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|Case Number:||Petition 26 of 2013|
|Parties:||John Harun Mwau v Independent Electoral And Boundaries Commission & Attorney General|
|Date Delivered:||01 Nov 2013|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Citation:||John Harun Mwau v Independent Electoral And Boundaries Commission & another  eKLR|
|Advocates:||Mwangi for Petitioner Opondo holding brief for Oburu for 2nd Respondent|
|Court Division:||Constitutional and Human Rights|
|Advocates:||Mwangi for Petitioner Opondo holding brief for Oburu for 2nd Respondent|
Court explains qualifications for election to the National Assembly
John Harun Mwau v Independent Electoral and Boundaries Commission & another
Petition No 26 of 2013
High Court at Nairobi
Isaac Lenaola, J
November 1, 2013
Reported by Njeri Githang’a Kamau & Victor L Andande
Constitutional law – election – qualification for election – education qualifications– whether the education requirements for those vying for election as Members of Parliament were unconstitutional – Constitution of Kenya, 2010, article 99(2)(b), Elections Act 2011,sections 22 & 24.
Constitutional law– elections – political mergers and coalitions – where the petitioner argued that allowing political mergers and coalitions contravened the Constitution – whether sections 10 and 11 of the Political Parties Act were unconstitutional for allowing political mergers and coalitions – Constitution of Kenya, 2010, articles 92, 99 & 137; Political Parties Act No. 11of 2011, sections 10 & 11.
Constitutional law – fundamental rights and freedoms – equality – where the petitioner argued that setting lower nomination fees for the women and youth candidates had violated the principle of equality under the Constitution – whether in the circumstances setting of lower nomination fees for women and youth was discriminatory – Constitution of Kenya, 2010,article 27.
Section 24(1) of the Elections Act provided as follows;
“(1) Unless disqualified under subsection (2), a person qualifies for nomination as a Member of Parliament if the person-
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.
Petition dismissed with no order as to costs
1.Commission for the Implementation of the Constitution v Parliament of Kenya and another Petition No 454 of 2012 –(Mentioned)
2.Federation of Women Lawyers Kenya (FIDA-K) and 5 others v Attorney General & another Petition No 102 of 2011 –(Mentioned)
3.James, Evans Misati v Independent Electoral and Boundaries Commission & 2 others Petition No 327 of 2012 –(Explained)
4.Muthama, Johnstone v Minister for Justice & Constitutional Affairs & another Constitutional Petition No 198 of 2011-(Explained)
5.Ndyanabo v Attorney General  2 EA 48 –(mentioned)
6.Tinyefuza v Attorney General of Uganda Constitutional Appeal No 1 of 1997 –(Explained)
1.Michael Andras Mula v President of the Republic of Namibia, Case No 98 of 1998 –(Mentioned)
1.Jacques Charl Hoffmann v South African Airways Constitutional Court 17 of 2000 –(Explained)
1.Figuero v Attorney General of Quebec (2004) 2 LRC 443 –(Explained)
2.Re Application by Bahadur  LRC 545 (Const) –(Explained)
1.State of Kesata & Anor v N M Thomas & Others 1976 AIR 490,  SCR 17906 –(Followed)
1.Constitution of Kenya, 2010 articles 2(3); 10; 27(6)(8); 38; 81(1)(b); 82(1); 84; 85(a); 93(1)(b); 99(1)(b),(2)(b); 137; 148(1)(2)(3); 180(5)(6); 193(1) –(Interpreted)
2.Elections Act, 2011 (Act No 24 of 2011) sections 9(3); 22(2)(a); 23, 24(1); 26; 33; 109–(Interpreted)
3.Elections (General) Regulations, 2012 (Act No 24 of 2011 Sub Leg) regulations 16, 17, 18, 19, 28 –(Interpreted)
4.Political Parties Act, 2011 (Act No 11 of 2011) sections 10, 11–(Interpreted)
1.Constitution of Canada –(Interpreted)
1.Mr Mwangi for the Petitioner
2.Mr Opondo H/B for Mr Oburu for the 2nd Respondent
|History Advocates:||Both Parties Represented|
|Case Outcome:||Petition Dismissed|
|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
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO 26 OF 2013
JOHN HARUN MWAU.……................................................................................................................…........PETITIONER
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...................................................................1ST RESPONDENT
ATTORNEY GENERAL.........................................................................................................................2ND RESPONDENT
(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.
Case for Petitioner
1st Respondent case
2nd Respondent case
“(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.”
(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.
“(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
(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
“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'.
'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.
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.”
“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”
“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,
(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.
“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.
“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.
“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.
“(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.”
Name and photos of deputies on the ballot papers.
“(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
(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;
(c) on resignation, death or removal from office of the Deputy
(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).”
Coalition and mergers
“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;
(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;
(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
(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
(c) is nominated by a political party, or is an independent
(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
(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.
“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.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013
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
Judgment duly read.