[2017] KEHC 4303 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL PETITION NO 168 OF 2017

IN THE MATTER OF ARTICLES 1, 2, 3, 10, 22, 23, 27, 47, 50, 81, 86, 165, 258, 259 OF THE CONSTITUTION OF KENYA, 2010

IN THE MATTER OF ENFORCEMENT OF ARTICLES 2 AND 38 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF SECTION 44 OF THE ELECTIONS ACT AS AMENDED BY THE ELECTION LAWS (AMENDMENT) ACT, 2016 AND THE ELECTION LAWS (AMENDMENT) ACT, 2017

IN THE MATTER OF STANDARDS ACT, CHAPTER 496 OF THE LAWS OF KENYA

IN THE MATTER OF LEGAL NOTICE NO. 78 OF 15TH JULY 2005, THE VERIFICATION OF CONFORMITY TO KENYA STANDARDS OF IMPORT ORDER

BETWEEN

KHELEF KHALIFA …………………………….….......................................1ST PETITIONER

MAINA KIAI...................................................................................................2ND PETITIONER

TIROP KITUR................................................................................................3RD PETITIONER

VERSUS

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

KENYA BUREAU OF STANDARDS................................…….................2ND RESPONDENT

JUDGEMENT

Introduction

1. This petition invites this court to determine whether or not the Independent Electoral and Boundaries Commission (hereinafter referred to as the I.E.B.C) has breached the provisions of sections 44(1), (2) & (4) of the Elections Act (as amended),the provisions of Legal Notice No. 78 of 15th July 2005 and the constitutional requirements for public participation and guarantee for free, fair, transparent and accountable elections by ensuring that technology to be used in the forth coming elections is simple, accurate, verifiable, secure, accountable and transparent.

2. It may be important to know whether, under legislation, an office-holder is obliged, or has a duty, to do something or whether the office-holder has a discretion, or a choice, to do or not to do it. Another way of putting this is to ask whether a legislative provision is obligatory or discretionary. If it has been concluded that an office-holder has an unfettered discretion as to whether to do something, failure to do the thing can hardly be the subject of legitimate complaint. On the other hand, if there has been a failure to perform an obligation imposed by legislation, quite apart from possible consequences for the office-holder, there may be an issue as to the consequences of that breach of the law for others. In relation to statutory obligations and discretions, two principal questions arise:- (a) how to determine whether a legislative provision imposes an obligation or confers a discretion; and (b) how to determine whether breach of a legislative provision imposing an obligation produces invalidity.

3. The answers to these questions as demonstrated later in this judgment are arrived at by carefully considering the act or omission alleged to constitute the alleged breach and also by interpreting the meaning of the provisions in question a process arrived at by applying the principles of statutory interpretation discussed later in this judgement.

4. It is imperative at the outset to state that in the process of determining whether a provision contained in legislation imposes an obligation or confers a discretion, courts and tribunals must strive for an interpretation that would promote the purpose or object underlying the provision. In carrying out this responsibility, they must not look at the provision in isolation, but must consider it in its context. Consistently with this, the issue may be resolved by interpreting the words according to their plain and ordinary meaning.

Petitioners case

5. This petitioners bring this petition pursuant to the provisions of article 165 (2) (d) of the constitution which grants this court the jurisdiction to hear any question respecting the interpretation of the constitution including determination of (i) the question whether any law is inconsistent with or in contravention of the constitution; and (ii) the question whether anything said to be done under the authority of the constitution or of any law is inconsistent with, or in contravention of, the constitution. The petitioners further state that they bring this petition as a matter of Public Interest under Article 258 (2) (c) of the constitution.

6. The first Respondent is the Independent and Electoral Boundaries Commission (hereinafter referred to as I.E.B.C.), a body established under Article 88 of the constitution and tasked with the responsibility of amongst others; conducting or supervising referanda and elections to any elective body or office established by the constitution and any other elections as may be prescribed by a Act f Parliament; the continuous registration of citizens as voters; the regular revision of the voter's roll; the registration of candidates for elections and voter education.

7. The second Respondent is the Kenya Bureau of Standards, (hereinafter referred to as K.B.S.), established under section3 of the Standards Act[1](hereinafter referred to as the Act). It is mandated to promote standardization and commerce; prepare frame, modify or amend specification and codes of practice; and to provide for the testing of locally manufactured and imported commodities with a view to determining whether such commodities comply with the Standard Act on the standards quality.

The Petitioners case

8. The petitioners aver that the Elections Act[2] as amended establishes an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results and mandates the first Respondent to ensure that the technology in use is simple, accurate, verifiable, secure, accountable and transparent.

9. They also aver that pursuant to its mandate, I.E.B.C. undertook to acquire electronic electoral equipment from outside Kenya. The importation of such items must comply with the provisions of the Standards Act[3] and Legal Notice No. 78 of 15th July 2005, which stipulates the verification conformity to the Kenya Standards of Imports Order, but I.E.B.C. obtained waiver from the Minister exempting them from the procedures of pre-export verification of conformity. They state that the waiver was granted on the basis of the urgency of the timeline for the upcoming elections in that the timelines set in the Elections (Amendment) Act 2017 will bar the first Respondent from pursuing the proper process of ensuring the conformity to standards as set out in the said Legal Notice.

10. The petitioners also aver that failure to subject the said goods to verification to ensure that they meet the standards and are fit for the purpose poses a threat to their right to free and fare elections in that the Respondents "may have inadvertently imported into the county equipment that may not be suitable for the purpose and to facilitate the petitioners right to a free and fair elections."

11. It is averred that the foregoing is a violation of the law, principles of transparency, accountability, national values and principles and has the effect of undermining free and fair elections. The petitioners also cite absence of public participation, and also stated that the exemption from conformity to standards violated their right to equal benefit of the law.

First Respondents Replying affidavit

12. On behalf of the I.E.B.C is a detailed Replying Affidavit of Ezra Chiloba filed on 21st June 2017 stating inter alia that under section 44 of the Elections Act,[4] I.E.B.C. was required to put in place the integrated electronic system within eight months before the elections. Thus, this ought to have been done by 8th December 2016.

13. Conscious of the practicability of the said requirement, I.E.B.C. considered and proposed to the National Assembly an amendment to the said provision. As a consequence, the Elections Act[5] was amended in January 2017, by The Election Laws (Amendment) Act[6] which provides that the integrated electronic system be put in place four months to the general elections scheduled for 8thAugust 2017 and that the system be tested by the commissionat least sixty days before the said elections.

14. He further avers that in order to ensure compliance with section 44 of the Elections Act[7] and the Public Procurement and Asset Disposal Act, 2015,[8] he established a committee comprising of representatives of professional bodies as well as non-state agencies and various Political parties to develop specifications for the procurement of the Kenya Integrated Election Management System (hereinafter referred to as K.I.E.M.S.). The committee prepared the proposed specifications. This was followed by setting up a Technical Committee provided for in section 44 (8) of the Elections Act,[9] to validate the K.I.E.M.S. specifications as prepared by the specifications committee. The report by the specifications committee was adopted by the Technical Committee on 6th December 2016 paving the way for invitation of bids from qualified suppliers.

15. On 16th December 2016, I.E.B.C. advertised in the local dailies inviting bids for the supply, delivery, installation, testing, commissioning and support of the K.I.E.M.S. The closing/opening of the bids was set for 9th January 2017. However on 29th December 2016, a request for Review was lodged by Dittel Limited at the Public Procurement Administrative Review Board, (hereinafter referred to as the Review Board) being Application Number 110 of 2016. The Review Board directed that the procurement process be suspended pending hearing and determination of the Request for Review, hence the bids were not opened on 9th January 2017. However, the request for review was withdrawn on 17th January 2017 and the Review Board issued further orders directing I.E.B.C. to extent the tender opening by a period of not less than 14 days in order to accommodate the lost time when the matter was pending review.

16. In compliance with the said directive, I.E.B.C. published a notice extending the tender opening to 2nd February 2017. Upon opening, 10 tenders had been submitted and an evaluation team was set up to evaluate the tenderers. But prior to the completion of the evaluation, I.E.B.C. was served with an application for review filed before the Review Board being Application No. 19 of 2017, Avante International Technology INC vs Independent Electoral and Boundaries Commission and the Review Boardsuspended the procurement process pending the hearing and determination of the matter. After deliberations, I.E.B.C. opted to terminate the tender and seek for alternative modes of procurement.

17. In the meantime voter registration exercise was completed, hence, a component of the tender which related to voter registration was overtaken by events since the specification of the tender required an integrated system that incorporated voter registration, hence the tender was terminated on 28th February 2017. The public procurement regulatory authority and the tenderers were notified.

18. As a consequence of the foregoing, the tender could not meet timelines set out in section 44of the Elections Act.[10] He added that taking into account all the requirements, the successful tenderer/supplier would require between 30 and 60 days to deliver the equipment or system and as such the timelines may have pushed the availability of the technology to sometimes in June 2017 or thereabouts which would be outside the statutory timelines envisaged by section 44 of the Elections Act.[11]

19. He also confirmed that other statutory timelines that were to be fulfilled in the intervening period under the subject tender included the biometric verification of the register of votes which was due on the 10th May 2017 and testing and certification of the system that was scheduled for 10th June 2017.

20. As a consequence, I.E.B.C. opted for restricted tendering, and owing to the limited time left (4 months), I.E.B.C. sought the exemption from K.B.S. The request was also supported by the Principal Secretary, Ministry of Industrialization, Trade and Co-operatives, hence I.E.B.C. was allowed to import the kits subject to payment of an inspection fee and to have a physical inspection of the kits upon entry. Thus, it was in the public interest to grant the said exemption.

21. He also averred that destination inspection of imported items is allowed in law under paragraph 7 (1) of Legal Notice No. 78 of 2005 and that K.B.S. has conducted a physical inspection of the kits imported into the country and has issued a certificate of Physical Inspection certifying that the imported kits are in compliance with the required standards. A copy of the certificate is annexed to his affidavit.

22. He also stated that in order to certify compliance, I.E.B.C. appointed an inspection committee through a memo dated 28th April 2017 to conduct the inspection of the kits and upon inspection, the committee certified that the gadgets met the requirements. The committee issued a certificate of compliance indicating that the items met the specifications and a certificate on inspection and acceptance dated 8th May 2017 was issued. K.B.S. also issued results of laboratory tests/analyses of the kits power banks, mobile battery chargers and tablets confirming that they complied with the standards, hence, there was both physical inspection and laboratory testing by the second Respondent and software inspection by the Inspection Committee set up by I.E.B.C., both of which certified the items as fit for purpose.

23. He added that the inspection, examination and verification of the items and software is a technical process that can only be conducted by specialized persons representing the various stakeholders, a process which was duly followed and sufficiently met the requirements of public participation.

24. Lastly, he stated that caution needs to be taken to ensure that the equipments are only handled by the relevant and competent persons under a stringent process in order to avoid compromising the security and integrity of the electronic electoral system, hence, a public examination as proposed by the petitioners is undesirable. He reiterated that there was public participation since the kits resulted from a report of the various stakeholders as earlier stated.

Petitioners Advocates' submissions

25. Counsel submitted that the Respondents actions are in breach of the constitution, namely; articles 38 (2), 81, 86of the Constitution and sections 44 (1) (2) and (4) of the Elections Act[12] as Amended by the Elections Laws (Amendment) Act, 2016[13] and the Election Laws (Amendment) Act, 2017. [14] Counsel also submitted that section 44 (4) of the act requires that IEBC to test, verify the electronic equipment.

26. Counsel also submitted that sections 3, 4, 6 and 8 of Legal Notice No. 78of 15th July 2005 requires imported goods to meet Kenyan standards and tasks I.E.B.C. to appoint a body to verify the conformity to set standards of the goods to be imported at the country of origin and also requires I.E.B.C. to issue a certificate of conformity and that the minister may grant exception on grounds of national interest.

27. It is counsels submissions that free and fare elections is of great public interest and that the exemption by the minister was ill advised and does not fall within the ambit authorized under the law. He added that an election should be held in an atmosphere of free and fare elections.[15]

28. Further, he submitted that article 10 of the constitution provides for national values and principles of governance to be adhered to by all persons and cited the leading decision by the constitutional court of South Africa, Doctors for Life International vs The Speaker of the National Assembly & 11 Others[16] whereby the respected court pronounced itself on the question of public participation. Also cited is the case of Robert N. Gakuru & Others vs Governor Kiambu County & 3 Others[17](Both cases are referred to later). Further, counsel comment note no. 25 of the Committee on the Covenant on Civil and Political Rights which recognizes the right of the electorate to participate in activities of the state and added that constitutional rights cannot be sacrificed at the altar of expediency. Counsel cited absence of transparency and accountability.

First Respondents Counsels Submissions

29. Counsel for the I.E.B.C. submitted that the replying affidavit sufficiently answers the issues raised in the petition and reiterated that the equipment was subjected to testing and inspection. He also stated that no evidence was tendered on the alleged violation of provisions of the constitution, and that there is no legal requirement for peer review of the equipment and that public participation was undertaken and cited several decisions among them Moses Muyendo and 908 Others vs AG & another[18] whereby the court pronounced itself on sufficiency of public participation and stated that it is not necessary that every person or professional be invited to every forum in order to satisfy the terms of article 10.

30. The second Respondent did not file any Response to the petition nor did it participate in the proceedings.

Issues for determination

31. From the detailed descriptions of the Parties’ positions and submissions, I have distilled the following issues for determination discussed below. Whether or not I.E.B.C. violated the provisions of:- (a) Sections 44 (1), (2) & (4) of the Elections Act, and (b)Legal Notice No. 78 of 15 July 2005.

32. When a court is called upon to review or determine whether or not the decision or action of a statutory body falls within provisions of the statute establishing the body, it is confronted with two questions. First, always, is the question of whether Parliament has directly spoken to the precise question at issue. If the intent of Parliament is clear from the provisions of the statute, that is the end of the matter; for the court, as well as the body, must give effect to the unambiguously expressed intent of Parliament.

33. If, however, the court determines Parliament has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the conduct in question is based on a permissible construction of the statute.[19]

34. In step 1, “the court’s job is to determine whether the scope of ambiguity of the relevant language is sufficiently broad to invalidate the agency’s construction or conduct.”[20] If the language of the statute cannot bear the construction selected by the agency, the interpretation must be overturned.[21] If the statutory body's action or interpretation of the statute is supported by the statutory language in step 2, the court must uphold the interpretation, action or decision, unless it is unreasonable. If the statutory interpretation, action or decision is unreasonable, the policy decision implicit in the statutory body's interpretation is arbitrary and capricious and should be struck down. Thus, a court’s task in applying step 2 is to determine whether the challenged action or decision adequately pursues the goals of the statute as evidenced by the language of the statute.

35. The courts, applying ordinary principles of interpretation, must in effect impute an intention to Parliament as to the consequences of a failure to comply.

36. Where a statute requires an act to be done at or within a particular time, or in a particular manner, the question arises whether the validity of the act is affected by a failure to comply with what is prescribed. If it appears that Parliament intended disobedience to render the act invalid, the provision in question is described as mandatory, absolute, imperative or obligatory, if on the other hand, compliance was not intended to govern the validity of what is done, the provision is said to be directory. [22]

37. The significance of the difference between ''mandatory" and "directory" provisions was high-lighted in Howard v. Bodington[23] in these terms:-

"Now the distinction between matters that are directory and matters that are impera­tive is well known to us all in the common language of the courts at Westminster. I am not sure that it is the most fortunate language that could have been adopted to express the idea that it is intended to convey; but still that is the recognized language, and I propose to adhere to it. The real question in all these cases is thus: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the courts hold a provision to be mandatory or directory ,they say that, although such provision may not have been complied with, the subsequent proceedings do not fail." (Underline mine).

38. I think, as held in the above case, it is pertinent to state that although the distinction between a mandatory pro­vision and a directory provision is far reaching, there is no laid down general rule stating the formula for ascertaining precisely whether a particular provision is mandatory or directory though judges have evolved rules for guidance. It is the duty of the courts to try to get at the real intention of the legislatureby carefully attending to the whole scope of the statute to be construed and in such exercise the courts must look into the subject-matter, consider the import­ance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the statute and upon a review of the case in that aspect decide whether the provision is mandatory or only directory.[24]

39. One thing, however, is certain: that an absolute or mandatory(sometimes also referred to as imperative) enactment must be obeyed or fulfilled exactly;but in the case of a directory enactment, it is sufficient if it obeyed or fulfilled substantially.[25]In the case of imperative enactment the courts give effect to the provisions irrespective of consequences. Devlin, J. as he then was in St. John Shipping CRPN. vs. J. Rank Ltd.[26] was of that view when he stated that:-

" . . . one must not be deterred from enunciating the correct principle of law because it may have startling or even calamitous results. But I confess I approach the investigation of a legal proposition which has results of this character with a prejudice in favour of the idea that there may be a flaw in the argument somewhere."

40. It is important to mention that the word "shall" is used in section 4 (1), (2) and (4) the act. The word "shall" in those provisions appear to me to be commanding enough to be regarded as mandatoryrather than directory.[27] The words are clear, positive and unambiguous and dictate that literal interpretation be given to them. To hold otherwise would, in my view, be for this Court to perpetuate the mischief intended by the legislators to be prevented by the enactment of that section.

41. Importantly, the consequences of holding a provision to be mandatory or directory ought to be taken into account. In the absence of an express provision, the intention of the legislature is to be ascer­tained by weighing the consequencesof holding a statute to be directory or imperative.[28] The usual rule, however, is that [t]he … use of the word “shall” generally evidences an intent that the statute be interpreted as mandatory.’'[29] In arriving at the intention of parliament, the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws.

42. Sir Arther Channel amplified consequential con­sideration in Montreal Steel Rail Co. v. Norman­din[30]in these words:

"When the provisions of a statute relate to the performance of a public duty andthe case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injusticeto persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature,it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of acts done." (Underline mine).

43. Statutory bodies derive their authority or jurisdiction from a legal instrument establishing them, and may only do what the law authorizes them to so. This is known as the principle of legality, which requires that administrative authorities not only refrain from breaking the law, but that all their content comply with the Constitution and particularly the Bill of Rights. Their decisions must conform to the Constitution; legislation; and the common law.

44. The Constitution is the supreme law of the land. Any law or act which is inconsistent with it has no force or effect. The effect of this provision is that laws and administrative acts must comply with the Constitution. Thus, the provisions in question and the acts or omissions of the I.E.B.C must conform to the provisions of the constitution guaranteeing free, fair, transparent and credible elections. To me, this is the principle test. With this in mind, and considering the natural and ordinary meaning of the provisions in question, I now examine the explanation offered by Mr. Chiloba in his Replying affidavit.

45. Mr. Chiloba, avers that fearing that it was not practical to meet the eight months deadline, I.E.B.C. considered and proposed to the National Assembly an amendment to the law. As a consequence, the Elections Act[31] was amended in January 2017, by The Election Laws (Amendment) Act[32] which provides that the integrated electronic system be put in place four months to the general elections scheduled for 8thAugust 2017 and that the system be tested by the commissionat least sixty days before the said elections.

46. The question that follows next is whether the petitioners have satisfactorily established that I.E.B.C has failed to establish "an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results"as required under section 4 (1).I have carefully examined the contents of the Replying Affidavit of Mr. Chiloba on this issue and in my view the petitioners have not rebutted Mr. Chiloba's averments on this issue.

47. Section 44 (2) requires I.E.B.C. to "develop a policy on the progressive use of technology in the electoral process."I am unable to find in the petition evidence to suggest that this provision has been violated.

48. Section 44 (4) enjoins the I.E.B.C. to, in an open and transparent manner — (a) procure and put in place the technology necessary for the conduct of a general elections at least eight months before such elections; and (b) test, verify and deploy such technology at least sixty days before a general election.

49. Again, the requirements of the above sub-section have in my view and in absence of evidence to the contrary been addressed exhaustively in the affidavit of Mr. Chiloba parts of which I repeat below as follows:-

"In order to ensure compliance with section 44 of the Elections Act[33] and the Public Procurement and Asset Disposal Act, 2015,[34] he established a committee comprising of representatives of professional bodies as well as non-state agencies and various political parties to develop specifications for the procurement of the Kenya Integrated Election Management System (hereinafter referred to as K.I.E.M.S.). The committee prepared the proposed specifications. This was followed by setting up a Technical Committee provided for in section 44 (8) of the Elections Act,[35] to validate the K.I.E.M.S. specifications as prepared by the specifications committee. The report by the specifications committee was adopted by the Technical Committee on 6th December 2016 paving the way for invitation of bids from qualified suppliers.

On 16th December 2016, I.E.B.C. advertised in the local dailies inviting bids for the supply, delivery, installation, testing, commissioning and support of the K.I.E.M.S....."

50. At paragraph 45 of his affidavit, Mr. Chiloba avers that all the electronic devices have undergone physical inspection and laboratory testing of the K.I.E.M.S. and by K.E.B.S. and have been certified as meeting the proper standards. In fact, the requisite certificates and inspection report are annexed to the Affidavit. In absence of evidence to the contrary, I find that I.E.B.C. has satisfied the requirements of section 44 (4) of the Act.

51. The Standards Act[36]is an Act of Parliament to promote the standardisation of the specification of commodities, and to provide for the standardisation of commodities and codes of practice; to establish a Kenya Bureau of Standards, to define its functions and provide for its management and control; and for matters incidental to, and connected with, the foregoing. Section 3of the act provides for the establishment of the Kenya Bureau of Standards, a body corporate with perpetual succession and a common seal.

52. Section 4 (1) (i) of the act provides for the testing at the request of the Minister, and on behalf of the Government, of locally manufactured and imported commodities with a view to determining whether such commodities comply with the provisions of this Act or any other law dealing with standards of quality or description. Section 4 of the act empowers the minister after consultation with the Council, may make regulations generally for the better carrying out of the provisions and purposes of this Act.

53. Legal Notice No. 78 of 15th July, 2005 provides for compliance with standards. Because of its relevance to the issue under consideration, I reproduce sections 3 to 8 below:-

3. A person who imports goods must ensure that the goods meet Kenya Standards or approved specifications.

Appointment of an inspection body.

4. The Kenya Bureau of Standards shall appoint an inspection body or bodies in the country of origin of goods to undertake verification of conformity to Kenya Standards or approved specification.

Verification of conformity. 5. All goods which are specified by the Kenya Bureau of Standards in accordance with paragraph 2 shall be subjected to verification of conformity to Kenya Standards or approved specifications in the country of origin by an inspection body authorized by the Bureau, and may be re-inspected at the port of entry by the Bureau if it is deemed necessary.

Certificate of conformity and non-conformity report. 6. (1) The Kenya Bureau of Standards shall issue a certificate of conformity in respect of goods that conform with Kenya Standards or nonconformity approved specifications and a non conformity report in respect of goods which do not.

(2) No Goods that do not conform to the Kenya Standards or approved specifications shall be permitted into Kenya, and shall be re-shipped, returned or destroyed at the expense of the importer.

Destination inspection. 7. (1) Goods specified in accordance with paragraph 2 arriving at the port of entry without a certificate of conformity shall be subjected to destination inspection at a fee of 15% of the Cost, Insurance and Freight value of the goods.

(2) The importer of such goods shall, in addition to the fee imposed in paragraph (1), execute a security bond equivalent to the said fee.

(3) Where goods subjected to destination inspection under subparagraph (1) fail to conform, to Kenya Standards or approved specifications, they shall be re-shipped, returned or destroyed at the expense of the importer.

Exemption. 8. The Minister may, on the advice of the National Standards Council, exempt any imports from the provisions of this Order where the Minister is satisfied that it is in the national interest to do so.

54. Guidance can be obtained from the following passage in the Australian case of Project Blue Sky Inc vs Australian Broadcasting Authority:-[37]

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition…."

55. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. If the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity.[38]

56. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts.[39] In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.[40] My reading of rule 8 reproduced above is that the Minister has a wide discretion. It reads"The Minister may, on the advice of the National Standards Council, exempt any imports from the provisions of this Order where the Minister is satisfied that it is in the national interest to do so."Unless it is demonstrated that the Minister acted outside his powers or was influenced by extraneous considerations, which has not been proved or suggested in this case, his decision in such a case may not be open to challenge.

57. I have carefully studied the provisions of Legal Notice No. 78 and the response filed by Mr. Chiloba and in all fairness, I am satisfied that the foregoing provisions were not breached in any manner. Further, no evidence to the contrary not even by way of a supplementary affidavit has been offered to rebut Mr. Chiloba's averments.

58. My reading of the above provision and the explanation offered by Mr. Chiloba does not in any manner reveal any breach of the provisions in question nor is the conduct of I.E.B.C or the Minister unreasonable considering the circumstances of the case. The provisions are clear and precise, and unambiguous.

59. Rule 8 reproduced above is clear. The explanation offered by Mr. Chiloba that "owing to the limited time left (4 months), I.E.B.C. sought the exemption from K.B.S. The request was also supported by the Principal Secretary, Ministry of Industrialization, Trade and Co-operatives, hence I.E.B.C. was allowed to import the kits subject to payment of an inspection fee and to have a physical inspection of the kits upon entry. Thus, in my view, it was in the public interest to grant the said exemption" which to me is reasonable.

Alleged violation of Articles 38 (2), 81 & 86 of the constitution

60. The questions as to whether (a certain act) can properly be said to (violate the Constitution) is however a value judgment which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the people as expressed in its national institutions and its Constitution and further having regard to the emerging consensus of values in the civilized international community which Kenyans share.[41]

61. In cases of violation of fundamental rights, the Court has to examine as to what factors the court should weigh while determining the constitutionality of the actions complained of. The court should examine the allegations in light of the provisions of the Constitution. When the constitutionality of an action is challenged on grounds that it infringes a fundamental right, what the court has to consider is the “direct and inevitable effect” (if any) of such actions. This would help the court in arriving at a more objective and justifiable approach bearing in mind that Human rights enjoy a prima facie, presumptive inviolability, and can only be limited as provided under the constitution.

62. I have carefully examined the alleged violation of constitutional rights and bearing in mind that a person who alleges violation of constitutional rights has a duty to prove the allegations, I find that the petitioners have failed to prove the alleged violation of their rights.

Whether or not there was sufficient public participation

63. Article 10 (1) of the constitution provides that "The national values and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.

64. Sub-article (2) (a) and (c) provides that "The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (c) good governance, integrity, transparency and accountability.

65. Article 10 of the Constitution expressly provides that public participation is one of the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. As was appreciated by the majority In the Matter of the Principle of Gender Representation in the National Assembly and the Senate:-[42]

“Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground situations, and of such open texture in their scope for necessary public actions. A consideration of different constitutions are highly legalistic and minimalistic, as regards express safeguards and public commitment. But the Kenya Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a constitution takes such a fused form in its terms, we believe, a court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, the norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”

66. I must point out that it is not disputed that public participation was necessary in this case. In fact Ezra Chiloba in his affidavit has gone in to details explaining the various stakeholders and professional they involved. To me this has not been challenged or rebutted. The position could have been different had the petitioners disputed the involvement of the stakeholders listed or even provide an affidavit from any one of them disputing the involvement.

67. I am clear in my mind that public participation is necessary for the purposes of the realization of the spirit of Articles 38 and 81 of the Constitution which espouse a free, fair, credible and transparent election. In order to realize this goal, the preparations leading to the elections must meet the minimum standards articulated in Article 81 of the Constitution that election system must be free and fair; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.

68. Section 3 of the Public Procurement and Asset Disposal Act[43] provides as follows:-

Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation—

a) the national values and principles provided for under Article 10;

b) the equality and freedom from discrimination provided for under Article 27;

c) affirmative action programmes provided for under Articles 55 and 56;

d) principles of integrity under the Leadership and Integrity Act, 2012[44]

e) the principles of public finance under Article 201;

f) the values and principles of public service as provided for under Article 232;

g) principles governing the procurement profession, international norms;

h) maximisation of value for money;

i) promotion of local industry, sustainable development and protection of the environment; and promotion of citizen contractors.

69. The South African Constitutional Court in Doctors for Life International vs. The Speaker of the National Assembly & Others[45]held that:-

“The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law-making process. The key words in this phrase are “facilitate” and “involvement”. To “facilitate” means to “make easy or easier”, “promote” or “help forward”. The phrase “public involvement” is commonly used to describe the process of allowing the public to participate in the decision-making process. The dictionary definition of “involve” includes to “bring a person into a matter” while participation is defined as “(a) taking part with others (in an action or matter);…the active involvement of members of a community or organization in decisions which affect them”. According to their plain and ordinary meaning, the words public involvement or public participation refer to the process by which the public participates in something…it is clear and I must state so, that it is impossible to define the forms of facilitating appropriate degree of public participation. To my mind, so long as members of the public are accorded a reasonable opportunity to know about the issues at hand and make known their contribution and say on such issues, then it is possible to say that there was public participation.”

70. Sachs, J. in the South African case of theMinister of Health vs. New Clicks South Africa (Pty) Ltd:-[46] observed:-

“....... What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.” [Emphasis supplied]

71. In Robert N. Gakuru & Others vs.Governor, Kiambu County [47]it was held that:-

“….Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively.”

72. The essence of public participation was captured in the case of Poverty Alleviation Network & Others vs. President of the Republic of South Africa & 19 Others,[48] in the following terms:-

“…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.”

73. In the Matter of the Mui Coal Basin Local Community[49] a three-judge bench of the High Court considered relevant case law, international law and comparative jurisprudence on public participation and culled the following practical elements or principles which both the Court and public agencies can utilize to gauge whether the obligation to facilitate public participation has been reached in a given case:-

a) First,it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter. It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.

b) Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not. The only test the Courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation.

c)Third,whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information. See Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012). In relevant portion, the Court stated:

“Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”

d)Fourth, public participation does not dictate that everyone must give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.

e)Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.

f)Sixthly,the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.

74. Applying the above elements to the facts of this case, and considering the contents of the affidavit of Mr. Chiloba and the explanation that a specification committee was formed for the procurement, that the committee proposed the procurement, and that to ensure public participation in the procurement process I.E.B.C set up a Technical Committee as provided for under section 44 (8) of the Election Act[50] to validate the K.I.E.M.S. specifications as prepared by the specification committee and that the Technical Committee was composed of representatives of professional bodies as well as state and non-state agencies and various political parties and the explanation that the Technical Committee worked in consultation of the relevant Agencies and various stakeholders including representatives of political parties, in absence of cogent evidence to the contrary, and considering the nature of the matter, logistical constraints and time constraints, I find that I.E.B.C. has demonstrated that there was some form of public participation sufficient to satisfy the requirement for public participation.

75. As pointed out earlier, the position would have been different had the petitioners provided sufficient material to counter this averment. In absence of such evidence, I find no reason to doubt Mr. Chiloba's explanation rendered on oath.

76. Consequently, I find and hold that the petitioners have failed to demonstrate that they are entitled to the reliefs sought in the petition.

77. The upshot is that this petition fails. Accordingly, I hereby dismiss this petition with costs to the Respondents.

Orders accordingly

Signed, Dated at Nairobi this19thday ofJuly2017

John M. Mativo

Judge

[1] Cap 496, Laws of Kenya

[2] Act No. 24 of 2011

[3] Supra

[4] Supra

[5] Ibid

[6] Act No. 1 of 2017

[7] Supra

[8] Act No. 33 of 2015

[9] Supra

[10] Supra

[11] Ibid

[12] Supra

[13] Legal Notice No. 36 of2016

[14] Legal Notice No. 1 of 2017

[15] Counsel cited Dickson Daniel Karaba vs Ngata Kariuki & 2 Others {2010}eKLR

[16] CCT 12/05

[17] {2014}3KLR

[18] Pet No 16 of 2013

[19]Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 842-43 (1984).Chevrondeference is not owed to agencies without rulemaking power.Atchison, Topeka and Santa Fe Railway Company v. Peña,44 F.3d 437, 441 (7th Cir. 1994) (en banc).

[20] McNary v. Haitian Refugee Center, 498 U.S. 479 (1991); Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Lepre v. Department of Labor, 275 F.3d 59 (D.C. Cir. 2001); cf. Dalton v. Specter, 511 U.S. 462 (1994) (ultra vires action is not alone unconstitutional). See also cases collected in Richard Pierce, Administrative Law Treatise § 17. 9 at 1663 (5th ed. 2010).

[21] Cases rejecting an agency interpretation on step 1 grounds are Carcieri v. Salazar, 555 U.S. 379, 129 (2009); Barnhart v. Sigmon Coal Company, 534 U.S. 438 (2002). See also Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987); cf. Environmental Defense v. Duke Energy Corporation, 549 U.S. 561, 574 (2007) (rebuttable presumption that same term in two different sections of same statute must be interpreted same). Recent cases upholding agency interpretations of unambiguous statues are Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81 (2007); National Cable Telecommunications Association v. Gulf Power Company, 534 U.S. 327 (2002); and U.S. Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).

[22]The law in this area is stated in Halsbury I sLaws (4th Edn.) Vol. 44 para. 933

[23] By Lord Penzance {1877} 2 P.D. 203 at 210

[24]Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379 at p. 380 and Howard v. Bodington (Supra), page 211.

[25] See Woodward v. Sarsons {1875} L.R. 10 C.P. 733 at 746 Per Lord Coleridge, C.J..

[26] {1975} 1 Q.B. 267 at 282

[27]Maxwell on Interpretation of Statutes 12th Ed. p. 105. ; Gartside vs. Inland Revenue Commissioners {1968} A.C. 553 at 612.

[28] Caldow v. Pixell (1877) 2 C.P.D. 562 at 566 Denman J

[29] Demayo v. Quinn, 315 Conn. 37, 42 (2014).

[30] {1917} A.C. 170 at 174

[31] Supra note 23

[32] Act No. 1 of 2017

[33] Supra

[34] Act No. 33 of 2015

[35] Supra

[36] Ca 496, Laws of Kenya

[37] {1998} 194 CLR 355 High Court of Australia

[38] Ibid

[39] James J Spigelman, ‘From Text to Context: Contemporary Contractual Interpretation’ (Address to the

Risky Business Conference, Sydney, 21 March 2007

[40] Tasker v Fullwood {978} 1 NSWLR 20, 24

[41]See the leading Namibian case of Ex-Parte Attorney General: In re Corporal Punishment by Organs of State 1991 NR 189, Mahomed AJA stated the principles of constitutional interpretation.

[42] Sup. Ct. Advisory Opinion Appl. No. 2 of 2012 at para 54

[43] Act No. 3 of 2005

[44] No. 19 of 2012;

[45] (CCT 12/05) [2006] ZACC 11; 2006 (12) BCLR 1399(CC); 2006 (6) SA 416(CC)

[46] {2005} ZACC

[47] {2014} eKLR

[48] CCT 86/08 [2010] ZACC 5

[49] {2015} eKLR

[50] Supra