[2022] KEHC 11780 (KLR)

Dole v Independent Electoral & Boundaries Commission (Constitutional Petition 6 of 2021) [2022] KEHC 11780 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11780 (KLR)

Republic of Kenya

In the High Court at Garissa

Constitutional Petition 6 of 2021

A Ali-Aroni, J

July 14, 2022

Between

Ahmed Yare Meigag Dole

Petitioner

and

Independent Electoral & Boundaries Commission

Respondent

Judgment

1. The petitioner Ahmed Yare Miegag Dole is aggrieved by the Independent Electoral & Boundaries Commission, the respondent’s mapping of the Garissa Township Constituency as concerns the arrangements and distribution of polling centers and polling stations with particular emphasis oo the township ward. The petitioner alleges of the view that the polling stations are not evenly distributed, are concentrated in one place and leaves some areas without voting facilities forcing voters to walk long distances, having to wait and standard for long hours due to overcrowding at the polling stations.

2. It is his case that Garissa Township Constituency is zoned in 4 wards, Waberi, Galbet, Township & Iftin wards.Township Ward has 4 polling stations, 3 are located in the south end of the Ward and are approximately 0. 5kms apart and leaves voters from the north, central and western ward without polling stations in their proximity. The 4th is located in the furthest Eastern corner of the ward yet the registered voters in township ward are much more than other wards.

3. Further he states that there has been increase in voter turnout as was seen in 2017 as compared to 2013 yet the number of polling centers and polling stations have not been increased to the extent the citizens of Garissa township ward are denied their right to vote.

4. The fact that the polling stations are unevenly distributed has resulted in overcrowding of polling stations with numbers upward of 2,000 people per polling station, contrary to section 38A of the Election Act.

5. In the Petition he seeks for;1. The honourable court to declare that the respondent has denied, violated, infringed and/or threatened the constitutional rights of the petitioner.2. The court do issue an order compelling the respondent to increase the polling centers and distribute them evenly in all wards in Garissa Township Constituency as proposed3. Costs of the Petition.

6. The petitioner gave details of the wards, registered voters, the population, geographical area, number of polling centers and stations as follows;

Wards Registered Voters Total Population Geographical Area Polling Centers Polling Station

Waberi 12,267 20,578 170 8 22

Galbet 17,630 42,519 4 15 32

Township 13,862 20,827 2 4 21

Iftin 10,532 29,878 475 16 22

7. He argued further that the respondent has failed to recognize the constitutional right to equity, inclusivity, equality and non-discrimination as espoused in article 10 of the Constitution. Polling stations in all the wards in Garissa Township Constituency.

8. In a replying affidavit dated July 6, 2021 sworn by Michael Goa in opposition to the Petition, he stated that at the time the exercise of voter registration was ongoing and on receipt of current data voters in Garissa Township Constituency, said the data shall inform the number of polling stations once the election calendar is released.

9. Further he deposed that on setting polling centers and polling stations the respondent is guided by various factors including geographical, population quotas, communication, infrastructure etc.

10. Further it was stated in the Affidavit that the respondent received the grievances of the petitioner and will deal with the same at the relevant time. Voter registration was ongoing and data received would be analysed so as to inform the decision as to whether to increase or reduce polling stations in various places.

11. The matter was canvassed by way of written submissions that may be summarized as follows;Petitioner’s submissions:The petitioner’s submissions were a replica of the averments in the affidavit as relates to the 4 wards of the Garissa Township Constituency, in terms of the number of wards, registered voters, population, geographical area, number of polling stations and polling centers.

12. It was submitted further that there was an increase of voters in 2017 from 2013 by almost 32-33% and the said increase in the number of voters require an addition in the number of polling centers and stations to cater for the citizens in the Township Ward, to enable them exercise their constitutional rights. That indeed voter turnout would have been more if the polling stations were added. His analysis acquired from the Respondent give an indication that township Ward was over crowded.

13. Further, the Petition posits that due to work, age and health concerns some registered voters cannot withstand long hours to cast their votes which is likely to affect the outcome of election.

14. The petitioner identified 2 issues for the court consideration namely;i.Whether failure by the respondent to increase the number of polling centers and stations in all the wards is a breach of the petitioner’s constitutional right under article 38(3) of the Constitution.ii.Whether the court can issue an order preventing the respondent from conducting any further elections before redrawing the election map and factoring key changes.

15. On the first issue it is submitted that the petitioner and other voters have not been able to exercise their rights as the respondent has failed in its duty to take positive steps to ensure registered voters are provided adequate polling stations. In this regard the court was referred to the case of Kituo Cha Sheria vs IEBC & Another [2013] eKLR.iii.In support of the 2nd issue; an order preventing the respondent from conducting any further elections before redrawing the election map and factoring key changes.The court was referred to Minister of Health & Others vs Treatment Action Campaign & Others, Nancy Makokha Baraza vs JSC & 9 Others [2012] eKLR, where the petitioner urges that the respondent cannot be allowed to circumvent the wishes and aspiration of citizens. There is need for an order to stop election to allow redrawing of the election map which is necessary, as this will allow increase of the number of polling centers and stations within the Township Ward so that constitutional right to vote by the residence is achieved. Further the respondent should guarantee equality and equity across all wards.

Respondent’s submissions: 16. In response to the allegations by the petitioner, the respondent’s counsel submitted that the respondent has complied with the statutory provisions and from the data attached to the petitioner’s application polling stations do not exceed the maximum limit of 700 voters as set out under section 38A of the Election Act.

17. And therefore the issue is whether the petitioner has proved the allegation that the respondent has violated his constitutional rights. The court was in this regard referred to Stephen Wasike Wakho & Another vs Security Express Limited [2000] eKLR and Kiambu County Tenants Welfare Association vs A.G. & Another [2017] eKLR.

18. Further it was contended that the data from the respondent’s website is not an indicator of violation of right if anything the said data simply indicated the increase of number of those who voted in 2017 from those of 2013 and the measures taken by the respondent. The petitioner has created a narrative of the respondent’s non-compliance with section 38A of the Election Act which is a misrepresentation facts and has used this narrative as the basis of the petitioner’s allegation of violation of constitutional rights.However, no proof of violation by way of evidence was placed before the court.

19. Additionally, the respondent was in the process of voter registration in preparation for the forthcoming elections and the exercise would inform setting up of polling centers and polling stations where necessary.

20. It was further urged that the petitioner has not met the threshold for grant of any of the declaratory orders sought and has misled the court through misrepresentation of facts. Yet the respondent has complied with the law and has done everything in its powers to ensure the citizens of Garissa Township are able to exercise their democratic rights.

Analysis and determination 21. Having considered the pleadings and submissions by both the petitioner and the respondent there are two issues for this court’s determination;i.Whether the respondent is in violation of article 38(3) or any other of the Constitution.ii.Whether the court can compel the respondent to increase the number of polling stations and/or stations in the Township Constituency in Garissa.

22. Article 38 (3) (a) & (b) of the Constitution provides that;(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

23. Section 36 of the IEBC Act mandates the respondent to consider, redistribute such wards and administrative units, by taking into account Provisions of article 89(7) (b) and addressing the issue of population quota in wards and constituencies.

24. The grievance of the petitioner is hinged on the Ward subject matter and the population vis a vis the number of polling centres and stations in the Garrisa Township Constituency.

25. In the case of Kiambu County Tenants Welfare Association vs Attorney General & Another [2017] eKLR the court stated;“Courts have over the years established that for a party to prove violation of their rights under the various provisions of the bill of rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement and the nature and extent of the injury suffered (if any).……. whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him””

26. In the case the burden to state with precision and to prove the violation alleged was on the Petitioner.

27. The law mandates the respondent to map Polling centers and polling stations in every Constituency bearing in mind inter alia the population quota.

28. Section 38A of the Elections Act provides that “for purposes of providing efficient and effective conduct of election, the number of voters per polling station shall not exceed seven hundred.”

29. So that the requirement of the law that is binding on the respondent is to ensure that each polling station does not have more than 700 voters. There is no other qualification, whether citizens have busy schedules are old, sick etc. though it is common knowledge that certain categories of voters are given priority in polling stations which the court takes judicial cognizance of .

30. The burden of proof as indicated lies on the petitioner. Indeed, he produced data to support his case. This court does agree with the respondent only to the extent that the said data supported the case for the respondent. Township ward which the petitioner seemed more concerned with from the data he presented has adequate polling stations based on the number of voters in 2017.

31. The data provided may not be relevant for this election cycle. The petitioner’s fears may or may not be real. Recent data would have laid a basis for the concerns raised by the petitioner. He probably came to court prematurely as at the time of filing the petition and submissions voter registration was still ongoing.

32. Further the court takes note of the fact that the respondent has averred to the fact that it is committed to ensuring that there is compliance with the law so that every polling station has not more than 700 voters.

33. From the information presented to court which the respondent owned the distribution of the polling centers and polling stations are not even in the Township constituency in Garissa county but this in itself is not unlawful neither cannot be said to be unconstitutional as such. The respondent may require to ensure that the same standards informing the distribution of wards other than the number of voters is applied across the board.

34. To the extent of the facts and evidence, submissions placed before and the analysis above the court is of the opinion that;a.The petitioner did not prove that the respondent has denied, violated, infringed and/or threatens the rights of the petitioner.b.This honourable court based on (a) above declines to order or, compel the respondent to increase the polling centers and distributes them evenly in all the wards in Garissa Township Constituency as proposed by the petitioner, unless the current data calls for such increment.c.Each party to bear their own costs.

DATED, DELIVERED AND SIGNED IN GARISSA THIS 14TH DAY OF JULY, 2022……………………………ALI-ARONIJUDGE