[2017] KEHC 8963 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 324 OF 2017

IN THE MATTER OF: Articles 35 (1) (a), 35 (1) (b) and 38 (1) (b) & (c) of the constitution of Kenya

and

IN THE MATTER OF: Rules 10, 11, 22, 23 and 24 of the constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

and

IN THE MATTER OF: Alleged contravention of Fundamental Rights and Freedoms under Articles 33 (10 (a), 35 (1) (b) and 38 (1) (b) & (c) of the constitution of Kenya, 2010

BETWEEN

Mohammed Abduba Dida …...................................................................................Petitioner

versus

The Debate Media Limited...............................................................................1st Respondent

The Media Council of Kenya..........................................................................2nd Respondent

JUDGEMENT

Introduction

This petition challenges the constitutionality or otherwise of the Presidential Debates Guidelines For 2017 General Elections (hereinafter referred to as the guidelines) developed by the first Respondent to govern the presidential debates scheduled to be held on 10th July 2017 and 24th July 2017 or thereabouts. In particular, the petitioner states that the criteria developed and applied by the first Respondent, which eliminated him and other presidential candidates is discriminatory, hence a violation of his rights under article 27 of the constitution which guarantees the right to equality and freedom from discrimination.

I am fully aware that the Right to equality and freedom from discrimination is a question of grave constitutional importance, hence, I approach it with trepidation, extreme care and sensitivity. The claim of direct or indirect unfair discrimination implicates the right to equality in our Constitution.[1]This is a fundamental right entrenched in our Bill of Rights, and therefore this claim intrepidly raises a constitutional issue.[2]

It is important to mention that the suit against the second Respondent was withdrawn on 5th July 2017, hence the petitioner only proceeded against the first Respondent.

The petitioners case

The petitioner is a duly nominated Presidential candidate for the general elections scheduled for 8th August 2017. He is the candidate for the Alliance for Real Change political party. He states that on 23rd June 2017, he received a letter from the first respondent inviting him to participate in a presidential debate briefing. The letter was accompanied by guidelines which provide that eligibility to participate is as follows:-

i.A candidate must be constitutionally eligible to run for the office of the president and a holder of the formal clearance from the Independent Electoral & Boundaries Commission (IEBC).

ii.Must have attained at least 5% of the popular support country wide in at least two national opinion polls conducted by reputable research firms.

iii.Candidates with less than 5% popular support showing in opinion polls will take part in separate single pool debates to be conducted on the same dates.

It is the petitioners case that the above guidelines are discriminatory, that they are made in bad faith and contrary to the Constitution of Kenya 2010. He avers that his rights are violated in that he is being subjected to guidelines that essentially treat him as a second class presidential candidate. As a consequence he seeks a declaration that all presidential candidates are equal with regard to articulating their manifesto at and during such public debates. He also seeks an order stopping the said debates unless all the presidential candidates are on the same podium.

First Respondents' Replying affidavit

The petition is strongly opposed. On record is the Replying Affidavit of Wachira Waruru, a Director of the first Respondent and chairman of the first Respondents' steering committee of Presidential Debates. He avers that the petition does not disclose a case for violation of the petitioner's rights and or fundamental freedoms as alleged nor does it disclose any other violation of the constitution.

He also states that the guidelines in question were released and published in the media on 9th June 2017, as well as Saturday June 10th 2017.

It is the first Respondents case that in preparation for the debate, a steering committee was formed whose duties included developing terms upon which the debate would be held and to carry out the necessary background research which included establishing the best established international practices. To this end the team travelled to the U.S. where they observed the 2016 Presidential Debates and interacted and engaged with officials from the American Commission on Presidential Debates, the Independent non-profit corporation that sponsors and produces those debates and external legal advisers. Thus, informed by the said research, international best practice, consultations and advice, the steering committee developed the guidelines in question.

On 9thMay 2017, the first Respondent announced that a head of the August 8th General Elections, it would conduct three debates in the course of the month of July 2017, two debates for the candidates for the position of President to be held on 10th and 24th July 2017 and one for the candidates for Deputy President to be held on 17th July 2017.

It is the first Respondents case that the reasons that informed the decision were organizational challenges involved in having multiple candidates on the podium at the same time, the inevitable concerns that there can be no meaningful engagement between so many people on stage the same time and the real possibility of the debates turning into a farce undermining its primary objective of enabling the potential voters to consider and sieve the respective candidate's positions.

Guided by the international best practices, the first Respondent decided that selection would be done on the basis of a candidates likelihood of success but without excluding any qualified candidates, hence there would be two parts of each of the three debates with those with a higher chance participating in one and the rest in another, and that the basis of the criteria is information in the public domain.

He also averred that there is nothing controversial in selecting participation in Presidential debates on the basis of likelihood of success and argued that a similar criteria is used in the US, a country which has a history of constitutional protection of free speech and non-discrimination.

He averred that the criteria was informed by the constitutional requirement for a petition of a referendum which is one million votes which translates to 5% of the electorate which formed the basis for the 5% cut off, hence, this was not informed by any desire to favour a candidate. The 5 % is on the basis of opinion polls conducted on the week prior to each debate. He also stated that if the orders are granted, the first Respondent stands to lose over Kshs.100,000,000/= investment in cash and over Kshs.200,000,000/= in advertising. In addition a lot of time spanning to two years has been spend on the planning and over 40,000,000 people will be inconvenienced. Voters will lose the opportunity to view and evaluate the policies, temperaments and ideologies of the presidential candidates. Media houses risk suffering loss of credibility having advertised the programs.

Petitioners Advocates submissions.

Counsel for the petitioner cited article 27 (4) and (5) of the constitution and argued that the first Respondents' actions are discriminatory against the petitioner. He submitted that the petitioner was not informed when the polls relied upon were conducted and who conducted them.

To buttress his argument counsel cited article 2of the Universal Declaration of Human Rights and Article 2 of the African Charter on Human and Peoples Rights. (The relevant provisions are reproduced later in this judgement). Counsel also relied on several decisions of this court among them Sonia Kwamboka Rasugu vs Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai.[3] This case dealt with unlawful detention. The core issue in the said case was violation of article 29 of the constitution and not article 27 as alleged in this case. I find that the said decision has no relevance to the situation before this court.Counsel also cited Peter K. Waweru vs Republic[4] where the court cited the definition of discrimination in Black's Law Dictionary.[5]

Also cited is Rose Wangui Mambo & Others vs Limuru Country Club & Others[6]in which the core issues were whether a court can interfere with internal affairs of a private members club and whether a proposed amendment to the clubs by-laws would discriminate against women. The court in the said upheld the position that amendment discriminated women and violated article 27 and 33 of the constitution. The circumstances and issues determined in the said case can be distinguished from the issues and circumstances in this case as explained below.

First Respondents Advocates submissions

Counsel for the first Respondent submitted that the petition does not meet the requirements of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013[7] in that it does not particularize the constitutional provisions alleged to have been violated and that though it is not necessary to set out the violations in mathematical precisions, they should be set out in a manner that will enable the respondent to have notice of the allegations and defend himself to have the court adjudicate the violation.[8]

I have looked at the petition, and in my view guided by the decision cited by counsel for the first Respondent, that it is not necessary for the petitioner to set out the violations in mathematical precision, I find that the petition clearly discloses a claim for discrimination under article 27and further the offending guidelines have been reproduced in the petition. As to whether or not the guidelines are discriminatory is an issue for determination by this court.

On discrimination, counsel submitted that there is no competent pleading before the court alleging violations of any of the provisions of Article 27 and that the allegation of discrimination is set out in a generalized manner.

Counsel cited John Kabui Mwai & 3 Others vs Kenya National Examination Council & 2 Others[9]whereby it was held that discrimination which is forbidden by the constitution is unfair or prejudicial treatment of a person or group of persons based on certain characteristics. I subscribe to this definition.

Issues for determination

The core issue for determination is whether or not the petition discloses a case to demonstrate that the guidelines complained of and the reasons offered for excluding the petitioner from the presidential debates amount to discrimination within the meaning of article 27of the constitution.

To me, the guiding principles in a case of this nature are clear. The first step is to establish whether the guidelines differentiates between different presidential candidates.[10]The second step entails establishing whether that differentiation amounts to discrimination.[11]The third step involves determining whether the discrimination is unfair. This is where the answer lies. Period.

I must add that if the discrimination is based on any of the listed grounds in Article 27 (4) of the Constitution, it is presumed to be unfair. It must be noted, however, that once an allegation of unfair discrimination based on any of the listed grounds in article 27 (4) of the constitution is made and established, the burden lies on the Respondent to prove that such discrimination did not take place or that it is justified.

On the other hand, where discrimination is alleged on an arbitrary ground, the burden is on the complainant to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair.

The Judiciary is an essential component of our constitutional democracy and judicial authority is vested in the courts by the Constitution.[12] Therefore, allegations of actual bias or

a reasonable apprehension of bias or discrimination certainly raise a constitutional issue.

Our Constitution forbids unfair discrimination regardless of the context in which it occurs and irrespective of whether the perpetrator is the state or a private person. Article 27(1) provides that provides that a person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).These grounds are discrimination directly or indirectly against any person onany ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

The Right to equality and Freedom from discrimination is protected by International and legal frameworks that Kenya is a signatory. Article 2 (5) and (6) of the Constitution provides that general rules of international law, treaties and conventions ratified by Kenya shall form part of law of Kenya. Article 2 of the Universal Declaration of Human Rights cited by the applicant states that:-

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."

This is echoed in Article 2 of the African Charter on Human and People’s Rights which states:-

"Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status."

Equality is one of the philosophical foundations of human rights and it is intimately connected to the concept of justice. The concept is expansive, but at its core, it speaks the language of the Universal Declaration of Human Rights (UDHR) of 1948, which stipulates that: “All are equal before the law and are entitled without any discrimination to equal protection of the law.” Equality at its core, communicates the idea that people who are similarly situated in relevant ways should be treated similarly.

A distinction must be drawn between formal and substantive equality. Formal equality simply means sameness of treatment. It asserts that the law or conduct must treat individuals in like circumstances alike. Substantive equality on the other hand requires the law or conduct to ensure equality of outcome and is prepared to tolerate disparity of treatment to achieve this goal. Simply put, formal equality requires that all persons are equal bearers of rights. Formal equality does not take actual social and economic disparities between groups and individuals into account.

Further, in Willis vs The United Kingdom[13] the European Court of Human Rights observed that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations.

“...a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available members of society”. (See Andrews vs Law Society of British Columbia [1989] I SCR 143, as per McIntyre J.)

From the above definition, it is safe to state that the law prohibits unfair discrimination.The prohibition of unfair discrimination in the Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups or status. To this extent, the goal of the Constitution should not be forgotten or overlooked.

The illuminating position stated by the Canadian Supreme Court analysing the subject of discrimination is worth quoting:-[14]

“This court has recognized that inherent human dignity is at the heart of individual rights in a free and democratic society..[15]More than any other right in the Charter,…... . . Equality, as that concept is enshrined as a fundamental human right… means nothing if it does not represent a commitment to recognizing each person’s equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate….distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.”[16]

The petitioner questions the rationale for being excluded from the presidential debates. The first Respondent maintains that the challenged guidelines were premised on opinion polls and on the basis of the polls, the first Respondent was able to determine the threshold. Counsel for the petitioner states that his client is not aware of the said polls or when they were conducted nor has he seen them. Unfortunately, if the petitioner is questioning the basis for the guidelines, as I understood him to and insists that he was not shown the opinion polls (even though to my knowledge they were in the public domain having been published in the media ) then as submitted by the first Respondents counsel, it was necessary for the petitioner to petition for information under article35 of the constitution.

In my view, unfair discrimination is differential treatment that is demeaning. This happens when law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization. The principle of equality attempts to make sure that no member of society should be made to feel that they are not deserving of equal concern, respect and consideration and that the law or conduct complained of is likely to be used against them more harshly than others who belong to other groups.

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.[17]

The test for determining whether a claim based on unfair discrimination should succeed was laid down by South Africa Constitutional Court in Harksen v Lane NO and Others[18] cited above in which the Court said:-

“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on article 27 the Constitution.

They are:-

(a)Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate purpose? If it does not then there is a violation of the constitution. Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:-

(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation……..

(c)If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (…..of the ..Constitution).

The clear message emerging from the authorities, both local and from elsewhere, is that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason is a most reprehensible phenomenon. But where there is a legitimate reason, then, the conduct complained of cannot amount to discrimination.

It is not enough for the petitioner to say that the impact of the discrimination in the case under consideration affected him or will affect him. He must still show in the context of this particular case that the impact of the discrimination on him amounts unfair discrimination.

Whereas the constitution rules out disadvantage which is the product of discrimination, we need, to develop a concept of unfair discrimination which recognizes that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances.Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.[19]

I must point out that discrimination on the basis of any of the grounds stated in article 27 (4) category must be regarded as unfair unless and until a persuasive rebuttal is established to vindicate it. For it is conduct that, on the face of it, is out of step with the fundamental values of our constitutional order. I find it appropriate to borrow with approval the words of the High court of Botswana in Mmusi and Others vs Ramantele and Another [20]whereby it rendered itself thus:-

"The theoretical premise upon which this judgment is anchored recognizes that equality is better understood and applied not in the abstract, but in its proper context. It recognizes, in the words of the renowned American Judge, Oliver Wendell Holmes, that general prepositions of law do not solve concrete cases (Lochner v New York 198 US 45, 76 (1905) (Holmes J dissenting))The theoretical premise further recognizes that human wrongs are the source of human rights and that inequalities in a particular society, rather than in an imagined society, are the appropriate foundation of a better understanding of equality provisions in national Constitutions."

Determination

It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.

The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose. The rationality requirement is intended to prevent arbitrary differentiation. The authorities on equality suggest that the right to equality does not

prohibit discrimination but unfair discrimination. The question that often arises is what makes the discrimination unfair. The determining factor is the impact of the discrimination on its victims. Unfair discrimination principally means treating people differently in a way which impairs their fundamental dignity as human beings. The value of dignity is thus of critical importance to understanding unfair discrimination.

To my mind, to prove unfair discrimination, it is incumbent upon the person making the allegations to plead the facts allegedly constituting discrimination and also must prove the facts to the required standard. All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA vs Edmunds[21] remarked:-

“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.”

Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd[22]:-

“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”

The first Respondent explained the basis upon which the guidelines applied were arrived at. I find that the distinction that may have resulted (or may arise) from the decision, was not intentional or aimed at disadvantaging the petitioner. In my view, it was not based on grounds relating to personal characteristics of the individual of the petitioner or group. There is no sufficient evidence to show that it imposed or had the effect of imposing burdens, obligations, or disadvantages on the petitioner or group of persons. It was not alleged nor is there anything in the petition to show that the guidelines or the decision complained of, withholds or limits the petitioners access to opportunities, benefits, and advantages available to him as a presidential candidate. In fact no material to this effect was presented to the court.

In determining whether discrimination is fair, a court must consider all the facts. The position and interest of both parties should be considered and balanced, bearing in mind the objectives of the challenged decision, so that the court can make a value judgment.

On the other hand, the determination involves a proportionality enquiry, taking into account any defenses that the Respondent may have to the allegations of unfair discrimination, and determining whether the discrimination, although unfair, is connected to a rational objective of the Respondent.

In view of my analysis of the law, facts and authorities enumerated above, and having fully considered the submissions made by the advocates for parties in this case, I find that this petition has no merits and that the reliefs sought are unwarranted. I am not satisfied that that the petitioner has proved his case to the required standard. Consequently, I dismiss this petition with costs to the first Respondent.

Orders accordingly

Signed, Dated and Delivered at Nairobi this 7thday of July,2017

John M. Mativo

Judge

[1] Article 27

[2] Sali v National Commissioner of the South African Police Service and Others [2014] ZACC 19; 2014 (9) BCLR 997 (CC)(Sali) at paras 38 and 97.

[3] {2013}eKLR

[4] {2006}eKLR

[5] 11th Edition

[6] Pet. No. 160 of 2013

[7] Legal Notice No. 117 of 28th June 2013

[8] Counsel cited Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others {2013}eKLR

[9] {2011} eKLR. Counsel also cited Nyangi & 3 Others vs A.G {2008} KLR 688, Centre for Rights Education and Awareness (CREAW) & 7 Others vs A.G. {2011}eKLR & rm & Another vs A.G {2006}eKLR

[10] See note 18 below (at para 48).

[11] Ibid Par 54

[12] Article 159

[13]No. 36042/97, ECHR 2002 – IV

[14] In Egan v Canada (1995) 29 CRR (2d) 79 at 104-5. L’Heureux-Dubé J

[15] Big M Drug Mart Ltd [(1985) 13 CRR 64] at p.97 . . . (per Dickson J. (as he then was)).

[16] (See also the judgment of McLachlin J in Miron v Trudel (1995) 29 CRR (2d) 189 at 205. )

[17]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.

[18] {1997} ZACC 12; 1998 (1) SA 300(CC); 1997 (11) BCLR 1489(CC) (Harksen) at para 48.

[19] It is the logical corollary of the principle that “like should be treated like”, that treating unlike alike may be as unequal as treating like unlike. See the discussion in Kentridge “Equality” in Chaskalson et al Constitutional Law of South Africa(Juta & Co Ltd, Kenwyn 1996) at para 14. 2.

[20] (MAHLB-000836-10) [2012] BWHC 1 (12 October 2012)

[21]{1955} 1 WLR 948 at 955

[22]{2007} 4 SLR (R} 855 at 59