[2010] KEHC 4119 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

PETITION NO. 72 OF 2010

IN THE MATTER OF: ARTICLES 3(1), 22(1), (2) & (4), 23(1), 38, 47, 81(1), 87, 88, 89,184 AND 200 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE FIFTH SCHEDULE TO THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: SECTION 7, 27, 28(2) AND 29 OF THE SIXTH SCHEDULE OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: RULES 11 AND 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006

AND

IN THE MATTER OF: ALLEGED CONTRAVENTION AND/OR APPREHENDED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 3(1), 22(1), (2) AND (4), 23(1), 38, 47, 81, 82(1), 87, 88, 89 AND 184 OF THE CONSTITUTION OF KENYA

BETWEEN

JOHN KIMANTHI MAINGI ..................................................................................................... PETITIONER

AND

HON. ANDREW LIGALE ...............................................................................................1ST RESPONDENT

MS ROZAH BUYU.........................................................................................................2ND RESPONDENT

MS IRENE MASIT.........................................................................................................3RD RESPONDENT

THE INTERIM INDEPENDENT BOUNDARIESREVIEW COMMISSION..................4TH RESPONDENT

THE ATTORNEY GENERAL...........................................................................................5TH RESPONDENT

RULING

1. THE PETITION

On16th November, 2010 John Kimanthi Maingi, the petitioner herein, filed a petition seeking the following orders:

“(a)A declaration that Articles 38(3) (a), 81, 82(1), 87, 88, 89 and 184 (among others) of the Constitution of Kenya entitle the petitioner (in common with other Kenyans) to a fundamental and inalienable right to a free, fair, credible and lawful electoral system and electoral process.

(b)A declaration that Article 47(1) of the Constitution of Kenya entitles the petitioner (in common with other Kenyans) to a fundamental and inalienable right to a lawful and procedurally fair administrative action.

(c)A declaration that the first, second and third respondents ceased to be qualified and/or eligible to hold office as members of the fourth respondent with effect from the 27th day of August, 2010.

(d)An injunction precluding the first, second and third respondents from participating in/or presiding over the discharge of the functions or affairs of the fourth respondent.

(e)An injunction precluding the fourth respondent from discharging any of thefunctions set out or anticipated by Chapter

seven of the Constitution of Kenya or Section 27(1) (b) and (3) of the Sixth Schedule to the Constitution pending –

(i)the resignation or determination of the eligibility to hold office of the first, second and third respondents, whichever comes first;

(ii)enactment of the legislation anticipated by Articles 82, 87, 88 and 124 of the Constitution of Kenya; and

(iii)the formation of the Independent Electoral and Boundaries Commission.

(f) The costs of and incidental to this petition;

(g) Such other or further or incidental orders, reliefs and/or remedies as the honourable court shall deem just and expedient.”

It is important to set out, albeit briefly, the main averments raised by the petitioner in the petition. The petitioner, a citizen of this country, stated that Article 3 of the Constitution of Kenya obliges him and indeed all other Kenyan citizens to uphold and defend the Constitution and in particular to insist that all organs, bodies and/or offices of the Government of Kenya be established in strict compliance with the Constitution. Article 22(1)of the Constitution of Kenya entitles the petitioner and any other Kenyan to move this court whenever a right or fundamental freedom in the Bill of Rights is denied, violated, infringed or threatened. Articles 38(3) (a), 81, 82(1), 87, 88, 89 and 184 (among others) of the Constitution entitle the petitioner to a fundamental and inalienable right to a free, fair, credible and lawful electoral system and electoral process. Article 47(1) entitles the petitioner to a fundamental and inalienable right to a lawful and procedurally fair administrative action.

The petitioner went on to state that Section 27(1) (c) of the Sixth Schedule to the Constitution subjects members of the 4th respondent to the provisions of Chapter seven of the Constitution. Among the provisions of that Chapter is Article 88(2) which prohibits any person who within the preceding five years to the effective date of the new Constitution held office or stood for elections as a member of parliament or the governing council of a political party or any State Officer from being appointed a member of the 4th respondent. He further stated that Section 27(1) of the Sixth Schedule temporarily confers some functions of the yet to be established Independent Electoral and Boundaries Commission on the fourth respondent. He alleged that since the 27th day of August, 2010 the respondents had jointly and severally infringed and continued to infringe his right to:

(a)a free, fair, credible and lawful electoral system and electoral process; and

(b)a lawful and procedurally fair administrative action contrary to, inter alia, the express and implied provisions of Articles 38(3) (a), 47(1), 81, 82(1), 87, 88, 89 and 184 of the Constitution.”

Theparticulars of infringement were stated as hereunder:

“(a) The 1st respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that he is no longer qualified to hold that office because he was a Member of Parliament for Vihiga Constituency from the years 2002 to 2007.

(b) The 1st respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that his continuing membership and/or participation in the affairs of the 4th respondent offends the express and implied provisions of, inter alia, Article 88(2) of the Constitution of Kenya.

(c) The 2nd respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that she is no longer qualified to hold that office because she stood for election as a Member of Parliament for Kisumu Town East Constituency in the year 2007.

(d) The 2nd respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that her continuing membership and/or participation in the affairs of the 4th respondent offends the express and implied provisions of, inter alia, Article 88(2) of the Constitution of Kenya.

(e) The 3rd respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that she is no longer qualified to hold that office because she was a member of the National Executive Council of NARC-Kenya until appointment to the 4th respondent.

(f) The 3rd respondent has refused, neglected, ignored and/or otherwise failed to resign from the membership of the 4th respondent inspite of knowing or having reasonable grounds to know that her continuing membership and/or participation in the affairs of the 4th respondent offends the express and implied provisions of, inter alia, Article 88(2) of the Constitution of Kenya.”

Thepetitioner further averred that Articles 82(1) (a) and 184 of the Constitution as read together with the Fifth Schedule require Parliament to enact legislation to provide for the delimitation of electoral units for election of members of the National Assembly and County Assemblies and also to classify areas as urban areas and cities within one year from the effective date of the new Constitution. He also referred to Article 89(7) which requires the Independent Electoral and Boundaries Commission, in carrying out its functions of delimitation of electoral units, to consult the citizenry of the areas to be affected by the changes. The petitioner alleged that the 4th respondent has since August 27, 2010 failed to carry out any such consultations and consequently his rights under the Constitution had been violated. He was apprehensive that any delimitation of electoral units carried out without consultations shall violate his rights and of other Kenyans in that the yet to be constituted Independent Electoral and Boundaries Commission shall not be able to rectify any wrongs committed by the 4th respondent until after the expiry of a minimum 8 years and therefore the general elections of 2012 and 2017 shall be carried out using a flawed electoral delimitation process. The aforesaid delimitation ought to be done in accordance with the criteria set out in Article 89 of the Constitution. He added that in August 2010 the Government of Kenya released census results in which those of 8 Districts were cancelled. He is apprehensive that in the absence of complete census results and in the absence of the requisite legislation to provide for the delimitation of electoral units for the election of members of the National Assembly, County Assemblies and classification of urban areas and cities, the continued exercise of mandate of the respondents, jointly and severally, is a violation of his rights to a free, fair, credible and lawful electoral system and electoral process and to a lawful and procedurally fair administrative action.

2. THE PETITIONER’S APPLICATION FOR INJUNCTION

Together with the aforesaid petition, the petitioner also filed an application by way of Chamber Summons. In the said application the petitioner sought the following orders:

“1. That this application be certified as urgent and be heard ex-parte in the first instance.

2. An injunction precluding the 1st, 2nd and 3rd respondents from participating in/or presiding over the functions of the 4th respondent set out/or anticipated by Chapter seven of the Constitution of Kenya or Section 27(1) (b) and (3) of the Sixth Schedule to the Constitution pending:

(i) The resignation or determination of the

eligibility to hold office of the 1st, 2nd and 3rd respondents, whichever comes first.

(ii)Enactment of legislation anticipated by

Articles 82, 87, 88 and 184 of the Constitution of Kenya.

(iii) The formation of the Independent Electoral

and Boundaries Commission.

3. An injunction restraining the 4th respondent from publishing in the Kenya Gazette the proposed delimitation of electoral units for the election of the National Assembly, County Assemblies and classifying areas as urban and cities contrary to the Constitution pending the hearing and determination of this petition.

4. That the costs of this application be provided for.”

The application was made on the grounds that the 1st, 2nd and 3rd respondents are holding office as commissioners of the 4th respondent in blatant contravention of Chapter seven of the Constitution and Section 27(1) (b) and (3) of the Sixth Schedule to the Constitution. He also stated that the 4th respondent’s functions under the Constitution are limited to making recommendations to parliament on the delimitation of constituencies and local authority electoral units under Section 41C of the repealed Constitution.

In his affidavit in support of the application, the petitioner reiterated the reasons for his contention that the 1st, 2nd and 3rd respondents were not qualified to be commissioners of the 4th respondent as averred in his petition. He further stated that he is a registered voter in Kibwezi Constituency and verily believes that since the coming into force of the new Constitution on the 27th August, 2010 the 4th respondent has not made consultations with all interested parties as provided for under Article 89(7) (a) & (b) of the Constitution.

The petitioner’s application was certified as urgent on 16th November, 2010 and interim orders were granted in terms of prayers 2 and 3 of the said application. The application was set to be heard inter partes on 2nd December, 2010.

3. APPLICATION BY 1ST, 2ND, 3RD AND 4TH RESPONDENTS

On 18th November, 2010 the 1st, 2nd, 3rd and 4th respondents entered appearance through Byram Ongaya advocate. They also filed an application under certificate of urgency praying that the orders given by Gacheche, J. on 16th November, 2010 be set aside until further orders by the court. They also sought to have the petitioner’s Chamber Summons dated 16th November, 2010 set down for hearing on “an extremely urgent basis within the next seven (7) days.” On the same day, Mr. Nowrojee for the said respondents appeared before Gacheche, J. and told the court that his clients were aggrieved by the orders granted on 16th November, 2010. He actually said that by granting the ex-parte orders his clients were of the view that the court was biased against them. He therefore requested that the matter be placed before another judge or before the Chief Justice.

The court ordered that the file be placed before the Chief Justice for his directions. On the same day the Chief Justice directed that the matter be mentioned before him on the 22nd November, 2010 at 11. 00 a.m. Come the 22nd of November, 2010 Mr. Njenga Mwangi for the applicant, Mr. Nowrojee, Mr. Ahmednassir and Mr. Byram Ongaya for the 1st, 2nd, 3rd and 4th respondents appeared before the Chief Justice as earlier directed. The Chief Justice directed that this matter be heard on 23rd November, 2010 before this court.

The application by the 1st, 2nd, 3rd and 4th respondents was made on the following grounds:

“1. The petitioner ex-parte application (sic) and the orders obtained have denied due process to the respondents and are in contravention of the due process and rights of the respondents.

2. The petitioner failed to make full material disclosure in the ex-parte proceedings.

3. The effect of the order is to make the defences of the respondents nugatory and to deprive the respondents the opportunity to defend themselves.

4. The orders are in breach of the doctrine of

separation of powers.

5. The orders obtained are tainted with

illegality including indefinite interim orders.

6. The interim orders are on the face of it and

in effect final orders and contrary to law.

7. The petitioner has no locus standi.

8. The petition is premature.

9. The petition is in violation of the

Constitution of Kenya.

10. There is a prescribed constitutional special

procedure of determining the eligibility of

any commissioner and the petition is

incompetent in law and is unconstitutional.

11. The ex-parte orders are contrary to the

rules of natural justice.

12. The orders are prohibited by the

Constitution of Kenya.

13. The petitioner was availed numerous

opportunities for consultations with

respondents.

14. This honourable court had no jurisdiction

to entertain the petition or make the orders

it did.

15. This honourable court in exercising its

delegated powers was and is bound to have

refused the petition and the Chamber

Summons in obedience to the Constitution.

16. The issue of tenure is provided for in the

Constitution.

17. The process of consultations had been

carried out.

18. The affidavit of the Hon. Ligale supporting

this application and all the affidavits on record filed for the respondents.

19. The 4th respondent is scheduled to conclude

delivery of its mandate by 27. 11. 2010 and

the orders given on 16. 11. 2010 shall defeat

its rights to be heard in this petition unless

the orders are set aside and this matter

determined in the next seven days.

20. The issues to be stated at the hearing.”

4. RESPONDENTS’ AFFIDAVIT IN SUPPORT OF THE APPLICATION

The 1st respondent, Hon. Andrew Ndooli Ligale, swore an affidavit for and on behalf of himself and the 2nd, 3rd and 4th respondents in support of their application and stated, inter alia:

“3. That this case has far reaching

consequences on national healing, political and constitutional reforms we are working upon following the political crisis of the post 2007 general elections.

4. That I urge the court to consider all the

circumstances and reasons for the

formation of the 4th respondent all of which

are in public domain and judicially

noticeable as the court will be referred to

during the hearing.

5. That I particularly remind this court of the

National Accord and the Reconciliation

Agreement of 28th February, 2008 by which the leaders of Kenya agreed to look beyond partisan considerations with a view to promoting the greater interests of the nation as a whole. I produce marked “HANL1” the National Accord and the Reconciliation Act No. 4 of 2008 which sets out the full text of the agreement.

6. That it is notable that the agreement

provided for a coherent and far reaching reform agenda to address the fundamental root causes of recurrent conflict and to create a better, more secure, more prosperous Kenya for all, a notable goal which all of us including this court are urged to work towards.

7. That the root causes of conflict in Kenya

were specifically identified and action plan to resolve them set out in the statement of principles on long term issues and solutions particularly known as Agenda 4 issues and whose copy I attach here marked “HANL2” and I refer this honourable court to its full import and implications for the sustainable future of Kenya and our people.

8. That I also remind this court about the Report of the Independent Review of the General Elections held in Kenya on 27th December, 2007 (Kriegler Report) under the leadership of the Honourable Justice Johann Kriegler appointed under the Agenda 3 issues on completion of the Constitution and political reforms.

9. The Kriegler Report recommended the creation of the 4th respondent with the exclusive mandate of delimiting electoral boundaries upon clear parameters as enshrined in our Constitution to be applied by the commission.

10. That I urge this court to take judicial notice that in the entire process of reconciling the people of Kenya and the reform process its jurisdiction was carefully circumvented as shown under the Constitution of Kenya (Amendment) Act No. 10 of 2008 to which this court will be referred to during the hearing.”

The 1st respondent further stated that there was competitive nomination of all the members of the 4th respondent by the two main partners of the political divide which was intended to assure political inclusivity and independence of the 4th respondent. He further stated that the procedure of removal of members of the 4th respondent is clearly stated in the Constitution and the court has no power to remove the commissioners.

Regarding the mandate of the 4th respondent, the 1st respondent stated that under Section 27(1) (b) it is clear that the 4th respondent is required to determine and publish in the gazette the names and boundary details of 290 constituencies as well as the names and boundary details for wards. He said that the 4th respondent consulted widely and denied the petitioner’s allegation that there had been no consultation with the interested parties.

Regarding the delimitation of constituencies, the 1st respondent stated that on the Monday of 15th November, 2010 the 4th respondent submitted to the Government Printer the National Assembly Constituencies Order, 2010, for publication. On the following day he issued a press release notifying the public about the fact of the publication in the gazette of the Order on the constituencies. Copies of the said Order and the press release were annexed to the 1st respondent’s affidavit.

In view of the foregoing, the 1st respondent urged the court to lift the ex-parte orders and allow the 4th respondent to implement its constitutional mandate.

5. HEARING OF THE APPLICATIONS

When the two applications came up for hearing on 23rd November, 2010 the respondents raised Preliminary Objections which are more or less the same as the grounds in support of their application. It was however agreed that the Preliminary Objections be argued within the reply to the petitioner’s application.

The petitioner filed a replying affidavit to the respondents’ application and stated, inter alia, that he has locus standi to institute these proceedings. Regarding the report which had been published by the 4th respondent, the petitioner stated that it was contrary to the word and the spirit of both the Kriegler Report and the new Constitution. He cited a portion of the Kriegler Report which stated that:

“The delimitation of boundaries in Kenya as

presently established does not respect the basic principle of the equality of the vote. The differences are unacceptable in terms of the international standards. The Kenyan legal framework does not establish, as is accepted international practice, the maximum possible departure from the principle of equality of the vote. The delimitation of constituencies is left to ECK, which has not performed its role adequately ascribing its non-performance to parliament’s reluctance to increase the number of constituencies.”

The petitioner reiterated that in carrying out its mandate, the 4th respondent had not followed the criteria as stated in Articles 89(5)and(6) (a)& (b) of the Constitution. He further stated that the 4th respondent had applied an incomplete population data in coming up with the proposed new constituencies.

6. THE PETITIONER’S ARGUMENTS

(a)Historical Background

The petitioner was represented by Mr. Njenga Mwangi and Mr. Eric Mutua. Mr. Mwangi gave a brief historical background of the events that led to the creation of the 4th respondent. He cited, inter alia, the crave for a new Constitution, the infamous post 2007 election violence, the Kofi Annan Committee that led to the signing of the National Accord and Reconciliation Agreement of 28th February, 2008 and the Report of the Independent Review Commission on the General Elections held in Kenya on 27th December, 2007commonly referred to as the Kriegler Report. The creation of the 4th respondent was one of the recommendations made in the aforesaid report. The recommendations were as follows:

·The basic principle of delimitation of constituencies should be the equality of the vote, and the maximum departure from the principle should be clearly defined in the law (equality of voting strength should be aimed at in all cases although in special circumstances a 5-20% deviation range could be accepted).

·The process of delimitation should be transparent and conducted in consultation with the public.

·Establish a Boundary Review Commission (BRC) and remove constituency delimitation from the ECK.

·The first delimitation should take place as soon as possible and thereafter should follow the population census.

·Delimitation should be completed at least 18 months before a general election.

(b)Creation of the Interim Independent Boundaries Review Commission

The Constitution of Kenya (Amendment) Act 2008created the 4th respondent. Section 41C sets out the functions of the Interim Independent Boundaries Review Commission. They are as follows:

“(a) making recommendations to Parliament on the

delimitation of constituencies and local

authority electoral units and the optimal

number of constituencies on the basis of

equality of votes taking into account –

(i)density of population, and in particular the

need to ensure adequate representation of urban and sparsely populated rural areas;

(ii)population trends;

(iii)means of communication;

(iv) geographical features; and

(v) community interest;

(b) making recommendations to Parliament on administrative boundaries, including the fixing, reviewing and variation of boundaries of districts and other units; and

(c) the performance of such other functions as may be prescribed by Parliament.”

After promulgation of The Constitution of Kenya, 2010 (hereinafter referred to as “the new Constitution”), the mandate of the 4th respondent is somewhat different from the one stated hereinabove. Mr. Mwangi referred the court to the provisions of the Sixth Schedule Section 27 which states as hereunder:

“27(1) The Boundaries Commission established

under the former Constitution shall continue to function as constituted under that Constitution and in terms of section 41B and 41C but –

(a)it shall not determine the boundaries

of the counties established under this Constitution;

(b)it shall determine the boundaries of constituencies and wards using the

criteria mentioned in this Constitution; and

(c)members of the commission shall be

subject to Chapter seven of this

Constitution.

(3) The requirement in Article 89(2) that a

review of constituencies and ward boundaries shall be completed at least twelve months before a general election does not apply to the review of boundaries preceding the first elections under this Constitution.

(4)The Boundaries Commission shall ensure

that the first review of constituencies undertaken in terms of this Constitution shall not result in the loss of a constituency existing on the effective date.”

What is the criteria for determination of boundaries of constituencies and wards under the new Constitution? Article 89(5) of the Constitution states as follows:

“(5) The boundaries of each constituency

shall be such that the number of

inhabitants in the constituency is, as nearly

as possible, equal to the population quota,

the number of inhabitants of a constituency may be greater or less than the population quota in the manner specified in clause (6) to take account of –

(a) geographical features and urban

centres

(b) community of interest, historical,

economic and cultural ties;

(c) means of communication.

(6) The number of inhabitants of a

constituency or ward may be greater or

lesser than the population quota by a

margin of not more than –

(a) forty per cent for cities and sparsely

populated areas; and

(b) thirty per cent for the other areas.

(7) In reviewing constituency and ward

boundaries the commission shall –

(a) consult all interested parties; and

(b) progressively work towards ensuring

that the number of inhabitants in each

constituency and ward is, as nearly as possible, equal to the population quota.”

The petitioner’s counsel submitted that the 1st, 2nd and 3rd respondents are disqualified from being members of the 4th respondent because Section 27(1) (c) of the Sixth Schedule requires members of the commission to be subject to Chapter seven of the new Constitution. Under Article 88 a person is not eligible for appointment as a member of the Independent Electoral and Boundaries Commission if the person –

“(a) has, at any time within the preceding five years

held office, or stood for election as –

(i)a member of parliament or of a county

assembly; or

(ii) a member of the governing body of a

political party; or

(c)holds any state office.”

He submitted that the 1st respondent was a Member of Parliament for Vihiga constituency from 2002 to 2007, the 2nd respondent stood for election as a member of parliament for Kisumu Town East constituency in the year 2007 while the 3rd respondent was a member of the National Executive Council of NARC-Kenya until her appointment to the 4th respondent. In his view, the three should have resigned as Commissioners of the 4th respondent on the effective date of the new Constitution. Their continued stay therein is illegal and unconstitutional, counsel added.

(c)Mandate of the 4th respondent

Mr. Mwangi submitted that under the repealed Constitution the 4th respondent was mandated to make recommendations to parliament regarding delimitation of constituencies and that same mandate continues even under the new Constitution. He continued to say that the 4th respondent cannot gazette its findings without first making recommendations to parliament. Any attempt to do so is ultra vires its legal mandate. He further submitted that the 4th respondent is trying to usurp the powers of the Independent Electoral and Boundaries Commission, its intended successor. He referred to the provisions of Article 89(2) of the Constitution which, he submitted, vests upon the Independent Electoral Boundaries Commission the power to review the names and boundaries of constituencies. He further submitted that the 4th respondent had violated the constitutional provisions of reviewing boundaries of constituencies. He also referred to the nullified population figures for eight districts and said that the 4th respondent was not in a position to make proper and accurate delimitation of constituencies when there was uncertainty regarding the population of Kenya and particularly in the eight districts.

Because of violation of the 4th respondent’s mandate, the petitioner was forced to come to court under certificate of urgency to seek conservatory orders. Under the provisions of Article 23 of the Constitution the High Court has jurisdiction to grant an injunction or a conservatory order, counsel stated.

(d)Locus Standi of the Petitioner

Counsel submitted that Article 22 of the Constitution mandates every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. He also cited the provisions of Article 258of the Constitution. He submitted that the petitioner had legal capacity to institute these proceedings.

(e)Interpretation of the Constitution

Mr. Njenga submitted that the Constitution does not expressly state how a person can challenge the decisions of the 4th respondent in the event that it exceeded its Constitutional mandate. He pointed out that the provisions of Article 89(9), (10) & (11) of the Constitution are only applicable where a citizen is challenging decisions of the Independent Electoral and Boundaries Commission in reviewing the names and boundaries of constituencies. The provisions of those subarticles are as hereunder:

“(9) Subject to clauses (1), (2), (3) and (4), the

names and details of the boundaries and

wards determined by the Commission shall be published in the Gazette, and shall come into effect on the dissolution of parliament first following their publication.

(10) A person may apply to the High Court for

review of a decision of the Commission made under this Article.

(11)An application for the review of a

decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.”

In the absence of express provisions for challenging the intended publication of the constituencies by the 4th respondent, counsel submitted that the court should interpret the relevant provisions of the Constitution cited herein in accordance with the provisions of Article 259 which requires the Constitution to be interpreted in a manner that:

“(a) promotes its purposes, values and

Principles;

(b) advances the rule of law, and the human

rights and fundamental freedoms in the Bill

of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.”

He urged the court to grant the orders as sought by the petitioner and dismiss the respondents’ application seeking to vacate the same.

7. RESPONDENTS’ ARGUMENTS

Mr. Nowrojee together with Mr. Ahmednassir and Mr. Ongaya appeared for the 1st, 2nd, 3rd and 4th respondents. The 5th respondent did not take part in the proceedings although he had been duly served with the petition and the two applications. That is unfortunate because the Attorney-General, as the principal legal advisorto the Government, ought to have made his input in this matter. Article 156(6) of the Constitution requires the Attorney-General to promote, protect and uphold the rule of law and defend the public interest. Article 156(4) (b) also requires the Attorney-General to represent the Government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. This is a matter of great public interest and it would have been in the interest of justice for the Attorney-General through his representatives to take part in the proceedings.

a)Petitioner’s application brought under the wrong provisions of the law

Mr. Nowrojee started by stating that the petitioner’s application was brought under the wrong provisions of the law. The application was brought under Section 3A of the Civil Procedure Act and Order XXXIX rules 2(1), 3(1) and 5 of the Civil Procedure Rules, rules 11 and 13 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 and all enabling provisions of the law. On the face of the application the petitioner has also cited various sections of the Constitution. Mr. Nowrojee further submitted that the petitioner’s prayer seeking to preclude the 1st, 2nd and 3rd respondents from participating in or presiding over the functions of the 4th respondent was based on his misunderstanding or misinterpretation of the provisions of Chapter seven of the Constitution of Kenya as read together with Sections 2(1), 27(1) (b) and (3) of the Sixth Schedule to the Constitution. He cited Section 2(1) above which states as follows:

“The following provisions of this Constitution are suspended until the final announcement of all the results of the first election for parliament under this Constitution –

(a)Chapter seven, except that the provisions of the chapter shall apply to the first general elections under this Constitution.”

In his view therefore, the provisions of Article 88(2) relating to eligibility for appointment as a member of the Independent Electoral and Boundaries Commission which were relied upon by the petitioner in bringing his application are irrelevant. That being the case no interim orders in respect of prayer 2 of the petitioner’s application ought to have been granted because the application was based on a law that has not yet come into operation. Counsel further submitted that the ex-parte orders of injunction are extremely wide and drastic. The orders were intended to bring the work of the 4th respondent to an end and to get the 1st, 2nd and 3rd respondents out of office as Commissioners of the 4th respondent. Such drastic orders should not have been granted ex-parte and without due consideration of the law and implications of the orders, counsel added. The orders were even more drastic when the court directed that they remain in force until 2nd of December, 2010 when the tenure of the 4th respondent would have expired, Mr. Nowrojee stated. In his view, that was an error in law and the orders sought should be vacated.

b)Gazettement of Constituency Boundaries

Mr. Nowrojee submitted that under the repealed Constitution the duty of the 4th respondent was to recommend to parliament on the delimitation of constituencies and local authority electoral units but under the new Constitution the 4th respondent is required to determine the boundaries of constituencies and wards. The 4th respondent was therefore mandated to gazette that determination. He referred to the provisions of Section 27(1) (b) of Schedule Six. That process of determination of boundaries is a technical one and has to be undertaken by an independent body and is not subjected to parliament. He stated that under the new Constitution members of parliament are prevented from making determinations in matters where they may have personal interests like creation of boundaries of constituencies and electoral wards. Under the provisions of Article 89(10) & (11) a person can seek review of a decision made by the Independent Electoral and Boundaries Commission by making an application to the High Court. The intended process is what the 4th respondent was proceeding on before it was injuncted. He referred to annexture HANL3 in the affidavit of the 1st respondent which shows that the Attorney-General had given his considered advice to the 4th respondent to the effect that it was duly mandated to determine the boundaries of constituencies and wards. That is why in forwarding to the Government Printer The National Assembly Constituencies Order, 2010 the 4th respondent referred to the aforesaid advice by the Attorney-General. He wondered why the Government Printer did not publish the intended gazette notice which was submitted on 15th November, 2010 before any injunctive order was issued. In his view, the intended gazettement of constituencies was proper and lawful.

He further submitted that where the Constitution or statute provides a specific procedure for doing anything, that procedure must be followed and not otherwise. In this case the gazettement of the constituencies ought to have been done and thereafter an application for review could have been made before this court. The petition was therefore premature. He cited the Court of Appeal decision in THE SPEAKER OF THE NATIONAL ASSEMBLY vs. THE HON. JAMES NJENGA KARUME Civil Application No. NAI 92 OF 1992where the court held:

“In our view, there is considerable merit in the

submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear Constitutional and statutory provisions.”

c)Consultations

Mr. Nowrojee submitted that the 4th respondent consulted widely in the exercise of its mandate. He referred to annexture “HANL4” in the affidavit of the 1st respondent which contains a schedule of all the meetings held by the 4th respondent in each and every constituency.

d)Criteria used by the 4th respondent

It was submitted that the 4th respondent complied with the criteria as prescribed inArticle 89(5) & (6)of the Constitution as well as Section 27(4) of the Sixth Schedule. The numerical calculations utilized and applied in making the 4th respondent’s determination’s are as set out in the affidavit of the 1st respondent. Regarding the issue of the country’s population with particular regard to the cancellation of census results in eight districts, Mr. Nowrojee referred the court to an order issued in Miscellaneous Civil Application No. 309 of 2010, IN THE MATTEROF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION, REPUBLIC vs. THE MINISTER OF STATE FOR PLANNING AND TWO OTHERS EX-PARTE NOOR MAALIM HUSSEIN AND 4 OTHERS. In that matter the court stayed the decision of the Minister to cancel the 2009 Population and Housing Census results for Lagdera, Mandera East, Mandera Central, Mandera West, Wajir East, Turkana North, Turkana South, and Turkana Central constituencies. The stay order is in force until 7th of December, 2010 when the judicial review application will be heard.

e)Removal of commissioners

Mr. Nowrojee submitted that under the current Constitution the High Court does not have jurisdiction to remove a Commissioner. He referred to the provisions of Article 251(3) - (7) which sets out how a member of a Commission may be removed from office. The section refers to members of the various Commissions as set out under Article 248 and not members of Interim Independent Boundaries Review Commission.

f)Petitioner’s Locus

Mr. Nowrojee further submitted that the petitioner has no locus standi to institute these proceedings. The 4th respondent held consultations in his constituency but the petitioner did not appear before the Commission to give his views as in the petition espoused or at all.

Counsel urged the court to find that the orders sought by the petitioner and granted by this court were improper and set them aside. In his view, the petition is a violation of the doctrine of separation of powers.

DETERMINATION OF THE ISSUES RAISED

It took a whole day for the learned counsel for the two sides to argue their respective applications. The court had to prepare and deliver this ruling in less than two days, considering the urgency of the matter. This is because the constitutional life span of the 4th respondent as per the provisions of Section 27 Schedule Six of the new Constitution read together with Section 41B (11)of the repealed Constitution is almost over. The latter states as hereunder:

“The Commission shall stand dissolved twenty

four months after the commencement of this section or three months after the promulgation of a new Constitution, whichever is the earlier.”

Since the new Constitution was promulgated on 27th August, 2010, that deadline is tomorrow the 27th day of November, 2010.

I will now proceed to determine the issues raised in the two applications as hereunder.

1. The mandate of the 4th respondent and qualifications of persons appointed as Commissioners.

The 4th respondent was created bySection 41B of the Constitution of Kenya (Amendment) Act, 2008. The qualifications for appointment as a member of the Commission are set out under Section 41B (3) & (4).A person was not qualified to be appointeda memberof the Commission if he was a member of the National Assembly; a member of a Local Authority; a member of the executive body of a political party or held any office in the public service or in the Armed Forces of the Republic. All the Commissioners were nominated and appointed through a competitive process by the Parliamentary Select Committee, having met all the necessary qualifications as set out in the aforesaid section.

The functions of the 4th respondent were clearly set out under Section 41C of the repealed Constitution which I have already cited. It is important to note that under the repealed Constitution the 4th respondent was required to make “recommendations to parliament on the delimitation of constituencies and local authority electoral units”.The new Constitution was promulgated on 27th August, 2010 and subject to the Sixth Schedule the Constitution that was in force immediately before the aforesaid date was repealed. Article 88 of the new Constitution creates the Independent Electoral and Boundaries Commission. However, the Interim Independent Boundaries Review Commission was saved, albeit for a limited period of time. I believe that was for good order and need for some degree of continuity before appointment of members of the Independent Electoral and Boundaries Commission.

Section 27(1) of the Sixth Schedule expressly states that the Boundaries Commission established under the former Constitution shall continue to function as constituted under that Constitution in terms of Sections 41B & C.With regard to eligibility of the Commissioners therein, the aforesaid provisions imply that if under Section 41B (4)of the former Constitution a person was duly qualified and eligible to be appointed as Commissioner and was so appointed he/she is still qualified to continue to serve during the remaining period of the interim body.

The learned members of the Committee of Experts who were charged with the responsibility of drafting the new Constitution were well aware that the qualifications for appointment as a Commissioner of Independent Electoral and Boundaries Commission as stipulated under Article 88 were different from those stipulated under Section 44B (4) of the repealed Constitution. It was not the intention of the new Constitution that any member of the interim body who had at any time within the preceding five years held office or stood for election as a Member of Parliament or was a member of the executive body of a political party within the stipulated period of time resigns from the Commission. If that was the intention nothing would have been easier than to state so. A distinction as to eligibility must be drawn between appointment of a member of The Independent Electoral and Boundaries Commission and eligibility of the members of the 4th respondent to continue serving until expiry of the 4th respondent’s tenure.

The petitioner’s contention that the 1st, 2nd and 3rd respondents are not qualified to remain as Commissioners of the 4th respondent because of their engagements in politics or political parties within the preceding five years cannot be correct. I think it was due to misinterpretation of the provisions of Section 27(1) (c)of the Sixth Schedule which states that:

“members of the Commission shall be subject to Chapter seven of the Constitution”

That provision, in my view, simply means that those who were members of the Interim Independent Boundaries Review Commission as at 27th August, 2010, during the remainder of the term of the interim body shall be subject to the provisions of Chapter seven. It would be absurd for the Constitution to state that the Interim Commission as constituted under the former Constitution shall continue to function and at the same time require the Chairman and two other Commissioners to cease working as members thereof. The Constitution must be interpreted in a manner that promotes its purposes and contributes to good governance. See Article 259(1).In NJOYA & 6 OTHERS vs. ATTORNEY-GENERAL & 3 OTHERS (No. 2) [2004] 1KLR 261 the court restated this important principle of constitutional interpretation. I therefore reject the petitioner’s contention that the 1st, 2nd and 3rd respondents are not qualified to be members of the 4th respondent and ought therefore to resign. The true position in law is that they are lawfully in office as Commissioners of the 4th respondent upto 27th November, 2010.

What is the mandate of the 4th respondent under the repealed Constitution vis a vis the new Constitution?

I have already stated that under the repealed Constitution the mandate of the 4th respondent was to make recommendations to parliament on the delimitation of constituencies and local authority electoral units and the optimal number of constituencies on the basis of equality of votes taking into account –

(i) density of population and in particular the need to ensure adequate representation of urban and sparsely populated rural areas;

(ii) population trends;

(iii) means of communication;

(iv)geographical features; and

(v)community interest.

The 4th respondent was also mandated to make recommendations to parliament on administrative boundaries, including the fixing, reviewing and variation of boundaries of districts and other units; and the performance of such other functions as may be prescribed by parliament. See Section 41C of the repealed Constitution.

Under the new Constitution the mandate is enlarged. Article 27(1) (b) of the Sixth Schedule specifically requires the 4th respondent to determine the boundaries of constituencies and wards using the criteria mentioned in the Constitution. That criteria is defined by the provisions of Article 89(5). If the intention of the Constitution was to deny the 4th respondent power to determine boundaries of constituencies and wards, the mandatory provisions of Section 27(1) (b) of the Sixth Schedule would have been unnecessary.

I do not agree that before expiry of its term, the 4th respondent does not have power of delimitation and publication of boundaries of constituencies and wards under Article 89 of the Constitution and that such task can only be undertaken by its successor. The 4th respondent can and is mandated to do so but it must use the criteria mentioned in Article 89. If for any reason the 4th respondent fails to undertake that task it will then be the responsibility of its successor, the Independent Electoral and Boundaries Commission, to do so.

Although Chapter seven is one of those whose provisions are suspended until the final announcement of the results of the first elections of parliament under this Constitution, the provisions of the Chapter do and shall apply to the first general elections conducted under the new Constitution. It is widely expected that the first general elections under the new Constitution shall be held in 2012. This in effect means that all the provisions in the Chapter that relate to the forthcoming general elections and which can be operationalized by the Interim Independent Boundaries Review Commission within its life span are applicable and can be put into play by the interim body. That includes the determination of boundaries of constituencies and wards using the criteria in Chapter seven, specifically Article 89.

Article 82 states that parliament shall enact legislation to provide for, inter alia, the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and County Assemblies. But considering that the 4th respondent has been given power to determine boundaries of constituencies and wards, the drafters of the new Constitution must have envisaged a situation where the first general elections under the new Constitution could be held with 290 constituencies as determined by the interim body. That position is given credence by the provisions of Section 27(1) (3) of the Sixth Schedule which states that:

“The requirement in Article 89(2) that a

review of constituency and ward boundaries shall be completed at least twelve months before a general election does not apply to the review of boundaries preceding the first elections under this Constitution.”

2. DID THE 4TH RESPONDENT ACT WITHIN ITS

MANDATE?

The petitioner’s contention is that the 4th respondent’s act of determining the names of the 290 constituencies and forwarding them to the Government Printer for publication in the Kenya Gazette was ultra vires its constitutional mandate.In so doing, the petitioner stated, the 4th respondent was usurping the powers of the Independent Electoral and Boundaries Commission which is yet to be constituted.

On the other hand, the 4th respondent contended that it was acting in exercise of the powers conferred upon it under Section 27(1) (b) of the Sixth Schedule as read together with Article 97(1) (a) of the Constitution. The intended legal notice contains names of 290 constituencies and their assigned constituency numbers. The 290 constituencies consist of the original 210 constituencies and additional 80 proposed new constituencies. Section 41B (8)of the repealed Constitution whose provisions were saved under the new Constitution states that:

“In the exercise of its functions under this

Constitution, the Commission shall not be

subject to the direction or control of any other person or authority.”

That in essence means that in creating the additional 80 constituencies the 4th respondent is mandated to do so without the direction or control of any of the three arms of the Government but subject only to strict adherence to the Constitutional provisions. But upon accurate determination of the boundaries and constituencies and their publication in the Gazette a person may apply to the High Court for review of the decision made by the 4th respondent. That application ought to be filed within thirty days of the publication of the decision in the Gazette.

A close reading of Article 89(9) and Section 27(1) (b) of the Sixth Schedule reveals that the 4th respondent was required to determine the “names and details of the boundaries of the constituencies and wards”and then publish them in the Gazette. However, what the 4th respondent did was not in full compliance with what it was required to do under the aforesaid provisions of the Constitution. It did not determine the details of the boundaries of the 290 constituencies.Whenever a constituency is split to create an additional constituency or constituencies, it is necessary that the boundaries of each constituency are defined in sufficient details. Unless that is done, the requirements under the Constitution are not fulfilled. Without clear determination of constituency boundaries there is likelihood of chaos and confusion involving voters residing in the perceived boundary areas. Without clear boundaries it is also not possible to tell the number of voters in a given constituency. In its publication of the 290 constituencies in the major newspapers on November, 17th 2010, the 4th respondent stated that “the new constituencies will be the electoral areas for the 2012 General Election”.Nothing was stated about the constituency boundaries. Although Mr. Nowrojee argued that determination and gazettement of the boundaries was to be done sometimes after publication of the names of the 290 constituencies, that amounts to a fundamental departure from the letter and spirit of Article 89(9) which requires “the names and details of the boundaries of constituencies and wards” as determined to be published in the Kenya Gazette. The two should be done simultaneously. That is the only way to ensure compliance with the provisions of Article 89(5) which states that:

“The boundaries of each constituency shall be

such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6) to take account of –

(a)geographical features and urban

centres;

(b)community of interest, historical,

economic and cultural ties; and

(c)means of communication.”

Although the 4th respondent stated that in creating the additional 80 constituencies it took into account the aforesaid factors, that contention was challenged by the petitioner who stated that the population data availed to the 4th respondent was incomplete and could not therefore lead to an appropriate delimitation of electoral units. The analysis that was annexed to the petitioner’s replying affidavit was however inconclusive, as it had only 207 constituencies and more so, because the maker of the schedule and the source of the figures stated therein was not disclosed.

On my part, I would state that for the sake of transparency and full compliance with the criteria set out under Article 89(5), the 4th respondent or any other electoral body, in publishing the names and details of constituencies and wards as required under Article 89(9), it ought to disclose the population and the square kilometres of each of those electoral units and any other relevant information pertaining thereto. That way a person can tell whether the desired population quota as defined in Article 89(5) and (12)has been realized or not. In undertaking an important constitutional task as delimitation of electoral units the highest degree of compliance with the law and transparency is necessary. No effort should be spared in putting in place such mechanisms as would ensure universal suffrage based on the aspiration for fair representation and equality of vote as desired by Kenyans.

In view of what I have stated hereinabove, I find and hold that although the 4th respondent has power to determine the boundaries of constituencies and wards, it did not fully comply with the mandatory constitutional requirements as stipulated in Article 89(9) and Section 27(1) (b)of the Sixth Schedule.

Consultations prior to publication of constituencies

I do not agree with the petitioner’s contention that the 4th respondent failed to consult all the relevant parties before it prepared the schedule of the names of constituencies for publication. There is sufficient evidence that the 4th respondent traversed all the constituencies and sought views from all Kenyans. People were even granted opportunities to make their written representations but the petitioner did not make any.

Petitioner’s locus

It was submitted by the respondents that the petitioner has no locus standi to bring his petition and the application in consideration. I disagree. Article 22(1)states that:

“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened”

The petitioner is a Kenyan and a registered voter. Article 258 further provides that every person has the right to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. In addition to a person acting in their own interest, court proceedings under Article 258(1) may be also be instituted by a person acting on behalf of another who cannot act in their own name, a person acting as a member of, or in the interest of, a group or class of persons, a person in the public interest, or an association acting in the interest of one or more of its members. Since the petitioner was apprehensive that the 4th respondent was about to violate important provisions of the Constitution and thereby infringe on his fundamental rights to a free, fair, credible and lawful electoral system and electoral process, he was perfectly entitled to come to court. I find and hold that the petitioner had locus standi to institute these proceedings.

In what way should the petitioner have moved the court?

It was submitted that the petitioner’s application by way of Chamber Summons was brought under the provisions of Order XXXIX of the Civil Procedure Rulesand therefore the ex-parte orders ought not to have been granted. I however, note that the petitioner also invoked several provisions of the Constitution on the face of the application. In any event, the provisions of Article 159(d) of the Constitution require that justice shall be administered without undue regard to procedural technicalities. In public interest litigation courts should be slow in rejecting an otherwise competent suit simply because the appropriate provisions of law have not been cited or for any other procedural technicality. In several decisions of this court as well as the Court of Appeal it has been held that where a Constitutional commission threatens to contravene a constitutional provision the court ought to intervene by granting an appropriate remedy. See GITOBU IMANYARA vs. THE ATTORNEY GENERAL, High Court Civil Suit No. 3596 of 1992. Under Article 23, in any proceedings brought under Article 22 a court may grant appropriate relief including –

(a)a declaration of rights

(b)an injunction

(c)a conservatory order, etc

Should the orders sought by the parties in their respective applications be granted?

As regards the prayer of injunction precluding the 1st, 2nd and 3rd respondents from participating in or presiding over the functions of the 4th respondent, the same was not premised on the correct legal position. I have already stated that the petitioner misinterpreted the provisions of Section 27(1) (c) of Schedule Six. The ex-parte order in terms of prayer 2 of the petitioner’s application is therefore discharged. The ex-parte order of injunction in terms of prayer 3 was properly sought and granted. The same shall remain in force pending hearing and determination of the petition.

Costs

Although the petitioner did not expressly state that he was acting in the public interest, these proceedings are no doubt of great public interest. The issues raised therein are very important in interpretation of our new Constitution. The petitioner and the respondents through their learned and able advocates made brilliant submissions which will no doubt advance our constitutional jurisprudence. Taking the nature and importance of the applications into consideration, the order that commends itself to me as regards costs of the applications is that each party should bear its own costs, which I hereby order.

Conclusion

Having determined this matter and being alive to the fact that the issues in controversy have elicited sharp differences in our society, I am constrained to state that as Kenyans we must not forget where our country was during the post election violence in 2008. That national crisis gave fresh impetus for search of a new Constitution. Like all new things which we must learn to use, the implementation of the new Constitution has its own challenges. However, these challenges must be tackled in the spirit of fostering national unity and healing. Each of the three arms of the Government must endevour to achieve the aspirations of all Kenyans for a nation where true democratic principles are respected and practiced. All persons and state organs at all levels are enjoined to respect, uphold and defend the Constitution. We must always endevour to find peaceful solutions whenever disagreements of any nature crop up, as they are bound to. The utterances, divisions and the rise in political temperature that has been witnessed in the last few days due to differences in interpretation of the Constitutional provisions relating to this matter are not for our common good as Kenyans. Fidelity to the rule of law will always enhance national cohesion.

DATED, SIGNED and DELIVERED at NAIROBI THIS 26th DAY OF NOVEMBER, 2010.

D. MUSINGA

JUDGE

In the presence of:

Nazi – court clerk

Mr. Njenga Mwangi and Eric Mutua for the petitioner

Mr. Nowrojee, Mr. Ahmednassir and Mr. Ongaya for the 1st, 2nd, 3rd and 4th respondents

Mr. Onyiso for the 5th respondent