a. The Principles of Constitutional Interpretation:
131.This issue will lay a solid basis for consideration of the rest of the issues.
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.
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: -
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.
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.
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.
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: -
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  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: -