[2022] KEHC 3102 (KLR)

Odhiambo & another v Independent Electoral & Boundaries Commission & 2 others (Petition 162 of 2019) [2022] KEHC 3102 (KLR) (Constitutional and Human Rights) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3102 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 162 of 2019

HI Ong'udi, J

June 17, 2022

Between

Aloise Onyango Odhiambo

1st Petitioner

Wilson Kinyua

2nd Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Attorney General

2nd Respondent

Kenya Prisons Service

3rd Respondent

Prisoners right to vote is limited to voting in a presidential election or referendum.

The case challenged the constitutionality of regulation 39E of the Elections (Registration of voters Amendment) Regulations, 2017, which provided that a prisoner could only vote in a presidential election or a referendum. The court held that it was not possible for the necessary measures to be put in place in time to allow prisoners to vote for all classes of candidates save for the President in the scheduled national elections for August 9, 2022. Further, that the only way that could be achieved could be in the next general elections based on a re-working of the current electoral regime, which would require a total overhaul as it affected all voters and not just prisoners.

Reported by Kakai Toili

Constitutional Law– fundamental rights and freedoms – enforcement of fundamental rights and freedoms - political rights – rights of prisoners to vote in elections - whether the realization and implementation of the right of prisoners to vote in all elections and referenda and for all offices and positions under the Constitution were immediate and not progressive – Constitution of Kenya, 2010 articles 38, 82 and 83. Constitutional Law– constitutionality of statutes – constitutionality of regulation 39E of the Elections (Registration of voters Amendment) Regulations, 2017 – where regulation 39E provided that a prisoner could only vote in a presidential election or a referendum - whether regulation 39E of the Elections (Registration of voters Amendment) Regulations, 2017 was inconsistent with the Constitution for violating the political rights of prisoners - what were the principles to be considered when determining the constitutionality of an Act of Parliament - Constitution of Kenya, 2010 articles 38, 82 and 83; Elections (Registration of voters Amendment) Regulations, 2017, regulation 39E.

Brief facts The petitioners filed the instant consolidated petition seeking among others, orders that regulation 39E of the Elections (Registration of voters Amendment) Regulations 2017(Legal Notice No.73) (the Regulations) was inconsistent with the Constitution and therefore null and void; a declaration that prisoners had the right to vote in all elections and referenda and for all offices and positions under the Constitution not just limited to the presidential election; and a declaration that the realization and implementation of the right of prisoners to vote in all elections and referenda and for all offices and positions under the Constitution not just limited to the presidential election, was immediate and not progressive.The petitioners claimed that in light of the decision to exclude prisoners from participating in the elections of the governor, members of parliament and the members of the county assembly, the respondents contravened article 38 of the Constitution on political rights and circumvented express orders of the court in Kituo cha Sheria v IEBC574 of 2012 (the Katiba case). The petitioners argued that the 1st respondent perpetuated the constitutional infringement and the circumvention of the court order through an unconstitutional law being regulation 39E of the Elections (Registration of voters Amendment) Regulations 2017 which provided that a prisoner could only vote in a presidential election or a referendum.

Issues

Whether the realization and implementation of the right of prisoners to vote in all elections and referenda and for all offices and positions under the Constitution was immediate.

Whether regulation 39E of the Elections (Registration of voters Amendment) Regulations, 2017 which provided that a prisoner could only vote in a presidential election or a referendum was inconsistent with the Constitution for violating the political rights of prisoners.

What were the principles to be considered when determining the constitutionality of an Act of Parliament?

Held

Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or statute, that procedure should be followed. While Parliament had the sole mandate to legislate, the High Court under article 165(3)(d) of the Constitution had the sole mandate to answer any question with respect to the interpretation of a statute and its constitutionality as its guardian, a mandate which Parliament did not have. The petitioners did not violate the doctrine of exhaustion in the context espoused by the 1st respondent.

It was imperative that the spirit of the Constitution presided and permeated the process of judicial interpretation as spelt out under article 259 of the Constitution. It was vital to bear in mind the relevant guiding principles in the interpretation of an Act of Parliament.

When interpreting an Act of Parliament, a number of principles had been established that guided courts in making the declaration of its constitutionality or lack thereof: The general presumption that statutes were enacted in conformity with the Constitution.

The purpose and effect of the impugned provisions.

The intention articulated and intended in an Act of Parliament when it was drafted.

Regulation 39 of the Elections (Registration of Voters) Regulations, 2012 (the Regulations). The Regulations concerned the right of citizens in the diaspora to vote not the prisoners. In that context the case did not relate to the impugned regulation 39E of the Regulations. The impugned section and rule provided that the prisoners could only vote in a presidential election and referendum and their right to vote was to be attained progressively. That could reasonably be stated to have been the purpose and effect of the impugned provisions.

The right to vote was a universally recognized right and protected by various international instruments. In Kenya, that right was founded under article 38 of the Constitution. Parliament was required to effect that fundamental right by enacting legislation as directed by article 82 of the Constitution.

One of the constitutional objectives was to ensure that citizens enjoyed their rights to their greatest extent as reasonably possible. That could be seen in the drafting of articles 38, 82 and 83. The Constitution made it clear that citizens were to exercise their right in the electoral process without reserve.

Every eligible Kenyan had a right to be registered as a voter and to vote. Article 83(2) of the Constitution provided that a citizen who qualified for registration as a voter would be registered at only one registration centre. The prisoners were kept in various prisons depending on the seriousness of the offence and where the offence occurred.

Hypothetically, for a prisoner in Kamiti Maximum prison to go and vote in Busia for the positions complained of it would require the Government to transport him to his registration centre in Busia and avail security for him. That was only one prisoner. That was the current electoral regime in Kenya. The request was not practical for the thousands of prisoners in the various prisons that had to be organized to move to their various centers and had to be properly planned for.

The request by the petitioners could only work where a registered voter had transferred his/her vote to a registration centre under the prison where he/she was serving otherwise making such an order would create a lot of unnecessary disorder and confusion. It required a lot of planning hence the submission that it was progressive.

Voting for the president’s vote was not confined to a county constituency/ ward and so was a referendum. That was the reason why rule 39E of the Elections (Registration of Voters) (Amendment) Regulations, 2017 provided that a prisoner could only vote in a presidential election or a referendum. It was not possible for the necessary measures to be put in place in time to allow prisoners to vote for all classes of candidates save for the President in the scheduled national elections for August 9, 2022. The only way that could be achieved could be in the next general elections based on a re-working of the current electoral regime, which would require a total overhaul as it affected all voters and not just prisoners. At that time, it was unworkable and the prisoners would have to work with the then system.

The instant petition could not be used to execute orders issued in another petition. It did not work like that. If the 2nd petitioner had any issues with the orders issued in Kituo cha Sheria v IEBC No. 574 of 2012 he should have moved the court in that file.

Consolidated petition dismissed.

Orders Each party to bear its own costs.

Citations CasesKenya Communication Commission of Kenya & 5 others v Royal Media Services & 5 others Petitions 14, 14A, 14B & 14C of 2014; [2014] eKLR (Consolidated) - (Explained)

Council of County Governors v Attorney General & another Constitutional Petition 56 of 2017; [2017] eKLR - (Explained)

Council of Governors & 3 others v Senate & 53 others Petitions 381 & 430 of 2014; [2015] eKLR (Consolidated) - (Explained)

County Government of Nyeri & another v Cecilia Wangechi Ndungu Civil Appeal 2 of 2015; [2015] eKLR - (Explained)

EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) Petition 150 & 234 of 2016; [2019 ] eKLR - (Explained)

In the Matter of the Interim Independent Electoral Commission [2011] 2 KLR 32 - (Explained)

Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others Petition 25 of 2014; [2015] eKLR - (Explained)

Katiba Institute & another v Attorney General & another Constitutional Petition 209 of 2016; [2017] eKLR - (Explained)

Kituo Cha Sheria v Independent Electoral and Boundaries Commission & another Petition 574 of 2012; [2013] eKLR - (Followed)

Murage, Bernard v Fineserve Africa Limited & 3 others Petition 503 of 2014; [2015] eKLR - (Explained)

Mwau, John Harun v Independent Electoral and Boundaries Commission & another Petition 26 of 2013; [2013] eKLR - (Applied)

Ojiayo, Samson Owimba v Independent Electoral and Boundaries Commission Petition 104 of 2013; [2013] eKLR - (Explained)

Republic v Principal Secretary Ministry of Industrialization & Enterprises Development & another ex-parte Rishit Metals Limited Judicial Review Case 268 of 2013; [2013] eKLR - (Explained)

Wambui, Shadrack Kinyanjui v Independent Electoral and Boundaries Commission & 2 Others Constitutional Petition 60 of 2017; [2017] eKLR - (Explained)

Wanjiru, Gikonyo & 2 others v National Assembly of Kenya & 4 others Petition 453 of 2015; [2016] eKLR - (Explained)

Were, Samwel & 14 others v Attorney General & 2 others Constitutional Petition 17 of 2017; [2017] eKLR - (Explained)

TanzaniaNdyanabo v Attorney General [2001] EA 485 - (Explained)Uganda Kalali Steven v AG and Electoral Commission Miscellaneous Cause 35 of 2018) [2020] UGHCCD 172 - (Explained)

Olum and another v Attorney General [2002] 2 EA 508 - (Explained)

South Africa Arnold Keith August and another v Electoral Commission and others CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 - (Explained)

Harksen v ­Lane NO and Others CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 - (Explained)

Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) & others CCT 03/04) [2004] ZACC 10; 2005(3) SA 280 (CC); 2004 (5) BCLR 445 (CC - (Explained)

New National Party v Government of the Republic of South Africa and others (1999) ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 - (Explained)

S v Bhulwana CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 - (Explained)

S v Makwanyane [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; - (Explained)

ZambiaGodfrey Malembeka v Attorney-General and the Electoral Commission of Zambia No 34 of 2017 - (Explained)Ghana Ahumah Ocansey v Electoral Commission and Centre for Human Rights & Civil Liberties v Attorney-General & Another Writ No JI/4/2008 - (Explained)

Tehn-Addy v Attorney General & Electoral Commission [1997- 98] 1 GLR 47 - (Mentioned)

United Kingdom R v Somerset County Council, ex parte Fewings & others [1995] 1 All ER 513 - (Explained)

R. (On the application of Barclay and Others) v Secretary of State for Justice & Others [2009] UKSC 9 - (Explained)

TextsDe Waal, J., et al (Eds) (2001), Bill of Rights Handbook Lansdowne: Juta 4th Edn p 692StatutesKenya Constitution of Kenya articles 3(1);10(1)(2); 24(1); 21; 25; 27; 38(2)(a),(3)(a)(b); 51; 82(1)(e); 83(3); 88(3)(4)(5); 165(3)(b); 249(2)(b); 259(1)- (Interpreted)

Election Laws (Amendment) Act, 2016 (Act No 36 of 2016) section 36 - (Interpreted)

Elections (Registration of Voters) (Amendment) Regulations, 2017 (Act No 24 of 2011 Sub Leg) regulation 39E- (Interpreted)

Elections Act, 2011 (Act No 24 of 2011) section 109(2)- (Interpreted)

Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011) sections 4, 24(2)(ba) - (Interpreted)

Persons Deprived of Liberty Act, 2014 (Act No 23 of 2014) In general - (Cited)

Prisons (Prisons Council) Rules, 1963 (cap 90 Sub Leg) rule 4- (Interpreted)

Prisons Act (cap 90) In general - (Cited)

Instruments African Charter on Human and Peoples' Rights (Banjul Charter), 1981 article 13

International Covenant on Civil and Political Rights (ICCPR), 1966 article 25

AdvocatesNone mentioned

Judgment

The 1st Petitioner Case 1. The 1st petitioner, through his amended Petition No 162 of 2019 dated December 14, 2021 seeks the following orders:i.A declaration be issued that prisoners have the right to vote in all elections and referenda and for all offices and positions under the Constitution not just limited to the presidential election;ii.A declaration be issued that the realization and implementation of the right of prisoners to vote in all elections and referenda and for all offices and positions under the Constitution not just limited to the presidential election, is immediate and not progressive.iii.A declaration be issued that regulation 39E of the Elections (Registration of Voters) (Amendment) Regulations, 2017 is unconstitutional illegal null and void ab initio and thus be struck down.iv.A declaration be issued that section 36 of the Election Laws (Amendment) Act No 36 of 2016 published in Kenya Gazette Supplement No 157 (Acts No 36) on September 20, 2016 is unconstitutional, null and void to the extent that it purports and/or suggests that the right to vote of prisoners should be realized progressively and thus unconstitutional to that extent.v.A declaration be issued that section 24(2)(ba) of the Independent Electoral and Boundaries Commission Act is unconstitutional, null and void to the extent that it purports and/or suggests that the right to vote of prisoners should be realized progressively and thus unconstitutional to that extent.vi.A declaration be issued that the 1st respondent has and continues to wilfully and deliberately contravene and undermine the Constitution, including and not limited to the provisions of articles 3(1), 10(1) & (2), 21, 27, 83(3), 88(5) and 259 of the Constitution, since January 21, 2013 to date in relation to the rights of prisoners to vote.vii.An order be issued directing and compelling the 1st respondent to put in place and to implement measures to facilitate and ensure the right of prisoners to vote in all elections carried out under the Constitution including for the office of the President, the National Assembly, the Senate, County Governor and County Assembly.viii.An order be issued directing and compelling the 1st respondent to forthwith put in place and to implement measures to facilitate and ensure the right of prisoners to vote in all elections carried out under the Constitution including for the office of the President, the National Assembly, the Senate, County Governor and County Assembly in the forthcoming General Election to be held in August 2022 or any such date declared by law.ix.Any other relief and/or orders(s) the honourable court deems appropriate, just and/or fit to grant.x.Costs of the petition.

2. This petition bears its root in article 38 of the Constitution that guarantees every citizen the right to make political choices. The petition is supported by the petitioner’s affidavit dated April 30, 2019. The petitioner was a prisoner at Kamiti Prison at the time of filing this suit. In view of this, he filed this petition in public interest on behalf of all the prisoners.

3. The petitioner takes issue with the 1st respondent’s continual act of preventing the prisoners from exercising their right as espoused under article 38 of the Constitution. This is by voting in all the elections carried out under Constitution including the office of the President, the National Assembly, the Senate, County Governor, County Assembly and all referenda. At the moment prisoners are allowed to only vote in presidential elections.

4. It is noted that the right of prisoners to vote in Kenya has been the subject of several litigations. Notably the prisoners right to vote was painstakingly discussed and determined in the case of Kituo cha Sheria v IEBC & anor High Court Petition No 574 of 2012 [2013] eKLR.

5. In this matter, Kituo Cha Sheria’s main contention was that the prisoners’ fundamental rights had been violated by the 1st respondent. As such they sought orders that the prisoners be registered as voters to exercise their right to vote in the March 4, 2013 General Election and other future elections and referenda. In this successful petition Majanja, J issued the following orders:a."I declare that prisoners are, subject to article 83(1) of the Constitution entitled to be registered as voters and have the right to vote under article 38(3)(a) and (b) of the Constitution.b.I declare that the Independent Electoral and Boundaries Commission has the obligation to observe, respect, protect, promote and fulfil the rights and fundamental freedoms of prisoners and more particularly to facilitate their right to register to vote and to vote.c.I direct that the Independent Electoral and Boundaries Commission shall put in place measures to ensure that prisoners who are registered to vote are able to vote in first General Election.d.I direct that the Independent Electoral and Boundaries Commission shall put in place and implement measures to ensure facilitate the right of prisoners to register to vote and vote in future elections and referenda.e.The 1st respondent shall bear the petitioner’s costs and one-half of the interested party’s costs.”

6. The petitioner’s outcry is that this determination and orders were issued 8 years ago yet the prisoners continue to be denied their right to vote in all elections held under the Constitution. Particularly it is stated that the 1st respondent, during the August 8, 2017 General Elections determined of its own accord that prisoners were only allowed the right to vote in the presidential election.

7. This decision was inevitably challenged by the case of Shadrack Kinyanjui Wambui v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR. Conversely during the pendency of the suit, the Elections (Registration of Voters) (Amendment) Regulations, 2017 contained in Legal Notice No 73 in Legislative Supplement No 32 were published. This in effect rendered moot as the matter had been overtaken by events.The mentioned Regulations amended Part VIII of the Elections (Registration of Voters) Regulations by inserting regulation 39E.This regulation provides that ‘a prisoner may only vote in a presidential election or a referendum’.

8. The petitioner avers that regulation 39E is unconstitutional, illegal, null and void to the extent that it purports to limit a prisoner’s right to voting only in a presidential election or a referendum. He refutes the 1st respondent’s claim that the realisation of prisoners’ right to vote is progressive in nature. Considering this, he states that the National Assembly endorsed this erroneous proposition in its enactment of section 24(2)(ba) of the Independent Electoral and Boundaries Act which consequently makes it unconstitutional to that extent.

9. He depones that the 1st respondent is unlawfully construing the provisions of the Constitution and the law narrowly, to deny prisoners the enjoyment of their rights and fundamental freedoms to the greatest extent consistent with the nature of the right or fundamental freedom. He further avers that this is in contravention with article 83(3) and article 259(1) of the Constitution as the 1st respondent continues to put up obstacles to deny prisoners the right to vote rather than facilitating the right.

The 2nd Petitioners’ Case 10. Through the amended Petition No 375 of 2019 dated October 29, 2020 the 2nd petitioner seeks the following orders:i.A declaration that regulation 39E of the Elections (Registration of voters Amendment) Regulations 2017(Legal Notice No.73) is inconsistent with the Constitution and therefore null and void.ii.A declaration that regulation 39E of the Elections (Registration of voters Amendment) Regulations 2017(Legal Notice No 73) amounted to an unconstitutional abrogation of the Prisoner’s fundamental right to vote secured under the Bill of Rights.iii.An order compelling the respondent to comply with the full orders of the court granted in the case of Kituo cha Sheria v IEBC 574 of 2012 to facilitate prisoners to exercise their right to vote in all the elective public offices in the forthcoming general election and in the subsequent general elections.iv.An order restraining the respondents from further breach and non-observance of their mandate to facilitate prisoners to vote every election time.v.Any other order and direction deemed fit,just and appropriate to safeguard the fundamental rights of citizens in custody.

11. The petition is based on the grounds that:i.In light of the decision to exclude prisoners from participating in the elections of the governor, members of parliament and the member of county Assembly, the respondents contravened article 38(2)(a) and (3) (a&b) of the Constitution and circumvented express orders of the court in Kituo cha Sheria v IEBC 574 of 2012 declaring prisoners’ unqualified right to vote and to full participation in the general election.ii.The exclusion of prisoners to participate in the elections of the governor, members of parliament and the member of county Assembly, effectively amounted to a derogation of a fundamental right under the Bill of Rights in contravention of articles 19(3)(a), article 38(2)(a), and (3) (a & b) of the Constitution and the orders of the court in the Kituo cha Sheria case.iii.The 1st respondent perpetuated the constitutional infringement and the circumvention of the court order through an unconstitutional law being Regulation 39E of the Elections (Registration of voters Amendment) Regulations 2017(Legal Notice No 73).iv.The exclusion of prisoners to participate in the elections of the governor, members of parliament and the member of county Assembly by limiting them to vote for the presidency alone, effectively amounted to an illegal discrimination against a vulnerable citizenry contrary to article 27 of the Constitution.v.The prisoners just like the rest of the citizens have the right to representation in the governance of their country and by a leadership that would directly address their views and interests.

12. Similarly, the 2nd petitioner’s case was premised on his affidavit sworn on October 29, 2020 which reiterated the grounds cited in the petition.

The Respondents’ Case The 1st respondent’s case 13. The 1st respondent made its response through the replying affidavit of its Director, Legal and Public Affairs, Mike Goa dated February 21, 2020.

14. He avers that the 1st respondent in the year 2017 commenced its mass voter registration process on January 16, 2017. It then started the registration of persons in prisons on February 22, 2017 and concluded the exercise on March 1, 2017. Further that the exercise had targeted the 49,897 prisoners in the118 institutions that had been listed as prisons in the Prisons Act as read together with rule 4 of the Prisons Rules, 1963. In the end the prisons with valid documentation were successfully registered.

15. He avers that the registered prisoners were eligible to only vote in the presidential and referendum elections. Speaking on the other electives seats, he avers that these seats were created and demarcated on the basis of the geographical location. In this way, the vote in respect of a preferred candidate is unique to the place of registration and specific to the candidates within that electoral area. He avers that the current electoral regime envisages a system where a voter can freely register in a registration centre and transfer their vote to another preferred locality in accordance with the law. Upon registration a voter is precluded from voting in another polling station other than where they were registered.

16. He deposes that article 24 of the Constitution provides for limitation of rights and fundamental freedoms. Accordingly, article 25 of the Constitution limits the movement and residence of prisoners terms of which are spelt out in the Prisons Act, chapter 90. In view of the averments deposed, he makes known that since the prisoners’ movements are limited this restricts their ability to freely register as voters and transfer their votes. As a consequence, their right to vote is accordingly curtailed.

17. He depones that in light of the nature and designation of the other elective seats and the identification and designation of prisons under the Prisons Act, it would be unrealistic and impracticable for the 1st respondent to get all prisoners to vote for their candidates of choice. In the same way, he avers that the logistical and security challenges that would be encountered by the 1st and 2nd respondents to have all prisoners vote for their preferred candidates would be insurmountable. Considering this, he says voting in respect of the other electoral seats can only be limited to the geographical location of the respective prison.

18. It is his averment that the right to vote must be construed and interpreted within the context of the country’s electoral and political history. Similarly, this right is to be weighed against other provisions of the Constitution, the Elections Act, the rights of others and the realities in Kenya. According to him, the prisoners right to vote is progressive in nature. He deposes that the 1st respondent has undertaken to satisfy this right for the prisoners to realize the gain of democracy while ensuring the conduct of a free and fair election in view of article 51(1) and 38(3) of the Constitution. For this reason he says that the 1st respondent has not curtailed the prisoner’s right to vote.

The 2nd respondent’s case 19. The 2nd respondent in response to the petition filed its grounds of opposition dated March 28, 2022 on the basis that:i.The 1st respondent is established under 248 (2c) of the Constitution and Independent Electoral and Boundaries Commission Act No 9 of 2011. ii.The 1st respondent is the body charged with the responsibility to register voters under article 88(4)(a) of the Constitution as mirrored under section 4 of the Independent Electoral and Boundaries Commission Act (No 9 of 2011), and is required under article 83(3) to facilitate registration of voters.iii.The 2nd respondent recognizes the mandate of the 1st respondent and its independence in article 249(2b) of the Constitution in performing its functions.

The 3rd respondent’s case 20. The 3rd respondent filed its replying affidavit in response dated 30th March 2022 sworn by its Assistant Commissioner General of Prisons and Director Legal, Human Rights, Research & Statistics, Dixon Mwakazi. He deposes that the 3rd respondent has no role in the management of the electoral processes in the country. As such, it cannot make decisions on how the prisoners will vote and in which electoral positions. This is because the mandate is envisaged in the 1st respondentHe therefore deposes that the 3rd respondent cannot fulfil the orders granted in the Kituo cha Sheria case (supra).It is his position hence that the 3rd respondent’s role is to only facilitate the voting venues not the policies. Considering this, he states accordingly that the 3rd respondent has not violated the rights of the petitioners and the prisoners.

Parties’ Submissions The 1st petitioner’s submissions 22. The firm of Soweto and Company Advocates on behalf of the 1st petitioner filed written submissions dated April 25, 2022 and raises the following issues for determination:i.Whether regulation 39E in the Elections (Registration of Voters) Regulations; and the 1st respondent’s limitation of prisoners’ right to vote only in a presidential election or referendum is constitutional;ii.Whether the reasons given by the 1st respondent for limiting prisoners’ right to vote are constitutional, reasonable and justifiable in an open and democraticsociety; and whether they meet the threshold set out in article 24 of the Constitutioniii.Whether section 24(2)(ba) of the Independent Electoraland Boundaries Commission Act is unconstitutional, null and void to the extent that it purports and/or suggests that the right to vote of prisoners should be realized progressively; and whether the enforcement of prisoners’ right to vote in all elections is subject to progressive realization.

23. On the first issue, counsel submits that whereas the courts determined that prisoners can exercise their right to vote, the 1st respondent proceeded to undermine and restrict it by allowing prisoners to only vote in presidential elections or referenda. Further counsel notes that the decision by the 1st respondent to limit the right of prisoners to vote preceded the enactment of regulation 39E into law on May 2, 2017. She argues that this was an extralegal decision not guided or informed by the law.

24. In support of this position counsel relied on R v Somerset County Council, ex parte Fewings & others [1995] 1 All ER 513 where it was noted that a public bodyis under obligation to act at all times within the law and pursuant to a positive provision of law. Counsel in view of this submits that the 1st respondent did not have any justification to set a limitation on the right of prisoners to vote. She therefore submits that regulation 39E of the regulations is unconstitutional since it seeks to limit the express provision of article 38(3)(b) of the Constitution that allows all adult citizens to vote in any election or referendum.

25. Counsel in submitting on the second issue, argues that prior to the enactment of regulation 39E, the 1st respondent was acting unconstitutionally in violation of article 24(1) of the Constitution. She relied on John DeWaal, Iain Currie, Gerhard Erasmus note in their book the “Bill of Rights Handbook 4th Edition, 2001”.The note stated that ‘the reasons for limiting a right need to be exceptionally strong. Further that the limitation must serve a purpose that most people would regard as particularly important. Additionally however important the purpose of the limitation, restrictions on rights will not be justifiable unless there is good reason for thinking that the restriction would achieve the purpose it is designed to achieve, and that there is no other way in which the purpose can be achieved without restricting rights.’

26. In light of this counsel submits that, the 1st respondent’s reasons as deposed in its sworn affidavit for limiting the right to vote must meet the reasonableness test. The test is that it must be acceptable to an open and democratic society. To satisfy the limitation test, it must be shown that the law in question serves a constitutionally-acceptable purpose and that there is sufficient proportionality between the harm done by the law and the benefits it is designed to achieve.

27. To buttress this point counsel cited the case of S v Makwanyane 1995 (3) SA 391 CC where it was held that the limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. Additional reliance was placed on the case of S v Bhulwana 1996 (1) SA 388 (CC) and Arnold Keith August and another v Electoral Commission and others CCT 8/99 [1999] ZACC 3.

28. Counsel argues that the 1st respondent’s arguments on the reason why the right has been curtailed is a deliberate unconstitutional road block to deny prisoners their fundamental right to vote and to exercise that right to the greatest extent possible in view of their vulnerable positions.

29. On the third issue, counsel submits that the 1st respondent claims that the realization of prisoners’ right to vote is progressive in nature was erroneously endorsed in the enactment of section 24(2)(ba) of the Independent Electoral and Boundaries Act. His argument is that this section is unconstitutional, null and void to the extent that it provides that the right to vote of prisoners should be realized progressively. This position is based on the fact that the section is at variance with article 82(1)(e) of the Constitution which categorically refers to the progressive registration of voters realization of the right to vote only in relation to citizens residing outside Kenya.

30. In support of this reliance was placed on the Judgment No 34 of 2017 - Godfrey Malembeka v The Attorney-General and The Electoral Commissionof Zambia where it was held that Parliament cannot disqualify a person from registering as a voter and from voting only because the person is in lawful custody or has their freedom of movement restricted under a written law at the date of the election. To this end counsel submits that the petitioner is entitled to the reliefs sought.

The 2nd petitioners’ submissions 31. The 2nd petitioner filed written submissions dated August 28, 2020. He challenges the 1st respondent’s acts and regulation 39E of the Elections (Registration of Voters Amendment) Regulations 2017. He submits that the petitioner does not seek to re-litigate the fact that prisoners have a right to vote as this was already determined in the Kituo cha Sheria case (supra). Rather the petition seeks to enforce the Constitution and the orders of the court in the Kituo cha Sheria case. In view of this he submits that this court has jurisdiction to entertain the matter by virtue of article 165(3)(d) of the Constitution.

32. On the unconstitutionality of the derogation of a fundamental right, he submits that the exclusion of prisoners to participate in the elections of the other elective positions amounts to an unconstitutional derogation of their fundamental right under article 38(2)(a) and (3)(a & b) of the Constitution. He adds that the 1st respondent circumvented the orders granted in the Kituo cha Sheria case by amending the election law to provide that prisoners can only vote for the president. He submits that the right to universal suffrage of every citizen is meant for any elective public office.

33. He further submits that the limitation espoused in regulation 39E of the Elections (Registration of Voters) (Amendment) Regulations 2017 was not premised on any law as required under article 24(2)(c) of the Constitution. He argues that the limitation of a right is not equivalent to extinguishing of the right. According to him any law seeking to extinguish the right of a person eligible to participate in the elections is not a limitation of the right but an abrogation of the right for the purposes of that particular public office. In view of this he states that the respondents have not indicated the purpose for the limitation of the prisoners right to vote to that of the president only.

34. He submits that the conferred limitation as presented by the respondents in the Kituo cha Sheria case was rejected by the court which upheld the prisoners right to vote entirely. He also relied on Kalali Steven v AG and Electoral Commission Misc Cause 35 of 2018 where the High Court in Uganda upheld the prisoners right to fully participate in the general elections. He reminded the court that prisoners are among the citizens who voted for the Constitution in the 2010 referendum to govern their rights.

35. Turning to the constitutionality of regulation 39E of the Elections (Registration of voters Amendment) Regulations, he submits that the Constitution provides that an adult citizen has a right to vote under article 38 of the Constitution. This right is only limited for adult citizens living in the diaspora under article 82(1)(e) of the Constitution as the same is to be attained progressively. Similarly, he submits that prisoners do not fall in the excluded list under section 83(1)(b)(c) of the Constitution since they are not of unsound minds and neither have they been convicted of election offences. He therefore argues that regulation 39E is in contravention of the Constitution.

36. Likewise, the 2nd petitioner argues that article 19(3)(a) of the Constitution provides that fundamental rights and freedoms belong to each individual and are not granted by the State. He adds that the Constitution has not conferred the State with the power to grant or derogate rights under the Bill of Rights. To him this is exactly what the 1st respondent sought to do in the impugned regulation thus violating articles 2(4),19(3)(a & c) and 24(2)(c) of the Constitution.

37. He also submits that regulation 39E was in contravention of the parent Act. The reason being that article 94(5) of the Constitution states that no person or body other than parliament has the power to make provision having the force of law in Kenya except under the authority conferred by the Constitution or by legislation.

38. He states that the impugned regulations were made pursuant to section 109 of the Elections Act No 24 of 2011. He goes further to state that section 109(2) of the Act provides that the 1st respondent is to make regulations that give effect to the Constitution and the Act guided by the constitutional principles and standards of the Act. From the foregoing the 2nd petitioner submits that the 1st respondent did not have capacity to make the regulation 39E. As such their action of legislating outside these confines spells abuse of power and disregard for its statutory duty. In the circumstances he submits that regulation 39E is unconstitutional.

39. The 2nd petitioner submitting on the issue of discrimination states that the prisoners’ exclusion from participating in the elections of the other elective posts amounts to discrimination against a vulnerable citizenry. He argues that the dictates of article 38 and 83(1) of the Constitution do not envisage anything taking away the prisoners right to vote. Essentially he says that this act violates their right against discrimination as espoused under article 27 of the Constitution, article 25 of the International Convention on Civil and Political Rights and article 13 of the African Charter on Human and People’s Rights.

40. He submits that all the prisons are based in a particular county and constituency in Kenya and further prisons designated as polling centers. In light of this he argues that the prisoners are entitled to their citizen rights under article 12(1)(a) of the Constitution to exercise their right to vote in the locality.

41. Lastly the 2nd petitioner submits that article 1(1) and (2) of the Constitution provides that all sovereign power belongs to the people of Kenya and exercised through their democratically elected representatives. As such he submits that the prisoners are entitled to be governed by their will. According to him taking away this right is tantamount to taking away their sovereignty and capacity to exercise it through their representatives. He argues moreover that allowing the prisoners to vote for the local leaders will enable them vote for a leader who will focus on the criminal justice system and legal reforms required in the prisons. He urges the court to allow the petition.

The 1st respondent’s submissions 42. On behalf of the 1st respondent the firm of Mukele Moni and Company Advocates filed written submissions and a list of authorities dated October 5, 2021. Counsel raised issues as hereunder;i.What is the rationale behind regulation 39E of the Elections (Registration of Voters) Regulations, 2012?ii.Whether it is practicable for the prisoners to vote for their candidate of choice in respect of the five other elective positions.iii.Whether regulation 39E of the Elections (Registration of Voters Amendment) Regulations 2017 (Legal Notice No 73) is unconstitutional.iv.Whether the 1st respondent complied with orders of the decision in Kituo Cha Sheria v Independent Electoral and Boundaries Commission & another [2013] eKLR.v.Whether the petitioner has met the threshold for the grant of the reliefs sought.

43. Counsel on the first and second issues submits that articles 38(3)(a) and (b) of the Constitution envisages that every adult citizen has the right without unreasonable restrictions to be registered as a voter and to vote in any election or referendum. In view of this, counsel states that the law recognizes that there can be instances where restrictions are placed on the right to vote.

44. It is argued that the petitioners cannot solely consider the political rights under article 38 of the Constitution and fail to appreciate that the right to vote can be restricted in the manner spelt out under article 24 of the Constitution. The right is thus not absolute. Similarly it is noted that article 51(1) of the Constitution on the rights of imprisoned persons recognizes that detained persons retain their full rights save for where that particular right is clearly incompatible owing to the fact that the person is imprisoned.

45. Counsel submits that these limitations are upheld under the Prisons Act as read with the Persons Deprived of Liberty Act. These Acts provide that prisoners are by their nature specially designated, recognized and protected within the confines of a prison with specific limitations imposed on the exercise of the pre-requisite rights. In light of this, he argues that the full realization of the prisoners' right to vote in respect of the other five elective positions would be an uphill task.This is based on the fact the elective seats have been created and demarcated on the basis of geographical location. As such the vote in respect of a preferred candidate is unique to the place of registration and specific to the candidates within that electoral area.

46. It is counsel’s argument therefore that considering the nature and the designation of the five other elective posts and the identification and designation of prisoners under the Prisoners Act, it would be unrealistic and impracticable for the 1st respondent to get all prisoners to vote for their candidates of choice under the current electoral regime. In essence counsel argues that full realization of the right to vote in respect of the five other elective seats will necessitate amendments to the Prisoners Act, the Persons Deprived of Liberty Act and the Elections Act to accommodate the freedom of movement and security which is necessary for the exercise of the right.

47. Additionally counsel submits that besides the limitation imposed by law on prisoners as submitted above, the realization of the right to vote by the prisoners in respect of the five other elective seats fails to appreciate the practical challenges of administering the voting process for all the elective seats for the prisoners. It is submitted that the same would entail the following:i.The 1st respondent would have to provide about 40,883 polling stations in each prison to serve the entire prison population.ii.For each of the 40,883 polling stations, the 1st respondent would need to recruit a Presiding Officer, Deputy Presiding Officer and at least 4 polling clerks.iii.The challenge that would be occasioned with respect to the transmission of results of approximately 55,000 prisoners from 44,883 polling stations in each prisons.iv.In the alternative, escorting approximately 55,000 prisoners held in about 129 prisons to their various registration centers around the country would not only offer grave logistical challenges, but also have far-reaching repercussions of risking the security of the prisoners, the prison warders and the public at large.v.The challenge of allowing candidates to freely access prisons for purposes of conducting campaigns and the reciprocal right of the prisoners to freely interact with the candidates in the entire campaign period as envisaged by law.vi.The requisite electoral set up to facilitate voting in the five other elective seats would necessitate amendments to the law.vii.The requisite electoral setup to facilitate voting in the five other elective seats would require massive financial resources.

48. From the foregoing counsel submits that the court should consider whether any order it may make will have any practical effect either on the parties or on others as held in the case of Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others. Similar reliance was placed on the case of Republic v Principal Secretary Ministry of Industrialization & Enterprises Development & another ex-parte Rishit Metals Limited [2013) eKLR. Considering this, counsel submits that under the current electoral regime it is not practicable for theprisoners to vote for their candidate of choice with respect to the five other elective positions.

49. On the third issue, counsel submits that a challenge as to the constitutionality of legislation is that the presumption of constitutionality favors the legislation as held in the case of Council of County Governors v Attorney General & another [2017) eKLR. Therefore it is noted that for a court to determine the constitutionality of a statute, it has to look at the statute vis a vis the constitutional provision alleged to be offended and make a determination thereof as observed in the case of Were Samwel & 14 others v Attorney General & 2 others (2017] eKLR.

50. He submits that in regard to regulation 39E of the Elections (Registration of Voters) Regulations and contrary to the petitioners assertion of discrimination, a prisoner is not included in the categories of discrimination under article 27(4) the Constitution and so the rule does not amount to discrimination.

51. Counsel quoting the case of EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) 2019 eKLR in support submits that the principle of equality does not mean that every law must have universal application for all who are not by their circumstances in the same position. Additional support was placed on the cases of Harksen -vs­Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) (Harksen) and John Harun Mwau v Independent Electoral and Boundaries Commission & another [2013] eKLR.

52. He further submits that prisoners are treated differently pursuant to the provisions of article 51(1) of the Constitution as read with article 38(3) of the Constitution and Prisons Act as read with the Persons Deprived of Liberty Act. Essentially the differential treatment is recognized in law and thus reasonable and justifiable.

53. Counsel submits that the Supreme Court of the United Kingdom in the case of R. (On the application of Barclay and Others) v Secretary of State for Justice & others [2009] UKSC 9 observed that any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features which would be unacceptable in the context of one system may be justified in the context of another. This is so long as the chosen system provides for conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

54. In view of this he submits that a similar challenge on regulation 39 of the general regulations on Kenyan citizens living in the diaspora was challenged in the Supreme Court in the case of Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR. The court noted that the Regulation represents the appellant's existing capacity to conduct diaspora voting and is therefore not unreasonable.

55. Counsel contends that regulation 39E recognizes the political evolution of the country and the 1st respondent’s capacity to conduct elections. As a consequence it is stated that regulation 39E of the general regulations was determined by the Supreme Court in the Independent Electoral and Boundaries Commission (IEBC) case and so regulation 39E of the general regulations is constitutional.

56. On the fourth issue he submits that in the Kituo cha Sheria case, the court appreciated that it could not direct the 1st respondent on how the right to vote by the prisoners would be exercised and so left it to the 2nd respondent to determine how best the right could be actualized. In support reliance was placed on the case of Samson Owimba Ojiayo v Independent Electoral Boundaries Commission (20131 eKLR which emphasized the 1st respondent’s independence in carrying out its mandate.

57. Counsel argues that the 1st respondent acted in accordance with the law and in compliance with the orders in Kituo Cha Sheria case (supra). Even so, where it failed to do so the petitioners ought to have brought contempt proceedings against the 1st respondent and not ventilated these grievances by way of a constitutional petition.

58. Lastly, counsel submits that the petitioners have not demonstrated with precision how regulation 39E of the general regulations is unconstitutional and affects the prisoners’ right to vote. It is stated that the averment is based on general assertions and citations of constitutional provisions without necessarily demonstrating any infringements by the 1st respondent. In view of this it is argued that the petitioner failed to discharge the required burden of proof.

59. Counsel additionally submits that the issues raised by the petitioner ought to have been presented to parliament by way of a petition to parliament under the provisions of article 119 (1) of the Constitution hence failing to exhaust existing mechanisms as seen in the case of Benard Murage v Fine Serve Africa Limited & 3 others[2015] eKLR. To this end, he submits that the petitioner is not entitled to the reliefs sought.

The 2nd & 3rd respondents’ submissions* 60. The 2nd & 3rd respondents filed submissions dated May 16, 2022 through learned State counsel Ruth Wamuyu. She submits while recognizing the independence of the 1st respondent in article 249 (2b) of the Constitution it’s acts are empowered under articles 88(4)(a) and 83(3) of the Constitution as mirrored under section 4 of the Independent Electoral and Boundaries Commission Act.

61. Counsel submits that such institutions enjoy independence as observed in the case of New National Party v Government of Republic of South Africa & others (CCT9/99) [1999] ZACC 5. This independence she says enables the bodies to carry out their duties effectively as observed in the Matter of Interim Independent Electoral Commission [2011] eKLR.

62. In the circumstances, she submits that the court ought to be at the forefront in securing the independence of the 1st respondent. She argues that there should be a balance between the constitutional issues raised by the petitioners and the 1st respondent’s powers, functions and capabilities in fulfilling its mandate. Counsel referred the court to the 3rd respondent’s replying affidavit dated March 30, 2022.

Analysis and Determination 63. Before commencing this determination it is important to note that the prisoners’ right to vote as envisaged in article 38 of the Constitution was ably discussed and upheld in a finding rendered in Kituo cha Sheria v Independent Electoral and Boundaries Commission & another [2013] eKLR. I do not see the need to be labour the issue in this determination. The petitioners’ main grievance as can be discerned in the consolidated petition is the purported continual curtailment to enjoy this right in totality.

64. Having considered the pleadings, written submissions, cited cases and the law I find the main issues’ falling for determination to be as follows:i.Whether the petitioners exhausted the mechanism provided under article 119 of the Constitution before approaching this court.ii.The constitutionality of the following sections; regulation 39E of the Elections (Registration of Voters) (Amendment) Regulations, 2017,section 36 of the Election Laws (Amendment) Act No 36 of 2016 and section 24(2)(ba) of the Independent Electoral and Boundaries Commission Act.

Whether the Petitioners Exhausted the Mechanism Provided under Article 119 of the Constitution before approaching the Court 65. It is the 1st respondent’s contention that the petitioners ought to have first exhausted the alternative avenue provided under article 119 of the Constitution. This article provides that every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation. The question that arises for determination thus is whether the petitioners exhausted this remedy before filing this petition against the respondents.

66. The High Court has on a number of occasions pronounced itself on the right to petition Parliament under the article 119 of the Constitution versus the right to petition the court under article 22 of the Constitution while invoking the court’s jurisdiction under article 165 (3) of the Constitution. The three judge bench in the case of Katiba Institute & another v Attorney General & another [2017] eKLR held as follows:

103. We emphasize that under article 2(4) of the Constitution, any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Under article 165(3)(d)(i) and (ii) the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of the Constitution; and, 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.104. Therefore whereas the legislative authority vests in Parliament and the County Assemblies, where a question arises as to whether an enactment is inconsistent with the Constitution or is passed in contravention of the Constitution, the High Court is the institution constitutionally empowered to determine the issue. This is of course subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court. There is nothing like supremacy of the legislative assembly outside the Constitution. Under article 2(1) and (2), the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. No person may claim or exercise State authority except as authorised by the Constitution.105. Therefore there is only supremacy of the Constitution. Accordingly, every organ of State performing a constitutional function must perform it in conformity with the Constitution. It must follow that where any State organ fails to do so, the High Court, as the ultimate guardian of the Constitution, will point out the transgression. The contrary argument, in our view, runs counter to the constitutional provisions with respect to the jurisdiction of this court.115. It is therefore clear that the mere fact that Parliament has the power pursuant to a petition under article 119 of the Constitution to enact, amend or repeal legislation, does not bar this court from carrying out its constitutional mandate; or, to fashion out an appropriate remedy.” 67. Likewise, the three judge bench in Council of Governors & 3 others vs Senate & 53 others [2015] eKLR addressed its mind on the issue as follows:71. It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.Parliament shall make provision for the procedure for the exercise of this right.”72. The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the court under article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution, or under article 165(3)(d)(iii), to determine any matter “…relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government”"73. In our view, the answer must be in the negative. Doubtless, article 119(1) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that article 119 is not intended to cover situations such as is presently before this court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment…74. It would therefore be, in our view, for the court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and articles 2(4) and 165(3(d)(i) mandate this court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.”

68. I am guided by the holding of the court in the cited authorities and find no distinguishing circumstances in the case of the petitioners before this court. While the court appreciates that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or statute, that procedure should be followed. The court takes cognizance of the fact that while Parliament has the sole mandate to legislate, the High Court under article 165(3) (d) of the Constitution has the sole mandate to answer any question with respect to the interpretation of a Statute and its constitutionality as its guardian a mandate which parliament doesn’t have. This is the key question in this consolidated petition. In the circumstances, I find that the petitioners did not violate the doctrine of exhaustion in the context espoused by the 1st respondent.

The constitutionality of the following Sections; regulation 39E of the Elections (Registration of Voters) (Amendment) Regulations, 2017, section 36 of the Election Laws (Amendment) Act No 36 of 2016 and section 24(2)(ba) of the Independent Electoral and Boundaries Commission Act. 69. The petitioners took issue with the limitation allegedly enunciated in these provisions. To begin with that the prisoners can only vote for the president in a national election and in a referendum. Secondly, that their right to vote in full is a right that will be attained progressively.

70. The respondents denied both assertions. The 1st respondent in view of article 24 of the Constitution argued that the right to vote was not absolute. Moreover, that it would be unrealistic and impracticable for the right to be upheld under the current electoral regime. The 2nd respondent considering this contended that the 1st respondent had independence to make the impugned decision as it is within its mandate.

71. Answering this question involves interpreting the supposedly impugned constitutional provisions alongside the disputed provisions alleged to be unconstitutional. It is imperative that the spirit of the Constitution presides and permeates the process of judicial interpretation as spelt out under article 259 of the Constitution.Similarly it is vital to bear in mind the relevant guiding principles in the interpretation of an Act of Parliament.

72. To start with the Supreme Court on the interpretation of the Constitution has pronounced itself on several occasions. In In Re Interim Independent Election Commission [2011] eKLR the court guided as follows:(86)” …..The rules of constitutional interpretation do not favour formalistic or positivistic approaches (articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the preamble, in article 10, in chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the courts.(87)In article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.(89)It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.

73. In the same way, the Supreme Court while citing its former decisions in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated as follows:(137)…In the Matter of the Kenya National Human Rights Commission, Sup Ct advisory Opinion Reference No 1 of 2012;[2014] eKLR, this court [paragraph 26] had thus remarked:“…But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

74. In interpreting an Act of Parliament, a number of principles have been established that guide courts in making the declaration of its constitutionality or lack thereof. The first principle is the general presumption that Statutes are enacted in conformity with the Constitution as affirmed by the Court of Appeal of Tanzania in the case of Ndyanabo v Attorney General [2001] EA 495.

75. The other principle this court is to consider is the purpose and effect of the impugned provisions. This principle was also applied by the Constitutional Court of Uganda in the case of Olum & another v Attorney General [2002] 2 EA , where it was noted that:“To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional…”

76. Additionally, this court is further required to interrogate the intention articulated and intended in an Act of Parliament when it was drafted. This was confirmed by the Court of Appeal in the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR when it stated as follows:“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”

77. The impugned provisions are underscored as follows:Section 24 of the Independent Electoral and Boundaries Commission Act No 9 of 2011 states that:Annual report1. Within three months after the end of each financial year, the Commission shall present its annual report to the President and submit the same to Parliament. The annual report shall in respect of the year to which it relates, contain—a.the financial statements of the Commission;b.the activities the Commission has undertaken;(ba)progress made in the continuous registration of citizens as voters and the progressive realisation of the right to vote of citizens residing outside Kenya and prisoners; and(c)any other information, the Commission may consider relevant.(3)The Commission shall publish and publicize the annual report.

78. The impugned sub-section was effected by the Election Laws (Amendment) Act, 2016 under section 36 which similarly reads as follows:36. Section 24 of the Independent Electoral and Boundaries Commission Act, 2011 is amended in subsection (2) by inserting the following new paragraphs immediately after paragraph (b) —(ba)progress made in the continuous registration of citizens as voters and the progressive realization of the right to vote of citizens residing outside Kenya and prisoners.

79. The second impugned provision is found in the Elections (Registration of Voters) (Amendment) Regulations, 2017 under rule 39E which provides that:A prisoner may only vote in a presidential election or a referendum.

80. It is worthy to state at this juncture that contrary to the 1st respondent’s assertion, the Supreme Court in the case of Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR dealt with regulation 39 of the Elections (Registration of Voters) regulations, 2012. This Regulation concerned the right of citizens in the diaspora to vote not the prisoners. In this context the case does not relate to the impugned regulation 39E.

81. A clear reading of these provisions divulges that the impugned section and rule provide that the prisoners can only vote in a presidential election and referendum and their right to vote is to be attained progressively. This can reasonably be stated to have been the purpose and effect of the impugned provisions. The question that bears itself to mind at this stage is whether these provisions can stand against the constitutional dictates. An examination of the constitutional provisions is prudent.

82. The right to vote is a universally recognized right and protected by various international instruments as detailed by the 2nd petitioner. In our jurisdiction this right is founded under article 38 of the Constitution as follows:(1)Every citizen is free to make political choices, which includes the right--(a)to form, or participate in forming, a political party;(b)to participate in the activities of, or recruit members for, a political party; or(c)to campaign for a political party or cause.(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for--(a)any elective public body or office established under this Constitution; or(b)any office of any political party of which the citizen is a member.(3)Every adult citizen has the right, without unreasonable restrictions, --(a)to be registered as a voter;(b)to vote by secret ballot in any election or referendum; and(c)to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

83. The Supreme Court of Ghana in the case of Ahumah Ocansey v The Electoral CommissionAndCentre For Human Rights & Civil Liberties v The Attorney-General & Anor. Writ No. JI/4/2008 speaking on the importance of this right observed as follows:“Significantly, the only means of giving effect to the exercise of the sovereign will is through adult suffrage. When this court had opportunity to examine the nexus between the sovereign will of the people and the right to vote it unanimously declared in Tehn-Addy v Electoral Commission [1997-8]1 GLR at p 595:"...in order to give meaning and content to the exercise of this sovereign power by the people of Ghana, article 42 guarantees the right to vote every sane citizen of eighteen years and above. The exercise of this right of voting, is therefore indispensable in the enhancement of the democratic process, and cannot be denied in the absence of a constitutional provision to that effect.”True democracy, with its hall mark of all-inclusiveness, recognises certain key fundamental values and principles. Without these there can be no functional democracy. A core value of any democratic system is the concept of sovereignty of the people, and as expressed through the right to choose representatives, through whom the sovereign will of the people, shall be exercised. This choice can only be achieved through the popular participation in public elections…”

84. Parliament is accordingly required to effect this fundamental right by enacting legislation as directed by article 82 of the Constitution. This article provides as follows:(1)Parliament shall enact legislation to provide for--(a)the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b)the nomination of candidates;(c)the continuous registration of citizens as voters;d)the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e)the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.(2)Legislation required by clause (1)(d) shall ensure that voting at every election is--(a)simple;(b)transparent; and(c)takes into account the special needs of--(i)persons with disabilities; and(ii)other persons or groups with special needs.

85. The Constitution proceeds to make known under article 83 that the registration of voters is to be conducted as follows:(1)A person qualifies for registration as a voter at elections or referenda if the person--(a)is an adult citizen;(b)is not declared to be of unsound mind; and(c)has not been convicted of an election offence during the preceding five years.(2)A citizen who qualifies for registration as a voter shall be registered at only one registration centre.(3)Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.

86. Guided by the principles of constitutional interpretation, it is apparent that one of the constitutional objectives is to ensure that citizens enjoy their rights to their greatest extent as reasonably possible. This can be clearly seen in the drafting of the cited articles above. The Constitution makes it clear that citizens are to exercise their right in the electoral process without reserve.

87. There is no dispute that every eligible Kenyan has a right to be registered as a voter and to vote. The respondent shave raised very pertinent issues and challenges in respect of actualizing the right of prisoners to vote in their preferred candidates. Article 83(2) provides:“A citizen who qualifies for registration as a voter shall be registered at only one registration centre.”

88. The prisoners are kept in various prisons depending on the seriousness of the offence and where the offence occurred. An example would be a prisoner in Kamiti maximum prison whose home town is in Busia county and his registration centre is also Busia. How will this prisoner in Kamiti vote for a Governor in Buisa, Senator in Busia, M.P in Nambale/Budalangi/Matayos; Marachi West, Elugulu, Marachi East, inter alia. Even for persons who are not in prison, for one to vote for the stated potions he/she must vote from their centre where he/she registered as voter.

89. We must all be realistic about this even as the Constitution provides for these right and as was confirmed in the Kituo Cha Sheria case (supra).

90. Hypothetically, for a prisoner in Kamiti Maximum prison to go and vote in Busia for the positions complained of it would require the government to transport him to his registration centre in Busia and avail security for him. This is only one prisoner. What about the thousands of prisoners in the various prisoners? Will the government have to organize for them to move to their registration centers to vote from there wait for them to finish and return them to the prisons? This is the current electoral regime in Kenya. The request is not practical and must be properly planned for.

91. The request by the petitioners can only work where a registered voter has transferred his/her vote to a registration centre under the prison where he/she is serving otherwise making such an order would create a lot of unnecessary disorder and confusion. It requires a lot of planning hence the submission that it is progressive.

92. Voting for the president’s vote is not confined to a county constituency / ward and so is a referendum. That is the reason why rule 39E of the Elections (Registration of Voters) (Amendment) Regulations, 2017 provides that:“A prisoner may only vote in a presidential election or a referendum.”

93. This to me is a work in progress until when the country reaches a point where one can vote form anywhere in the country and for any candidate of their choice. To say that, it will happen tomorrow or in the next general elections will be to lie to ourselves as a nation.

94. In the South African case of Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) & others (CCT 03/04) [2004] ZACC 10; 2005(3) SA 280 (CC); 2004 (5) BCLR 445 (CC) the constitutional court was faced with a similar question concerning the right of prisoners to vote, as the government had sought to limit it. On the issue of limitation of the right and justification the court stated:“A failure to place such information before the court, or to spell out the reasons for the limitation may be fatal to the justification claim. There may however be cases where despite the absence of such information on the record, a court is nonetheless able to uphold a claim of justification based on common sense and judicial knowledge.”

95. I find justification in the reasonableness in the explanation given by the 1st respondent for the current limitation in regulation 3(E and section 24(2) (ba) of the IEBC Act. It is not possible for the necessary measures to be put in place in time to allow prisoners to vote for all classes of candidates save for the president in the scheduled National elections for August 9, 2022. The only way this can be achieved could be in the next general elections based on a re-working of the current electoral regime, which would require a total overhaul as it affects all voters and not just prisoners. For now it’s unworkable and the prisoners will have to work with the current system.

96. The 2nd petitioner had requested that an order be made compelling the respondent to comply with the orders of the court granted in Kituo cha Sheria v IEBC No 574 of 2012 to facilitate prisoners to exercise their right to vote in all the elective public offices in the forth coming election and in the subsequent general elections. This petition cannot be used to execute orders issued in another petition. It does not work like that. If the 2nd petitioner has any issues with the orders issued in the Kituo Cha Sheria case he should have moved the court in that file. I therefore find no merit in the consolidated petition which is dismissed. Being a matter of great public interest I order that each party bears its own costs.Orders accordingly.

DELIVERED VIRTUALLY THIS 17TH DAY OF JUNE 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. Ong’udiJudge of the High Court