REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 26 OF 2013

BETWEEN

JOHN HARUN MWAU.……................................................................................................................…........PETITIONER

AND

                  INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...................................................................1ST RESPONDENT

ATTORNEY GENERAL.........................................................................................................................2ND RESPONDENT

JUDGMENT

Introduction

1. At the time of filing this Petition on 23rd January 2013, the Petitioner, John Harun Mwau was the then Member of Parliament for Kilome Constituency and was an aspirant for Makueni County Senatorial seat. He has filed the Petition herein alleging inter alia a violation of fundamental rights and freedoms of candidates who are desirous to contest for presidential, parliamentary or county elections as independent candidates by the 1st Respondent, The Independent Electoral and Boundaries Commission (IEBC) on account of the nomination requirements it has set, which the Petitioner claim are unconstitutional and violate Articles 27 and 38 of the Constitution. He has also alleged that Section 22 and 24 of the Elections Act Act No. 24 of 2011 are unconstitutional. He has further also sought an interpretation of Articles 99, 137, 148 and 180 of the Constitution. He thus seeks the following 37 declarations;

(a)     An order of declaration where, in the same general election, or in any   elective election, All candidates, whether nominated by political parties or are independent, or    women, should be governed by the same rules, conditions and requirements.

(b)     An order of declaration whether an independent candidate  should be   subjected to different rules, conditions and   requirements than those of a candidate nominated by a  political party in the same general election.

(c)     An order of declaration as to whether the legal provisions,    rules and   conditions requiring a candidate for Parliament    and County Assembly    nominated by a political party to   to be supported by the Two     Thousand supporters for  Senate, One Thousand for the National Assembly and Five   Hundred for the County Assembly and requiring    that every   independent candidate to produce Two thousand supporters           for Senate, One thousand elections are discriminatory and  creates unnecessary inequality contrary to the clear       provisions of the Bill of Rights.

(d)     A declaration as to whether, in view of the conditions set out  by the Independent Electoral and Boundaries Commission,   that both Presidential Candidates, whether nominated by a    political party or is an independent candidate, their   candidature to be supported by Two thousand supporters   from a majority of the Counties irrespective of the candidate    being nominated by a political party or is an independent, and       whether this equality is the equality envisaged by the     Constitution and whether this equality was intended to    apply to   all other candidates for the elective positions of   the Senate, the  National Assembly as well as the count Assembly.

(e)     A declaration whether subjecting an independent candidate to support his or her candidature with Two Thousand supporters  for  Senate, One Thousand supporters for the National  Assembly, Five     Hundred for County      Assembly and to   establish a running office   while exempting the candidate   in the same  election nominated  by the political party from these conditions is a violation of    Article 27 of the    Constitution in terms of equality and freedom  for   discrimination.

(f)      A declaration whether the requirements that an independent    candidate be supported by the Two thousand supporters for    the  Senate, One Thousand supporters for the National   Assembly,    Five Hundred for the County Assembly and Two   Thousand for the Presidency, who are not members of a political party violates  free and fair elections and are  unreasonable conditions which   violate the independent    candidates rights under Articles   38(2) and    (3) of the     Constitution.

(g)     A declaration as to whether, in a general election, where each   political  party is participating and fielding and/or  nominating candidates individually to a that election, whether a member nominated by a political party can nominate a      person from another political party as a candidate to that election.

(h)     A declaration whether, where the Constitution requires a  person to  be nominated by a political party, that person can nominate  into   his party other persons from other parties  who are not members of his/her own political party as his     candidate, where there is no merger of political parties.

(I)      A declaration whether the setting of different fees in the same  election in consideration of gender and age is a violation of  Article 27 of the Constitution of Kenya.

(j)      A declaration as to whether, in the allocation of party list seats  under Article 90 of the Constitution by the political party   participating in  the   general elections, whether a political  party can nominate a person from another party from which  he is a member.

(k)     A declaration as to whether a candidate for Presidency under  Article 137 whose qualifications are those of a person qualified  to stand for election as a Member of Parliament, a  degree is a pre-     requisite requirement for nomination and participation in a election.

(l) A declaration whether a candidate for election as a governor  under Article 180 of the Constitution whose qualifications is  that of a    person eligible to be elected as a member of the   County Assembly, whether a degree is a pre- requisite   qualification for nomination or to participate in that election.

(m) A declaration as to whether the educational requirements  required   to be satisfied by a candidate under Article 99(1)    (b) is only that education that is post-secondary or a degree  and no other educational qualifications.

(n)     A declaration that the education requirements under Article 99  (1)(b) is not restrictive to only post secondary school education or a degree and whether educational requirements achieved through           other modes of     training and  study, i.e. military training, labour and industrial    training where there is a curriculum, exams, grading and     the issuance of certificates are sufficient educational  requirements for the purposes of Article 99 of the     Constitution.

(o)     A declaration that under Article 137(1) (b) of the Constitution, for a Presidential Candidate to qualify to be nominated, must have fulfilled all of the conditions and  requirements to stand for a Member of Parliament       provided for under Article 99 of the Constitution of Kenya.

(p)     A declaration that for a Presidential Candidate to qualify for  nomination he/she is not required to satisfy any other  educational, moral and ethical requirements apart from those required to satisfied by person standing for election as a Member of Parliament.

(q)     A determination whether the requirement for eligibility for  election as a Member of Parliament under Article 99(1)(b)  and  a person vying for the Presidency under Article 137(1)(b)    of the Constitution are meant to be one and the same.

(r)      A declaration that the requirement of at least One thousand supporters required to support a candidate for a Member of  the  National Assembly nomination and the Two Thousand   supporters required to support a       candidate for a Member of  the Senate nomination is a requirement that binds both   Political Party nominees and independent candidates and   that  any different requirement has no legal basis or any  rationale whatsoever.

(s)      A declaration that under Article 187 of the Constitution, for a   person to be eligible for election as a County Governor one  must be eligible  for election as a Member of he County  Assembly.

(t)      A declaration that under Articles 182 and 193 (1)(b) of the  Constitution, the educational, moral and ethical requirements of a person standing for a Member of the County Assembly are the  same as those of a person eligible to stand for a County Governor.

(u)     A determination whether under Article 193(1) (c) a person    standing     for the position of County Governor and a  candidate    vying for a Member of the   County Assembly are  both required to support their candidature by at least   Five   Hundred registered voters in any ward concerned.

(v)     A determination whether a candidate vying for election as a woman representative is required to support her nomination with   any number of registered voters, whether she is          nominated by a    political party or is an independent   candidate.

(w)    A declaration that the educational requirements expressed   under Article 99(1) (b) and 193 (1) (b) as “any  educational qualifications”  do not strictly mean only those attained in   a secondary school and           in a university       under the Kenyan  curriculum education but includes any other form of   education    both formal as well as informal.

(x)     A determination whether the requirement of the One thousand   voters required under Article 99(1) (c) (I) and he Two Thousand   supporters required under Article 99(1) (c)  (ii),    the Two Thousand voters required under Articles 137 (1) (b)  and the Five Hundred voters required under Article 193   (1) (c) intend that a  person nominated by a political party    can only be supported by  voters of his party and no other and an independent candidate is to be supported only by non-  party member voters, and whether any voter of a particular party is allowed to vote for a candidate from any other party.

(y)     A declaration that Regulation 16, 17 and 18 of the Elections (General   Regulations) Rules, 2012, are discriminatory in creating inequality  and   unfair administrative action between a candidate standing for President who is nominated by a Political Party and an independent candidate vying for president and are therefore unconstitutional.

(z)      A declaration that the requirements that an independent  candidate   must only be supported by persons who are not    members of any  party save for the Proposer and Seconder is  unconstitutional, illegal, and is unfair administrative action.

(aa)   A declaration Section 26 of the Elections Act allows a person  who   is contesting an election to participate in public fund   raisings or harambees to  contribute towards another candidate/political  party's fund raising efforts.

(bb)   A declaration that an independent candidate can directly or indirectly   participate in fund raisings/harambees for   candidates who are  members of political parties  and/or for other political parties.

(cc)    A declaration whether giving out of t-shirts, shirts, caps lessos,        and   other similar gifts by candidates contesting an election   would amount      to an election offence or not.

(dd) An order determining whether the nomination of an      independent candidate may be supported y voters who are      registered members of other political parties.

(ee)    A declaration as to whether the conditions requiring an         independent candidate not to have been a member of a    political party at least 3 months to the general election while a          member of a political party can within 3 months before the    election change from one member of a political party can        within 3 months before the election change from one party to another whether this condition specific to an   independent         candidate is unconstitutional.

(ff)     An order determining whether the election of a candidate      nominated by a    political party but whose nomination is not   supported, in case of election to the National Assembly by one   thousand voters in the constituency and in case of election to   the Senate by two thousand voters in the County shall be a   valid election.

(gg)   A declaration as to whether the requirement that an     independent candidate be supported only by persons who are   not members of a political party while there is no    registrar who keeps the register of persons who are not   members of the political parties, and political party membership is confidential to the political parties, whether such conditions are punitive, biased and unreasonable and   thus   unconstitutional.

(hh)   A declaration whether a candidate in a presidential election and/or for governor in nominating a candidate for deputy   president or deputy governor is under the authority, control or    direction of the     Political Party of which he is a member and        whether the person so nominated is liable to be under the      disciplinary process of the party        that nominated him or her.

(ii) A declaration whether a person nominated under Article 148 is   a person whose name will appear on the ballot paper as a candidate    at the general election.

(jj)     Costs of the Petition.

(kk) Any other or further relief that this Honourable Court considers appropriate and just to grant.

2. I have deliberately reproduced all the 37 prayers as above, for reasons to be seen later in this judgment.

Case for Petitioner

3. The Petitioner in his Petition and submissions has alleged that the election statutes, guidelines and the regulations issued by IEBC limit the inalienable right of the people of Kenya to determine the form of governance they impose. He claimed that the IEBC has interpreted the provisions of the Constitution and the Elections Act as requiring different candidates to meet different criterion for nomination and the election to the respective political offices in Kenya. He alleged that Section 24(1) of the Elections Act No. 24 of 2011 which sets the qualifications for election as an a Member of Parliament (MP) is unconstitutional and violates Article 27 which has entrenched the principle of equality as well as Article 38 which guarantees free, fair and regular elections. He argued that the Constitution envisages a situation where all Kenyans are able to freely vote for leaders of their choice and as such Section 24 is unconstitutional as the Constitution does not anticipate limitation or inhibition to the enjoyment of the rights under Article 27 and 38.

4. He further contended that the concept of an independent candidate was introduced to mitigate the injustices occasioned by the system of political parties and that independent candidates are of no lesser status to the candidates sponsored by political parties; that candidates are equal before the law and that Article 99 of the Constitution does not intend to create a differentiation between candidates in any election.

5. He further claimed that IEBC vide its regulations made under the Elections Act 2011, particularly Regulation 16 which has introduced fresh and unconstitutional conditions that a candidate vying for the office of president who is nominated by a political party must be supported by officials of the political party. He also takes issue with Regulation 18 which he claims makes the nomination of independent candidates an odious process since it requires them to deliver to the IEBC a list of at least 2000 voters registered in a majority of the counties in A4 sheets of papers and in electronic form, serially numbered, to be accompanied by copies of the voters cards of the persons in the list.

6. He also contended that by requiring independent candidates to seek support of their nomination from voters who are not members of any political parties, the law inhibits voters from making free political choices of the leaders they would want and at the same time, the rights of the independent candidates are threatened with violation by prohibiting voters willing to support their candidature if they are members of another political party. He further claimed that this requirement is absurd given that the IEBC and the Registrar of Political Parties have not compiled a list of registered voters who are not members of any political party. And also that there are certain counties and even wards in Kenya where there is no electricity leave alone photocopy machines and thus the requirement of submission of documents in electronic form ignores the great number of Kenyans who are illiterate. He thus contended that these limitations do not satisfy the criteria or threshold for permissible limitations to human rights and freedoms as envisaged by Article 24 of the Constitution. It was later his submission that statutory requirements that elevate political preferences over human rights and fundamental freedoms are unconstitutional. He relied on the case of Figuero v AG of Quebec (2004) 2 LRC 443, where the Supreme Court of Canada struck down as unconstitutional, provisions of the Canadian Elections Act that required political parties to satisfy a threshold of 50 candidates in order to attain and retain registration of party status. He thus requested the court to declare Section 24 of the Elections Act and Regulation 16, 18 and 19 as unconstitutional for imposing limitations which are not justifiable in an open and democratic society.

7. With regard to coalition and mergers, the Petitioner contends that the constitution does not make provisions for political mergers or political coalition. That these two concepts are creatures of the Political Parties Act No. 11 of 2011 as can be seen from the provisions of Sections 10 and 11 of the Act. He contends that the Constitution does not imply or even envisage a situation where a member of one political party may promote or campaign for the values of another political party. He thus claimed that a candidate nominated by one political party, cannot inturn nominate a running mate or a contestant who belongs to another party for purposes of conducting elections and also that two or more political parties cannot field and campaign for one candidate for a political seat as it would have the effect of having members of different parties vying on a single ticket which is contrary to Articles 99 and 137 of the Constitution. He went on to claim that when political parties get into coalitions and campaign for one candidate, it is in effect persons who are members of different parties campaigning for or promoting the ideologies of another political party in total violation of the letter and spirit of the Constitution and the Political Parties Act. That therefore Section 10 of the Political Parties Act is unconstitutional and should be declared.

8. It was also the Petitioner's case that the ballot paper as designed by IEBC does not require the names and photos of Deputy President and Deputy Governor as they are not persons against whom a vote shall be cast. He claimed that there is no law that requires their names to be on the ballot papers since a casual reading of Articles 148 and 180 of the Constitution would reveal that the Deputy President and the Deputy Governor are not contestants in an election and they are nominated or appointed by the vying person and are elected automatically by virtue of the person nominating them being elected.

9. On the issue of educational qualifications, the Petitioner relied on the case of Johnson Muthama v Minister for Justice and Constitutional Affairs and Another (2012) e KLR where it was held that any educational requirement prescribed by Parliament did not necessarily mean that the same should be a university degree but that a post secondary qualifications is deemed as sufficient.  He submitted in addition that 'any educational' requirement should in fact not mean post secondary educational but should well mean post primary qualification because there are instances where persons have acquired post primary education qualifications and later graduated thus contended that if the term 'any education qualification' is to be interpreted strictly it may mean that many good practical and capable result oriented leaders would be left out of leadership positions.  He thus urged the Court to find that any academic qualification does not mean post secondary education only but his own interpretation as articulated above.

10. In the end, he urged the first point that under Articles 99 and 137 of the Constitution, the requirements for nomination as a candidate for President and Member of Parliament are the same in so far as educational, moral and ethical requirements for the MP and President. He also contends that similarly under Article 99(1) (b)n and 193(1)(b) the educational, moral and ethic qualification for the President, governor, members of parliament and members of county assembly are the same.  He pleaded therefore that for the above reasons, his prayers should be granted.

1st Respondent case

11. The 1st Respondent, IEBC did not file any response to the Petition. However, Mr. Gumbo presented its case in submissions He started by stating that mergers and coalitions were not matters raised in the pleadings and were therefore extraneous to the Petition.

12. With regard to Section 33 of the Elections Act, he submitted that it was a mirror image of Article 85(a) of the Constitution and is therefore not subject to challenge as being unconstitutional with regard to Sections 23 and 24 of the Elections Act on education qualifications, he claimed that they were suspended under section 22 (2) (a) of the Elections Act and so the issue is moot.

13. On Regulation 28 of the Election Regulations, he claimed that there is no requirement that the proposer must be a member of a political party, but a registered voter from whichever party so the issue raised by the Petitioner is again moot.

14. On issues around the interpretation Section 26, he submitted that the issue had been settled in Evans Misati James v IEBC & 2 Others Petition No. 327 of 2012 by Majanja J where he declared Section 26 to be a reasonable limitation and this Court should be persuaded by that reasoning.  The 1st Respondent's position was therefore that the Petition is misguided and should be dismissed.

2nd Respondent case

15. The 2nd Respondent, the Attorney General opposed the Petition and filed the following grounds of opposition dated 27th February 2013;

“(a)   That the Petitioner is misapplying and misinterpreting Sections  22(2) and 26 of the Elections Act No.24 of 2011   and  Regulations 16, 17 and 18 of the Elections (General)  Regulations, 2012 which were enacted to give effect to Article   27  of the Constitution.

(b)     That the differential treatment accorded to the various groups  under the Elections Act and the regulations therein are   necessary    to give effect to Article 27(6), (7) and (8) of the     constitution and that      Sections 22(2) and 26 of the Elections   Act No.24 of 2011 and Regulations 16, 17 and 18 of the  Elections (General)  Regulations, 2012 cannot therefore be said to be unconstitutional.

(c)     That Section 33 of the Elections Act No.24 of 2011 and Article   85 of the Constitution are in pari materia and must be read   together because the Elections Act was enacted to   operationalize the provisions of the Constitution.

(d)     That the petition lacks clarity, precision and does not disclose  any  constitutional provisions that have been violated and/or threatened with a violation and as such the Petition has no  basis and ought to be    dismissed with costs.”

16. In his submissions, the 2nd Respondent submitted that Section 22(2) and 26 of the Elections Act and Regulations 16, 17 and 18 of the Elections (General Regulations) are neither discriminative nor do they offend the Constitution in any way. He claims that these sections merely state that a person may be nominated as a candidate for election to the office of president, deputy president, county governor and deputy county governor if the said person is a holder of a degree from a university recognised in Kenya.  He contended that Article 27(6) has given the State power to enact other necessary legislation to give effect and/or operationalize the provisions of the Constitution and so the Elections Act was enacted to govern issues inter alia relating to nomination of candidates to various elective offices. He further submitted that Article 27 is clear on the fact that although the Constitution though provides for equality and freedom from discrimination, it also gives provisions to the effect that in order to realize the rights guaranteed under the Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantages suffered by individuals or groups because of past discrimination.

17. It was his submission that a person claiming a violation of Article 27 must first establish that because of a distinction drawn between the claimant and others, the claimant has been denied equal protection or benefit of the law and that the claimant must also show that the denial constitutes discrimination Further that the mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause That to attract the operation of the inhibition clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the legislature had in mind when enacting the statutory provision.  It was thus his position that in setting the fees payable by the various aspirants on the basis of gender and age, the 1st Respondent was simply effecting the constitutional provisions in Article 27 and that this Article should be read in its totality when interpreting and advancing the rights enshrined therein. In any event, he submitted that Article 27(6) and (8) use the word “shall” which means that certain rights have been compromised in order to compensate certain disadvantaged groups such as women and the youth who may be disadvantaged by past discriminatory laws or practices in the socio-economic, political and educational fields. He relied on the Namibian case of Michael Andras Mula v The President of the Republic of Namibia, Cae No, 98 of 1998 and also the case of Federation of Women Lawyers (FIDA-K) v. Hon. Attorney General & 7 Others HCPT No. 102 of 2011 to support this proposition.

18. With regard to Regulations 16, 17 and 18 of the Elections (General) Regulations, he claimed that they are concerned with the nominations of presidential candidates, and they were enacted by Parliament to give effect to the provisions of the Constitution and no more.  He submitted that section 33 of the Elections Act which provides that in order for further one to qualify for nomination as an independent candidate they must not have been members of any political party for at least 3 months preceding the date of the election, is not discriminative as it is a replica of Article 85 of the Constitution and as such cannot be said to be discriminative or unconstitutional.

19. It was the 2nd Respondent's further contention that the various statutes governing electoral matters as well as  the Constitution are very clear on the minimum qualifications for candidates seeking various offices and for the above reasons urged me to dismiss the Petition as it is misconceived.

Determination

20. As it can be seen from elsewhere above in this Judgment, the Petitioner has sought 37 prayers in the Petition without laying any firm foundation for them in the body of the Petition and in submissions, nor each one of them was fully addressed.  In the end, it took me a great deal of time to sieve the prayers sought against the substance of the Petition as I saw it for clarity purposes. It is also clear that in his written and oral submissions, the Petitioner limited the issues for determination to three major ones.  In my view, therefore, the final issues for determination are as follows;

(i) Whether Section 24(1) of the Elections Act and Regulations 16, 18 and 19  are unconstitutional.

(ii)  What are the educational qualifications for nomination as Member Parliament.

(iii) Whether section 10 and 11 of the Political Parties Act on mergers and coalition are unconstitutional.

Whether Section 24(1) of the Elections Act is Unconstitutional for being in violation of Article 27 and 38 of the Constitution.

21. The Petitioner contends that Article 27 entrenches the principle of equality and Article 38 guarantees free, fair and regular elections. Thus the Constitution therefore envisages a situation where citizens are enabled to vote freely for leaders of their choice and thus Section 24(1) of the Elections Act is unconstitutional since it limits and inhibits  the enjoyment of the rights under Articles 27 and 38. 

22. Section 24(1) of the Elections Act provides as follows;

         “(1)   Unless disqualified under subsection (2), a person  qualifies for  nomination as a member of Parliament if   the person-

         (a)     is registered as a voter;

(b)     satisfies any educational, moral and ethical   requirements prescribed by the Constitution and this  Act; and

(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.

On the other hand, Section 27 and 38 of the Constitution provides;

“(1)   Every person is equal before the law and has the right to

         equal protection and equal benefit of the law.

(2)     Equality includes the full and equal enjoyment of all rights   and fundamental freedoms.

(3)     Women and men have the right to equal treatment, including    the   right to equal opportunities in political, economic, cultural and  social spheres.

(4)     The State shall not discriminate directly or indirectly against

any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5)     A person shall not discriminate directly or indirectly against

another person on any of the grounds specified or contemplated in

clause (4).

(6)     To give full effect to the realisation of the rights guaranteed

under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

(7)     Any measure taken under clause (6) shall adequately provide

for any benefits to be on the basis of genuine need.

(8)     In addition to the measures contemplated in clause (6), the

State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

“38(1)   Every citizen is free to make political choices, which

includes the right—

(a)     to form, or participate in forming, a political party;

(b)     to participate in the activities of, or recruit members for, a political party; or

(c)     to campaign for a political party or cause.

(2)     Every citizen has the right to free, fair and regular elections

based on universal suffrage and the free expression of the will of the electors for—

(a)     any elective public body or office established under this  Constitution; or

(b)     any office of any political party of which the citizen is a  member.

(3) Every adult citizen has the right, without unreasonable    restrictions—

(a)     to be registered as a voter;

(b)     to vote by secret ballot in any election or referendum; and (c)    to be a candidate for public office, or office within a political

party of which the citizen is a member and, if elected, to

hold office.”

23. A casual reading of the above provisions would show that there is no doubt that the principle of equality is well entrenched in the Constitution. It has also been enunciated in the preamble to the Constitution as well as in Article 10 of the Constitution as one of the national values and principles of governance.  It is thus crystal clear that every person is equal before the law and has the right to equal protection and benefit of the law. The issue however is whether Section 24 of the Elections Act has violated the rights of any of the aspirants to political office whether independent or nominated by a political party.

24. The starting point in answer to the question would be Article 81 of the Constitution which has established the general principles of an electoral system. This Article states thus;

“The electoral system shall comply with the following General election principles-

(a)     freedom of citizens to exercise their political rights under Article 38;

(b)     not more than two-thirds of the members of elective public bodies shall be of the same gender;

(c)     fair representation of persons with disabilities;

(d) universal suffrage based on the aspiration for fair representation and equality of vote; and

(e)     free and fair elections, which are-

(i)      by secret ballot;

(ii)     free from violence, intimidation, improper influence or corruption;

(iii)    conducted by an independent body;

(iv)    transparent; and

(v)     administered in an impartial, neutral, efficient, accurate

and accountable manner”.

It is obvious from the above that one of the tenets of the Kenyan electoral system is the freedom of the citizens to exercise their political rights as provided for by Article 38 based on universal suffrage on the aspiration for fair representation and equality to vote. The argument that Section 24(1) of the Elections Act is unconstitutional for limiting or inhibiting the rights of the citizens to choose their leaders cannot therefore be true. I say so because again a casual reading of Article 82(1) of the Constitution would show that the same Constitution has mandated parliament with powers to enact legislation on elections. Sub-Article (1)(b) has empowered parliament to specifically enact legislation to provide for nomination of candidates. Pursuant to this Article, Parliament enacted the Elections Act No. 11 of 2011 and the preamble to that Act states that; it is; 'An Act of Parliament to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, County Governor and County Assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes'.

25. Looking at section 24(1) of the Elections Act, it in fact is a replica of Article 99(1) of the Constitution and that Article as well as Section 24(1) itself have set out the qualifications for persons desirous of contesting for election as Member of Parliament.  I am of the view therefore that  Section 24(1) can neither be challenged nor can it be said to be unconstitutional because Article 2(3) of the Constitution has barred this Court or anyone else  for that matter from challenging the validity or legality of the Constitution. The Constitution articulates the collective will, aspiration and values of its people. It is the supreme law and lays the framework for a democratic society. The people of Kenya went to the referendum in August 2010 and passed the Constitution with overwhelming majority and they have therein stated and set the qualifications of persons they desired to be their representatives to the National Assembly. Those qualifications having been so well anchored in the Constitution the same cannot now be challenged as being unconstitutional, or being in violation of another article of the same Constitution (Articles 27 and 38) as argued by the Petitioner. I know no law or power that may allow this Court to declare a provision anchored in the Constitution to be unconstitutional when weighed against another constitutional provision. To do so would be absurd, dramatic and chaotic. In any event, there is no single provision that has more power or authority over another. It is also a well established principle of constitutional interpretation that each constitutional provision sustains the other and none is greater than the other. This is what has now been popularly known as the harmonization principle and in that regard, in  See Tinyefuza v Attorney General, Constitutional Appeal No. 1 of 1997  the Court stated as follows;

'The entire constitution has to be read as an intergrated whole and no one particular provision destroying the other but each each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountancy of the written constitution'.

I will say no more on this aspect of the Petition.

26. But even then that is not the end of the matter because the Petitioner has claimed that limitations to the Political rights under Article 38 have been imposed by the IEBC vide its Regulations made under the Elections Act 2011 particularly regulations 16, 18 and 19.  He contends that Regulation 16 introduces fresh conditions among them the requirement that a candidate should be supported by officials of his  political party of choice while an independent candidate under Regulation 18 is supposed to deliver to the electoral commission a list of at least 2000 registered voters. He thus argued that the requirement for independent candidates to seek support from voters who are not members of any political party inhibits voters from making free political choices of the leaders they want and violates the rights of independent candidates since it prohibits them from supporting their candidature if they are members of another political party. He claimed that this requirement would be hard to implement as IEBC and the Registrar of Political Parties have not compiled a list of registered voters who are not members of any political party. He thus urged the court to declare Regulations 16, 18 and 19 as unconstitutional. I will examine regulation 16, 17 and 18 together for good order as they all deal with the issue of manner of nomination although I would have chosen the easier path of dismissing his claims once I found Section 24 to be Constitution.

27. In any event, a look at Regulations 16, 17 and 18 would show that Regulation 16 deals with nomination of political party presidential candidates while Regulation 17 deals with nomination of independent presidential candidates. These two regulations provides as follows;

Regulation 16; “(1)A political party candidate at a presidential election shall be nominated by a political party by and delivery to the commission on that day fixed for the nomination of candidates at that election, an application for nomination in Form 12 set out in the Schedule.

(2)     An application for this nomination under this regulation shall be-

(a)     signed by the candidate, and the authorised official of the party; and

(b)     delivered to the Commission personally by the candidate or by an official of the party.”

Regulation 17; “(1)  An independent candidate at a presidential election shall deliver to the Commission on the day fixed for the nomination of candidates at that election, an application for nomination in Form 12 set out in the Schedule.

(2)     An application for nomination under this regulation shall-

(a)     signed by the candidate, and by two persons who have nominated the candidate in accordance with section 29(2) of the Act;

(b)delivered to the Commission personally by the candidate or by any of the two persons referred to in paragraph (a).”

Regulation 18 on the other hand  deals with supporters of the nomination of a presidential candidate and the requisite statutory declaration. This Regulation provides that;

“(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     and voters' 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 sheet 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 voters cards of the voters referred to in subregulation(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.”

28. Clearly, I do not see how these regulations have imposed arduos requirements on the candidates. In my view, they do not also impose any discriminatory or unequal requirements on presidential candidates nominated by political parties or even independent candidates. These regulations were enacted by IEBC pursuant to powers conferred on it by section 109 of Elections Act which empowers the Commission to make regulations for the better carrying out of the purposes and provisions of the Act. Article 84 of the Constitution has mandated all persons and political parties to comply with inter-alia the code of  conduct prescribed by the IEBC and it therefore follows that all candidates and political parties must comply with the regulations and consequently the code of conduct made by the IEBC and I have already found that Regulations 16, 17 and 18 are not unconstitutional.

29. In addition, it must be remembered that the Elections Act was enacted by Parliament pursuant to the provisions of Article 81(1)(b) of the Constitution and the requirements for independent candidates have been anchored in Section 33 of the Elections Act which provides thus;

“A person qualifies to be nominated as an independent candidate for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person-

a)  has not been a member of any political party for at least three months preceding the date of the election;

b)  has submitted to the Commission on the day appointed by the Commission as the nomination day, a duly filed nomination paper as the Commission may prescribe.

c)  has submitted the symbol that the person intends to use during the election; and

d)  is selected in the manner provided for in the Constitution and by this Act”

30. Besides the above, Article 85 of the Constitution has barred independent candidates from being members of political parties for good reason.  This Article provides as follows;

“Any person is eligible to stand as an independent candidate Eligibility to stand

for election if the person––

(a) is not a member of a registered political party and has not

been a member for at least three months immediately before

the date of the election; and

(b) satisfies the requirements of––

(i)Article 99 (1) (c) (i) or (ii), in the case of a candidate

for election to the National Assembly or the Senate,

respectively; or

(ii)Article 193 (1) (c) (ii), in the case of a candidate for

election to a county assembly.”

       All these provisions, in my view are fair and were enacted for the  orderly conduct of elections.  The choice give to candidates is also  uninhibited and is certainly not discriminatory.

31. Turning to Regulation 19, This regulation deals with nomination fees of presidential candidates. It has set different fees for a youth, woman and a person with disability. It reads as follows;

“An application for nomination for candidature at a presidential election shall be accompanied by a non-refundable nomination fee, in banker's draft of-

(a)     one hundred thousand shillings for a candidate who is a      youth, a woman or a person with disability; and

(b)    two hundred thousand shillings for any other candidate.”

The issue as I understand it is whether IEBC by setting different fees for different candidates has violated the principle of equality as established by Article 27 of the Constitution and also whether that regulation is discriminatory.

32. To answer that question, I will address my mind to the provisions of Article 27(6) of the Constitution. This Article states;

“To give full effect to the realisation of the rights guaranteed

under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.”

On a casual reading of this provision it is clear that, and I must agree with the 2nd Respondent, one that regulation 19 is neither discriminatory nor does it offend Article 27 in any way. I say so because the Constitution, even though it has clearly provided  for equality of freedom and freedom from discrimination, has also has the provisions of Article 27(6) which have given the state or any other state organ powers to take legislative and other measures including affirmative action programs and policies designed to redress any disadvantages suffered by individuals or groups because of past discrimination. One example of such affirmative action is the requirement that youth, women and persons with disability should pay less in nomination fees which in my view is reasonable due to obtaining socio-economic and political factors. The South African Constitutional Court in the case of Jacques Charl Hoffmann –v-South African Airways, CCT 17 of 2000, stated that;

“This court has previously dealt with challenges to statutory provisions and government conduct alleged to infringe the right to equality. Its approach to such matters involves three basic enquiries: first, whether the provision under attack makes a differentiation that bears a rational connection to a legitimate government purpose. If the differentiation bears no such rational connection, there is a violation of Section 9(1). If it bears such a rational connection, the second enquiry arises. That enquiry is whether the differentiation amounts to unfair discrimination. If the differentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation of Section 9(3). If the discrimination is found to be unfair, this will trigger the third enquiry, namely, whether it can be justified under the limitations provision. Whether the third stage, however, arises will further be dependent on whether the measure complained of is contained in a law of general application.”

I am duly guided and with respect to the issue above, I shall take the same approach.

33. In that regard, am alive to the fact that the Petitioner is a seasoned politician and has not demonstrated how he is aggrieved by the requirements of Regulation 19 that youth, women and persons with disability should pay less nomination fees.  He has equally failed to establish how the payment of different fees may have compromised or curtailed his participation in the election as a candidate. It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others, the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of Article 27 of the Constitution. It is my view that the regulation is justified and reasonable. I am tehrefore in agreement with the sentiments of Khanna J in in the case of State of Kesata & Anor v N. M. Thomas  & Others 1976 AIR 490, 1976 SCR(17906 where he stated as follows;

“The principle of equality does not mean that every Law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The Legislature understands and appreciates the need of its own people, that its Laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.  The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality.  Equality means parity of treatment under parity of conditions.  Equality does not connote absolute equality.  A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory.  The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.”

I could not have put it better and I adopt these words as if they were mine and it answers the Petitioner's complaint as articulated elsewhere above.

Educational requirements

34. On the issue of educational qualifications, the Petitioner contended that academic qualification required of a candidate under Section 22 of the Election Act does not mean post secondary education. Article 99 (1)(b) sets out the education qualifications of a member of Parliament; it states thus;

“(1)Unless disqualified under clause (2), a person is eligible for election as a member of parliament if the person-

(a) is a registered voter;

(b) satisfies any educational, moral and ethical requirements prescribed by this constitution or by Act of Parliament.”

Notably, a similar provision has been made under Article 193(1) of the Constitution with regard to the qualifications for a person contesting for the office of the President.

Section 22(1)(b) of the Elections Act has then prescribed the education qualification as follows; 'holds a Post-Secondary school qualification recognised in Kenya'.

Mumbi Ngugi, J. in Johnson Muthama v Minister for Justice and Constitutional Affairs & Another (supra) while considering the issue of educational qualifications for Members of Parliament stated as follows;

“By excluding everyone who does not have a ‘post secondary qualification,’ a term which is not defined in the Act, from running for any elective office established under the Constitution, the Act discriminates directly on the basis of status and social origin, for almost invariably, and as noted from the analysis of the socio-economic context above, it is the poor in society, those 18 million Kenyans living in poverty, who will not get an opportunity to acquire an education, let alone a post secondary education....The provision also violates the Constitution and international law by limiting the exercise of the rights set out under Article 38 (2)(c) to ‘‘be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to 'hold office.’At paragraph 15 of General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25):.07/12/1996.CCPR/C/21/Rev.1/Add.7,General Comment No. 25. (General Comments) which is a comment on Article 25 of the International Covenant on Civil and Political Rights, it is observed as follows:‘The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation.” The next issue to consider is whether the provision makes a differentiation that bears a rational connection to a legitimate purpose, and whether it can be justified under the limitations provision of the Constitution. My view with regard to Section 22(1) (b) is that it fails on both accounts. Looked at from the functions that members of the legislature perform in representing their constituency, and the harm and concern that the citizenry has had with regard to poor governance, the differentia does not meet the test set out above. Further, it is common knowledge that the problem that bedevils elections in Kenya and which elections law needed to address as the bane of the citizenry has been, not uneducated elected leaders, but corrupt and unethical leaders. By requiring post secondary educational qualifications and omitting to make more explicit provisions with regard to moral and ethical qualifications required under the Constitution, the legislature missed what has for long been the real case of the problem in Kenya’s governance. I agree with the petitioners that the harm that the legislature seeks to address in enacting legislation as required under the Constitution is lack of leaders with integrity. That is why the Constitution requires the legislature to enact legislation that sets moral, ethical and educational qualifications. A requirement for a post secondary qualification does not address the real concern of the citizenry; indeed it violates the provisions of the Constitution by excluding many who may not, through no fault of their own, have been able to achieve post secondary education. The provisions of Section 22(1)(b) also fail the test of constitutionality as they do not accord with the national values and principles, and usurp the sovereign powers of the people of Kenya. They cannot also meet the provisions of Article 24 as being ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

35. It is against the background of Mumbi J's. judgment that the Petitioner now contends that even the requirement to hold post-secondary education is unreasonable and that any academic qualification would be sufficient. I am unable to accept his argument for two treasons. First, the nature of the duties and functions performed by the National Assembly and the Senate in my view require higher educational qualifications, skills and wide exposure which is gained through higher education. It is important that a representative to either of the House understands the proceedings, nature of business being carried out and most important be in a position to make his/her contribution to the various and many at times complex motions and debates in Parliament. It must also be understood that the elected persons represents the people who appointed them and they should therefore be able to execute that duty without any difficulties.

36. Secondly, the sovereign power belongs to the people of Kenya and that power ought to be exercised in accordance with the Constitution. The people may inter alia exercise their sovereign power through their democratically elected representatives. It is thus crystal clear that the ultimate will of the people of Kenya is to be found in the Constitution. At Article 99(2)(b), the people of Kenya have envisaged, in passing the Constitution, that a person would not be eligible to run for certain offices if they did not meet the criteria set by Parliament. While the Constitution does not set an educational criteria, it imposes a duty on Parliament to enact legislation setting that criteria, and this is what has now been done in the Elections Act. In my view, the provisions of Section 22 of the Election Act were enacted by Parliament pursuant to the provisions of Article 99(1)(b) of the Constitution. This Article envisages a situation where Parliament prescribes an educational threshold for those who seek to be elected as Members of Parliament. In its wisdom, Parliament prescribed the provision of a post secondary qualification. I do not think this qualification is unreasonable or unattainable by all in Kenya. I am alive to the fact that each year, the tax payer spends billions of shillings in both free primary and secondary education. Every Kenyan from all walks of life there has in my view opportunity to gain this qualification. I therefore find the argument that any other academic qualification would be sufficient to even include Primary education cannot hold water. In any event, it does not reflect the ultimate will of the people of Kenya as can be seen from the requirements of Article 99(1)(b).  I therefore find that post-secondary education as enshrined under Section 22 (1) (b) of the Elections Act is attainable, sufficient and constitutional.  To hold otherwise would be absurd 50 years after independence.

Name and photos of deputies on the ballot papers.

37. I now turn to consider the issue of the names and photos of deputies on the ballot papers. It was the Petitioner's case that the ballot paper does not require the names and photos of Deputy President and Deputy Governor to be printed on the ballot paper as they are not persons against whom a vote can be cast for as they are not contestants and are nominated and/or appointed by the contestants in an election, thus they are elected automatically by virtue of the person nominating them being elected. Article 148 of the Constitution provides for the election of deputy president. It states as follows;

         “(1) Each candidate in a presidential election shall nominate   a person who is qualified for nomination for election  as President, as a candidate for Deputy President.

         (2)  For the purposes of clause (1), there shall be no separate

         nomination process for the Deputy President and Article 137  (1) (d) shall not apply to a candidate for Deputy President.

         (3) The Independent Electoral and Boundaries Commission shall

              declare the candidate nominated by the person who is elected as  the President to be elected as the Deputy President.

         (4) The swearing in of the Deputy President-elect shall be before

             the Chief Justice or, in the absence of the Chief Justice, the Deputy

            Chief Justice and in public.

         (5) The Deputy President-elect assumes office by taking and

               subscribing—

             (a) the oath or affirmation of allegiance; and

             (b) the oath or affirmation for the execution of the functions

                  of office, as prescribed in the Third Schedule.

          (6)the term of office of the Deputy President shall run from the

           date of the swearing in of the Deputy President, and shall end—

           (a) when the person next elected President at an election under

           Article 136 (2) (a) is sworn in;

          (b) on the Deputy President assuming the office of President;

              or

          (c) on resignation, death or removal from office of the Deputy

           President.

         (7) The Deputy President may resign from office at any time by

         notice, in writing, addressed to the President and the resignation  shall take effect on the date and at the time specified in the notice, if  any, or if a date is not specified, at noon on the day after the notice is          delivered.

       (8) A person shall not hold office as Deputy President for more

      than two terms. ”

Article 180 provides for the election of deputy governor and provides that;

“(1) The county governor shall be directly elected by the

voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.

(2) To be eligible for election as county governor, a person must

be eligible for election as a member of the county assembly.

(3)If only one candidate for county governor is nominated, that

candidate shall be declared elected.

(4) If two or more candidates are nominated, an election shall be

held in the county and the candidate who receives the greatest number of votes shall be declared elected.

(5) Each candidate for election as county governor shall nominate

a person who is qualified for nomination for election as county governor as a candidate for deputy governor.

(6) The Independent Electoral and Boundaries Commission shall

not conduct a separate election for the deputy governor but shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor.

(7) A person shall not hold office––

(a) as a county governor for more than two terms; or

(b) as a deputy county governor for more than two terms.

(8) For the purposes of clause (7), a person who has assumed the

office of county governor shall be deemed to have served a full term,

subject only to Article 182 (3) (b).”

38. A casual reading of Article 148 (1), (2) and (3) and 180 (5) and (6) would reveal that a person vying for President and Governor respectively shall nominate their deputies and that these deputies should shall not be subjected to a nomination exercise and shall be declared elected by IEBC in the event the person who nominated them is elected.  It is clear that these Articles do not require that the names or photos of deputies appear on the ballot papers. However, I believe that it is good practice and good order for their names and photos to appear on the ballot paper for simple reasons. First, these deputies were not nominated by the people/electorate but by the person vying who may have been nominated by members of a political candidate or an independent candidate who may have been nominated by the requisite number of registered voters. It is therefore good practice and it is only logical that their names and photos should be on the ballot paper so that as a voter casts his/her vote may be well informed as to who he is voting for; i.e the President and his Deputy and the Governor and his Deputy. Secondly, national values and principles of democracy, good governance, accountability, participation, transparency as established by Article 10 of the Constitution require that the voters elect their representatives in a transparent manner. I therefore believe that the printing of the names and photos of deputy president and  governor ensures that the voters participate in electing their deputy as well.  I see nothing unlawful or unconstitutional about the practise.

Coalition and mergers

39. With regard to coalition and mergers, the Petitioner contends that the Constitution does not make provision for political mergers or political coalitions. He claims that the two concepts are creatures of Sections 10 and 11 of the Political Parties Act No. 11 of 2011. He further alleges that having coalition and mergers violates provisions of Articles 99 and 137 of the Constitution which specifically prohibit one political party from campaigning or promoting the values of another political party.

40. Section 10 of the Political Parties Act is on coalitions and provides as follows;

“1)  Two or more political parties may form a coalition before or  after an election and shall deposit the coalition agreement with the Registrar.

2)  A coalition agreement entered into before an election shall be deposited with the Registrar at least three months before that election.

3)  A coalition agreement entered into after an election shall be deposited with the Registrar within twenty-one days of the signing of the coalition agreement.

4)  A coalition agreement shall set out the matters specified in the Third Schedule.”

Section 11 deals with mergers and provides as follows;

“1)  A political party may merge with another political party.

2)  A political party shall not merge with another political party unless the merger is in accordance with the Constitution, rules and procedures of the political parties.

3)  The decision to merge shall be in writing and shall be duly executed by the political party officials authorised to execute agreements on behalf of the political parties.

4)  The governing body of each political party that intends to merge under subsection (2) shall-

a)  determine the constitution, rules, regulations and the principles which shall form the basis of the merger and he registration of the new political party; and

b)  sign the merger agreement and the particulars for the new political party to be registered under this Act.

5)  The merger agreement signed under subsection (4) (b) shall be deposited with the Registrar within twenty-one days of the signing of the agreement.

6)  The political parties which have merged into a new political party under this section shall stand dissolved upon registration of the new political party.

7)  Where a political party merges with another political party, a member of the political party that has merged with another political party who is a member of Parliement or of a county assembly, and who does not desire to be a member of the political party formed after the merger shall continue to serve as a member of parliament or of the county assembly, and may join another political party or choose to be an independent member for the remainder of the term of the member.”

The Petitioner contends that these two provisions offend the provisions of Articles 99 and 137 of the Constitution. Article 99 is on qualification and disqualification for election as Member of Parliament and states as follows;

 “(1) Unless disqualified under clause (2), a person is eligible

for election as a member of Parliament if the person—

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical requirements

prescribed by this Constitution or by an Act of Parliament;

and

(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.

(2) A person is disqualified from being elected a member of

Parliament if the person—

(a) is a State officer or other public officer, other than a member

of Parliament;

(b) has, at any time within the five years immediately

preceding the date of election, held office as a member of the

Independent Electoral and Boundaries Commission;

(c) has not been a citizen of Kenya for at least the ten years

immediately preceding the date of election;

(d) is a member of a county assembly;

(e) is of unsound mind;

(f)is an undischarged bankrupt;

(g) is subject to a sentence of imprisonment of at least six

months, as at the date of registration as a candidate, or at

the date of election; or

(h) is found, in accordance with any law, to have misused or

abused a State office or public office or in any way to have

contravened Chapter Six.

(3) A person is not disqualified under clause (2) unless all

possibility of appeal or review of the relevant sentence or decision has been exhausted.

Article 137 makes provision for the qualification and disqualification for election as a President; and provides that;

(1) A person qualifies for nomination as a presidential

candidate if the person—

(a) is a citizen by birth;

(b) is qualified to stand for election as a member of

Parliament;

(c) is nominated by a political party, or is an independent

candidate; and

(d) is nominated by not fewer than two thousand voters from

each of a majority of the counties.

(2) A person is not qualified for nomination as a presidential

candidate if the person—

(a) owes allegiance to a foreign state; or

(b) is a public officer, or is acting in any State or other public

      office.

(3) Clause (2) (b) shall not apply to—

(a) the President;

(b) the Deputy President; or

(c) a member of Parliament.”

As can be seen, there is no nexus between the provisions of Article 99 and 137 and Sections 10 and 11 of the Political Parties Act. It is however the Petitioner's contention that the Constitution does not envisage a situation where one political party may field more than two candidates for a political seat. He alleges that by so doing one party may be promoting the views or ideologies of another political party.  But what is unconstitutional about that? It is good practice for Political Parties to merge or form coalitions to attain political strength and dominance and as long as no law prohibits the practise but in fact that the law encourages them, this Court will not interfere with the right.

41. Having so said, it is conceded that the Constitution does not make any provisions for political merger or political coalitions but has instead mandated Parliament at Article 92  to enact legislation on Political parties. Pursuant to this Provision, the Political Parties Act of 2011 was enacted to provide for the establishment and regulation of political parties.  The action and provisions made by Parliament can only be challenged on the ground of unconstitutionality and not by fact of the constitutional obligation to enact the law. It is obvious that I see no inconsistencies between the Constitution and Sections 10 and 11 of Political Parties Act and I  do not see how these provisions are  unconstitutional.  I am aware that one of the cardinal principles of statutory interpretation is the presumption that statutes enacted by Parliament are constitutional unless otherwise proved. (See Ndyanabo vs. Attorney General [2001] 2 EA 48 and in the Commission for the Implementation of the Constitution v Parliament of Kenya and Another Nairobi Petition No. 454 of 2012 where  the Court cited with approval the case of Re Application by Bahadur [1986] LRC 545 (Const.), where it was held that;

“I would only emphasise that one should not start by assuming that what Parliament has done in a lengthy process of legislation is unfair. One should rather assume that what has been done is fair until the contrary is shown...”

The Court then concluded thus;

“In the same vein I will reiterate that this court will start from the presumption that a statute as enacted by Parliament is constitutional, is fair unless the contrary is proven.”

I say no more because that is the position; held in the circumstances of this case.

Conclusion.

42. As stated elsewhere above, I had tremendous difficulties with the above Petition because whereas a multiplicity of prayers were sought, many had no anchorage in the body of the Petition nor were they addressed in Submissions. Nonetheless, I was able to distill the real issues for determination and I have determined them against the Petitioner. In the end, the Petition is dismissed with no order as to costs, and I regret delay in delivering this judgment which was occasioned by factors beyond the Court's control.

43. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1^ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Mwangi for Petitioner

Mr. Opondo holding brief for Mr. Oburu for 2nd Respondent

No appearance for 1st Respondent

Order

Judgment duly read.

ISAAC LENAOLA

JUDGE