinate courts, tribunals or quasi-judicial bodies within the bounds of their jurisdiction. In the exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order, but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it ought to act in such instances. Further, the supervisory jurisdiction of the High Court is granted by the Constitution and cannot be ousted by a statute.173.The supervisory jurisdiction is, hence, different from an appellate jurisdiction. The appellate jurisdiction is the power of a higher court to review the decision or change the result of the decisions made by the lower courts. It involves the review of the law and evidence and the power may be provided by the Constitution or statute. A Court exercising an appellate jurisdiction, unlike one exercising supervisory jurisdiction, does not exercise general superintendence over the subordinate court or tribunal. An appellate Court is only limited to the matter at hand.174.In the case at hand, the law does not expressly provide for any right of appeal in respect of the decisions by the DRC. That is unlike the decisions of the Political Parties Disputes Tribunal which are, by statute, appealable to the High Court with a further appeal to the Court of Appeal.175.This Court, hence, strongly believes that this is an area which calls for law reform.176.On the basis of the foregoing, it is the Court’s position that the contention that the only way the Petitioner was to challenge the decision of the DRC was by way of an appeal lacks any legal leg to stand on and is hereby dismissed.
28.For clarity, the Supreme Court in Sammy Ndung'u Waity vs. Independent Electoral and Boundaries Commission & 3 others [2019] eKLR had the following to say on the matter: -
29.As stated, the Petition herein was instituted long before the Petitioner lodged a complaint before the DRC. In the original Petition, the gist thereof was that the Respondents failed to consider inter alia the Petitioner’s disability in arriving to the decisions to refuse to register him for the forthcoming election.
30.To that extent, the Petition was prematurely filed before the High Court and would have rightly and obviously been caught up by the doctrine of exhaustion.
31.There was, however, a new turn in the matter. That was the amendment which challenged the decision of the DRC. With such an amendment, the jurisdiction of the High Court was revived to the extent that the High Court would deal with a decision of the DRC by way of judicial review or under the supervisory jurisdiction of the High Court.
32.There are two ways in which a party dissatisfied with a decision of the DRC may institute the judicial review proceedings. One of the ways is to file such proceedings under Order 53 of the Civil Procedure Rules. The Order is titled Applications for judicial review.
33.The other way is by filing a Petition under Article 22 of the Constitution and to seek ban order of judicial review under Article 23 of the Constitution.
34.Article 23 is tailored as followed: -23.Authority of courts to uphold and enforce the Bill of Rights:1.The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including-(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.
35.In this matter, the title to the Petition indicates that the Petition was brought pursuant to Articles 2(1), (5) and (6), 3(1), 10(1), (2)(b) and (c), 20(1) and (2), 21(1) and (3), 22(1) and (2), 23(3), 27(1) among other provisions of the Constitution. As such, the Petition was properly placed before the High Court.
36.Resulting from the foregoing, it is the position that the Petition, as filed, is properly before Court and the jurisdiction of the Court has been properly invoked.
37.The objection is, hence, overruled and a consideration of the rest of the issues follow.b.The principles of constitutional interpretation:
38.Resulting from the issues raised in this matter, it is imperative to run through the principles that guide Courts when called upon to interpret the Constitution, like in this case.
39.The consideration will no doubt lay a solid basis for consideration of the rest of the issues.
40.The High Court in David Ndii & others v Attorney General & others [2021] eKLR (famous referred to as ‘the BBI case’) captured with precision the manner in which our transformative Constitution ought to be interpreted. The Learned Judges presented themselves thus: -399.One of the imports of recognition of the nature of the transformative character of our Constitution is that it has informed our methods of constitutional interpretation. In particular, the following four constitutional interpretive principles have emerged from our jurisprudence:a.First, the Constitution must be interpreted holistically; only a structural holistic approach breathes life into the Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated in In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR thus (at paragraph 26):But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.b)Second, our Transformative Constitution does not favour formalistic approaches to its interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle in Re Interim Independent Election Commission [2011] eKLR, para [86] thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.c)Third, the Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the Retired CJ Mutunga expressed in his concurring opinion in In In Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013; [2013] eKLR. (paragraphs 155-157):(155)In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai& 3 Others v Tarlochan Singh Rai and 4 Others Sup Ct Petition No 4 of 2012, I argued that both the Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower Courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The Court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras.d)Fourthly, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya Case. It stated thus:(356)We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on Chapter Four – The Bill of Rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to Articles 4(2), 33, 34, and 35 of our Constitution has been given above in paragraphs 145-163.(357)We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014 left off (see paragraphs 227- 232). In paragraphs 232 and 233 he stated thus:(232)…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.(233)It is possible to set out the ingredients of the theory of the interpretation of the Constitution: the theory is derived from the Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of Section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of the Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this Court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya.400.With these interpretive principles in mind, which we will call the Canon of constitutional interpretation principles to our Transformative Constitution, we will presently return to the transcendental question posed in these Consolidated Petitions…...
41.With such a background, a consideration of the next issue follows.c.Whether the Respondents exercised their mandates in declining to register the Petitioner as a Presidential candidate and in view of his disability:
42.The role of the each of the Respondents in the nomination of candidates to stand for elections and in the resolution of pre-election disputes has been well captured by the Respondents in their disposition and submissions.
43.This Court has carefully perused the Petitioner’s complaint and the decision of the DRC on the complaint.
44.Whereas this Court largely has no issues with the decision of the DRC in relying on the Elections (General) Regulations, 2012, its attention has, nevertheless, been captured by the manner in which the DRC dealt with the aspect of the Petitioner’s disability.
45.The DRC rightly so captured the Petitioner’s complaint based on the aspect of disability.
46.In answer to the issue, the DRC stated as follows in paragraphs 29, 30 and 31 of its decision: -29.There is wisdom behind the existing laws and regulations enacted pursuant to constitutional provisions guiding the nomination process for presidential aspirants. The Complainant seems to call for an extra special treatment and consideration other than that envisaged in the law when it comes to compliance with the set regulations.30.This Committee has no powers or mandate to make declarations that are not founded on the existing laws and regulations.31.The International conventions cited and quoted by the Complainant in his submissions speak to general requirements for state parties to ensure equality when it comes to the enjoyment of political and civil rights. There is none that dictates allowing persons living with disability to disregard laws and regulations.
47.The DRC did not refer to any provisions of the Constitution, the law or international instruments on the aspect of disability. What the DRC did on the issue was to just gloss over the same and to ultimately reject it.
48.The DRC took the position that it was the Petitioner who was calling ‘… for extra special attention other than that envisaged in the law…’
49.It is apparent that the DRC did not address its legal mind to at least Article 54 of the Constitution and the provisions of the Disabilities Act. The DRC placed more premium on Regulation 43 of the Elections (General) Regulations, 2012 which regulation allows the IEBC to reject nomination papers.
50.It is disturbing to this Court that the DRC would, without hesitation, state that there was no international instrument ‘… that dictates allowing persons living with disability to disregard laws and regulations.’
51.Had the DRC exercised restraint and patience over the issue, it would have come across Article 54 of the Constitution which states as follows: -54.Persons with disabilities:(1)A person with any disability is entitled—(a)to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;(b)to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;(c)to reasonable access to all places, public transport and information;(d)to use Sign language, Braille or other appropriate means of communication; and(e)to access materials and devices to overcome constraints arising from the person’s disability.(2)The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.
52.Further, the Disabilities Act which is an Act of Parliament to provide for the rights and rehabilitation of persons with disabilities; to achieve equalisation of opportunities for persons with disabilities; to establish the National Council for Persons with Disabilities and for related purposes is replete with how the wider Article 54 rights will be attained.
53.For instance, the Disabilities Act provides for the establishment of the National Council for Persons with Disabilities, the rights and the privileges of persons with disabilities, the aspect of employment of persons with disabilities, education, health, accessibility and mobility, adjustment orders, offences, civic rights, the National Development Fund For Persons with Disabilities, reliefs and incentives including exclusion from taxation, legal aid among many other relevant issues to persons with disabilities.
54.A cursory look at the Constitution and the Disabilities Act reveal that there is a deliberate and sustained effort to ensure that persons with disabilities achieve equalisation of opportunities in life.
55.By placing the manner in which the DRC treated the Petitioner and the various provisions of the Constitution and the law side by side, there is no doubt that the Petitioner’s rights were variously flouted. For instance, there is no indication or at all that the Petitioner was accorded any assistance to overcome the disability in complying with the election requirements. There has also been no mention that the documents availed to the Petitioner were in braille or how the Petitioner was to access the whole country with a view of collecting the signatures and copies of identity cards of his supporters and in ways to overcome the constraints that arise from his disability.
56.The Constitution also places a duty on the State to ensure progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities. That is under Article 54(2).
57.Whereas there is no legislation to that end, there is no difficulty in attaining the requirement in respect to appointive positions. The challenge is, however, on the elective positions.
58.With such a constitutional calling, the DRC ought to have seized the opportunity and added its weight in ensuring that the Petitioner who was the only person with disability in the presidential race was accorded a reasonable opportunity to participate in the election. The DRC ought to have noted that despite the challenges on his part, the Petitioner had endeavoured to come up with the required number of signatures of his supporters albeit and slightly out of the regulatory timelines. However, the Petitioner was instead placed on an equal footing with the rest of the presidential aspirants. There was no reprieve of any kind that was accorded to the Petitioner on account of his disability. The way the Petitioner was treated, therefore, amounted to placing the bar for him quite high compared to the other non-disabled presidential aspirants.
59.The requirement to treat persons with disabilities in ways to accord them equal opportunities in life has also been acknowledged world over more so through international instruments. Some of the instruments which expressly provide for such include the Declaration of the Rights of Disabled Persons, 1975 and the Convention and Optional Protocol on the Rights of Persons with Disabilities, 2006.
60.There are also the International Covenant on Civil and Political Rights, 1966, the Universal Declaration of Human Rights, 1948, African Charter on Human and People’s Rights, 1981 and the African Charter on Democracy and Governance, 2007 which instruments also vouch for inter alia equal opportunities and treatment for everyone. That includes persons with disabilities.
61.The international instruments are part of the Kenyan law courtesy of Article 2(6) of the Constitution.
62.Therefore, the DRC in finding that there was no law in Kenya that called for persons with disabilities to be treated in special ways and that the international instruments only spoke generally to State parties to ensure equality on political and civil rights and nothing more, is a clear indication that the DRC did not consider the Constitution, the law and the provisions of the international instruments relating to persons with disabilities.
63.The DRC’s finding on the Petitioner’s disability was, hence, not founded on the Constitution and the law. It openly flouted the Constitution and the law and did not treat the Petitioner with dignity and respect.
64.Having said so, this Court remains alive to the fact that it has been called upon to exercise its judicial review jurisdiction. As rightly submitted by the Respondents, judicial review proceedings do not deal with the merit or otherwise of an impugned decision, but the process.
65.Adding its voice to the issue, the High Court in Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti [2018] eKLR stated as follows: -These are: -a.Illegality - Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.b.Fairness - Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.c.Irrationality and proportionality - The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation: -If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere...but to prove a case of that kind would require something overwhelming...
66.In this case, the manner in which the DRC arrived at its decision on the Petitioner’s disability was illegal to the extent that it was not based on the Constitution, the law or any international instrument. Further, the decision was unfair, unreasonable, irrational and unproportional in the unique circumstances of the matter. The decision, therefore, comes within the realm of judicial review and calls for appropriate intervention by this Court.d.What remedies ought to issue, if any?
67.The foregoing discussion has resulted to the success of the amended Petition. The Petitioner has proved that the decision of the DRC was not in line with the Constitution and the law.
68.This Court has been asked to grant various orders on account of the success of the Petition. The orders sought include declarations and other orders including damages. In deciding on the nature of the relief to issue, this Court must consider the most appropriate relief. Even in instances where a party fails to ask for a specific relief, a Court, depending on the nature of the matter ought to craft an appropriate relief.
69.Courts have severally rendered on reliefs. The Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLR held that even in instances where there are express provisions on specific reliefs a Court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 Others vs. County Government of Machakos & 2 Others (2018) eKLR held that Article 23 of the Constitution does not expressly bar the Court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.In Republic Ex Parte Chudasama vs. The Chief Magistrate’s Court, Nairobi and Another Nairobi HCCC No. 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that:
70.The Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6 emphasized the foregoing as follows: -
71.On the issue of damages as a relief in constitutional violations, the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR stated as follows: -
72.In this case, the DRC affirmed the decision of the 2nd Respondent in rejecting the Petitioner’s nomination documents for the reason that they were tendered to the IEBC out of the regulatory timelines.
73.Given that this Court voided the requirement to supply copies of identity cards of the supporters of an aspirant in Constitutional Petition No. E160 of 2022 (As consolidated) Free Kenya Initiative & Others vs. Independent Electoral and Boundaries Commission & Others (unreported) and the fact that the Petitioner has demonstrated exemplary effort in complying with the requirements despite his disability and without any special treatment as is so required in the Constitution and the law, this Court is satisfied that, on account of the disability and the effort demonstrated, the signatures of the supporters collected by the Petitioner which are already in the possession together with those which the Petitioner had collected, but were not received by the IEBC suffice the requirement for the signatures. The Petitioner shall, therefore, not be disqualified on account of insufficient number of signatures of his supporters.
74.This Court has also been asked to order that the Respondents do include the name of the Petitioner in the ballot papers for the presidential candidates. The Court finds that being a tall order to issue on account of jurisdiction. The order sought is an obligation legally donated to the Respondents upon aspirants complying with a raft of requirements. This Court should, therefore, resist the temptation of usurping the role of the Respondents and replacing the impugned decision with its own.
75.The Court of Appeal in Kisumu Civil Appeal Nos. 89 and 90 of 2011 West Kenya Sugar Company Limited vs. Kenya Sugar Board & Butali Sugar Mills Limited (2014) eKLR dealt with a like scenario. In that case the High Court had issued an order of mandamus directing the then Kenya Sugar Board to issue a manufacturing license to Butali Sugar Mills Limited on being satisfied that Butali Sugar Mills Limited had met all the requisite requirements for issuance of a manufacturing license but the Kenya Sugar Board, then the regulator in the sugar sector, was unreasonably not discharging its duty. The Court of Appeal in allowing an appeal by West Kenya Sugar Company Limited against the order of the High Court held that the High Court did not have the jurisdiction to order the Kenya Sugar Board to issue a manufacturing license. Instead, the Court of Appeal directed the Kenya Sugar Board to expeditiously hear and determine the application by Butali Sugar Mills Limited for the manufacturing license in accordance to law and with notice to all necessary parties.
76.The prayer is, hence, unavailable to the Petitioner.
77.On the issue of damages, this Court finds that appropriate declarations will suffice in this matter. I say so because, although the Respondents did not properly address the issue of the Petitioner’s disability, it is a fact that the State is yet to come up with legislation on how persons with disabilities will take part in elections as candidates. Perhaps, this judgment ought to be a call to Parliament to look into the issue and either come up with a legislation or to make amendments to the existing ones. Alternatively, the State through the Honourable Attorney General may likewise come up with appropriate policies.
78.This Court will, therefore, endeavour to grant the most appropriate reliefs in the unique circumstances raised in this Amended Petition.
Disposition:
Orders accordingly.
79.As I come to the end of this judgment, I must make it clear that this judgment only applies to the matter at hand since it is my firm conviction that the appropriate entities will, going forward, deal with the manner in which persons with disabilities will take part in elective positions in future.
80.In the end, the Amended Petition, the Notice of Motion dated 4th July, 2022 and the Notice of Preliminary Objection dated 14th June, 2022 are determined as follows: -a.The Notice of Preliminary Objection dated 14th June, 2022 is hereby dismissed.b.A declaration hereby issues that the decision by the Independent Electoral and Boundaries Commission Dispute Resolution Committee in Complaint No. 038 of 2022 Reuben Kigame Lichete vs. Independent Electoral and Boundaries Commission & Wafula Chebukati dated 18th June, 2022 violated the Petitioner’s rights under Article 54 of the Constitution and the Persons with Disabilities Act, No. 14 of 2003.c.An Order of Certiorari do hereby issues removing into the High Court and quashing the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee in Complaint No. 038 of 2022 Reuben Kigame Lichete vs. Independent Electoral and Boundaries Commission & Wafula Chebukati dated the 18th June, 2022. The said decision is hereby quashed.d.An order of Mandamus hereby issues directing the Respondents herein to accept the Petitioner’s nomination papers and to consider them in line with this judgment, the Constitution and the law.e.The Hon. Deputy Registrar of this Court shall transmit copies of this judgment to the Clerks of the National Assembly and the Senate.f.The Respondents shall shoulder the costs of the Petition.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JULY, 2022A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Dr. Khaminwa, SC and Mr. Munyambu, Learned Counsel for the Petitioner.Mr. Ocholla and Miss Ruth Kisia, Learned Counsel for the 1st and 2nd Respondents.Mr. Weche, Learned Counsel instructed by the Hon. Attorney General for the Interested Party.Faustine Rotich – Court Assistant.
