[2022] KEHC 17164 (KLR)

Rajput & another v Independent Electoral & Boundaries Commission & another; Principal Registrar of Persons Ministry of State for Immigration & 2 others (Interested Parties) (Constitutional Petition E260 of 2022) [2022] KEHC 17164 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17164 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E260 of 2022

AC Mrima, J

December 16, 2022

Between

Nazlin Omar Fazaldin Rajput

1st Petitioner

Caucus For Peace & Independent Candidates of Kenya

2nd Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Attorney General

2nd Respondent

and

Principal Registrar of Persons Ministry of State for Immigration

Interested Party

Director of Criminal Investigations

Interested Party

Office of the Data Protection Commissioner

Interested Party

Judgment

Introduction: 1. The 1st Petitioner, Nazlin Omar Fazaldin Rajput, presented the Petition subject of this judgment as a law abiding, public spirited national figure. She is the President of Caucus for Peace & Independent Candidates of Kenya, (hereinafter the 2nd Petitioner or ‘the Caucus).

2. The Petitioner was an aspiring independent presidential candidate for the general elections held on 9th August 2022.

The Petition: 3. Through the Petition dated 31st May 2022, and supported by the affidavit of Nazlin Omar Fazaldin Rajput deposed to on an even date, the Petitioner approached this Court contesting the decision by the Independent Electoral and Boundaries Commission, (hereinafter ‘The IEBC’ or ‘The Commission’ or 1st Respondent) not to clear her and other independent candidates to run for presidency.

4. In the main, the Petitioner posited that the decision by IEBC to bar her and the other independent candidates was an abrogation of Article 1 of the Constitution which entitles people to exercise their sovereign power directly or through their democratically elected leaders.

5. She posited that barring of independent candidates would render the general elections scheduled for 9th August 2022 undemocratic, an affront to Article 1 of the Constitution.

6. It was her case that if IEBC’s deadlines for submission and clearance of aspirants were allowed to proceed as scheduled, there will be great travesty of justice.

7. She pleaded that, the 2nd Petitioner, being the pioneering body of independent candidates in Kenya, its members faced numerous obstacles created by IEBC which barred them from exercising their democratic rights.

8. It was her case that there was a sharp rise of independent aspirants for various reasons among them, hinderances by political parties and bottle necks created by state institutions for failing to penalize political parties against electoral offenses committed during party primaries.

9. She pleaded that as a result of the foregoing, many people fell out with their parties and took the independent route as allowed in the constitution under Article 85, 99 and 137, but the IEBC and the state to sabotaged them.

10. The Petitioner stated that locking out of independent candidates spelled doom to the democratic gains and democratic status of the nation. She expressed her vote of no confidence and that of the 2nd Petitioner in The Commission and the election process generally.

11. She posited that the Petition was informed by the need to forestall a shambolic unconstitutional election process which if not acted upon would result in loss of public funds in a repeat poll.

12. To demonstrate her disenfranchisement by IEBC’s decision to bar her as an independent presidential candidate, the 1st Petitioner claimed that the Office of the Registrar of political parties (ORPP) had cleared her as an independent presidential candidate. She posited that her symbol of a fist holding a red card had also been cleared.

13. It was further her case that IEBC violated and continued to violate the very general principles for the electoral system as provided in Article 81, the preamble, Article 2, 3(d) and Article 10 on National values and principles of governance that it is mandated to uphold and defend.

14. She pleaded that based on the decision in Petition No. 28 of 2020 consolidated with Petition No. E549 of 2017, e077 of 2022, E037 of 2021 & E065 of 2021, the education qualifications for presidential aspirant is the same as those of an Member of Parliament.

15. The Petitioner decried as unconstitutional and punitive the obligation upon presidential aspirants to compulsorily obtain and attach identity cards of all signatories who nominate them for elective seats.

16. It was her case that despite making submission to the IEBC on her presidential candidature, her name was missing from media publication of those whose submissions the commission had received.

17. She pleaded that it was discriminatory for parties sponsored by political parties not to be subjected to the same process and hurdles as it was for independent candidates.

18. It was her case that the requirements on identity cards place undue bottlenecks on the independent candidates thus creating an artificial barrier on their candidacy consequently impeaching the constitutional and sovereign rights of the electorate to elect any person of their choice.

19. On a different line of argument, the Petitioner submitted that the President of the Republic of Kenya abused his office for campaigning for Raila Odinga to the detriment of other aspirants and the at the expense of the tax payers in open and flagrant violation of Chapter Six of the Constitution and electoral laws.

20. Based on the foregoing factual matrix, the Petitioners prayed for the following orders;1. Spent

2. Spent

3. All deadlines for clearance by the 1st Respondent for Presidential candidates including for submissions, clearances of support forms for nominations for the petitioners and Independent Presidential candidates be and are hereby suspended and new guidelines as to dates be issued by this honourable court.

4. That an Order do and is hereby issued restraining the 1st Respondent from clearing and/ or processing the names of any and all Candidates for the Presidency in the 2022 general elections until the Identity card copies they have submitted for presidential elections have been publicly audited and verified as been voluntarily given by the owners of the identity and not stolen or poached against their knowledge and free will.

5. That an Order do and is hereby issued ordering the 1st Respondent to publish all the copies of Identity cards of alleged supporters submitted for presidential elections for public audit and verification by the public as been voluntarily given by the owners of the identity and not stolen or poached against their knowledge and free will to enable public participation or as the court deems fit.

6. That an Order do and is hereby issued suspending all 1st Respondent deadlines, regulations and processes pending the hearing of this Application inter-parties and/ or until further orders by the court.

7. That an Order do and is hereby issued ordering the 1st Respondent to reject the names of any and all aspirants found to have submitted even one copy of an identity card which is proven to be from a data base and not from a citizen voluntarily given.

8. That an order and is hereby issued restraining the 1st Respondent from clearing or allowing Raila Odinga from vying on the ballot 2022 for violating electoral regulations on abuse or usage of public funds and facilities of the office of the president.

9. An order do and is hereby issued restraining the President of the Republic of Kenya in using his office, cabinet secretaries, other public officers and civil servants all the way to the chiefs and sub chiefs from campaigning for Raila Odinga and anyone else for that matter at all howsoever.

10. That an Order do and is hereby issued suspending all 1st Respondent deadlines, regulations and processes to be redirected to allow fair submissions by aspirants.

11. That an Order do and is hereby issued compelling the Director of Criminal Investigations to investigate the identity cards collected by all the Presidential Candidates to verify if they were legitimately obtained directly from alleged supporters or sourced/ stolen from protected data bases and make public its findings.

12. That an Order do and is hereby issued compelling the Director of Criminal Investigations to investigate the identity cards collected by all the Presidential Candidates to verify if there are similarities or patterns of mass sharing of ID copies and supporters names and submit its findings of any source or theft from protected data bases and publish its findings.

13. That an Order do and is hereby issue to the 1st Respondent to dismiss all Identity card copies submitted to it by presidential aspirants.

14. An order do and is hereby issued barring from the presidential elections all 2022 and any such aspirants who have been found to have submitted any identity card copy without express authority from its owner.

15. A declaration be and is hereby issued that identity card copies as submitted by Presidential Aspirants were not sourced in an accountable, transparent or credible manner and are hereby dismissed from being allowed by the 1st Respondent.

16. That an order of status quo ante do and is hereby issued restoring the status quo that prevailed in 20 I 7 & 2013 in regards to the collection of signatures by independent candidates minus the requirement on identity cards pending hearing of this application inter-parties. An order be and is hereby issued restraining the 1 respondent from requiring the submission of identity card copies in support to the supporters nominations.

17. An order do and is hereby issued to the 1st Respondent to conduct the verification of signatures and names in public for transparency and accountability.

18. That an order do and is hereby issued of auditing of the photocopies of IDs and signatures be issued, since there has been no established transparency or integrity by presidential candidates offering copies of IDs that may have been stolen from collated and protected citizens data.

19. An Order do and is hereby issued to that the 1st Respondent is hereby compelled to include the 1st Applicant and her names and symbols in all the processes of elections and gazettement for 2022 to vie for the president of the Republic of Kenya.

20. A restraining order do and is hereby against the 1st Respondent to bar nor restrict the Applicant towards her bid to vie for the office of President of the Republic of Kenya in any way at all howsoever.

21. An Order do and is hereby issued restraining the 1st Respondent to require or demand a degree qualification from the 1 Petitioner or any other Kenya vying for the presidency of the Republic of Kenya

22. An order do and is hereby issued compelling the 1st Respondent to admit the Applicant's original education certificates as already on record with it and in its possession as she was already cleared and vied for the presidency of the Republic of Kenya in the 2007 general elections.

23. An order do and is hereby issued restraining the Respondent desists from making unconstitutional demands upon the petitioners that violates and infringe on their constitutional rights and fundamental freedoms from seeking to be elected as the President of Kenya.

24. An order do and is hereby issued that the 1st Respondent illegal self-made punitive rules of dates/ deadlines for submission of supporters for nomination as president is hereby extended for 14 days.

25. An order that the Ist Respondent illegal self-made punitive rules of dates/deadlines for submission of supporters for nomination as president is hereby extended for 14 days more days pending the hearing and full determination of the petition.

26. That an order do and is hereby issued to temporarily restraining the 1st Respondent from implementing regulations 18 (2) (0), 24 (2) (0), 28 (2) (0), 32 {2} (c) and 36 (2) (c) of the Election (General) Regulations ,2A17 requiring independent candidates for the various elective positions in the August 202 General Elections to submit copies of identity cards of their supporters to the 1st Respondent for clearance purposes to vie for elective posts, but allow and accept the candidates to submit just the signatures and the requisite forms with the registered voters details pending the hearing and determination of this application inter-parties.

27. An order do and is hereby issued temporarily restraining the 1st Respondent from implementing regulations 18 (2) (0), 24 (2) (0), 28 (2)10),32(2) (c) and 36 (2) (0) of the Election (General) Regulations ,2017 requiring independent candidates for the various elective positions in the August2022 General Elections to submit copies of identity cards of their supporters to the l 't Respondent for clearance purposes to 61Fage vie for elective posts, but allow and accept the candidates to submit just the signatures and the requisite forms with the registered voters details pending the hearing and full determination of the petition.

28. An Order do and is hereby issued that the Isl Respondent is hereby restrained from collecting or demanding any fees from any candidates for elective office or a minimal token fee that court deems fit to grant pending the hearing and determination of this application inter-parties.

29. An Order do and is hereby issued that the 1st Respondent is hereby restrained from collecting or demanding any fees from any candidates for elective office or a minimal token fee that court deems fit to grant pending the hearing and full determination of the petition.

30. A Declaration that elections is an exercise and not an event and all the procedures and regulation towards an election are part and parcel of the elections and affect its integrity and any discrepancy, bias, favor and or discrimination can and will challenge its results.

31. That an Order do and is hereby issued compelling the directorate of criminal investigation to investigate the identity cards collected by all the Presidential Candidates to verify if they were legitimately obtained or sourced/ stollen from protected data bases.

32. That an Order do and is hereby issued compelling the 1st Respondent to publish the identity cards copies allegedly collected by all the Presidential Candidates as submitted for public scrutiny and verification by the owners and citizens.

33. That an Order do and is hereby issued compelling the directorate of criminal investigation to investigate the identity cards collected by all the Presidential if Candidates to verify they were legitimately obtained or sourced/ stollen from protected data bases.

34. An order that the l" respondent inform the public and advertise the reopening for clearance as independent candidates and for clearance of symbols and submission of the same on their websites and social media pages, mainstream newspapers, televisions and radio stations nationwide of the reconvening of the process for clearance for independent candidates for days.

35. A declaration that vide Article 137 of the constitution of Kenya, the 1st petitioner is qualified to vie for the office of the President of the Republic of Kenya.

36. A declaration that the education qualifications for a citizen of Kenya to stand for election as President is the same as that required to stand as a member of parliament as per Article I 3 7- qualifications and disqualifications for election (1)­a person is qualified for nomination as a member of parliament, (b)-is qualified to stand as a member of parliament and Article 99 on qualifications and disqualifications to election as a member of parliament if the person (1) (b), satisfies any educational, moral and ethical requirement prescribed by thisconstitution or an act of parliament.

37. A declaration that parliament has and had no constitutional authority nor mandate whatsoever to Parliament to make separate laws for the education qualifications for presidential candidates other than what it was mandated to enact for itself which is sufficient for the election qualification for president.

38. A declaration that degree certificates are not a requirement to vie for the Presidency of Kenya all

39. A declaration that any and legislation or rules, including sections of any Election Acts by Parliament or the 1 Respondent which are inconsistent with the constitution of Kenya Article 137 are void the extent of the inconsistency, and any act or omission in contravention of this constitution by Parliament, the 1st Respondent and 2nd respondent are invalid.

40. A declaration that any and sections of any Election Acts by Parliament which are inconsistent with the constitution in regard to education qualifications are void to the extent of the inconsistency, and any act or omission in contravention of this constitution by Parliament, the 1 respondent and 2Zn" respondent, to the same, are invalid.

41. A declaration that where there is inconsistency with Acts of parliament against the constitution, the constitution provisions be upheld by the 1 respondent the constitution of Kenya Articles 137 on - qualifications and disqualifications for election (1)- a person qualifies for nomination as a Presidential candidate the person, (b)-is qualified for election as a member of parliament.

42. A declaration that the 1st Petitioner does not need a degree to vie for the Presidency of the Republic of Kenya.

43. A declaration that the I" petitioner is qualified to vie for the presidency of the Republic of Kenya.

44. A declaration that Hon. Justice Mrimas judgement dated the of April on the issue of non-requirement of a degree for members of parliament is endorsed the same for presidential contenders as held by Article 137 of the constitution.

45. A declaration that article 137 of the constitution is sufficient to uphold education qualifications for a presidential aspirant.

46. A declaration that section 22 is unconstitutional, null and void.

47. A declaration that the processes of the election is fundamentally flawed, and thus, the whole election process and its outcomes is null and void.

48. A declaration that the I" petitioner's political rights, as especially, right to run for president, have been violated.

49. A declaration that a person qualifies to the person qualifies to vie as member of parliament that the court finds the entire section 22, 23, 24 as unconstitutional and are non and void if stand for president

50. A declaration that the date of submission of nominations forms to the 1st Respondent is not extended, the petitioner's rights will be further violated.

51. A declaration that any natural and not organized duplication by voters to sign support forms for candidates is not the fault of Independent candidates.

52. A declaration that any Laws or rules, including sections of any Election Acts by Parliament which are inconsistent with the constitution in regard to supporter/ nomination for election as President as per Article 13 7 (d)- is nominated by not less than 2000 voters from each of a majority of the counties, are void to the extent of the extent of the inconsistency, and any act or omission in contravention of this constitution by Parliament, the 1 respondent and 2nd Respondent are invalid.

53. A declaration that the 1 respondent deadline of the 2nd of May for independent candidates to be submit their clearances is punitive as three days were public holidays.

54. A declaration that the entire process stands already marred and not credible three unless those days are re-oepened through a public civic education drive to open doors for unfairly blocked aspirants nationwide to submit their papers.

55. A declaration that the the Respondent was biased and discriminatory to allow one aspirant out of all aspirants, to correct and re-submit his papers on the 29t of May, having refused to do the same for all other [presidential aspirants.

56. A declaration that the deadlines for submission of nomination forms from the petitioners are suspended.

57. A declaration that the deadlines for registration of presidential candidates is hereby suspended.

58. A declaration that the locking out of independent candidates unconstitutionally by IEBC, if not corrected will render the election process unconstitutional and invalid.

59. A declaration that any Laws or rules, including sections of any Election Acts and by Parliament the 1st Respondent which are inconsistent with the constitution of Kenya Article 137,85, 55, 38, 27, 20, 19, 10, 2(9), 1(1) and the preamble are void to the extent of the extent of the inconsistency, and any act or omission in contravention of these Articles of the Constitution by are invalid.

60. A declaration that the fees required by IEBC for payment to stand for election for any elective office from the Presidency, Governors, Members of Parliament, women reps to MCA's are punitive, do not reflect the economic status of the nation or the mass majority, are unconstitutional and contradict Articles137, 85, 55, 38, 27, 20, 19, 10, 2(4), 1() and the preamble.

61. A separate declaration each that the respondents have violated the following provisions of the Constitution: Article 249 (1) objects authority and funding of commissions and independent offices (1) the objects of the independent offices are to (a) protect the sovereignty of the people, (b) secure the observance by all state organs of democratic values and principles, and (c) promote constitutionalism and, (2) are subject only to this constitution and the law and (b) are independent and not subject to the direction or control of any person or authority; 137 as read with articles 99 (1) (b) & 85 (a) eligibility to stand as an independent candidate; article 100 to promote the representation of women, ethnic and other minorities and marginalized communities, being myself; article 85 eligibility to stand as an independent candidate; article 81 principles for the electoral system, chapter six on leadership and integrity; article 56, the state shall put in place affirmative action measures designed to ensure that minorities and marginalized groups - (a) participate and are represented in governance and other spheres of life; article 47, fair administrative action; article 38 on political rights (I) every citizen has a right to make free political choices (2) every citizen has the right to free, fair and regular elections based on universal suffrage and the free will of the electors for-(a) any elective4 public body or office established under this constitution(3) every citizen has a right (c)to be a candidate for public office...and if elected to hold office; article36 freedom of association; article 35 access to information; 32 article 28 human dignity, article 25 fundamental rights and freedoms that may not be limited (a); article 20, application of the bill of rights ; article 19 on rights and fundamental freedoms; article 12, every citizen is entitled to--(a) the rights, privileges and benefits of citizenship, article 10 on national values and principles of governance, article 2 supremacy of this constitution article I sovereignty of the people.

62. That the court issues an order for the respondent to be paid the sum of Kenya shillings two billion only in general damages.

63. That the court issues order for such other exemplary damages as it deems fit.

64. That costs of this petition be provided for.

65. Any other declaration or order that this honourable court may deem just to grant in favour of and in the interests of the petitioners and this petition filed under public interest.

The Submissions 21. The Petitioner did not file written submissions. She however highlighted her case orally reiterating her case as in the Petition.

1st Respondent’s Case 22. The Independent Electoral and Boundaries Commission opposed the Petition through the Replying Affidavit of Moses Ledama, its Acting Director Voter Registration and Electoral Operations deposed to on 18th July 2022.

23. Mr. Ledama deposed that the Petition did not set out with precision the provisions of Constitution alleged to have been violated and the manner in which they were contravened.

24. As to the qualification of the 1st Petitioner to contest as an independent presidential candidate, it was his case that she did not fulfil pre-nomination requirements for failing to submit certified academic qualifications as required under section 22(2) of the Elections Act 2011 and Regulation 47 of the Elections (General) Regulations 2012.

25. He deposed that the Petitioner failed to submit to the IEBC a list of names , respective signatures, copies of Identification Cards, of at least 2000 voters registered in each of a majority counties as per the requirements under Regulation 18(1) of the Elections (General) Regulations 2012.

26. On the foregoing unmet legal requirement expected of any aspiring presidential candidate, the 1st Respondent deposed that the Petitioner’s case was without merit, scandalous and a waste of court’s time.

27. Mr. Ledama was categoric that the IEBC has an obligation as prescribed under Article 88(4) & (5) of the Constitution and the Elections Act and the Regulations therein to ensure that any person seeking to be elected as a president, Deputy President, County Governor or Deputy County Governor has at least educational qualification of a degree from a university recognized in Kenya.

28. In rebutting the claim of discrimination, it was his contention that the provision of Regulation 22(2) of the Elections Act and Regulation 47 of the Election (General Regulation) was neither within prohibited degrees of discrimination under Article 27 of the Constitution nor does it unfairly limit the right of persons to political participation under Article 38 of the Constitution.

29. It was his position that educational requirements was settled by the Court in Johnson Muthama -vs- Minister for Justice and Constitutional Affairs & Another 2017 where the Court found the requirement as set out under section 22(2) of the Elections Act was constitutional.

30. He deposed further that in line with the Gazette Notice No. 431 and 432 under vol. CXXIV- No. 14, the IEBC had commenced electing processes and to that end, required candidates intending to vie for the 9th August 2022 elections as independent candidates to submit their symbols, letter of intent to vie and clearance from the registrar of political parties by 2nd May 2022.

31. It was his deposition that the Petitioner, despite being present in the 1st Respondent’s meeting held on 23rd May 2022 for the pre-nomination meeting, did not submit any documents in accordance with regulation 17 of the Election (general) Regulations indicating her intention to vie in the 2022 presidential election.

32. He further deponed that the Petitioner did not lodge any complaint with the Commission before the Dispute Resolution Committee.

33. Mr. Ledama maintained that the IEBC did not get any indication that the Petitioner intended to vie as a presidential candidate and with such failure, institution a Petition as this is tantamount to approaching the Court with unclean hands

34. He further deposed that the timelines set by the IEBC are in line with the Constitution, the Elections Act and if extended as requested by the Petitioner would ultimately adversely affect the IEBC’s ability to deliver the elections of 9th August 2022.

35. It was further his case that the Petitioner did not challenge all the legal requirements set out in Regulation 19, 25,29, 33 & 37 of the Elections (General) Regulations guide nomination process.

36. As regards the publication of the National Identity Cards of supporters of nominated persons, it was his case that under section 45 of the Data Protection Act as appreciated alongside Article 31 of the Constitution, any audit or publication of such information would infringe on the rights of the holders.

37. In conclusion it was his case that the allegation by the Petitioner on stealing and use of personal information is serious one and criminal but remained without proof.

The Submissions 38. The 1st Respondent further urged its case through written submissions dated 10th July 2022. The same were highlighted by its Counsel Mr. Niwa.

39. In his oral highlights, he stated that the Petitioner only complied with requirements for presidential candidates to the extent of presenting evidence of her symbol. She however failed to supply the requisite fee, her academic qualifications and list of supporters, conditions prescribed by law.

40. Counsel drew the Court’s attention to Gazette Notice No. 430 of 20th January 2022 which made public the legal requirements to be fulfilled by persons seeking to be elected as president which the Petitioner failed to meet.

41. It was his case that the Petitioner’s request for extension of timelines could not be allowed since they are set by law and that she was seeking preferential treatment.

42. In the written submissions, the 1st Respondent identified the issues for determination as being; whether section 22(2) of the Elections act as read with Regulation 16, 17 and 18 of the Elections General Regulations are unconstitutional; whether the 1st Respondent could extend constitutional timelines and whether the Petitioner was entitled to the prayers sought.

43. On the first issue on constitutionality of Regulations 16,17 and 18 of the Election General Regulations, refence was made to the case of R -vs- Big M Grug Mart Ltd (1985) 1 SCR 295, cited with approval in the case of The Institute of Social Accountability & Another -vs- National Assembly & 4 Others where it was found that all legislation is animated by an object the legislature intends to achieve and in assessing unconstitutionality, both purpose and effect must be considered.

44. On the foregoing, it was submitted that the Petitioner was misapplying and misinterpreting section 22(2) and 33 of the Elections Act, and Regulation 16, 17 and 18 of the Elections (General) Regulations therein. He reiterated that the said provisions were no discriminatory.

45. On the issue of availing identity cards, it was emphasized that according to section 45 of the Data Protection Act, National Identity Cards qualify as sensitive data whose publication would violate holder’s rights protected under Article 31 of the Constitution.

46. It was his case that the right to information is limited under Article 24 of the Constitution so as to ensure that its enjoyment does not prejudice the rights and fundamental freedom of others.

47. Reference to that end was made to section 3 of the Data Protection Act where it is a requirement in law to regulate the processing of personal data in order among other things to protect the privacy of individuals.

48. To further buttress the importance o f protection of personal data, it was submitted that section 27(3) and (4) of the IEBC Act which allows the Commission to decline information which is sensitive to an applicant where the information is unreasonable in the circumstances or is at deliberative stage by the commission ir where the application fails to satisfy any confidentiality requirement by the commission.

49. In urging the Court to decline the prayer for damages, it was submitted that the Petitioner did not demonstrate to IEBC her intention to vie as an independent candidate and thus her name could not be cleared. It was claimed therefore that the prayer for damages was without basis.

50. The 1st Respondent concluded by stating that the Petitioner had not been candid with the Court as to whether she submitted all her documents and paid requisite fees in accordance to the law. It was also submitted that she had not explained her failure to comply with the laws and regulations.

51. While relying on the decision in John Njue Nyage -vs- Nicholas Njiru Nyaga & Another (2013) eKLR on the need for a person to approach the court with clean hands, the 1st Respondent submitted that the Petitioner was un deserving of the orders sought as no rights infringed. It stated that the IEBC acted within the law and its mandate.

52. It was its position that the Petitioner failed to comply with the Elections Regulations and by her own carelessness failed to submit her list of supporters and academic qualifications to facilitate her clearance and subsequent gazettement for 9th August 2022 elections.

53. On the foregoing premises, the 1st Respondent submitted that the Petitioner did not discharge her burden of proof. To buttress the position, reliance was placed on the decision in Petition No. 30 of 2013 Kariithi & Another -vs- Attorney General & Another 2021 (KEHC 308 (KLR where it was observed;“It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court before a fact can be said to exist or not to exist.

54. In the end, the 1st Respondent submitted that the Petition was instituted in vain. It prayed that it be dismissed with costs.

2nd Respondent’s, The 1st & 2nd Interested Partys’ Case 55. The Attorney General, the 1st Respondent herein, on behalf of The Principal Registrar of Persons and The Director of Criminal Investigations the 1st and 2nd Interested Parties herein respectively, opposed the Petition through Grounds of Opposition dated 23rd June 2022.

56. It was its case that the Petition is fatally defective in so far as it sought to have section 22(2) of the Elections Act unconstitutional since such invitation is in direct violation of Article 137(1) of the Constitution as appreciated alongside Article 99 which set eligibly requirements for election as a member of parliament.

57. It asserted that the Petition was an abuse of the Court process as it fails to appreciate that section 22(2)of the Elections Act is a derivative of the objects of the provisions of Article s 137(1) and (9)(b) of the Constitution and that in interpreting the said section, the Court has to balance its objects against the constitutional provisions and the executive authority of the Office of the President as opposed to the office of Member of Parliament .

58. It was urged that the Petition be dismissed on the ground that the Petitioner’s reliance on academic qualifications of Members of Parliament to be the same educational qualification as the president’s failed to appreciate that qualifications for the two offices as established by the constitution are different due to the nature of their constitutional functions.

59. The 2nd Respondent resounded the 1st Respondent’s claim that the Petition was lacking in precision for not disclosing any constitutional entitlement threatened or violated.

60. The Attorney General stated that the Petitioner failed to appreciate the principles of purposive and harmonized interpretation of the Constitution as set out in Article 259 to the effect that Articles 137(1) and 99(2) are not in conflict but rather promote the purpose, values and principles of the Constitution.

61. Support of the foregoing provision was found in the case of County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated) [2021) and it was submitted that to equate the academic qualifications of all elective positions in Kenya at par, without any differentiation and without regard to the different attending responsibilities, and by disregarding the different remuneration and benefits, runs contrary to the Constitutional edicts.

The submissions 62. In their written submissions dated 28th June 2022, the 2nd Respondent, the 1st and 2nd Interested Party submitted that there was nothing in the body of the Petition as the basis or evidence for the Director of Criminal Investigation to be compelled to conduct investigation of Identity Cards collected by all the presidential candidates to verify if they were legitimately obtained from their respective supporters.

63. While referring to Article 245(2)(b) of the Constitution, it was its case that the it is only the Inspector General of The National Police Service that has independent command over the National Police Service.

64. They hastened to add that under Article 157(4) of the Constitution, only the Director of Public Prosecution can give direction to the Inspector general of Police to investigate any information or allegation of criminal conduct.

65. It was its case further that the Court can only add to the foregoing and order the Director of Criminal Investigations or the Inspector General of Police to investigate but only in situations where there is a live matter in Court where the said Offices are parties or enforcement requires the assistance of the said offices.

66. In sum, it was submitted that the court has been presented with abstract orders and prayers that are not backed by any real controversies to warrant the court to invoke its powers to order the director of Criminal Investigations to Investigate the identity cards of Kenyan citizens supporting the candidature of presidential candidates as a constitutional and statutory requirement in the forthcoming general elections.

67. In the end, it was urged that the Petition be dismissed for failing to disclose a cause of action against the 2nd Respondent, the 1st and 2nd Interested Parties.

Issues for determination: 68. This Court has carefully perused the documents filed by the respective parties and it has discerned the following issues for determination: -i.Preliminary issues.ii.A consideration of the constitutional and statutory principles in constitutional and statutory interpretation.iii.Whether Regulations 18(2), 24(2), 28(2), 32(2)(c) and 36 (2)(c) of the Election (General) Regulations, 2017 requiring independent candidates for the various elective positions in the August 2022 General Elections to submit copies of identity cards of their supporters to the IEBC for clearance to vie are constitutional.iv.Whether the Director of Criminal Investigations should be directed to institute investigations on inter alia the manner the copies of identity cards presented to the IEBC by various aspirants in the run-up to the 9th August, 2022 General Elections were obtained.v.Whether it is constitutional for State officers and other public officers to campaign for candidates running for various political offices in elections.vi.Whether Section 22(2) of the Elections Act which requires a presidential candidate to possess a degree qualification from a recognised university as read with Section 22(1)(b)(i) of the Elections Act contravenes Article 137(1)(b) of the Constitution.vii.Whether the collection of fees on the registration of candidates in elections in Kenya by IEBC is contrary to the Constitution.viii.Whether the 1st Petitioner was discriminated by the IEBC in refusing to accept her nomination papers for the presidency towards the General Elections held on the 8th August, 2022. ix.Whether the processes undertaken by IEBC towards the General Elections held on 8th August, 2022 were so flawed so as to render the said elections null and void.

69. The Court will, hence, deal with the issues sequentially.

Analysis: i. Preliminary issues: 70. It is important to note that the Petitioners herein instituted the Petition subject of this judgment in order to variously contest the eligibility of independent candidates to participate in elective positions in the General Elections held on 9th August, 2022 (hereinafter referred to as ‘the elections’).

71. The 1st Petitioner intended to vie for the presidency of the Republic of Kenya.

72. Given that the Petition was filed in June 2022, the Court had an extremely limited time to determine the same. The Court settled preliminary issues and rendered Ruling No. 1 on 20th June, 2022 and Ruling No. 2 on 30th June, 2002.

73. The main Petition was thereafter heard and on 18th July, 2022, this Court reserved the judgment to be delivered on notice. The Court was, however, clear that it ought to render the decision immediately as the same impacted on the elections.

74. This Court did not, however, manage to attain the foregoing as the call of duty had yours truly transferred to another station with the 1st August, 2022 as the reporting date.

75. The failure to deliver this decision before the elections, which is highly regretted, no doubt rendered several matters raised in the Petition to be overtaken by events. Once again, sincere apologies.

76. Having so said, a consideration of the rest of the issues will now follow.

ii)The constitutional and statutory principles in constitutional and statutory interpretation: 77. Constitutional interpretation also referred to as Judicial interpretation is the legal creativity of attributing or assigning meaning to the provisions of the Constitution.

78. The Constitution is a document sui generis. It is the supreme law of the land and its interpretation has over time been developed by Courts and scholars both locally and internationally.

79. Locally, Superior Courts have made pronouncements on how the Constitution ought to be interpreted. In David Ndii & Others v Attorney General & Others [2021] eKLR, the Learned Judges, while referring to various decision of the Apex Court and the Court of Appeal spoke to the subject as follows: -399. One of the imports of recognition of the nature of the transformative character of our Constitution is that it has informed our methods of constitutional interpretation. In particular, the following four constitutional interpretive principles have emerged from our jurisprudence:a.First, the Constitution must be interpreted holistically; only a structural holistic approach breathes life into the Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated in In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR thus (at paragraph 26):But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is 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 the light of its history, of the issues in dispute, and of the prevailing circumstances.b)Second, our Transformative Constitution does not favour formalistic approaches to its interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle in Re Interim Independent Election Commission [2011] eKLR, para [86] thus: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 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.c)Third, the Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the Retired CJ Mutunga expressed in his concurring opinion in In In Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013; [2013] eKLR. (paragraphs 155-157):

(155)In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai& 3 Others v Tarlochan Singh Rai and 4 Others Sup Ct Petition No 4 of 2012, I argued that both the Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower Courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The Court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras.d)Fourthly, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya Case. It stated thus:(356)We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on Chapter Four – The Bill of Rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to Articles 4(2), 33, 34, and 35 of our Constitution has been given above in paragraphs 145-163. (357)We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014 left off (see paragraphs 227- 232). In paragraphs 232 and 233 he stated thus:(232)…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.(233)It is possible to set out the ingredients of the theory of the interpretation of the Constitution: the theory is derived from the Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of Section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of the Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this Court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya. 400. With these interpretive principles in mind, which we will call the Canon of constitutional interpretation principles to our Transformative Constitution, we will presently return to the transcendental question posed in these Consolidated Petitions…...

80. The Court of Appeal also spoke to constitutional interpretation in the case of Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR when it made the following remarks: -(21)…. Before the High Court embarked on the interpretation of the contentious provisions of the Constitution, it restated the relevant principles of interpretation of the Constitution as extracted from case law thus: -· that as provided by Article 259 the Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance.· that the spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.· that the Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.· that the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statutes which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise. …… The court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution.

81. With respect to statutory interpretation, this Court, in Petition No. E290 of 2022, Victor Buoga -vs- The Hon. Attorney General & Another, (unreported) stated as follows: -A Court dealing with the statutory interpretation must also subject the statutory provision to the three tests developed in the Canadian case in R. vs. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103. The tests are the objective test which the limitation is designed to serve. Second, the means chosen to attain the objective must be reasonable and demonstrably justified. This is the proportionality test. Third, the effect of the limitation.

82. Having set out the parameters for constitutional and statutory interpretation, this Court will now deal further.

(iii) Whether Regulations 18(2), 24(2), 28(2), 32(2)(c) and 36(2)(c) of the Election (General) Regulations, 2017 requiring independent candidates for the various elective positions in the August 2022 General Elections to submit copies of identity cards of their supporters to the IEBC for clearance to vie are constitutional: 83. This issue was recently determined in High Court at Nairobi in Petition No. E160 of 2022 (Consolidated with Petition No. E219 of 2022, Petition No. E225 of 2022 and Petition No. 12 of 2022 (formerly High Court at Kakamega Petition No. E010 of 2022) Free Kenya Initiative & 17 Others vs. Independent Electoral Boundaries Commission & 7 Others (2022) KEHC.

84. In a judgment rendered on 5th day of July, 2022, the Court determined the issue as follows: -a.A Declaration hereby issues that Regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) are in contravention of Articles 2(4), 10, 27, 38(3), 83(3), 99(1)(c), 137(1)(d) and 193(1)(c) of the Constitution.b.A Declaration hereby issues that Regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017) are in contravention of Article 31 of the Constitution and the Data Protection Act.c.An Order of Certiorari hereby issues bringing into the High Court and quashing Regulation 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017). The said Regulations are hereby quashed.d.Being a public interest litigation, parties shall bear their costs.

85. With the above finding, this issue is, hence, res judicata.

(iv)Whether the Director of Criminal Investigations should be directed to institute investigations on inter alia the manner the copies of identity cards presented to the IEBC by various aspirants in the run-up to the 8th August, 2022 General Elections were obtained: 86. An identity card is a personal document. Whereas many copies of identity cards were truly forwarded to the IEBC as was required under the then law, any claim on the manner in which such copies were obtained ought to be lodged the holders of such cards.

87. A holder of an identity card which was used in the circumstances herein and who in one way or another is aggrieved ought to lodge an appropriate complaint with the law enforcement agents.

88. It will, therefore, be premature and without any sound basis for this Court to assume that offences were committed in the manner in which the cards were obtained and to ask the police to act. Such an assumption goes contrary to the settled principle in law that Courts must only adjudicate real disputes and not otherwise.

89. Buttressing the foregoing position, the High Court in Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties) (Constitutional Petition E090, E168, E221, E230, E234, E249, E017, E109 & E010 of 2022 (Consolidated)) [2022] KEHC 3209 (KLR) (Constitutional and Human Rights) (24 June 2022) (Judgment), rightly so, stated as follows: -74. Courts exist to resolve actual disputes. They are not in the business of engaging in academic or abstract discourse that is not anchored in disputed facts. That is why the Constitution does not confer upon this court the jurisdiction to issue advisory opinions. The court in John Harun Mwau and 3 others v Attorney General [2012] eKLR, held that it could not deal with hypothetical issues and that the jurisdiction to interpret the Constitution under article 165(3)(d) does not exist in a vacuum and is not exercised independently in the absence of a real dispute. The court explained that the jurisdiction is exercised in the context of a controversy.

90. Since there are no actual disputes by the holders of the identity cards regarding the manner in which copies of their respective identity cards were obtained, the issue is a non-starter and is hereby answered in the negative.

SUBDIVISION - (v) Whether it is constitutional for State officers and other public officers to campaign for candidates running for various political offices in elections:

91. The Petitioners strenuously contended that State officers were actively involved in political campaigns and were openly championing the interests of the candidate which found support with the then government. They urged this Court to sanction such conduct.

92. The participation of public officers in political activities is limited by the need to have neutrality in service delivery.

93. Section 12(1) of Political Parties Act, No. 11 of 2011 precludes public officers from engaging in politics in the following manner: -(1)A public officer shall not –a.be eligible to be a founding member of a political party;b.be eligible to hold office in a political party;c.Engage in political activity that may compromise or be seen to compromise the political neutrality of that person’s office; ord.Publicly indicate support for or opposition to any political party or candidate in an election. 94. Further to the foregoing, Section 23 of Leadership and Integrity Act, No. 19 of 2012 calls for political neutrality of political officers in the following terms: -(1)An appointed State officer, other than a Cabinet Secretary or a member of a County Executive Committee shall not, in the performance of their duties –(a)Act as an agent for, or further the interests of a political party or candidate in an election; or(b)Manifest support for or opposition to any political party or candidate in an election.(2)An appointed State officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality of the office subject to any laws relating to elections(3)Without prejudice to the generality of subsection (2) a public officer shall not: -(a)engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;(b)Publicly indicate support for or opposition against any political party or candidate participating in an election.

95. The import of the above provisions in respect to limitation of political rights of public officers was the subject of discussion by the Supreme Court in Petition No. 6 of 2014 Fredrick Otieno Outa -vs- Jared Odoyo Okello & 3 Others (2017) eKLR where the Learned Judges observed as follows: -This provision recognizes the vital role that public officers hold, in the general scheme of leadership. Thus, such officers are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office.

96. Later, in Presidential Petition No. 1 of 2017, Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, the Supreme Court, correctly so, spoke to the allowance Cabinet Secretaries and County Executive Committee Members are granted to participate in political activity as per Section 23 of the Leadership and Integrity Act. The Learned Judges observed as follows: -(221)The law therefore is clear that Cabinet Secretaries are exempt from the prohibition that public officers should not engage in the activities of a political nature, and for good reason. It is to be observed that Cabinet secretaries and County Executives Members do serve at the pleasure of either the President or Governor. They are political appointees with the express purpose of delivering the manifesto of their appointing authority or his or her political party. This is an essential part of a political government in any democracy. A change in the Presidency signals the immediate resignation or replacement of these political appointees; not so with the rest of the civil service whose tenure is protected against the vagaries of politics. This is also the reason why civil servants do not and should not participate in active politics, as they should remain apolitical.

97. Drawing from the above, the alleged participation of Cabinet Secretaries in furthering the agenda of the Government of the day cannot be faulted.

98. There was also the contention that other State and public officers, other than Cabinet Secretaries, were, as well, involved in such political activities in a manner contrary to the law.

99. This Court firmly believes that the Supreme Court settled the issue. Other than Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers must comply with the dictates of Section 12(1) of Political Parties Act and Section 23 of Leadership and Integrity Act. Any such State officer and public officer contravening the law ought to be properly sanctioned.

100. In this case, apart from the strenuous allegations made against the Cabinet Secretaries, there were also similar allegations against Principal Secretaries, the County Commissioners, the Chiefs- among others. Whereas the allegations are serious and this Court ought not to countenance any contravention of the Constitution and the law, the issue has fallen short of attaining the evidential burden as developed by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR. The evidential criterion was discussed as follows: -Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

101. The foregoing also finds credence in Sections 107(1), (2) and 109 of the Evidence Act which are on the burden of proof.

102. In the end, this Court finds and hold that except for Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office. (vi) Whether Section 22(2) of the Elections Act which requires a presidential candidate to possess a degree qualification from a recognised university as read with Section 22(1)(b)(i) of the Elections Act contravenes Article 137(1)(b) of the Constitution: 103. The Petitioners vehemently contended that the degree requirement for one to run for the Presidency in Kenya was unconstitutional. The basis of the argument was this Court’s decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated)) [2022] KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment). The decision was delivered on 13th April, 2022.

104. In the said case, the Court considered the constitutionality of Section 22(1)(b)(i) of the Elections Act. The Court made the following orders: -a.A declaration be and is hereby issued that Section 22(1)(b)(i) of the Elections Act is unconstitutional and in violation of Article 10(2)(a) of the Constitution for failure to undertake adequate public participation.b.A declaration be and is hereby issued that Section 22(1)(b)(i) of the Elections Act is unconstitutional and in violation of Articles 24, 27, 38(3) and 56 of the Constitution.c.An order hereby issues that Section 22(1)(b)(i) of the Elections Act is inoperational, of no legal effect and void ab initio. For clarity, the requirement that a person must possess a degree from a university recognized in Kenya to qualify to be a Member of Parliament in Kenya is hereby nullified.e.There shall be no order as to costs as the matter is a public interest litigation.

105. It was, therefore, the Petitioners’ argument that since Section 22(1)(b)(i) of the Elections Act was nullified, thereby removing the university degree requirement for Members of Parliament, then the provision of Section 22(2) of the Elections Act cannot stand going by Article 137(1)(b) of the Constitution which sets the eligibility qualifications for Members of Parliament and the President at par.

106. Section 22 of the Elections Act provides as follows: -Nominations and Elections Generally22. Qualifications for nomination of candidates(1)A person may be nominated as a candidate for an election under this Act only if that person—(a)is qualified to be elected to that office under the Constitution and this Act; and(b)holds––(i)in the case of a Member of Parliament, a degree from a university recognized in Kenya; or(ii)in the case of member of a county assembly, a degree from a university recognized in Kenya. (1A)Notwithstanding subsection (1), this section shall come into force and shall apply to qualifications for candidates in the general elections to be held after the 2017 general elections.

(1B)The provisions of this section apply to qualifications to nomination for a party list member under section 34. (2)Notwithstanding subsection (1)(b), a person may be nominated as a candidate for election as President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of a degree from a university recognised in Kenya.(2A) For the purposes of the first elections under the Constitution, section 22 (1) (b) and section 24 (1) (b), save for the position of the President, the Deputy President the Governor and the Deputy Governor, shall not apply for the elections of the offices of Parliament and county assembly representatives.

107. Article 137 of the Constitution provides as follows: -137. Qualifications and disqualifications for election as President:

(1)A person qualifies for nomination as a presidential candidate if the person—(a)is a citizen by birth;(b)is qualified to stand for election as a Member of Parliament;(c)is nominated by a political party, or is an independent candidate; and(d)is nominated by not fewer than two thousand voters from each of a majority of the counties.(2)A person is not qualified for nomination as a presidential candidate if the person—(a)owes allegiance to a foreign state; or(b)is a public officer, or is acting in any State or other public office.(3)Clause (2)(b) shall not apply to—(a)the President;(b)the Deputy President; or(c)a Member of Parliament.

108. A consideration of the provisions of Section 22(1)(b)(i) of the Elections Act, Article 137(1)(b) of the Constitution and the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) reveal that as long as the said decision stands, then Section 22(2) of the Elections Act which makes it mandatory for a Presidential aspirant to possess a university degree in conflict with Article 137(1)(b) of the Constitution which fronts the position that one is qualified to stand for election as a President if such is qualified to stand for election as a Member of Parliament.

109. Article 137(1)(b) of the Constitution, therefore, places the eligibility requirements of a President and a Member of Parliament at par. Alike position relates to the eligibility requirements between a County Governor and a Member of County Assembly where Article 180(2) of the Constitution also places them at the same level.

110. The foregoing being the dictates of the Constitution, makes any law that will effectively vary the eligibility requirements between a President and a Member of Parliament to be a nullity.

111. In this case, since the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) removed the requirement for a university degree for a person standing as a Member of Parliament, and the said decision has not been stayed or set-aside, then Section 22(2) of the Elections Act cannot mandatorily state that regardless of any other provision stating otherwise a Presidential candidate must posses a university degree. Section 22(2) must be in harmony with any other provision on the eligibility of a President.

112. If Section 22(2) of the Elections Act provides a different eligibility criterion for a presidential candidate than that provided for in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) then the provision, in so far as the inconsistency is concerned, creates a disharmony between the eligibility criteria for Members of Parliament (no requirement for a university degree) and the President (must possess a university degree), and to that end, the provision can only be in contravention of the Constitution.

113. If the above position is allowed to stand, then that will be an affront to the supremacy of the Constitution as enshrined in Article 2 of the Constitution.

114. Buttressing the above further, a recall is made to a discussion on the use of the word ‘Notwithstanding’ in Section 22(2) of the Elections Act. That was in Buoga v Attorney General & another (Constitutional Petition E290 of 2022) [2022] KEHC 13214 (KLR) (Constitutional and Human Rights) (30th September, 2022) (Judgment).

115. In that case, the Court rendered itself as follows: -129. The impugned section, however, uses the word ‘notwithstanding’ in Section 22 thereof.

130. The Black’s Law Dictionary 10th Edition defines the word ‘notwithstanding’ in page 1231 as follows: -1. Despite; in spite of ….2. Not opposing; not availing to the contrary ….

131. The Britannica Dictionary defines notwithstanding to mean: - without being prevented by (something)

132. The Cambridge Dictionary defines the word ‘notwithstanding’ as follows: - not considering or being influenced by; despite

133. Deriving from the foregoing, the use of the word ‘notwithstanding’, therefore, connotes a scenario where a provision or act cannot be prevented by a contrary provision or act.

134. Applying the above to the case at hand, it, hence, means that Section 22(2) of the Elections Act is a stand-alone provision regardless of whether Section 22(1)(b) of the Elections Act stands or not. In other words, Section 22(2) of the Elections Act does not depend on or derive from or is not prevented or contradicted by Section 22(1)(b) of the Elections Act.

116. On the basis of the above, this Court summed up the unconstitutionality of Section 22(2) in respect to the eligibility of County Governors as follows: -a.A Declaration hereby issues that pursuant to Article 180(2) as read with Article 193 of the Constitution, the qualification for the election of a County Governor is similar to the eligibility for election as a Member of County Assembly.b.A Declaration hereby issues that Section 22(2) of the Elections Act, No. 24 of 2011 contravenes Article 180(2) of the Constitution by creating an avenue for differentiation between the eligibility requirements between Members of County Assembly and County Governors, hence, unconstitutional.

117. Having said so, the prevailing position in this matter is, hence, that as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case stands (which decision removed the requirement for a university degree for a person standing as a Member of Parliament), then Section 22(2) of the Elections Act cannot hold in demanding a university degree requirement for a presidential aspirant.

118. In the end, it is the finding and holding of this Court that Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated)) [2022] KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands.

119. In other words, if the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case continues to hold and a provision requiring Members of Parliament to possess university degrees is enacted within the confines of the Constitution and the law, then, and until then, Section 22(2) of the Elections Act as relating to the presidential qualifications will be in line with Article 137(1)(b) of the Constitution. However, before then, Section 22(2) of the Elections cannot stand in so far as the eligibility criterion for a presidential candidate is concerned.

(vii) Whether the collection of fees on the registration of candidates in elections in Kenya by IEBC is contrary to the Constitution: 120. The Petitioners cited harsh economic times as the basis of restraining IEBC from levying charges on aspirants and candidates. They held that the fees were punitive.

121. For the Petitioners to succeed in such a ground, they ought to avail evidence proving the current economic status of the country, how the economy has been performing and how the levying of the administrative fees by IEBC has on aspirants and candidates, as a standalone parameter, led to the economic situation complained of. Such may include expert and empirical evidence. That nexus must be demonstrated on a preponderance of probabilities.

122. Again, the Petitioners failed to do so. Apart from pleading as much, there is no evidence connecting the levying of the administrative fees by IEBC on aspirants and candidates and the economic performance of the country and how that would be contrary to the Constitution.

123. The issue, therefore, fails and is for rejection.

(viii) Whether the 1st Petitioner was discriminated by the IEBC in refusing to accept her nomination papers for the presidency towards the General Elections held on the 8th August, 2022: 124. The Petitioners contended that the 1st Petitioner was discriminated by IEBC in rejecting her nomination papers.

125. On its part, IEBC contended that it did not discriminate the 1st Petitioner in any way since she did not meet the eligibility criterion then in law.

126. Before this Court deals with the matter further, it must be noted that by the time the 1st Petitioner presented her nomination papers to IEBC as an independent candidate, the law had it that independent candidates were to submit copies of the identity cards of their supporters and that presidential candidates were to be holders of university degrees. The legal requirement on copies of identity cards was quashed, but much later whereas the requirement on the degree qualification is subject of the instant judgment.

127. In this case, the 1st Petitioner did not demonstrate that she duly qualified as the law required. She neither presented any evidence that she held a university degree nor did she tender any evidence that she presented the copies of the identity cards of her supporters, but nevertheless the IEBC still rejected her nomination papers. Therefore, the rejection by the IEBC to clear the 1st Petitioner to run for the presidency cannot be escalated to any aspect of discrimination.

128. Further, the circumstances in this case do not in any way fall within any aspects of discrimination as was discussed at length in a Multi-Judge bench in Petition 56, 58 & 59 of 2019 (Consolidated), Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR.

129. This Court believes that dealing with the issue further will not add any credence to the Petitioners’ case and, therefore, opts to rest the matter.

(ix) Whether the processes undertaken by IEBC towards the General Elections held on the 8th August, 2022 were so flawed so as to render the said elections null and void: 130. The Petitioners levelled very serious allegations against the IEBC on the credibility of the last General elections. The allegations, save for the issues discussed above, were mainly in an omnibus fashion.

131. It is the law that elections are a product of series of events. Election is a process and not an event. The events begin right from nomination of candidates running all the way to the declaration of the results by IEBC.

132. The law also places the responsibility of dealing with disputes that may occur during the electoral process on several entities. They include the political parties internal dispute resolution mechanism, the IEBC Dispute Resolution Committee, the Political Parties Dispute Tribunal or the Courts.

133. It, therefore, means that a party alleging any infraction of the electoral process must present a precise complaint before the right forum. Such a scheme of affairs negates a scenario where omnibus claims are presented.

134. The array of complaints levelled against the IEBC cannot be dealt with in the absence of precision. As said, a party must plead with specificity and precision otherwise such a pleading will not stand.

135. This Court now finds that the numerous allegations bundled up against the IEBC as a whole cannot be, properly so, dealt with by this Court. This Court is unable to ascertain whether the processes undertaken by IEBC towards the General Elections held on 8th August, 2022 were so flawed so as to render the entire elections null and void.

136. The issue is, hence, for rejection.

Conclusion: 137. From the above analysis, the Petition has partly succeeded. Whereas the Petitioners, on one hand, failed to inter alia prove that the processes undertaken by IEBC towards the General Elections held on 8th August, 2022 were so flawed so as to render the entire elections null and void, the 1st Petitioner was discriminated in not being allowed to present her nomination papers to the IEBC, the levying of the administrative fees by IEBC on aspirants and candidates was unconstitutional, they have, on the other hand, succeeded in some grounds.

138. Resulting from the partial success, the following findings and conclusions arise in this matter: -a.With an exception of Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office.b.Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated)) [2022] KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands.

Disposition: 139. In the end, this Court hereby determines the Petition in the following terms: -a.A Declaration hereby issues that with an exception of Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers be and are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office.b.A Declaration hereby issues that pursuant to Article137(1)(b) of the Constitution, the qualification for the election of a Member of Parliament is similar to the eligibility for election of a President.c.A Declaration hereby issues that Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated)) [2022] KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands. To that end, Section 22(2) of the Elections Act, No. 24 of 2011 currently contravenes Article 137(1)(b) of the Constitution by creating an avenue for differentiation between the eligibility requirements between Members of Parliament and the President, hence, to that extent it is unconstitutional.d.As the country has just held a General election and there is a likelihood of filing of election Petitions variously contesting the Presidential position, then, with a view of forestalling an avalanche of Petitions by those who were ineligible by dint of the impugned section and coupled with the late filing of the instant Petition, the declaration of unconstitutionality of Section 22(2) of the Elections Act shall take effect in the next General election.e.Being a public interest litigation, each party shall bear its costs.

140Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF DECEMBER 2022. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Nazlin Omar Fazaldin Rajput, the 1st Petitioner and also appearing on behalf of the 2nd Petitioner.Mr. Thande Kuria, Learned Counsel for the 2nd Respondent and 1st and 2nd Interested Parties.Mr. Nura, Learned Counsel for the 1st Respondent.Kirong/Regina – Court Assistants.