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Free Kenya Initiative & 17 others v Independent Electoral & Boundaries Commission & 5 others; Kenya National Commission on Human Rights & another (Interested Parties) (Constitutional Petition E160 of 2022 & Petition E219, E225 & 12 of 2022 (Consolidated)) [2022] KEHC 10217 (KLR) (Constitutional and Human Rights) (5 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 10217 (KLR)
Republic of Kenya
Constitutional Petition E160 of 2022 & Petition E219, E225 & 12 of 2022 (Consolidated)
AC Mrima, J
July 5, 2022
Consolidated with Petition No. E219 of 2022, Petition No. E225 of 2022 and Petition No. 12 of 2022
(formerly High Court at Kakamega Petition No. E010 of 2022
Between
Free Kenya Initiative
1st Petitioner
Bob Njagi
2nd Petitioner
Nicholas Oyoo
3rd Petitioner
Mulialia Okumu
4th Petitioner
Felix Wambua
5th Petitioner
Jeremiah Nyagah
6th Petitioner
James Kamau
7th Petitioner
Bernard Neto Obunga
8th Petitioner
Joseph Siambai Yamohanga
9th Petitioner
Halima Sharrif Abdulkadir
10th Petitioner
Nicholas Mutethia Gitonga
11th Petitioner
Peter Macharia Gitonga
12th Petitioner
Lucy Gakenia Makutho
13th Petitioner
Ekuru Aukot
14th Petitioner
Augustine Njeru Kathangu
15th Petitioner
Reuben Kigame
16th Petitioner
Andrew Kamau Njoroge
17th Petitioner
Kaira Nabasenge.
18th Petitioner
and
Independent Electoral & Boundaries Commission
1st Respondent
Office of the Registrar of Political Parties
2nd Respondent
National Assembly
3rd Respondent
Senate of the Republic of Kenya
4th Respondent
The Attorney General
5th Respondent
Office of Data Commissioner
6th Respondent
and
Kenya National Commission on Human Rights
Interested Party
Principal Registrar of Persons
Interested Party
Court declares Regulations requiring independent candidates vying for elective positions to supply copies of the identification documents of their supporters inconsistent with the Constitution.
The petitions challenged the constitutionality of regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017)(impugned regulations) that required independent candidates to supply copies of the identification documents of their supporters. The court held that the impugned regulations violated the right to be a candidate for public office without any unreasonable restrictions and the right to privacy of the supporters of independent candidates. The court also held that the impugned regulations were discriminatory and were enacted without public participation.
Constitutional Law – fundamental rights and freedoms – right to be a candidate for public office without any unreasonable restrictions - candidates in a general election – independent candidates – registration of independent candidates - requirement for independent candidates to supply copies of the identification documents of their supporters - whether a registered voter who sought to stand in any election as an independent candidate should provide copies of the national identity cards of his/her supporters - whether the impugned regulations that required independent candidates to supply copies of the identification documents of their supporters violated the right to be a candidate for public office without any unreasonable restrictions- Constitution of Kenya, 2010, articles 2(4), 38(3), 83(3), 99, 137 and 193 Elections (General) Regulations, 2012 (as amended in 2017) regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c).Constitutional Law – fundamental rights and freedoms – right to privacy – privacy of voters – data protection – protection of the personal information of voters – role of IEBC in data protection - requirement independent candidates to supply copies of the identification documents of their supporters - whether the regulations that required independent candidates to supply copies of the identification documents of their supporters violated the right to privacy of the supporters - whether the IEBC had an appropriate legal framework for the collection and protection of the data to guarantee the protection of the copies of identification documents – Constitution of Kenya, 2010 article 31; Data Protection Act; Elections (General) Regulations, 2012 (as amended in 2017) regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c).Constitutional Law – fundamental rights and freedoms – freedom from discrimination – claim that requiring independent candidates to provide copies of the ID Cards of their supporters was discriminatory - whether the regulations that required independent candidates to supply copies of the identification documents of their supporters were discriminatory to independent candidates – Constitution of Kenya, 2010, article 27; Elections (General) Regulations, 2012 (as amended in 2017) regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c).Constitutional Law – national values and principles – public participation – regulations that required independent candidates to supply copies of the identification documents of their supporters - whether the impugned regulations were subjected to public participation - Constitution of Kenya, 2010 article 10; Elections (General) Regulations, 2012 (as amended in 2017) regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c).Word and Phrases – particulars – definition of - the specific facts about a person’s background - The Black’s Law Dictionary, 10th Edition, page 1294.Words and Phrases - consultation - definition of - the act of asking for the advice or opinion of someone; a meeting in which parties consult or confer - The Black’s Law Dictionary 10th Edition.
Brief facts
The consolidated petitions challenged the regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017)(impugned regulations) that required independent candidates to supply copies of the identification documents of their supporters. The petitioners contended that the impugned regulations were unnecessary and served no meaningful purpose other than to frustrate independent candidates. They contended that the regulations were discriminatory as no other elective post was subjected to such a requirement. They also contended that the impugned regulations violated on one’s right to vie for a political seat without unreasonable restrictions. The petitions also contended that the impugned regulations, in requiring independent candidates to supply copies of the ID Cards of their supporters, violated on the right to privacy of their supporters. The petitioners challenged the manner in which the regulations were passed, citing a lack of public participation.
Issues
- Whether a registered voter who sought to stand in any election as an independent candidate should provide copies of the national identity cards of his/her supporters.
- Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) that required independent candidates to supply copies of the identification documents of their supporters violated right to be a candidate for public office without any unreasonable restrictions.
- Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) that required independent candidates to supply copies of the identification documents of their supporters were discriminatory to independent candidates.
- Whether the impugned regulations that required independent candidates to supply copies of the identification documents of their supporters violated the right to privacy of the supporters
- Whether the IEBC had an appropriate legal framework for the collection and protection of the data to guarantee the protection of the copy of identification documents.
- Whether the impugned regulations were subjected to public participation.
Relevant provisions of the Law
Elections (General) Regulations, 2012 (as amended in 2017)Regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c)Regulation 1818. Supporters of nomination of presidential candidate and statutory declaration:(1) The person delivering an application for nomination under regulation 16 or 17 shall at least five days to the day fixed for nomination, deliver to the Commission a list bearing the names, respective signatures, identity card or passport numbers of at least two thousand voters registered in each of a majority of the counties, in standard A4 sheets of paper and in an electronic form.(2) The sheets of paper delivered under this regulation shall—(a) be serially numbered;(b) each have at the top, in typescript, the wording at the top of Form 12; and(c) be accompanied by copies of the identification document of the voters referred to in sub-regulation (1).(3) There shall be delivered to the returning officer together with the application for nomination, a statutory declaration in Form 13 set out in the Schedule, made not earlier than one month before the nomination day.Regulation 24(1) The person delivering an application for nomination under regulation 23 shall at the same time deliver to the returning officer for each elective post, standard A4 sheets of paper bearing the names, respective signatures and voter’s number of at least one thousand voters registered in the constituency or county, as the case may be.(2) The sheets of paper delivered under subregulation (3) shall—(a) be serially numbered;(b) each have at the top, in typescript, the wording at the top of Form 15;(c) be accompanied by copies of the voters cards of the voters referred to in sub regulation (3).Regulation 28(1) The person delivering an application for nomination under regulation 27 shall at the same time deliver to the returning officer, standard A4 sheets of paper bearing the names, respective signatures and electoral numbers of two thousand registered voters in the county.(2) The sheets of paper delivered under subregulation (4) shall—(a) be serially numbered;(b) each have at the top, in typescript, the wording at the top of in Form 16; and(c) be accompanied by copies of the voters cards of the voters referred to in sub regulation (3).Regulation 36(1) The person delivering a nomination application under regulation 35 shall at the same time deliver to the returning officer, standard A4 sheets of paper bearing the names, respective signatures and electoral numbers of five hundred voters registered in the ward.(2) The sheets of paper delivered under sub regulation (3) shall—(a) be serially numbered;(b) each have at the top, in typescript, the wording in Form 18; and
Held
- The Constitution ought to be interpreted in a holistic manner. The Constitution did not favour formalistic approaches in its interpretation, it should be interpreted in a manner that protected and preserved its values, objects and purposes. In interpreting the Constitution, non-legal considerations were important to give its true meaning and values.
- The eligibility to stand as an independent candidate was provided for in article 85 of the Constitution. The constitutional design in respect to political rights was to favour a permissive approach as opposed to a restrictive one. It was the intent of the Constitution that those who were willing took part in elections and were not unreasonably hindered.
- Whereas the Constitution did not define who a voter was, section 2 of the Elections Act defined a voter to mean a person whose name was included in a current register of voters. The Elections Act provided for continuous registration of voters.
- Form A in the schedule of the registration under the Elections (Registration of Voters) Regulations, 2012, required the applicant to declare that one was qualified to be, and not disqualified from being, registered as a voter under the law in respect of the classes of election for which the person applied for registration and that he/she was in possession of a National Identity Card or Kenyan passport with the number indicated in the application. It was at the registration stage of a voter where the person’s biometric data was also collected.
- Once a person was registered as a voter, the IEBC retained the personal details of the voter including the details of the National Identity Card or Kenyan passport used in the registration. The name of such a person was also entered into the register of voters. A duly registered voter would be eligible to vote in an election. It was only a registered voter who was eligible to stand for an election under articles 99(1)(c) and 193(1)(c)(ii) of the Constitution. A registered voter was called upon to comply with the impugned regulations at a time when one sought to be registered as an independent candidate in an election.
- The impugned regulations were enacted pursuant to an amendment to the Elections (General) Regulations, 2012. The amendment was vide the Elections (General) (Amendment) Regulations, 20I7, under Legal Notice No. 72 of 2017. Given that the passage of the amendments was just a few months to the last general election which was held in August 2017, the Commission did not enforce the impugned regulations. The Commission was enforcing the impugned regulations for the first time in the general elections of 2022. The IEBC conducted the general elections of 2013 and 2017 under the Constitution without calling for copies of identification documents for any of the independent candidates who stood in those elections.
- The Constitution did not place any duty upon the proposers of any amendment to the Constitution under the popular initiative to supply copies of the identification documents of the supporters of the amendment. The Constitution only called for the signatures of the supporters who were registered voters. An amendment to the Constitution was on a higher pedestal than the registration of an independent candidate to stand for an election. An amendment to the Constitution did not call for supply of copies of the identification documents of the supporters of the amendment, but the registration of independent candidates to stand for elections did.
- If the signatures of registered voters were capable of proving that a constitutional amendment was supported by such persons then, likewise, the signatures of registered voters were capable of proving that an independent candidate is supported by a certain number of registered voters. Other relevant legislation did not make a mandatory requirement for the supply of copies of identification documents, but only identification particulars.
- Particulars meant the specific facts about a person’s background. A common thread running across section 7(2)(f)(i) of the Political Parties Act, the Political Parties (Membership) Regulations, 2021 and section 34 of the Political Parties Act and other legislative provisions and definitions was the requirement for particulars of the identification documents and not for copies of the said documents. Had the drafters of the legislation intended copies of the identification documents nothing would have been easier than to expressly provide for such. The impugned regulations did not serve any meaningful purpose other than placing an unreasonable burden on the independent candidates.
- Public participation referred to the processes of engaging the public or a representative sector while developing laws and formulating policies that affected them. The processes could take different forms. At times it could include consultations. Consultation was the act of asking the advice or opinion of someone. A meeting in which parties consulted or conferred.
- Consultation was a more robust and pointed approach towards involving a target group. It was often referred to as stakeholders’ engagement. Consultation or stakeholders’ engagement tended to give more latitude to key sector stakeholders in a given field to take part in the process towards making laws or formulation of administrative decisions which to a large extent impacted on them. Such key stakeholders were mostly affected by the law, policy or decision in a profound way. In appropriate instances a Government agency or a public officer undertaking public participation could have to consider incorporating the aspect of consultation or stakeholders’ engagement. Facilitation of public participation was key in ensuring legitimacy of the law, decision or policy reached.
- Discrimination was any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs, political persuasion or any such attributes that had real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups. Article 27 of the Constitution prohibited any form of discrimination. The Constitution advocates for non-discrimination as a fundamental right which guaranteed that people in equal circumstances were treated or dealt with equally both in law and practice without unreasonable distinction or differentiation.
- It was not every distinction or differentiation in treatment that amounted to discrimination. Discrimination would arise where equal classes of people were subjected to different treatment, without an objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim. It was lawful to accord different treatment to different categories of persons if the circumstances so dictate. Such differentiation, however, did not amount to the discrimination that was prohibited by the Constitution.
- When faced with a contention that there was a differentiation in legislation and that such differentiation was discriminatory, what the court had to consider was whether the law differentiated between different persons; if it did, whether such differentiation amounted to discrimination, and whether such discrimination was unfair.
- The process of registration of voters did not require the supply of copies of the identification documents by anyone seeking to be registered as a voter but only the numbers of the identification documents. The IEBC did not have copies of identification documents for any one registered as a voter.
- The requirement for the supply of the copies of the identification documents came up only at the registration of independent candidates. IEBC in seeking the copies of the identification documents of the supporters of independent candidates did so for the first time. With an exception of the independent candidates, no any other cadre of voters or candidates were supposed to supply such copies of their identification documents.
- Whereas the independent candidates were different from the candidates nominated by political parties, it could not be said that IEBC had a repository of copies of identification documents used in registration of voters who were members of political parties such that a like requirement for independent candidates placed the two cadres of candidates at par. The requirement for the supply of the copies of the identification documents was only aimed at the independent candidates.
- The differential treatment accorded to the independent candidates was not justified. That infringed article 27 of the Constitution. Once a person was registered as a voter, the IEBC retained the particulars of the voter including the details of the National Identity Card or Kenyan passport used in the registration. Such details were sufficient to enable IEBC ascertain the number of supporters in respect to the registration of independent candidates. The impugned regulations, therefore, placed a further and unnecessary burden on the independent candidates to supply copies of the identification documents at registration. The impugned regulations were in contravention of articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.
- Article 31 of the Constitution granted every person the right to privacy. The Data Protection Act, placed burdens on specific persons, the data controllers and the data processors, who had to be registered with the Data Commissioner with specific duties in dealing with personal data. The Data Protection Act sufficiently protected the privacy rights under article 31 of the Constitution.
- The impugned regulations required the independent candidates to collect the personal data of their supporters. Such a duty was provided for in the Data Protection Act and only specific persons were authorized to do so. The impugned regulations did not take such into account and the effect was to, contrary to the law, designate the independent candidates as data controllers and data processors.
- Whereas IEBC may for good reasons require personal data, it was, nevertheless, supposed to ensure that the collection and security of such data was within the Constitution and law. It was incumbent upon IEBC to provide appropriate legal framework for the collection and protection of the data and the right to privacy.
- The security of the data collected by the independent candidates could not be assured; the period IEBC would hold such information and the manner in which it would be disposed remained a mirage. IEBC did not even indicate whether it carried out a data protection impact assessment. IEBC could not escape the discharge of such an onerous obligation. In the midst of failure to comply with the law, the danger to unlawfully deal with or expose personal data by both the independent candidates and the Commission was eminent.
- The manner in which the independent candidates and the Commission were to deal with the collection and retention of the copies of the identification documents of the supporters of the independent candidates did not guarantee the protection of the privacy rights under article 31 of the Constitution. The implementation of the impugned regulations variously infringed the Data Protection Act and article 31 of the Constitution.
- The issues raised on the amendment of the Political Parties Act did not fall within the purview of the High Court. Such matters were not ripe for adjudication before a court of law and they would be properly dealt with by Parliament.
- Whereas the participation of independent candidates in elections in Kenya was gaining traction and there could be need for some regulation in many areas, the most appropriate way to pursue such was to petition Parliament under article 119 of the Constitution. The duty to amend the Political Parties Act lay with Parliament.
Petitions partly allowed.
Orders
- Declaration issued that regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) were in contravention of articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.
- Declaration issued that regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) were in contravention of article 31 of the Constitution and the Data Protection Act.
- An Order of certiorari was issued to quash regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017).
- Parties were to bear their costs.
Citations
Cases
- David Ndii & others v Attorney General & others ([2021] eKLR) — Explained
- Diani Business Welfare Association and Others v The County Government of Kwale ([2015] eKLR) — Mentioned
- Edward Akong'o Oyugi & 2 others v Attorney General ([2019] eKLR) — Mentioned
- Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, ([2014] eKLR) — Mentioned
- James Nyosora Nyorangi -vs- The Attorney General — Mentioned
- Kariuki Kiboi vs. Attorney General ([2017] eKLR) — Explained
- Mohammed Abduba Dida vs. Debate Media Limited & Another ([2018] eKLR) — Mentioned
- Nairobi Metropolitan PSV Saccos Union Ltd & 25 others v County Government of Nairobi & 3 thers ([2014] eKLR) — Mentioned
- Ngige Tharau & 128 others v Principal Secretary of Lands, Housing and Urban Development & 2 others ([2016] eKLR) — Mentioned
- Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) ([2020] eKLR) — Explained
- Okiya Omtatah Okoiti & Others v The Hon. Attorney General & others (Constitutional Petition No. E090 of 2022 (as consolidated)(unreported)) — Mentioned
- Peter Solomon Gichira -vs- Independent & Boundaries Commission & Another ((2017) eKLR) — Mentioned
- Republic v Cabinet Secretary, Ministry of Agriculture, Livestock Fisheries & 4 others Ex parte Council of County Governors & another ([2017] eKLR) — Mentioned
- Republic v Joe Mucheru, Cabinet Secretary Ministry of Information Communication and Technology & 2 others; Katiba Institute & another (Exparte); Immaculate Kasait, Data Commissioner (Interested party) ((Judicial Review Application E1138 of 2020) [2021] KEHC 122 (KLR) (Judicial Review) (14 October 2021)) — Mentioned
- Timothy Maneno -vs- Returning Officer Kibwezi West Nguu/Masumba Ward & 2 Others ((2012) eKLR,) — Mentioned
- William Odhiambo Ramogi & thers v The Attorney General & others (Constitutional Petition Nos. 159 of 2018 and 201 of 2019 (unreported).) — Explained
- Land Access Movement of South Africa Association for Rural Development and others v Chairperson of the National Council of Provinces and others — Mentioned
- Minister of Health and Another v New Clicks South Africa (Pty) Ltd & others ([2006] (2) SA 311 (CC)) — Mentioned
- Court of Appeal in Metal Box Co Ltd vs. Currys Ltd, (1988) 1 A
- Metal Box Co Ltd vs. Currys Ltd, ((1988) 1 All ER 341) — Mentioned
- Elections (Registration of Voters) Regulations, (2012) — Cited
- Constitution of Kenya, 2010
- Data Protection Act, 2019
- Elections Act
- Independent Electoral And Boundaries Commission Act
- Limitation of Actions Act
- Political Parties Act
- Statutory Instruments Act
- Supreme Court Act
Judgment
Introduction
1.The Constitution, being the supreme law of Kenya, allows any person to stand as an independent candidate for an election.
2.In the consolidated petitions, the legal requirement that for an independent candidate to be eligible to stand for an election, such must submit copies of identification documents of their supporters to the Independent Electoral & Boundaries Commission (hereinafter referred to as ‘the 1st respondent’, or ‘the IEBC’ or ‘the Commission’) is under challenge among other issues.
3.The 1st petitioner, Free Kenya Initiative, describes itself as an entity that seeks to create a coalition of independent candidates with a view to advancing their civic and political rights.
4.The 2nd to 18th petitioners are Kenyans some of whom are independent candidates who seek to vie for various elective posts in the upcoming general elections scheduled for August 9, 2022.
5.The consolidated petitions are opposed.
The Consolidated Petitions
6.There are four petitions in this matter. They are as follows: -a.Petition No E160 of 2022 Free Kenya Initiative, Bob Njagi, Nicholas Oyoo, Mulialia Okumu, Felix Wambua, Jeremiah Nyagah and James Kamau v Independent Electoral & Boundaries Commission, Office of The Registrar of Political Parties, National Assembly, Senate of The Republic of Kenya, The Attorney General and Kenya National Commission on Human Rights (interested party).b.Petition No E219 of 2022 Bernard Neto Obunga, Joseph Siambai Yamohanga, Halima Sharrif Abdulkadir, Nicholas Muteithia Gitonga, Peter Macharia Gitonga, Lucy Gakenia Makutho v Independent Electoral & Boundaries Commission, Attorney General Principal Registrar of Persons and The Office of Data Protection Commissioner (Interested Party).c.Petition No E225 of 2022 Ekuru Aukot, Augustine Njeru Katangu, Reuben Kigame, Andrew Kamau Njoroge v Independent Electoral & Boundaries Commission, Attorney General and The Office of Data Protection Commissioner.d.Petition No 12 of 2022 (formerly High Court at Kakamega Petition No E010 of 2022) Kaira Nabasenge v Independent Electoral & Boundaries Commission and Attorney General (interested party).
7.The petitions were consolidated by an order of this court on June 6, 2022 for purposes of an expedited hearing.
8.For purposes of ease of this discussion, I will briefly look at each of the petitions.
Petition No E160 of 2022
9.Through the petition dated April 13, 2022 and supported by the affidavit of Bob Njagi deposed to on even date, the 1st to 7th petitioners sought to challenge regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) (hereinafter referred to as ‘the impugned Regulations’) on several fronts.
10.It was their case that the impugned regulations impose a heavier burden on independent candidates to be cleared to run for political office as compared to their counterparts in political parties, a discriminatory requirement.
11.It was their case that the regulation has the effect of locking out Independent candidates thus denying them an opportunity to exercise their civil and political rights under article 38 of the Constitution.
12.The petitioner posited that in 2017, the requirement by IEBC was not there and its introduction is meant to frustrate independent candidates who are not seeking to join any tribal coalitions.
13.It was further the said petitioners’ case that Political Parties Act is discriminatory as it does not allow independent candidates to form Coalitions in violation of article 36 of the Constitution that guarantees every person right to freedom of association.
14.The petitioners contended that the Office of the Registrar of Political Parties, (‘The ORPP’ or 2nd respondent’ herein) erred by denying them the opportunity to form coalition of independent parties by stating that coalition parties are a preserve of political parties.
15.The petitioners further took issue with fact that the symbols of independent candidates extinguish upon participating in general elections whereas those of political parties remain intact, thus allowing them to build their brand, a discriminatory state of affairs.
16The petitioners further contended that it was discriminatory for them not to have Liaison Committee where they can raise issues or concerns when in comparison, political parties have a platform of dialogue with the IEBC and ORPP.
17.It was their case that the denial by the IEBC to engage on matters elections preparedness was unequal treatment.
18.On the foregoing factual and legal matrix, the 1st to 7th petitioners prayed for the following reliefs: -a.A declaration that regulation 24(2)(c), 28(2)(c), 32(2)(c) and 36 (2) (c) of the Elections General Regulations is inconsistent with the Constitution and therefore void and invalid in terms of article 2(4) of the Constitution.b.A declaration that regulation 24(2)(c), 28(2)(c), 32(2)(c) and 36(2)(c) of the Elections General Regulations is wholly unconstitutional and it accordingly stands to be struck out from the regulation.c.An order does issue to the 3rd respondent to amend the Political Parties Act, 2011 to provide for the formation of a Liaison Committee for independent candidates with similar functions to that of the Political Parties Liaison Committee.d.An order does issue to the 3rd respondent to amend the Political Parties Act, 2011, to allow independent candidates to form coalitions in order to further their civic and political rights.e.An order does issue to the 3rd respondent to amend the Political Parties Act, 2011, to create an office of the Registrar of Independent candidatesf.This honourable court be pleased to issue an order that each party should bear its own costs on the grounds that this petition is in the interest of the public.g.The honourable court be pleased to issue any other or further remedy that the honourable court shall deem fit to grant in the interests of justice in the circumstances of this petition.
The Submissions:
19The petitioners in this petition were represented in two batches. They were the 1st, 2nd, 5th, 6th and 7th petitioners on one hand, and the 3rd and 4th petitioners on the other hand. Each of them filed separate submissions.
The 1st, 2nd5th - 7th Petitioners5’ Submissions:
20.Mr Asembo, counsel for the 1st, 2nd 5th - 7th petitioners further urged his case reiterating the requirement for independent candidates to supply copies of identification cards to be able to take part in elections is cumbersome and a denial of political rights under article 38 of the Constitution.
21.He categorically stated that none of the independent candidates were cleared because the requirement to collect signatures and copies of Identification, a time-consuming exercise, was to be done in two weeks.
22.Counsel further stated that general elections and referenda have previously been done without the requirement of collecting signatures and copies of identification cards and as such the requirement is not mandatory.
23.He asserted that the impugned regulations are wanting in public participation and there were no administrative steps issued by IEBC and Kenyans do not understand why the documents were required from them.
24.Learned counsel further stated that the requirement infringed upon the right of citizens to have their data protected owing to the misuse that is attendant to it in contravention to Data Protection Act.
25.On the foregoing, it was his case that the impugned regulations are an affront to article 83(3) of the Constitution and urged the court to set them aside.
The 3rdand 4th Petitioners’ Submissions
26.The 3rd and 4th petitioners filed written submissions dated June 23, 2022. In highlighting them, its counsel, Mr Murimi was emphatic that regulation 47 is an affront to article 31 of the Constitution.
27.It was his case that since 2017 when the call for identification cards was made, the number of independent candidates had dropped as the requirement was in violation of their rights guaranteed under article 38 of the Constitution.
28.It was submitted that article 10 of the Constitution as read with section 5 of the Statutory Instruments Act enjoins any regulation making authority make appropriate consultations with persons who are likely to be affected by the proposed instrument, before enacting or effecting regulations.
29.The significance and process of facilitating public participation was found in the decision in Republic v Cabinet Secretary, Ministry of Agriculture, Livestock Fisheries & 4 others ex parte Council of County Governors & another [2017] eKLR, and the South African decision in Minister of Health and Another v New Clicks South Africa (Pty) Ltd & others [2006] (2) SA 311 (CC); Land Access Movement of South Africa Association for Rural Development and others v Chairperson of the National Council of Provinces and others (supra); Ngige Tharau & 128 others v Principal Secretary of Lands, Housing and Urban Development & 2 others [2016] eKLR; Diani Business Welfare Association and Others v The County Government of Kwale [2015] eKLR; and Nairobi Metropolitan PSV Saccos Union Ltd & 25 others v County Government of Nairobi & 3 thers [2014] eKLR.
30.The 3rd and 4th petitioners reiterated the call that the supply of the identification cards was not in line with the provisions of article 31 of the Constitution and the Data Protection Act which guarantees the right of every Kenyan to have their private data protected.
31.In asserting illegality of the impugned regulations, it was submitted that article 99(1) and 193(1) of the Constitution as read with section 24, 25 and of the Elections Act and regulation 39 of the general regulations, set out the requirements of for one to contest a political seat. It was claimed that the impugned regulations were an administrative illegality that imposed unreasonable conditions to independent political aspirants.
32.It petitioner urged the court to adopt a purposive interpretation of the Constitution in arriving at the finding that the impugned regulations are unconstitutional. Reference to that end was made to the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No 26 of 2014 [2014] eKLR where it was observed inter-alia as follows;
Petition No: E219 of 2022
33.The 8th to 13th petitioners lodged their case through the petition dated May 16, 2022 and supported by the affidavit of Bernad Neto Obunga, deposed to an even date.
34.The 8th to 13th petitioners contested the requirement to supply copies of their supporters’ identification cards and corresponding signatures as unreasonable and discriminatory as it infringes on their civil and political right.
35.The said petitioner largely based their case on the same legal foundation as the 1st to 7th petitioners and in the end prayed for the following reliefs: -a.A declaration that regulations 18(2)(c), 24(2)(c), 28(2)(c), 32(2)(c) & 36(2)(c) of the Elections (General) Regulations are inconsistent with constitution and therefore void and invalid in terms of article 10, 38(3) and 83(3) of Constitution.b.A declaration that regulations 24(2)(c), 28(2)(c), 32(2)(c) & 36(2)(c) Elections (General) Regulations are inconsistent with Constitution and therefore void and invalid in terms of article 10 and 27 of the Constitution.c.A declaration that regulations 18(2)(c), 24(2)(c), 28(2)(c), 32(2)(c) & 36(2)(c) of the Elections (General) Regulations are wholly unconstitutional and accordingly stand to be struck out from the body elections regulations.d.A declaration that regulations 18(2)(c), 24(2)(c), 28(2)(c), 32(2)(c) & 36(2)(c) of the Elections (General) Regulations offend Data Protection Act and the Registration of the Persons Act and therefore null and void to the extent of these inconsistencies and therefore unenforceable.e.The honourable court be pleased to issue an order for costs in favour of the petitioners.f.The honourable court be pleased to issue any other or further remedy that it shall deem fit to grant I the interests of justice in the circumstances of this petition.
The Submissions:
36.In further support of their case, the 8th to 13th petitioners filed written submissions dated June 10, 2022.
37.It was reiterated that the requirement of identity cards placed unreasonable timelines for the candidates to submit copies of identity cards.
38.Further, that it was submitted that it was unreasonable and in violation of articles 31 and 38 of the Constitution that the presidential aspirants had to collect a minimum of 48,000 copies of identity cards directly from registered voters in at least 24 counties as supporters for nomination, 2,000 registered voters each for the County Governor and Senatorial candidates, 1,000 registered voters for Member of National Assembly in the constituency and 500 registered voters for Member County Assembly.
39.It was their case that the requirement also offended article 31 of the Constitution and Data Protection Act which guarantees privacy and the protection from unnecessarily revealing and/or acquiring personal information such as identity cards.
40.The 8th to 13th petitioners further contended that the requirement made it extremely difficult for the petitioners and other aspirants to realize their political rights to contest elections.
41.In a new line of argument, the petitioners submitted that the impugned regulations were not subjected to public participation before its application and that the enforcement thereof could lead to their use in criminal or immoral purposes.
42.The urged their case further by stating that the requirement should have been communicated in time for the public to be given voter education on the requirement and the IEBC should have furnished the candidates with letters of authorization from the Office of Data Commissioner and the Registrar of Political Parties.
43.In his oral highlights, Mr Mwaniki submitted that the requirement to supply identification cards was against article 31 of the Constitution and section 31 of the Data Protection Act which was set in place in 2019.
44.It was his submission that the intention of article 37 of the Constitution is to confirm that one is supported by persons and that the supply of the same imposes unnecessary burden on independent candidates and impugns article 38 of the Constitution. It was his case that the political rights ought to be facilitated not constricted.
45.To further impugn the provision, it was his case that there is no evidence that the IEBC cross-checked/validated or authenticated the copies of identification cards to confirm that they originate from the actual owners.
46.In contending the that IEBC was caught up with the doctrine of laches, he submitted that the timing of implementation of impugned regulations was suspect. It was his case that the impugned regulations were not applicable in 2017 and as such, the 14th petitioner was cleared.
Petition No. E225 of 2022
47.Through the amended petition dated June 2, 2022 supported by the affidavit of Ekuru Aukot deposed to June 2, 2022, the 14th to 17th petitioners herein challenged the requirement to deliver duly filled forms of supporters bearing names, signatures, identity card of at least 2,000 registered voters and an electronic list in Microsoft Excel sheet format.
48.The petitioners asserted that the requirement imposes an enormous logistical challenge to independent candidates which is prohibitive and discriminatory since it makes elections a very expensive affair and only for the rich.
49.It was their case that the invocation of regulation 18(2)(c) was intended to give undue advantage to some candidates.
50.The Petitioners further posited that the under section 31 of the Data Protection Act, the IEBC ought to have first conducted data protection impact assessment since there is the risk of data being used unscrupulously.
51.On the foregoing, the 14th to 17th petitioners prayed for the following reliefs: -a.A declaration that regulation 18(2)(c) of the Elections (General) Regulations, 2012 as amended by the Elections (General) (Amendment) Regulations, 2017 are unconstitutional for infringing the right to privacy, right to public participation and the right to equality and non-discrimination and hence null and void.b.A declaration that implementation of regulation 18(2)(c) of the Elections (General) Regulations, 2012 as amended by the Elections (General) (Amendment) Regulations, 2017 is unconstitutional because the respondents have failed to provide statutory framework to protect the right to privacy and protection of data and are in contravention of the Data Protection Act, 2019.c.A declaration that the provision of an identity card number or valid passport number and duly signed supporter list is sufficient to identify whether a presidential candidate had the requisite number of supporters.d.An order of Injunction restraining the 1 st respondent from enforcing regulation 18(2)(c) of the Elections (General) Regulations, 2012 in the 2022 General Elections.e.A mandatory order directing the Independent Electoral & Boundaries Commission to clear and Gazette the 1st, 2nd & 3rd petitioners to vie for the Presidency in the August 9th 2022 General Electionsf.The costs of this petition be borne jointly and severally by the respondents.g.The honourable court be pleased to issue any other remedy and or relief as it may deem fit to grant in the interest of justice in the circumstances of this petition.
The Submissions
52.In further support of their case, the 14th to 17th petitioners filed written submissions dated June 2, 2022. From the onset they submitted that it was not disputed by the respondents that that the impugned regulations were enacted before the Data Protection Act was assented to in 2019 thus necessitating Data Impact Assessment in accordance to section 31 of the Data Protection Act.
53.To buttress the foregoing, reference was made to the decision in Republic v Joe Mucheru, Cabinet Secretary Ministry of Information Communication and Technology & 2 others; Katiba Institute & another (exparte); Immaculate Kasait, Data Commissioner (Interested party) (Judicial Review Application E1138 of 2020) [2021] KEHC 122 (KLR) (Judicial Review) (14 October 2021) where it was observed: -
54.It further was their case that there was no evidence that the 1st respondent cross-checked to confirm that the copies of the identity cards that were procured were tallying with the lists that were presented. Therefore, the impugned regulations were a mere formality with no real utility to the process of nomination.
55.To rebut the aspect of delay and applicability of laches in instituting the petition, this court was invited to consider that the general rule is that the doctrine of laches has very limited application in to public law matters in view of respect for the Constitution by successive Governments.
56.Reliance was placed on the decision in Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR to claim that they were not caught up by the doctrine of laches. In the case delay was explained in the following terms: -
57.On the substance of the petition, it was submitted that under article 83(3) of the Constitution, this court ought to declare regulation 18(2)(c) unconstitutional to the extent that it places an unlawful bottle neck on persons wishing to participate in the electoral contest for the Presidency.
58.It was further its case that the 14th to 16th petitioners met the constitutional threshold for nomination by the respondent to compete in the general elections for the Presidency, but regulation 18 was an impediment that violates not only article 83(3) of the Constitution, but also article 38(3)(c) which outlaws any unreasonable restrictions on the right of a citizen to offer themselves for election.
59.On the foregoing, the 14th to 17th petitioners submitted that they were subjected to differential treatment in violation of article 27 of the Constitution. Support to that end was drawn from the decision in Mohammed Abduba Dida v Debate Media Limited & another [2018] eKLR where proof of discrimination was discussed in three stages as follows: -
60.It was its case that discrimination arose from the fact that the impugned regulations restricted participation in political rights to the wealthy Presidential contenders only.
61.On the totality of the foregoing, the 13th to 17th petitioners claimed that the decision to clear certain candidates based on the impugned regulations that are illegitimate was a violation of their right to administrative action under article 47 of the Constitution which requires fairness and lawfulness in administrative actions.
Petition No 22 of 2022
62.The 18th petitioner, Kaira Nabasenge filed the petition dated May 24, 2022, supported by his affidavit deposed to on the same date.
63.His case was that the requirement that an independent candidate must be supported by two persons not members of any political party and submit duly filled booklet and an excel sheet of supporters with corresponding copies of identification cards, was unconstitutional unjustified and in violation of her rights under article 38 of the Constitution.
64.He posited that by dint of articles 99, 137 and 193 of the Constitution, respective independent candidates are required to submit as least 500 registered voters for Governor and Member of County Assembly, 2000 for Senate and 1000 for the County Women Representative.
65.It was his case that the foregoing provisions do not in any way require supporters to submit copier of their identity cards with corresponding signatures.
66.The petitioner referred to the decision in Peter Solomon Gichira v Independent & Boundaries Commission & another (2017) eKLR, where the court declared the requirement that persons who nominate an independent candidate (in the case of independent Presidential candidate) shall not be members of any political parties as unconstitutional for contravening article 27.
67.The petitioner further claimed that in Timothy Maneno v Returning Officer Kibwezi West Nguu/Masumba Ward & 2 others (2012) eKLR, the requirement that independent candidates must be cleared by the 2nd respondent was declared unconstitutional.
68.It, therefore, was his case that the requirement was in contravention of article 47(1) of the Constitution that guarantees fair administrative action, article 27 of the the Constitution that guarantees equal protection and benefit of the law and political rights under article 38(3)(c) of the Constitution.
69.In the foregoing basis, the petitioner prayed for the following reliefs;a.A declaration be and is hereby issued that the Electoral and Boundaries Commission, by requiring the petitioner herein and other independent aspirants/candidates to submit the names of their supports together with copies of their identification cards with corresponding signatures/thumb prints is unconstitutional null and void and in total violation of the Constitution of Kenya and in particular it offends article 99, 137, 193, 27(1)(2) and 47(1) of the Constitution.b.A declaration be and is hereby issued that regulations 12 of the Elections Regulations (General) Regulations of 2012 which regulations require supporters of the Independent aspirant/ candidates to submit copies of their identification documents (Identity Cards) with corresponding signatures/thumb prints for purposes of clearance registration and or nomination of independent aspirants/candidates for an election are unlawful, unconstitutional and null and void.c.The honourable court do issue an order prohibiting the respondent herein (IEBC) from requiring the supports of the petitioner and other independent candidates/aspirants to submit copies of their identification documents (Identity cards) with corresponding signatures/thumb prints for purposes of clearance registration and or nomination of independent aspirants/candidates for the forthcoming August 9th 2022.d.Any other relief and further orders, writs, declarations and directions as this honourable court may deem appropriate, fair just and fit to grant.e.Costs of and incidentals to this petition.
The Submissions
70.The 18th interested party did not file any written submissions.
The Responses:
Responses to Petition Nos E160 & E225 of 2022
The 1st respondent’s case
71.The 1st respondent opposed the Petition Nos E160 and 225 through grounds of opposition dated April 20, 2022.
72.It was its case that the petitions are instituted in bad faith since the impugned regulations that the petitioners seek to have suspended have been in existence since 2012.
73.It asserted that the claim of discrimination is founded on blatant falsehood since section 7(2) of the Political Parties Act requires a political party to be fully registered, recruit as members, not fewer than one thousand registered voters from each of more than half of the counties and then submit a list of the names, addresses and identification particulars of all its members.
74.It was, therefore, its case that both political parties and independent candidates must submit identification particulars of the voters who support the nomination of any person who intends to vie for a political seat and as such there was no incidence of discrimination.
The Submissions
75.To further urge its case, the 1st respondent filed written Submissions dated May 15, 2022. It was highlighted by its counsel Mr. Munyua.
76.From the onset, cunsel stated that the Constitution set a standard and the legislation adopted different languages. It was his case that the Constitution calls for registered voters as per article 83(1)(a) and one is to be an adult and proof of age is in the birth certificate or identification card and that is the reason the IEBC requires identification card.
77.He submitted that the impugned regulations simply reinforce articles 99 and 103 of the Constitution. Counsel sought to rebut the claim for discrimination by submitting that members of Political Parties do not require to submit copies of identification cards since they maintain a register with the Office of the Registrar of Political Parties hence the exclusion from the regulations. Such is not the case for independent candidates.
78.On the foregoing, counsel submitted that there has been no differentiation demonstrated by the petitioners as being unfair. He found support in the decision in James Nyosora Nyorangi v Attorney General.
79.In respect of Political Parties’ Liaisons Committees, it was his case that such are exclusive to political parties and independent candidates were excluded. It was his case that The Office of the Registrar of Political Parties did inform independent candidates that the Political Parties Act did not give them audience before the said Committees.
80.As regards incidence of discrimination for the requirement of symbol by independent candidates, he submitted that the ORPP is not called upon to keep such symbols permanently as such is the preserve of political parties.
81.Counsel further submitted that there would be no violation of privacy since section 15 of the said Act exempts perusing of personal data in many instances.
82.He asserted that for independent candidates, identification particulars is a constitutional requirement which is reiterated by the impugned regulations.
83.In closing, counsel submitted that there has been laches since the impugned regulation has been in place since the year 2012 and that they are only meant to enhance the integrity of the election process.
84.In the end, counsel prayed that the petition be dismissed.
The 2nd respondent’s case
85.The Office of the Registrar of Political Parties challenged the petition through the replying affidavit of Joy Anyango, the Compliance Officer, deposed to on April 20, 2020.
86.While speaking to its function, Ms Anyango deposed that the 2nd respondent has the statutory duty to protect symbols of political parties and is required to certify that an independent candidate in an election is not a member of a registered political party and that a symbol intended to be used by an independent candidate in an election does not resemble the symbol of a registered political party.
87.It was her deposition that under article 92 of the Constitution, the benefits that accrue to persons who are members of political parties and independent candidates are not the same.
88.The 2nd respondent did not file written submissions.
The 5th respondent’s case
89.The 5th respondent, the Attorney General, opposed the petition through grounds of opposition dated April 26, 2022.
90.It argued that in view of the independence IEBC enjoys, it has the power to make regulations under section 31 of the Independent Electoral and Boundaries Commission Act (No 9 of 2011).
91.It was its case that the impugned regulations were made pursuant to that power and they enjoy a general presumption of constitutional validity, which presumption has not been rebutted by the petitioners.
92.It refuted the petitioners quest to have a coalition of independent candidates by stating that under such is a preserve of political parties as per the Political Parties Act, which defined “coalition” to mean an alliance of two or more political parties formed for the purpose of pursuing a common goal and is governed by a written agreement deposited with the Registrar.
93.In the end, the honourable Attorney General was of the position that petitioners have misconstrued the meaning and purport of the term “discrimination” and that the petition and orders sought are meant to unlawfully defeat and/or curtail the objects and purposes of the Election (General) Regulations, 2012 and the Independent Electoral and Boundaries Commission Act (No 9 of 2011).
The Submissions
94.Miss Wangui, counsel for the 5th respondents associated herself with the submissions of the 1st respondent.
Responses to Petition No. E219 of 2022
The 1st Respondent
95.In response to the Petition E219 of 2022, the 1st respondent filed grounds of opposition dated May 18, 2022.
96.It claimed that the petition in question was instituted in bad faith since the impugned regulations have been in existence since 2012 and as such the petitioners seek to scuttle the electoral process.
97.It was its case that the notification calling for independent candidates to submit names of their supporters was published on April 5, 2022, over 58 days to the deadline, enough time to make the petitioners comply, hence, they were guilty of laches.
98.In respect to invasion of privacy against the Data Protection Act, it was the IEBC’s case that petitioners have not demonstrated how the impugned regulations would contravene it.
99.It was further its case that the said regulations were applied successfully in the year general elections of the year 2013 and 2017 and there will be no prejudice to be suffered by the petitioners.
100.The IEBC also averred that the alleged threat of being locked out from elections was presumptive.
101.It was its case that the petitioners knew what is required of them under Elections (general) Regulations of 2012 as amended by Elections (General)(Amendment) Regulations of 2017.
102.It was its further case that in view of the strict constitutional timelines required of IEBC under article 99(1)(c) and 137(1)(d) of the Constitution, the impugned regulations cannot be reversed since in view of the relevant provisions calling for the clearing of independent candidates, the elections timetable would be interfered with and that will create a constitutional crisis.
103.It was urged that the petition is devoid of merit and ought to be dismissed with costs.
Response to Petition No 12 of 2022
The 1st respondent:
104.In opposition to the Petition No 12 of 2022, the 1st respondent filed grounds of opposition dated May 26, 2022 where it took issue with the delay with which the petition was lodged in court.
105.It was its case that he impugned regulations were gazetted in January 2022 and have been in the public domain for a period of 5 months before the 18th petitioner instituted suit. It accused the petitioner of being indolent in coming to court.
106.The 1st respondent defended the impugned regulations stating that it aimed at achieving constitutional standards of being simple, accurate, and secure, accountable and transparent.
107.It was further its case that as the Commission has the power under section 109 of the Elections Act empowers it to make and that the petitioners will not purport to guide how the 1st respondent shall verify and vet voters.
The Submissions:
108.In her oral submissions, counsel, Miss Ogolla largely associated herself with the submission of the Mr Munyua. She rejected the claim of discrimination and to that end referred the Court of Appeal in Kenya Medical Research Institute v Samson Gower & 8 others (2019) eKLR.
109.It was further her case that the since article 82 of the Constitution did not provide the details on how nominations are to be carried out, the same is to be done by legislation and regulations. She stated that the fact that the Constitution does not call for copies of the identification cards does not make the regulations unconstitutional.
110.She further submitted that the Constitution provides for eligibility of independent candidates and that the impugned regulations do not tamper with that constitutional requirement.
The 1st Interested Party and the Amicus Curiae Cases
The 1st interested party’s case
111.The Kenya National Commission on Human Rights supported the petitioners’ case through written submissions dated June 22, 2022.
112.The submissions were highlighted by its counsel, Mr Osman. It was his case that the intention of the impugned regulations was to lock out independent candidates from participating in elections.
113.Counsel submitted that the purpose and effect of supplying identification cards was unconstitutional. He posited that the qualification for Members of Parliament and Members of County Assembly is one to be supported by some voters as provided for in articles 99 and 103 of the Constitution.
114.He stated that the hindrance in the impugned regulation is unreasonable in violation of article 38 of the Constitution. To that end he referred to Peter Solomon Gichira -vs- Independent & Boundaries Commission & Another (2017) eKLR where it was observed that: -
115.On the forgoing, it was submitted that article 38 as read with article 25(a) and (b) of the International Covenant on Civil and Political Rights (JCCPR) which entitles every citizen the opportunity to participate in the conduct of public affairs, political rights in the Constitution confers the right on adult Kenyans and not political parties. Whilst Parliament has the power to pass legislation that regulates the exercise of that right, it cannot purport to enact legislation that prevents the exercise of that right.
116.It was his case, therefore, that the requirement of copies of identification documents by independent candidates does not satisfy the test on article 24 on limitation of fundamental rights and freedoms.
117.Counsel further submitted that the independent candidates have been excluded in Political Parties Liaisons Committee (PPLC) the form for of sustaining structured dialogue between the Office of the Registrar of Political Parties, the IEBC and Political Parties.
The Amicus Curiae’ Case:
118.Kenya Human Rights Commission filed written submission dated June 26, 2022.
119.Through its counsel on record, Mr Otiende, it identified the issue for determination as equality before the law and the right to non-discrimination and to that end referred to many international jurisprudences.
120.It was its case that the resolution of the dispute involves the elaboration of concepts such as "equality" and "unfair discrimination". It submitted that the question whether there has been a breach of article 27 of the Constitution has to be assessed against the background set out in the peculiar factual circumstances of the petitioners considering the constitutional and historical context of the developments in Kenya.
121.It was the amicus curiae’ case that it is imperative to determine whether the impugned provisions are rationally related to a legitimate governmental purpose in two stages.
122.Firstly, the question whether a factual analysis of the provisions in issue in relation to the Constitution has been shown to lack rationality and, the second, being whether the said provisions can be said to be arbitrary or capricious in the light of the peculiar circumstances.
123.It was submitted that the foregoing sheds light on the extent to which nomination procedures provides unfair advantage to candidates of political parties whilst discriminating against other political organizations or individuals.
124.The amicus urged the court to make an assessment on whether the impugned regulations are discriminatory and whether they have impacted unfairly on the petitioners.
125.In achieving the foregoing, court was invited to consider the position of petitioners in the society and whether they have suffered in the past from patterns of disadvantage and whether the discrimination in the case is on a specified ground.
126.It was further urged that the court must also consider the purpose sought to be achieved by the impugned regulations. To that end, it was its case that, it must be distinguished whether the purpose directed at impairing the petitioners in the electoral process or is aimed at achieving a worthy and important societal goal and whether the petitioners have suffered the impairment in question.
127.In conclusion the amicus submitted that if the regulations are found to amount to differentiation, then the respondents should not be allowed to regulate in an arbitrary manner or manifest naked preferences that serve no legitimate purpose for that would be inconsistent with the rule of law.
128.The National Assembly, Office of The Data Commissioner and The Principal Registrar of Persons, being the 3rd, 4th and 6th respondents respectively and 2nd interested party did not take part in the consolidated petitions despite service.
Issues for Determination:
129.On careful reading of the material presented before court by the parties including the submissions and the decisions referred to, this court discerns the following issues for determination: -a.The principles of constitutional interpretation.b.Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 contravene articles 2(4), 10, 27, 38(3), 83(3), 99, 137 and 193 of the Constitution.c.Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) contravene article 31 of the Constitution and the Data Protection Act.d.Whether the Political Parties Act should be amended to variously provide for independent candidates.
130.I will deal with the issues in seriatim.
Analysis and Determination:
a. The Principles of Constitutional Interpretation:
131.This issue will lay a solid basis for consideration of the rest of the issues.
132.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: -
133.With such a background, a consideration of the next issue follows.b.Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) contravene articles 2(4), 10, 27, 38(3), 83(3), 99, 137 and 193 of the Constitution:
134.The parties’ cases and submissions on this issue have been well captured in the foregoing part of this judgment.
135.However, for ease of reference in this discussion, I will reproduce verbatim regulations 18, 24, 28 and 36 of the Elections (General) Regulations, 2012 (an amended in 2017) hereinbelow: -Regulation 18:18. Supporters of nomination of presidential candidate and statutory declaration:
136.The consolidated petitions challenge the impugned regulations.
137.The impugned regulations revolve around political rights. Those rights are provided for under article 38 of the Constitution. The said article cements the fundamental freedom to make political choices as follows: -
138.In the context of the consolidated petitions herein, the freedom to make political choices is allegedly impugned as against persons standing in elections as independent candidates.
139.The eligibility to stand as an independent candidate is provide for in article 85 of the Constitution, and as follows: -
140.Articles 99 and 193 of the Constitution further provides for the eligibility requirements. The relevant requirements in respect to the consolidated Petitions herein are article 99(1)(c) and article 193(1)(c)(ii) of the Constitution which provide as under: -Article 99(1)(c):(c)is nominated by a political party, or is an independent candidate who is supported: -i.in the case of election to the National Assembly, by at least one thousand registered voters in the constituency; or(ii)in the case of election to the Senate, by at least two thousand registered voters in the county.Article 193(1)(c)(ii):2.is either—i.…….(ii)an independent candidate supported by at least five hundred registered voters in the ward concerned.
141.Article 82 of the Constitution commands Parliament to enact legislation to provide for elections. Among the legislation which Parliament has since enacted is the one on nomination of candidates. Further, under article 88, the Constitution vests the duty to register candidates for elections on the IEBC.
142.One of the legislations passed by Parliament pursuant to article 82 of the Constitution is the Elections Act, No 24 of 2011.
143.In section 109, the Elections Act allows the IEBC to make regulations for the better carrying out of the purposes and provisions of the Act In 2012, the IEBC came up with the Elections (General) Regulations, 2012. These Regulations have since been amended through Legal Notice No 72 of 2017.
144.The Elections (General) Regulations, 2012 (as amended) brought in the impugned regulations which are the subject of the consolidated petitions in these proceedings.
145.Deriving from the cannons of interpretation of our transformative Constitution, it comes to the fore that the constitutional design in respect to political rights is to favour a permissive approach as opposed to a restrictive one. Therefore, it is the intent of the Constitution that as many as those willing to take part in elections are not unreasonably hindered.
146.This court will, therefore, weigh the impugned regulations against the said constitutional parameter.
147.In doing so, it becomes imperative that I look at the aspect of voter registration in Kenya.
148.The registration of voters is provided for in article 83 of the Constitution as follows: -(1)A person qualifies for registration as a voter at elections or referenda if the person—(a)is an adult citizen;(b)is not declared to be of unsound mind; and(c)has not been convicted of an election offence during the preceding five years.(2)A citizen who qualifies for registration as a voter shall be registered at only one registration centre.(3)Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.
149.Article 260 of the Constitution defines an ‘adult’ as an individual who has attained the age of eighteen years.
150.Whereas the the Constitution does not define who a voter is, section 2 of the Elections Act defines such a "voter" to mean a person whose name is included in a current register of voters.
151.The Elections Act provide for continuous registration of voters save for the instances captured in section 5 thereof.
152.In section 5(3), the Elections Act provides the manner in which one may be registered as a voter. It states as under: -
153.It is the Elections (Registration of Voters) Regulations, 2012 (hereinafter referred to as ‘the Registration Regulations’) that provide the procedure for registration of voters.
154.Regulation 13 deals with new registration as follows: -a.A person who desires to be registered as a voter shall make an application in Form A set out in the schedule.(2)An application under sub regulation (1) shall be made to the registration officer for the constituency in which the person wishes to be registered.(3)The registration officer shall collect biometric data of persons applying for registration.
155.The procedure for application to be registered as a voter is in regulation 13A; which provides as follows: -(1)A person who applies to be registered as a voter shall present his or her identification document to the registration officer stationed at a registration centre of his or her choice.(2)The registration officer shall, where the applicant is qualified to be registered as a voter, issue the applicant with Form A as set out in the schedule.(3)The applicant shall return the duly completed Form A to the registration officer and the registration officer shall confirm the details in the form and enter them in the biometric voter registration system and the Voters Record Book.(4)The applicant shall be issued with an acknowledgement slip upon registration.
156.I have also perused the Form A in the schedule of the Registration Regulations. It requires the applicant to declare that one is qualified to be, and not disqualified from being, registered as a voter under the law in respect of the classes of election for which the person applies for registration and that he/she is in possession of a National Identity Card or Kenyan passport with the number indicated in the application.
157.As said, it is at the registration stage of a voter where the person’s biometric data is also collected.
158.It is, therefore, the position that once a person is registered as a voter, the IEBC retains the personal details of the voter including the details of the National Identity Card or Kenyan passport used in the registration. The name of such a person is also entered into the Register of Voters.
159.A duly registered voter will be eligible to vote in an election. It is also only a registered voter who is eligible to stand for an election under articles 99(1)(c) and 193(1)(c)(ii) of the Constitution.
160.It is further a registered voter who is called upon to comply with the impugned regulations at a time when one seeks to be registered as an independent candidate in an election.
161.Having run through the background of the impugned regulations, the question that now begs for an answer is whether a registered voter who seeks to stand in any election as an independent candidate should still provide copies of the national identity cards of his/her supporters further to the sheets of paper bearing the names, respective signatures and the numbers of the identification documents which the registered voters used during registration as voters.
162.The question, hence, takes us back to article 38 of the Constitution on political rights which vouches for the freedom to make political choices and the need not to place any unreasonable restrictions in order to attain such rights.
163.However, before the question is answered, it is imperative to have a look at how the Commission has previously conducted elections and referenda in light of the impugned regulations.
164.The impugned regulations were enacted pursuant to an amendment to the Elections (General) Regulations, 2012. The amendment was vide the Elections (General) (Amendment) Regulations, 20I7 under Legal Notice No. 72 of 2017. The amendments were to come into operation upon publication in the Gazette. The publication was on the April 24, 2017 under Special Issue of the Kenya Gazette Supplement No 65.
165.Given that the passage of the amendments was just a few months to the last general election which was held in August 2017, the Commission did not enforce the impugned regulations. The Commission is, therefore, enforcing the impugned regulations for the first time in this year’s General election.
166.That being the case, the Commission, therefore, conducted the last two general elections under the 2010 Constitution without calling for copies of identification documents for any of the independent candidates who stood in those elections.
167.There has also been attempts to amend the Constitution since its promulgation in 2010. One of such attempts was the famous ‘Punguza Mzigo Bill’. The proposed amendment was by way of popular initiative under article 257 of the Constitution. Article 257(1) of the Constitution provides that a proposal by popular initiative must be signed by at least one million registered voters.
168.The proposers of the amendments collected the requisite number of signatures of the registered voters and delivered them to the Commission. The Commission verified them and confirmed that the signatures had attained the threshold of one million registered voters and allowed the other processes to follow. In this instance, there was no requirement for the supply of copies of the identification documents of the supporters of the amendment. The amendment did not, however, see the light of the day.
169.There was also another equally famous attempt to amend the Constitution vide the ‘Building Bridges Initiative’ which also known as ‘the BBI’. Again, the requisite number of signatures of the registered voters who supported the BBI were collected and delivered to the Commission. The Commission verified them and confirmed that the signatures had attained the threshold of one million registered voters and allowed the other processes to follow.
170.Just like in the case of the Punguza Mzigo Initiative, there was no requirement for the supply of copies of the identification documents of the supporters of the amendment in the BBI. This initiative did not also come to pass.
171.At this point in time, it behooves us take note of the fact that the Constitution does not place any duty upon the proposers of any amendment to Constitution under the popular initiative to supply of copies of the identification documents of the supporters of the amendment. The Constitution only calls for the signatures of the supporters who are registered voters.
172.There is no doubt that an amendment to the Constitution is, by any means, is on a higher pedestal than the registration of an independent candidate to stand for an election. Surprisingly, an amendment to the Constitution does not call for supply of copies of the identification documents of the supporters of the amendment, but the registration of independent candidates to stand for elections does.
173.The impugned regulations have been challenged on various grounds. One of them was that regulations were unnecessary and served no meaningful purpose.
174.I believe the foregoing comparison between how the Constitution may be amended by way of popular initiative and the requirement to supply of copies of the identification documents of the supporters of of independent candidates to stand for elections answers this challenge.
175.In other words, if the signatures of registered voters are capable of proving that a constitutional amendment is supported by such persons then, likewise, the signatures of registered voters are capable of proving that an independent candidate is supported by a certain number of registered voters.
176.Further persuasion can be discerned from other relevant legislations which do not make a mandatory requirement for the supply of copies of identification documents, but only identification particulars. For instance, section 7(2)(f)(i) of the Political Parties Act provides for the conditions of full registration of a political party upon submission to the Registrar of Political Parties a list of the names, addresses and identification particulars of all its members.
177.There is also the Political Parties (Membership) Regulations, 2021 which do not require a political party to retain copies of identification documents of its members, but only the identification particulars and the application for registration forms. The regulations in defining the “Integrated Political Parties Information Management System", “membership list and the “register” makes specific reference to members’ particulars and do not require copies of any identification documents.
178.The Black’s Law Dictionary, 10th Edition at page 1294 defines the word ‘particulars’ to mean ‘the specific facts about a person’s background.’
179.The Cambridge Dictionary University Press defines the term ‘particulars’ to mean ‘details or information about a person or an event.’
180.It is also of importance to note that even the functions of the Registrar of Political Parties under section 34 of the Political Parties Act only requires the Registrar to maintain a Register of members of political parties containing members’ particulars and not copies of identification documents.
181.A common thread running across the foregoing legislative provisions and definitions is the requirement for particulars of the identification documents and not for copies of the said documents. Had the drafters of the legislation intended copies of the identification documents nothing would have been easier to expressly provide for such.
182.Flowing from the above, it is apparent that the impugned regulations do not serve any meaningful purpose other than placing an unreasonable burden on the independent candidates.
183.Another challenge to the impugned regulation was on whether the impugned regulations were subjected to public participation, stakeholder consultations and administratively fair procedures.
184.A robust discussion on public participation and consultation under article 10 of Constitution was recently made by a Five-Judge Bench in Mombasa Consolidated Constitutional Petition Nos 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & thers v Attorney General & others (unreported).
185.The analysis was as follows: -
186.Even though the petitioners raised the issue of lack of public participation, stakeholder consultations and administratively fair procedures, none of the respondents and interested parties responded to the issue. As such, the issue is uncontroverted.
187.Another salvo launched against the impugned regulations is that the impugned regulations discriminate against independent candidates as against the candidates who are nominated by political parties.
188.Perhaps, it is imperative to have a brief look at the subject of discrimination. A Multi-Judge bench in Petition 56, 58 & 59 of 2019 (Consolidated), Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR discussed the subject of discrimination under article 27 as follows: -
189.The process of registration of voters has been dealt with above. The process does not require the supply of copies of the identification documents by any one seeking to be registered as a voter but only the numbers of the identification documents. For clarity, the Commission does not have copies of identification documents for any one registered as a voter.
190.The requirement for the supply of the copies of the identification documents comes up only at the registration of independent candidates. It, therefore, means that the Commission in seeking the copies of the identification documents of the supporters of independent candidates does so for the first time. In other words, with an exception of the independent candidates, no any other cadre of voters or candidates are supposed to supply such copies of their identification documents.
191.Whereas the independent candidates are different from the candidates nominated by political parties, it cannot be said that the Commission has a repository of copies of identification documents used in registration of voters who are members of political parties such that a like requirement for independent candidates places the two cadres of candidates at par. The requirement for the supply of the copies of the identification documents is only aimed at the independent candidates.
192.Therefore, the differential treatment accorded to the independent candidates is not justified. That infringes article 27 of the Constitution.
193.With the foregoing, there is no doubt that that once a person is registered as a voter, the IEBC retains the particulars of the voter including the details of the National Identity Card or Kenyan passport used in the registration. Such details are sufficient to enable the Commission ascertain the number of supporters in respect to the registration of independent candidates. The impugned regulations, therefore, places a further and unnecessary burden on the independent candidates to supply copies of the identification documents at registration.
194.The upshot is that the impugned regulations are in contravention of articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.(c)Whether regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) contravene article 31 of the Constitution and the Data Protection Act:
195.It was vehemently argued by the petitioners that the call for copies of identity cards is an affront not only to article 31 of the Constitution, but the provisions of the Data Protection Act.
196.The parties’ detailed arguments and submissions are captured in the preceding part of this judgment.
197.Article 31 of the Constitution provides as follows: -
198.The Data Protection Act, No 24 of 2019 (hereinafter referred to as ‘the Data Act’) is an Act of Parliament to give effect to article 31(c) and (d) of the Constitution, to establish the Office of the Data Protection Commissioner, to make provision for the regulation of the processing of personal data, to provide for the rights of data subjects and obligations of data controllers and processors and related purposes.
199.A cursory reading of the Data Act unfolds the manner in which the law treats personal information with such seriousness. The law places burdens on specific persons, the data controllers and the data processors, who must be registered with the Data Commissioner with specific duties in dealing with personal data. Indeed, the Data Act sufficiently protects the privacy rights under article 31 of the Constitution.
200.For instance, in part IV, the Data Act robustly provides the principles and obligations of personal data protection. Section 31 provides for Data protection impact assessment to be carried out where a processing operation is likely to result in high risk to the rights and freedoms of a data subject by virtue of its nature, scope, context and purposes prior to the processing of such data.
201.The impugned regulations require the independent candidates to collect the personal data of their supporters. Such a duty is provided for in the Data Act and only specific persons are authorized to do so. The impugned regulations, therefore, did not take such into account and the effect thereof is to, contrary to the law, designate the independent candidates as data controllers and data processors.
202.In this matter whereas the Commission may for good reasons require personal data, it is, nevertheless, supposed to ensure that the collection and security of such data is within the Constitution and law.
203.It was, therefore, incumbent upon the Commission to provide appropriate legal framework for the collection and protection of the data and the right to privacy.
204.At the moment, the security of the data collected by the independent candidates cannot be assured, the period the Commission will hold such information and the manner in which it will be disposed remains a mirage. The Commission did not even indicate whether it carried out a data protection impact assessment.
205.The upshot is that the Commission cannot escape the discharge of such an onerous obligation. In the midst of failure to comply with the law, the danger to unlawfully deal with or expose personal data by both the independent candidates and the Commission is eminent.
206.Without much ado, it is ostensible that the manner in which the independent candidates and the Commission are to deal with the collection and retention of the copies of the identification documents of the supporters of the independent candidates does not guarantee the protection of the privacy rights under article 31 of Constitution.
207.To that extent, this court finds and hold that the implementation of the impugned regulations variously infringes the Data Protection Act and article 31 of the Constitution.(d)Whether the Political Parties Act should be amended to variously provide for independent candidates:
208.Some Petitioners have put forth a case for the amendment of the Political Parties Act to accommodate the independent candidates in many ways.
209.Having carefully considered the nature of the proposed amendments, I am of the position that the issues raised do not fall within the purview of this court. Such are matters which are not ripe for adjudication before a court of law and they would be properly dealt with by Parliament.
210.Whereas the participation of independent candidates in elections in Kenya is gaining traction and there may be need for some regulation in many areas, the most appropriate way to pursue such is to petition Parliament under article 119 of the Constitution. The provision states as follows: -
211.In reinforcing the position that courts exist to resolve actual disputes, the High Court inNairobi High Court Constitutional Petition No. E090 of 2022 (as consolidated) Okiya Omtatah Okoiti & others v The Hon. Attorney General & others (unreported) stated as follows: -
212.On the basis of the foregoing, this court reiterates the position that the duty to amend the Political Parties Act lie with Parliament.
213.As I come to the end of this issue, I will address the issue of laches which was raised by some of the respondents.
214.In declining the respondents’, I will only refer to the Court of Appeal in Metal Box Co Ltd v Currys Ltd, (1988) 1 All ER 341 and Kariuki Kiboi v Attorney General [2017] eKLR, Nairobi Civil Appeal No 90 of 2015, where the Court of Appeal heard and determined a claim which arose in the mid-1980s and a petition was filed in 2010. The court then made the following findings on whether one can acquiesce to an infringement of their human rights and fundamental freedoms: -
215.With respect to the doctrines of acquiescence and estoppel the court rendered itself as follows: -
216.The court further stated that: -
Disposition:
217.Flowing from the foregoing, the consolidated petitions are, to a large extent, successful and the following final orders do hereby issue: -(a)A declaration hereby issues that regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) are in contravention of articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.(b)A Declaration hereby issues that regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) are in contravention of article 31 of the Constitution and the Data Protection Act.(c)An Order of certiorari hereby issues bringing into the High Court and quashing regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017). The said regulations are hereby quashed.(d)Being a public interest litigation, parties shall bear their costs.
218Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JULY, 2022.A. C. MRIMAJUDGEJudgmentvirtually delivered in the presence of:Mr. Asembo, Learned Counsel for the 1st, 2nd, 5th, 8th to 13th Petitioners.Mr. Murimi, Learned Counsel for the 3rd and 4th Petitioners.Mr. Kosgey, Learned Counsel for 14th to 17th Petitioners.No appearance for Mr. Nabasenge, Learned Counsel for the 18th Petitioner.Mr. Munyua and Miss. Ogolla, Learned Counsel for the 1st Respondent.Mr. Abdikadir Osman, Learned Counsel for the 1st Interested Party.Mr. Otiende, Learned Counsels for the Amicus Curiae.Faustine – Court Assistant.
