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The Constitutional Domain of Elections: Signalling the Judicial Mandate

Justice Ojwang

Paper delivered at the Induction Workshop for Judges of the Industrial Court and the Land and Environment Court,

Nairobi, 18 January 2013.


The Hon. Justice (Prof.) J.B. Ojwang

Justice of the Supreme Court of Kenya


  2. In community, all the day-to-day activities of individual and collective survival, welfare and progress, require as a foundation, a base of safeguard and oversight; and this, typically, is the political system, incorporating the modern State set-up.  The State set-up is operationalised through “political power”, thus defined in Black’s Law Dictionary, 8th ed (2004):

    “The power vested in a person or body of persons exercising any function of the state; the capacity to influence the activities of the body politic – [also] termed civil power.”

    The civil power, in modern society, is recognized as belonging ultimately to the national population at large. This population, however, being often so large, so spread-out and so amorphous, must have recourse to a special instrument of designating its authorised agents to conduct day-to-day functions. All progressive outlook on governance identifies election, defined in Black’s Law Dictionary as “[the] process of selecting a person to occupy an office ([usually] a public office)….,” as the legitimate mode of delegating the sovereign power of the people to public officials.

    Thus the Constitution, which is defined in Black’s Law Dictionary as “[the] fundamental and organic law of a nation or state that establishes the institutions and operations of government”, in its essence, has both fixed frameworks and operational aspects – the former regulating and validating the latter. The operational aspects are to be conducted by a plurality of State officers who have been designated in compliance with the prescriptions of the Constitution: and typically, they are put in place through the electoral process. The Constitution, therefore, invariably prescribes governing norm, and establishes the core rules of the electoral process. As the conduct and outcomes of that process are a continual affair, a recognized agency of the Constitution must periodically ascertain their legitimacy. The task falls to the Courts of law.

    It thus needs be clear that the electoral process, which leads to the constituting of the governing State offices, is a core element in the constitutional process, and falls squarely within the jurisdiction of the Courts, as umpires and custodians of legality.

    1. Parliament and the legislative assemblies in the county governments;
    2. the national executive and the executive structures in the county governments; and
    3. the Judiciary and independent tribunals.”
  4. The Constitution of Kenya, 2010 sets off with the people’s chant:  “We, the people of Kenya” – before declaring preambular principles to which the people commit themselves, as they instal their charter of governance. The Constitution begins [Article 1] with the “sovereignty clause”:

    “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

    The people have recognised that they will not exercise the sovereign power directly; they donate it to three primary organs of governance [Article 1(3)]:

    “Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution –

    The principle of representation, as a vital element in the electoral process, is to be perceived against the background to the terms of Article 1(3) of the Constitution. It emerges from that Article, that Kenya’s view of good governance (as contemplated in Article 10) incorporates two contrasting elements: the majoritarian concept, which refers to the elective dimension of governance; and the non-majoritarian concept, which refers to the role the standard-setting or adjudicative organs, such as the Judiciary. The people, by their electoral choice, entrust to both the legislative and executive agencies the positive functions of creating, enlarging and dispensing the goods of the constitutional order; but the people also recognise that those agencies may fail in that task, or even distort the discharge of their mandate, thus occasioning conflicts or disputes: and in such an event, the non-majoritarian agencies must intervene, so as to restore the original constitutional design and purpose. Both dimensions in such constitutional dynamics, are under obligation to operate in the public interest; for all public service is to be guided by the prescribed “national values and principles of governance” [Article 10], which lay a premium on the rights and welfare of the people.

    Representation, as an object of the electoral process, therefore, is essentially concerned with the executive and legislative organs of the State: the legislative function, because it is the State’s constant mode of establishing frameworks of service to the people; and the executive function because this is concerned with the public agency of day-today operations, in rendering service to the people. Thus, the people must elect those in the Legislature, as well as those who lead the Executive Branch.

    1. the Parliament comprises the National Assembly and the Senate [Article 93(1)];
    2. the National Assembly “represents the people of the constituencies and special interests in the National Assembly” [Article 95(1)];
    3. the Senate represents the counties and “serves to protect the interests of the counties and their governments” [Article 96(1)];
    4. the National Assembly membership has both an elective and a nominated element: 290 elected members for single-member constituencies elected on a first-past-the post formula; 47 of the female gender elected by the individual counties; 12 members representing special  interests, nominated by the political parties in accordance with their strength in the National Assembly [Article 97];
    5. Senate membership has both the elective and the nominated element: 47 members elected by voters in the individual counties; 16 Senators of the female gender nominated by political parties according to their numerical strength in the Senate; two members representing the youth; two members representing persons with disabilities [Article 98].
  6. To “represent” is defined in the Concise Oxford English Dictionary, 11th  ed (2009) as: “be entitled or appointed to act or speak for”. As already noted, the people, though they be the stakeholders of the Constitution, can only benefit by it through representation; and thus, representation is a vital element in the overall purpose of the Constitution.

    The purpose of the Constitution substantially emerges from its statement of guiding principles; these include “national unity, sharing and devolution of power, the rule of law, democracy and participation of the people” [Article 10(2)(a)]; “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized” [Article 10(2)(b)]; “good governance, integrity, transparency and accountability” [Article 10(2)(c)]; and “sustainable development” [Article 10(2)(d)].

    These principles must inform the Kenyan perception of “representation”, as an aspect of the electoral process. Representation in Kenya’s governance institutions – in the National Assembly and Senate, in the Presidency, in the County Assemblies – transcends bare numerical associations; it is, instead, about representing the people in the relevant constitutional organs for the purpose of delivering the governance values declared in Article 10.

    Kenya is a country of great diversity – geographically, environmentally, demographically, economically and culturally: and each of these elements is a factor in the practical levels of access to amenities and services of relevance to the enjoyment of personal, social and political rights.

    This is the underlying factor in the Constitution’s complex scheme of representation in the elective public bodies:

    Representation, it is evident, may bear an infinite range of significations, in different historical scenarios. In the case of Kenya the purpose of representation is, firstly, electoral choice through the ballot. Secondly representation, in Kenya, seeks to identify the winner for an elected seat in a legislative chamber. Thirdly, representation in Kenya means, applying differing criteria in constituting the membership of an elected chamber. Fourthly, representation in Kenya means implementing affirmative action programmes for particular social categories, in constituting the membership of an elected chamber. Fifthly, representation in Kenya means incorporating a normative element in the make-up of a legislative chamber. Sixthly, representation in Kenya means constituting political parties into a nominating authority for a legislative chamber. Such a notion of “representation” transcends the scope of “election” which the Concise Oxford English Dictionary defines as:  “electchoose (someone) to hold a position, especially public office, by voting”.

    Thus election, in the Kenyan context, is just one device of “representation”, of which A.R. Ball in his work, Modern Politics and Government, 3rd ed (1983) [pp.124-125] has thus written:

    “Elections are the means by which the people choose and exercise some degree of control over their representatives. However, this is to disguise a very complex process and needs qualifying. Elections do not imply control over the policies the representatives will support once they are elected; even in two-party systems in which the elector chooses between two competing teams, this control is difficult, and in multi-party systems that demand bargaining at parliamentary level…. the election promises of the parties are likely to fall further into the background.”

  8. The scheme and objective of election, in respect of the legislative chambers, differs in certain respects from the position as regards the Executive Branch. Not only does the numerical strength of the legislative chambers arise from both elective and nominative processes, but the objects of representation in these organs bear a wide range. It is not the same with the Executive Branch, in particular, under the Constitution of Kenya, 2010. This Constitution establishes a clear separation of powers between the Executive and the Legislature [Articles 129 and 130], providing [Article 136 (1)] that:

    “The President shall be elected by registered voters in a national election conducted in accordance with this Constitution and any Act of Parliament regulating presidential elections.”

    The Constitution sets out the qualifications for candidature [Article 137] and the responsibilities attached to the Presidency [Article 129]:

    “(1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.

    “(2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.”

    It follows that election for the President [and Deputy President] has a definite purpose: to identify a steward with a specific mandate of governance [Article 131]. The President, as Head of State and Government, “exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries”. The President is the Commander-in-Chief of the Kenya Defence Forces; the chairperson of the National Security Council; the symbol of national unity. The President is required to “respect, uphold and safeguard this Constitution”; “safeguard the sovereignty of the Republic”; “promote and enhance the unity of the nation”; “promote respect for the diversity of the people and communities of Kenya”; and “ensure the protection of human rights and fundamental freedoms and the rule of law.”

    Election for the office of President is thus conceived on the basis that this public servant bears a fateful leadership role in the implementation of the Constitution, and for the well-being of the people. The electoral process in this regard, is a crucial political task in Kenya; and the people demand that the election of a President will be conducted in strict compliance with the Constitution and the law.

  10. It emerges that the elected agencies are the people’s designated bearers of the burden of advancing the action-points of the Constitution, from which the welfare benefits emerge. However, the non-elected agencies under the Constitution also have their contributions to the public good: they are the safeguard entities on standby, to ensure that lawful process is observed, and that the rights and guarantees of the Constitution are protected.

    The elected agencies, in order to discharge their tasks of rendering the benefits of the Constitution, must lend themselves to being perceived in good light: and hence they must originate from a wholesome electoral process founded on law, regularity and transparency. Such legitimacy can only be delivered from free and fair election. The Constitution, with its commitment to good governance; to the fundamental rights of the individual; and to liberal and progressive decision-making by public agencies, requires legitimacy in the electoral process leading to stewardship in its cause. Kenya’s national elections of March, 2013, as the very first elections under the new Constitution, must be exemplarily conducted, thus establishing the historic constitutional enterprise as feasible.

    There are imperatives for ensuring that Kenya’s elections of March, 2013 are conducted in strict accordance with the Constitution, the statute law, the applicable rules, and the practices of the Courts. Moreover, as an element in the quest for legitimacy, the elections should run against the background of fair and progressive political practices. The political parties, which are the custodians of the nomination process leading to election, must refrain from cynical, or self-serving or retrogressive cultural practices which limit the people’s free access to deserved elective office.

    At this point, the Judiciary’s role becomes relevant. The Judiciary, as the custodian of the legal process, has to rejig its machinery so as to be ready to resolve any such major electoral dispute as may arise. Expedition in the machinery of justice, in this regard, is all-important.

    1. to take part in the conduct of public affairs, directly or through freely chosen representatives;
    2. to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”
  12. The political virtue of Kenya’s new Constitution, it may be stated, is its scheme of “good governance”. Though such a concept is novel in general practice in Africa, it is by no means new, as it has over the years, been a clarion call at international fora well apprised in human rights values.

    For instance, the International Covenant on Civil and Political Rights (1966) includes gender as an issue of representation. By Article 3 of the Covenant:

    “The States Parties…undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”

    This right is readily applicable to representation, when considered in the light of Article 25 of the Covenant which provides:

    “Every citizen shall have the right and the opportunity…without unreasonable restrictions:

    Representation without discrimination on the basis of gender had much earlier been recognized, by the Convention on the Political Rights of Women, 1953 which thus provides in Article I:

    “Women shall be entitled to vote in all elections on equal terms with men, without any discrimination”;

    in Article II that:

    “Women shall be eligible for election to all publicly elected bodies established by national law on equal terms with men, without any discrimination”;

    and in Article III that:

    “Women shall be entitled to hold public office and to exercise all public functions established by national law on equal terms with men, without any discrimination.”

    Just as representation in Kenya’s legislative organs accommodates a variety of categories of social diversity, the International Covenant on Civil and Political Rights prohibits discrimination based on the existence of such diversities. Article 26 of the Covenant provides that:

    “[The] law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, set, language, religion, political or other opinion, national or social origin, property, birth or status.”

    And Article 27 provides that:

    “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.”

  14. It is apparent that the relevant principles to guide Kenya’s historic elections of 2013, are to be derived in the first place from the terms of the Constitution; in the second place from the governing statutes and rules; and lastly, from reinforcing instruments of international law which must inform the evolving practice of the Courts. These principles, and the attendant express norms, underline the political importance of representation at the various agencies of governance, and also signal the device of election as the focal point of representation. Qualifying the scheme of election by a procedure such as nomination, is by no means inconsistent with representation, where this is conceived to satisfy political needs arising from diversity. However, the primary object of the electoral process is to ensure fairness, integrity and legitimacy. Thus the conclusion results that, the “safeguard agencies” of the Constitution, and primarily the Judiciary, must brace themselves for the task of adjudicating upon the many disputes likely to be sparked by the elections of March, 2013. For the Courts, the watchword will be:  “free and fair elections”.

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