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|Case Number:||Election Petition 18 of 1979|
|Parties:||Ali v Gethinji|
|Date Delivered:||30 Jun 1980|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Harold Grant Platt, James Patrick Trainor, Alfred Henry Simpson|
|Citation:||Ali v Gethinji  eKLR|
|Advocates:||Messrs S Gautama & O Kapila for Petitioners Mr Shields & Mrs Onyango for 1st Respondent Messrs AR Kapila & S Kapila for the 2nd Respondent|
|Advocates:||Messrs S Gautama & O Kapila for Petitioners Mr Shields & Mrs Onyango for 1st Respondent Messrs AR Kapila & S Kapila for the 2nd Respondent|
Ali v Gethinji
High Court, at Nairobi June 30, 1980
Simpson, Platt & Trainor JJ
Election Petition No 18 of 1979
Election Petition – qualification for election - to National Assembly –proficiency in English and Kiswahili languages – section 34 of the Constitution – language tests under the Presidential and Parliamentary Elections Regulation – failure of election candidate to attend language board test – absence of certificate of proficiency issued by language board - effect of – whether such candidate qualified to be elected – whether Second Schedule to Parliamentary and Presidential Elections Regulations ultra vires the Constitution.
Criminal law – election offence – meaning of – election candidate procuring person to impersonate him in language test prescribed under Parliamentary and Presidential Elections Regulations – whether candidate’s act an election offence.
The two petitioners and the second respondent were among the rival candidates for the Garissa South Parliamentary Constituency preliminary election and the first respondent was the area’s District Commissioner and also the Returning Officer for the election, which was won by the second respondent. The petitioners filed a petition alleging that the election had not been conducted in accordance with the law and sought a declaration that it was null and void. In their main ground, they alleged that the second respondent was not proficient in the English and Swahili languages as envisaged under section 34 of the Constitution in a manner qualifying him for election and evidence was adduced in support of this ground. It was submitted that no certificate of competency had been issued to him by a Language Board set up under the Second Schedule to the Presidential and Parliamentary Elections Regulations and if any, then it had been issued by means of fraud or personation. Among the issues raised in the defence of the second appellant, who chose not to give evidence in rebuttal of the allegations made against him, was that the Second Schedule was ultra vires the Constitution.
1. The Second Schedule to the Presidential and Parliamentary Elections Regulations and Regulation 4 of those regulations were not ultra vires the Constitution as section 32 of the Constitution which provided for the election of members of the National Assembly in a manner prescribed by or under any law was wide enough to cover, for its purposes, the provision of a method of determining a candidate’s proficiency in the Kiswahili and English languages.
2. The language tests prescribed in the Second Schedule to the Presidential and Parliamentary Elections Regulations, where applicable, were part of the nomination process of a candidate to the National Assembly within section 34(d) of the Constitution.
3. The second respondent was not exempted from the language test and there was clear and unequivocal proof that he had not taken the test but had instead procured another person to take it in his place.
4. The second respondent was not a person qualified to be elected as a member of the National Assembly in that not being exempted from language tests in English and Kiswahili, he failed to present himself to be tested by a language board, that he was not in possession of a certificate of proficiency issued by such board and that he was not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of the National Assembly.
5. The second respondent was neither validly nominated nor validly elected as a Member of the National Assembly.
6. Qualification for election is a condition precedent for election and section 28 of the National Assembly and Presidential Elections Act (cap 7) was inapplicable in this case.
7. The act of the second respondent in procuring an unknown person to impersonate him did not constitute an election offence as defined in section 2 of the National Assembly and Presidential Elections Act (cap 7).
8. (Obiter) “We feel we cannot leave this petition without suggesting that provision be made to enable a presiding officer to record whether or not a complaint had been made during the day in any way affecting his conduct or the conduct of any of his officers and that the candidates and their agents be afforded an opportunity to sign such a record or to give the presiding officer a note of such complaints as they wish to have put on record. Such a provision might we think tend to reduce the number of complaints appearing in election petition[s]”.
1. Lichfield Case (1869) O’M & H 22 at p 28
2. Mohamed Noor Hussein v Mohamed Sheikh Ali Election Petition No 15 of 1970 (unreported)
3. Eliab Karanja v JM Kihanyo and Stephen Kiragu Election Petition No 37 of 1974 (unreported)
Hailsham, Lord et al. (Eds) Halsbury’s Laws of England, London: Butterworths 4th Edn Vol XV
1. Constitution of Kenya section 34, 34(d)
2. National Assembly and Presidential Elections Act (cap 7) sections 2, 28
3. Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) regulations 15(2), 17, 18, 18(1); 18(2); 29; First Schedule; Forms Nos 9, 10; Second Schedule
4. National Assembly Elections (Election Petition) Rules (cap 7 Sub Leg) rules 4, 5
Messrs S Gautama & O Kapila for Petitioners
Mr Shields & Mrs Onyango for 1st Respondent
Messrs AR Kapila & S Kapila for the 2nd Respondent
|History Advocates:||Both Parties Represented|
|Case Outcome:||Petition Granted.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION PETITION NO. 18 OF 1979
The two petitioners, the second respondent and two others were rival candidates for the Garissa South Parliamentary Constituency in the preliminary election held on November 8, 1979. The first respondent is the District Commissioner of Garissa District who was the Returning Officer. The election was won by the second respondent with 2679 votes, a majority of 641 over his nearest rival the first petitioner who received 2038 votes. The second petitioner secured 960 votes and the remaining two candidates 728 and 29 votes respectively.
The petitioners allege that the election was not conducted in accordance with the provisions of the National Assembly and Presidential Elections Act (cap 7) and of the regulations made thereunder nor in accordance with the principles laid down in such legislation or in any law relating to the election nor in accordance with the principles of natural justice resulting in the election being seriously affected to the detriment of the petitioners who pray that the election and the nomination and election of the second respondent be declared null and void.
The petition contains nine grounds of which two were abandoned by the petitioners without calling any evidence relating thereto. Mr Satish Gautama appeared with Mr Omesh Kapila for the petitioners, Mr Shields and Mrs Onyango for the 1st respondent and Mr A R Kapila and Mr S Kapila for the 2nd respondent.
We propose to consider first those paragraphs of the petition complaining or irregularities by election officers. Paragraph 12 reads as follows:
“That at all the polling stations your Petitioners’ agents were not allowed to witness the marking of the ballot papers on behalf of illiterate voters.”
In support of this allegation the petitioners called 11 witnesses as well as giving evidence themselves. It was not disputed that the majority of voters in the constituency were illiterate. The petitioners and most of their witnesses put the majority at 99% which was probably an exaggeration. There were seven polling stations. Evidence was called in respect of 6 of these, namely Hulugho, Ijara, Masalani, Hara, Ketiley and Mansabubu. No evidence was called in respect of Sangailu. The lay-out of the polling stations apparently varied slightly but all agents said they could hear the presiding officer or his deputy ask each illiterate voter for whom he wanted to vote, could hear the reply but could not see the official marking the ballot-paper. They were sitting from 15 to 25 feet from the polling booth and were not permitted to stand up or move to a position from which they could watch. At each of these polling stations complaints were made to the presiding officer. Not all of these witnesses impressed us with their reliability.
On the other hand few of the presiding officers, mostly comparatively senior Government Officers, who were called to testify on behalf of the 1st respondent were much more impressive. Of one matter we were satisfied. They were properly briefed by the Returning Officer and given written instructions with regard inter alia to the procedure with respect to illiterate voters as set out in regulation 29 of the Parliamentary and Presidential Elections Regulations.
We doubt if these provisions were strictly complied with in all cases. Consideration must however be given to the difficulties involved where almost every voter was an illiterate Somali, where no presiding officer understood Kisomali, where five agents were present and liable to obstruct the orderly process of voting in their desire to see whether or not the presiding officer or his deputy marked the ballot papers in accordance with the expressed wishes of the voters and some of these agents were themselves illiterate Somalis. Some control over their movements within the polling station would clearly be desirable. We reject on the one hand the picture of five frustrated agents sitting on a bench all day long under the threatening eye of the presiding officer, and on the other of five agents rising from their bench at the invitation of the presiding officer up to 1000 times in the course of the day to stand round the opening in the polling booth watching the presiding officer mark the ballot paper or hold it up for their inspection. The truth no doubt lies somewhere in between. There was no evidence that any ballot paper had been marked contrary to the wishes of the voter and we were satisfied that none of the presiding offers who appeared before us had any interest in the result of the election in Garissa South Constituency such as might tempt him to bring about any particular result. We think that there was substantial compliance with regulation 29 at each of the polling stations in the constituency. If however at any polling station there was inadequate compliance with regulation 29 such non-compliance did not affect the result of the election.
Paragraph 13 of the petition alleges that the petitioners’ agents
“were not allowed to accompany the ballot boxes when these were transferred from the polling station to the counting hall. They were not allowed to inspect the seals on them before they were opened at the counting hall and accordingly Your Petitioners were unable to verify the authenticity of the same.”
There is no obligation on the returning officer or any other election official to provide transport from polling stations to the counting hall. The candidates were warned before election day that they would not be carried in the Government vehicles which transported the ballot boxes. It was the responsibility of the candidates to provide their own transport to accompany the Government vehicles if they wished to keep the ballot boxes under observation. This is the petitioners either failed to do or provided transport which either broke down or was unable to maintain the pace set by the Government vehicles. It is immaterial that in previous elections or even if in the same election in a neighbouring constituency agents may have been permitted to travel in the same vehicle as the ballot boxes.
There is no evidence that the petitioners’ agents were not allowed to inspect the seals of the boxes before they were opened. If as appears to have been the case neither of the petitioners and none of their appointed agents was present at the counting hall at the time of opening the boxes they have no one to blame but themselves. There is no substance in this complaint.
Paragraph 15 of the petition reads as follows:
“That the presiding officer at Hulugho Polling Station failed to take all proper steps to ensure that the ballot boxes were transported from the polling station to the counting hall without any kind of interference with them and allowed the District Officer to take them to some unknown place in the bush en route to the counting hall and possibly interfere with them.”
This bold allegation of a possible offence or irregularity was supported by two witnesses who were agents at Hulugho Polling Station, one for the 1st petitioner, the other for the 2nd petitioner. They claimed to have left Hulugho about 2 am in the vehicle of a voter who was going to Garissa one of their objects apparently being to keep a watchful eye on the ballot boxes after having been refused leave to travel in the vehicle transporting them to the counting hall in Garissa about 170 miles away. At a place in the bush called Kunde about 45 miles from Hulugho they came across two stationary GK vehicles with their headlights on. The scene was further illuminated by the headlights of their own vehicle and they were able to see the DO of Hulugho District and the presiding officer emerging from the bush each carrying a ballot box. One of the witnesses alighted and attempted to approach these two gentlemen. He was however prevented from doing so by an askari. It is not clear in what way they are suspected of interfering with the boxes in the bush in the darkness of the night with other polling officers and askaris watching their inexplicable behaviour. There is no evidence that the seals were found to have been tampered with and no evidence of any discrepancies in the number of ballot papers or any alterations on the face of ballot papers.
We found this story entirely lacking in credibility and had no difficulty in accepting the denials of the DO and the presiding officer in question despite some discrepancies in their evidence no doubt due to the lapse of time since their exhausting and sleepless night. They obviously thought the allegation ludicrous. We saw no reason to think otherwise.
Paragraph 19 attacks the impartiality of the first respondent alleging that he
“did not act impartially during the campaign period and acted partially towards the Second Respondent when he refused to allow even one joint public meeting of the candidates knowing that the Second Respondent did not have sufficiently (sic) command of the Kiswahili language and that he would be embarrassed (sic) facing the electorate well versed in the said language.”
All the candidates were given a choice of joint meetings or separate meetings. All elected to have joint meetings. It was however necessary to apply for licences for such meetings. An application was made to the DC by the 2nd petitioner and another candidate, Duba Ali Amey (PW 5) on behalf of all 5 candidates on October 19 for a meeting on October 30.
A reply addressed to Ali Dubat Amey reached him on October 26. This asked him to specify the time and place desired. He went to see the DC on Saturday October 27 but he was not available. The witness returned on October 29 and was told that the DC would not see him. Other people however including the second respondent were going in. The 1st respondent on the other hand testified that Dubat Ali never turned up to give the necessary details. The 2nd petitioner said he went for the licence on October 30 but the DC would not see him. He admitted that he did not know if the DC had been told the nature of his business but it may be observed that although the 2nd petitioner and Dubat Ali thought that time was of no importance it was because police security had to be provided. If the time and place had not yet been agreed he could hardly have expected to be issued with a licence. If Dubat Ali was told that the DC would not see him – which we doubt - it could well have been a misunderstanding. Despite some indications that the 1st respondent tended to favour the 2nd respondent we cannot fell satisfied that this incident occurred as described by Dubat Ali. On the whole we find that the allegation in paragraph 19 of the petition has not been proved.
We come now to the allegations against the 2nd respondent. These are contained in paragraphs 11, 17 and 18 of the petition. The main one is in paragraph 11 so we shall deal first with the other two paragraphs which (we are inclined to agree with Mr Kapila in this respect) can be swept aside as detracting unnecessarily from the real issue.
In this paragraph it is alleged that the 2nd respondent “being the chief Kenya National Trading Corporation’s distributor in the area for essential commodities threatened the electors that he would “cut-off” the supply of such commodities unless they voted him into the Parliament, thus impeding or preventing the free exercise of the franchise of such electors.”
Only one witness testified to receiving such a threat. He was a retail shopkeeper at Hulugho and had been since 1971. The 2nd respondent has a shop there and on the recommendation of the District Commissioner (the 1st respondent) had been appointed by the Kenya National Trading Corporation to be its sole provision and produce distributor for Hulugho.
A KNTC official gave evidence that by December 1979, the provisions and produce available for distribution by their agents in Garissa District would be reduced to sugar and salt, various statutory boards having assumed responsibility for the distribution of other commodities.
The witness (PW 14) testified that in October 1979 the 2nd respondent asked for his support. He replied that he would vote for an educated person, not an illiterate. The 2nd respondent then threatened not to supply goods to anyone who would not support him. When he saw supplies arriving by lorry at the 2nd respondent’s shop in December 1979 he hastened there with Kshs 2,000 but the people in the shop refused to sell to him although they knew him as a customer. He did not complain to the 2nd respondent who he thought was in his house behind the shop at the time nor did he complain to his brother the chief because he felt he could not force the 2nd respondent to sell to him. No effort appears to have been made to obtain supplies elsewhere.
As a result he said he was forced to close his shop. When it was put to him that in 1979 the shop was licensed in the name of one Hassan Ali, he denied it. Later he admitted that in 1979 it was in Hassan Ali’s name but after he had closed the shop. He also said he had leased the shop to Hassan Ali in 1979 but in re-examination changed that to January, 1980. He was not a satisfactory witness and we found the evidence insufficient to support the allegation.
The allegation in paragraph 18 is
“that the Second Respondent is guilty of the offence of bribery in that he promised to procure the offices of chief, sub-chief, nominated councillor for several electors in order to induce such electors to give their vote to him.”
Two electors testified in support of this allegation. The first (PW 13) said he was a candidate in the civic elections and the 2nd respondent asked him not to stand but to support and campaign for him in the Parliamentary election in return for which he would see that he was appointed a nominated councillor or a sub-chief. The second (PW 15) said that the 2nd respondent approached him and said
“If you vote for me I shall give you the post of subchief at Sangailu.”
The post was given to someone else after the elections. Neither of these witnesses could we regard as sufficiently reliable to satisfy us as to the truth of these allegations even having regard to the failure of the 2nd respondent to give evidence. This ground also fails.
This brings us to the main ground of the petition. Para 11 reads as follows:
“That the Second Respondent was not qualified to be elected as a member of the National Assembly as is envisaged by section 34 of the Constitution of Kenya in that he was and is not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of the National Assembly.”
Mr Satish Gautama indicated in opening that the petitioners would prove that no certificate of competency had been issued to the 2nd respondent by a language board set up under the Second Schedule to the Parliamentary and Presidential Elections Regulations and if any such certificate had been issued it was obtained by means of fraud or personation.
When he sought to lead evidence on this ground Mr Shields and Mr Kapila objected on basis that the 2nd Respondent was in possession of a valid certificate of competency in English and Swahili languages granted to him by the Language Board and that the petitioners were not entitled to go behind the certificate which was final. They preferred it in evidence. They further submitted that as the petitioners had failed to aver material facts assailing the certificate they ought not now be heard to do so as that would be tantamount to amending the petition which, in the instant circumstances is precluded by the Act.
Mr Gautama objected strenuously to the admission of the certificate and submitted that it must first be proved by the 2nd respondent in the usual way and at the proper time before it might be considered.
We decided to admit evidence relating to paragraph 11 of the petition and considered it inappropriate at that stage – the certificate not having been proved – to rule on the finality or otherwise of the certificate or the validity of the Schedule which Mr Gautama contended was ultra vires the Constitution. Mr AR Kapila called no evidence and we heard further argument on these matters in closing addresses. It is convenient however to consider first the evidence in respect of this ground of the petition.
Several witnesses testified to their feelings of surprise on hearing that the 2nd respondent whom they knew to be illiterate, unable to speak English and having only a limited knowledge of Kiswahili, and who sought assistance to write his own letters was intending to stand for Parliament and had been nominated as a candidate. It appeared from the evidence that the proceedings of nomination did not encourage candidates to be present in order to object as provided in Regulations 17 and 18. Some witnesses repeated conversations which they had had with the 2nd Respondent in which they said he informed them that language would be no obstacle to his becoming a Member of Parliament. We were unimpressed by some of these witnesses but were left in no doubt that the 2nd Respondent’s knowledge of Kiswahili was limited and he had never been heard to speak in English. This was supported by the evidence of the 1st Respondent.
The second petitioner described how on September 24 and 25, 1979 the days on which the language boards were testing candidates in Nairobi, he kept the second Respondent, a Somali, under observation in the Hilltop Hotel, a hotel commonly used by Somalis when in Nairobi. Another candidate, Dubat Ali Amey (PW 5) also kept a strict check on the movements of the second Respondent on these two days and likewise on September 26. Strangely enough although they both posted themselves on the same verandah the second petitioner made no reference to PW 5. Despite all their efforts these two witnesses failed to cover the period from 6.40 pm on the 24th to 1.30 am on the 25th during which hours language board No 4 before which the second respondent was due to appear unexpectedly remained in session. Nevertheless we are satisfied that the 2nd respondent was seen in Hilltop Hotel throughout 24th and 25th September as related by these witnesses.
The 2nd respondent as we observed earlier was and still is the KNTC appointed representative in Hulugho. He was also a representative in Garissa. An official of KNTC produced the corporation’s file in the name of the 2nd respondent (Ex F). This includes a number of renewal applications made by the 2nd respondent and agreements purporting to be signed by him. The name in these documents is consistently Ibrahim Abas Noor although the name Abas is sometimes spelt “Abass” and Noor is sometimes spelt “Nur.” Where a document purports to bear the signature of the 2nd respondent that signature is in block capitals usually in the form “Ibrahim Abas Nur” or just “Ibrahim Abas”. In one instance the names run vertically over a revenue stamp. They are clearly not the signatures of a literate man.
When we turn to the letter dated September 3, 1979, containing pre-election data for the information of KANU which is required to be in the handwriting of the candidate we find cursive handwriting over a sophisticated signature with a distinctive flourish (see Ex L). The name of the writer appearing under the signature is Haji Abrahim Abass Noor.
Ex G consisting of photocopies of documents in the possession of the supervisor of elections which was put in by consent contains an application for a language test dated September 13, 1979 addressed to the Supervisor of Elections. It is unsigned and the name “MR HAJI ABRAHIM ABASS NOOR” appears in block capitals at the top of the application and in cursive handwriting under a space apparently left for a signature.
A statutory declaration was required for the purposes of nomination. This is included in Ex. 1. It purports to have been declared by Abrahim Abass Noor on October 16, 1979, before a District Magistrate at Garissa. The signature is similar to that on letter dated September 3, 1979 containing pre-election information.
Finally there is a receipt for a language certificate in the name of Mr Haji A Abass Noor which bears what appears to be the same sophisticated signature.
We are satisfied that the same person signed the pre-election data, the statutory declaration and the receipt. This was we think conceded by Mr AR Kapila. If the second respondent is capable of such a signature we are confident that he would not have signed applications to and agreements with KNTC in block capitals in the manner of an illiterate nor would he permit another person to do so on his behalf even preceded by the usual expression “for” or “pp” which we do not find before these signatures. We have no doubt that the “signatures” in block capitals were made by the 2nd respondent and that the signatures purporting to be those of Mr Haji Abrahim Abass Noor were made by some person other than the second respondent.
If the second respondent was illiterate and had no knowledge of English he would be unable to complete the pre-election date in his own handwriting as required by KANU nor would he be able to make a statutory declaration in English before a magistrate. It would moreover be necessary in order to avoid detection if a substitute was going to take the language test for that substitute to write and sign the letter containing pre-election information, to write the application for the language test and sign it if necessary, to make and sign the statutory declaration and to collect and sign for the certificate of proficiency.
Before presenting themselves for the language test candidates had to furnish to a clerk proof of identity. The records disclose that the candidate calling himself HAA Noor showed an identity card the number of which was noted. It is we think not unlikely that this number is the number appearing on the second respondent’s identity card since any substitute would prefer to remain anonymous; but we do not know. Mr Gautama having informed us that he was contacting the CID to discover the holder of the identity card bearing this number adduced no evidence in relation thereto. The fact that an identity card number was recorded we think advances the case neither of the petitioners nor of the 2nd respondent. We have given full consideration to the evidence of Dubat Ali Amey (PW 5) that the second respondent could not read the statutory declaration and that a Somali clerk had to be called in to translate it but we concluded as we listened to the evidence of this witness that he was unreliable. We do not accept his evidence.
There remains the evidence of Mr Obare, the chairman of the language board before which the second respondent should have appeared. Out of 62 candidates there were only 2 Somalis. These two stood out not only because they were the only Somalis but because of the contrast between them. One failed lamentably, the other named HAA Noor passed well, speaking both Kiswahili and English fluently. His age was in the late 20s or early 30s and he was short, slim and very lively. The witness was shown a photograph of the 2nd respondent who was not in court and indeed had not appeared for some days. The photograph he said did not resemble the person who appeared before the board. We were most impressed by the moderation, confidence and reliability of this witness.
The second respondent who could have told us whether or not he had taken the language test chose not to give evidence in rebuttal of any of the allegations made against him.
We are satisfied on the evidence before the court that the 2nd respondent was not exempted from the language test prescribed in the 2nd Schedule to the Parliamentary and Presidential Elections Regulations and we find, applying the standard of proof set out in paragraph 780 of Halsbury’s Laws of England (4th Edition) Vol 15 (citing the Lichfield Case (1869) O’M & H 22 at p 28), that there was clear and unequivocal proof that he did not take that language test and that he procured some person unknown to take the test in his place.
In his closing address Mr A R Kapila contended with his usual lucidity that we are bound by previous decisions of the High Court sitting as an election court and in particular the decisions in Election Petition No 15 of 1970. Mohamed Noor Hussein v Mohamed Sheikh Ali and Election Petition No 37 of 1974 – Eliab Karanja v J M Kihanyo and Stephen Kiragu.
A certificate issued under the 2nd Schedule to the Parliamentary and Presidential Elections Regulations he submitted was conclusive unless assailed in a petition as being tainted on one of the grounds stated in these judgments or some similar grounds and the court will presume that the certificate is issued to the second respondent unless that fact is assailed in a petition.
In Election Petition No 15 of 1970 the only ground of objection was the respondent’s lack of proficiency in the English language. The ground as framed was substantially similar to paragraph 11 of the present petition. A preliminary point was raised by counsel for the respondent that :-
“the respondent having a certificate of proficiency issued by the language Board under Rule 4 of the Second Schedule to the Parliamentary and Presidential Elections Regulations, 1969.. such certificate is conclusive and cannot be challenged in this or any other court.”
It will be observed that it was not disputed that the respondent had a certificate of proficiency issued by the language board and indeed that certificate was put in by consent. In their judgment (at p 4) the learned judges stated the limits of the dispute in the following words:-
“It is not disputed that … a certificate issued by the board would be evidence that the person examined is proficient in the English language within the meaning of section 34 of the Constitution.”
In the present case it was strongly disputed that the 2nd respondent had a certificate of competency, no certificate was put in by consent and it was contended that the person examined and to whom a certificate of competency was issued was not the 2nd respondent.
Again at page 5 the learned judges said:-
“In the case before us the petitioner has pleaded no facts attacking the competence of the Respondent in the English language generally, or the prima facie evidence of the certificate of competency with the result that all that is before us is a legally and validly issued certificate which remains unassailed.”
In the present case the certificate was never accepted as having been legally and validly issued to the 2nd respondent. The narrow point decided in Election Petition No 15 of 1970 was that the respondent having a certificate of proficiency legally and validly issued by a language Board on the pleadings in that case the court would not look behind that certificate.
In Election Petition No 37 of 1974 the court looked behind the certificate because the certificate before them had been challenged. They found that the certificate was incorrect and did not reflect the decision of the Board. They did not say the certificate had been assailed in the pleadings and indeed the relevant ground fell short of expressly assailing the correctness of the certificate. It was alleged that the second respondent having failed to pass the proficiency test subsequently “failed to satisfy the Appeal Board constituted for the English Language Proficiency test.”
Having regard to the foregoing it is unnecessary for us to express any views on the application of the principle of stare decisis to decisions of the High Court sitting as an election court.
Our view of the validity of paragraph 11 in the present case has already been set out briefly in our ruling on the preliminary objection. The petitioners say that the 2nd respondent was not qualified to be elected as a member of the National Assembly. That is a fact on which they rely. They then go on
“in that he was and is not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of that Assembly.”
That is the ground on which that fact is based. It is we think enough to give clear notice that the petitioners will endeavour to prove that for the reason given the 2nd respondent was not qualified to be elected. They have sufficiently complied with rule 4 of the National Assembly Elections (Election Petition) Rules. Since they did not accept that any certificate of proficiency was issued to the 2nd respondent there was no need to refer to such a certificate. That was a matter for the defence which the petitioners were not required to anticipate. If there had been provision in the National Assembly Elections (Election Petition) Rules for a reply to the petition the 2nd respondent might have pleaded possession of such a certificate.
The 2nd respondent could however have applied for particulars under rule 5 the objects of which are “to prevent surprise and unnecessary expense and to ensure a fair and effectual trial.” This he failed to do. We allowed Mr Gautama to lead evidence in rebutted of the anticipated defence and it was Mr Obare, the chairman of the appropriate language board who giving evidence for the petitioners produced a certificate which the Board had issued to one Haji A Abass Noor. We decided to consider whether this certificate had been properly issued as did the court in election petition No 37 of 1974.
With regard to the question whether or not the Second Schedule to the Parliamentary and Presidential Elections Regulations is ultra vires the Constitution we agree with respect with the conclusion of the court in Election Petition No 37 of 1974 that Regulation 4 of these Regulations under which the provisions contained in the Second Schedule are given effect is not ultra vires the Constitution. Section 32 of the Constitution providing as it does for the election of members of the National Assembly
“in such manner as, subject to this Constitution, may be prescribed by or under any law”
is sufficiently wide to cover the provision of a method of determining a candidate’s proficiency in the Kiswahili and English languages for the purposes of section 34 of the Constitution.
In addition, section 34(d) of the Constitution provides for the nomination machinery to be enacted. Inasmuch as all qualifications of a candidate must be considered at nomination, the power to legislate about the nomination process can include the test whereby the candidates may prove their qualifications in order to be nominated. The consequent provisions in the Second Schedule to the Regulations setting up the language boards are certainly not inconsistent with the spirit of the Constitution, and provide a useful test of language qualification. That is then carried forward into Form 10, the Statutory Declaration for Purpose of Nomination at a Preliminary Election, which, according to regulation 15(2) must be delivered to the returning officer with a nomination paper in Form 9. The returning officer will scrutinize both the nomination paper and Statutory Declaration (see Reg 18(1) & (2)) before deciding that the candidate tendering them to returning officer has been validly elected. It can thus be demonstrated that the language tests, where applicable, are part of the nomination process, within section 34(d) of the Constitution.
We find that the 2nd respondent was not a person qualified to be elected as a member of the National Assembly in that not being exempted from the language tests in English and Kiswahili he failed to present himself to be tested by a language board, that he is not accordingly in possession of a certificate of proficiency issued to him by any such board and that on the evidence before us he is not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of the National Assembly. Qualification for election is a condition precedent for election and section 28 of the National Assembly and Presidential Elections Act (cap 7) is inapplicable.
The act of the 2nd respondent in procuring a person unknown to impersonate him does not constitute an election offence as defined in section 2 of cap 7.
The petition is granted. We find that Mr Ibrahim Abass Noor was neither validly nominated nor validly elected as a member of the National Assembly and shall so certify to the Speaker.
No election offence has been proved to have been committed by any person in connection with the election.
We feel we cannot leave this petition without suggesting that provision be made to enable a presiding officer to record whether or not a complaint had been made during the day in any way affecting his conduct or the conduct of any of his officers and that the candidates or their agents be afforded an opportunity to sign such a record or to give to the presiding officer a note of such complaints as they wish to have put on record. Such a provision might we think tend to reduce the number of complaints appearing in election petition.
Dated and Delivered in Nairobi this 30th day of June 1980.
A.H.SIMPSON H.G.PLATT J.P.TRAINOR
JUDGE JUDGE JUDGE