[2017] KEHC 2091 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CONSTITUTIONAL PETITION NO.35 OF 2017

IN THE MATTER OF ARTICLES 1, 2,3,10, 19, 20, 23, 258 AND 259 OF CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF THE FRESH PRESIDENTIAL ELECTIONS PURSUANT TO ARTICLE 140 (2) OF THE CONSTITUTION

AND

IN THE MATTER OF PROTECTION AND SAFEGUARDING OF THE INDEPENDENCE AND AUTONOMY OF THE INDEPENDENT ELECTRORAL AND BOUNDARIES COMMISSION AS LAWFULLY ESTABLISHED TO CONDUCT ELECTIONS PURSUANT TO ARTICLE 140 OF THE CONSTITUTION

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 27, 38 AND 50 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE NASA POSITION PAPER ON IRREDUCIBLE MINIMUMS BEFORE THE FRESH PRESIDENTIAL ELECTIONS ARE HELD

BETWEEN

DR.SAMMY KIBET...................................................................1ST PETITIONER

PASTOR SIMOM LOKOMA…………...................................2ND PETITIONER

EDWARD ONYANGO OMONDI…..........................................3RD PETITIONER

ISAAC MAINA MUREITHI……................................................4TH PETITIONER

AYTSO CAROLINE NYARUNDA.............................................5TH PETITIONER

CYPRIAN KIMEU…..................................................................6TH PETITIONER

FRANK MUHORO KAMAU.....................................................7TH PETITIONER

PHILIP SIMIYU MALOMBA....................................................8TH PETITIONER

FREDDIE JONATHAN MASHA…………...............................9TH PETITIONER

MICHAEL SIGEI…………………………….........................10TH PETITIONER

WINNIE KISALANWA……………………………......…….11TH PETITIONER

-VERSUS-

ORANGE DEMOCRATIC MOVEMENT…………..............1ST RESPONDENT

WIPER DEMOCRATIC MOVEMENT – KENYA….…...…2ND RESPONDENT

FORD – KENYA PARTY………….………………….........3RD RESPONDENT

AMANI NATIONAL CONGRESS….……………………...4TH RESPONDENT

INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC)…….………….....5TH RESPONDENT

WAFULA CHEBUKATI………….………………………...6TH RESPONDENT

REGISTRAR OF POLITICAL PARTIES……............……7TH RESPONDENT

THE HON. ATTORNEY GENERAL…...….……........….…8TH RESPONDENT

JUBILEE PARTY……….………………………........….INTERESTED PARTY

RULING

1. The petitioners are registered voters in Nakuru County. They have filed the present petition seeking a raft of declarations aimed at securing the upcoming presidential election. They allege that the respondents and in particular the 1st -4th Respondents have undertaken or threatened to take certain actions which if not stopped will compromise the ability of the Independent Electoral and Boundaries Commission, IEBC (5th Respondent), to conduct the elections thereby infringing on their right to free and fair elections, equality and freedom from discrimination and right to fair hearing under Articles 27, 38 and 50 of the Constitution respectively.

2. Pending the hearing and determination of the petition, the petitioners/applicants have sought the following conservatory orders vide their Notice of Motion dated 19th September, 2017-

1) That this application be certified as urgent and be heard ex parte.

2) That pending the hearing and determination of this application/ petition, a conservatory order of injunction be issued to restrain the 1st - 4th Respondents herein in their corporate capacity or as members of the political coalition known as the National Super Alliance (NASA) and their leaders from obstructing, impeding or otherwise interfering with the independence, operational autonomy, space and quiet of the Independent Electoral and Boundaries Commission to plan for and conduct fresh presidential elections ordered by the Supreme Court in accordance with Article 140 (2) of the Constitution.

3) That pending the hearing and determination of this application/petition, a conservatory order of injunction be issued to restrain the Respondents either jointly or severally from removing from office the Commissioners, members of the Secretariat and electoral officials of the 5th Respondent and replacing them with politically or informally appointed ad hoc bodies of officers for purposes of conducting the fresh presidential elections pursuant to Article 140 (2) of the Constitution.

4) That pending hearing and determination this application/petition a conservatory order of injunction be issued to restrain the fifth respondent and its chairman Wafula Chebukati from establishing a commission within the commission or a special projects team for purpose of conducting the fresh presidential elections ordered by the Supreme Court pursuant to Section 140(2) of the constitution.

5) That the Honourable Court be pleased to issue such orders and directions to ensure the Petition herein is heard and determined as a matter of public interest and top most national priority.

6) That the costs of this Application be borne by the Respondent.

3. The 1st - 4th Respondents did not enter appearance or file any responses to the petition or the application. The 5th and 6th Respondents filed grounds of opposition dated 27th September, 2017 in response to both the petition and the application. The 7th Respondent filed grounds of opposition dated 2nd October, 2017 in opposition to the petition while the 8th Respondent only filed submissions dated 27th September, 2017 on issues of law. The Interested Party did not participate in the application.

4. At the hearing of this application on 3rd October, 2017, Kibe Mungai, Learned Counsel for the applicants informed the court that they were at this juncture only pursuing prayers 2 and 3 of the application. The application was premised on the grounds on its face and the further grounds in the affidavit of Frank Muhoro Kamau also sworn in support of the petition on 19th September, 2017. It was common ground that by its judgment delivered on 1st September, 2017 in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others Election Petition No. 1 of 2017, the Supreme Court declared as invalid, null and void the presidential election that was held on 8th August, 2017 and that Uhuru Muigai Kenyatta being the 3rd respondent in that petition was not validly declared as the president elect. The court consequently issued an order directing IEBC to organize and conduct a fresh presidential election in strict conformity with the Constitution and the applicable laws within 60 days from the date of the determination of the court.

5. Mr. Kibe for the applicants submitted that the applicants have the right guaranteed by Article 38 of the Constitution to a fair and free election and have locus to enforce this right in this court as registered voters. He submitted that this right can only be realized if IEBC which is the body solely vested with the power and mandate to conduct the elections conducts the forthcoming election in accordance with the existing legal framework and without any undue influence or interference from third parties. He submitted that the 1st and 4th Respondents have threatened this right by interfering with the independence and autonomy of IEBC by issuing the demands contained in the “NASA POSITION PAPER ON IRREDUCIBLE MINIMUMS BEFORE THE FRESH ELECTIONS ARE HELD”dated 12th September, 2017 (hereinafter referred to as the NASA Position Paper) which they insist must be met before they can participate in the election.

6. The demands which the applicants are especially aggrieved with and which are the subject of the present application are that some commissioners and the members of the secretariat of IEBC be removed and that the electoral officers from electoral areas which the Supreme Court found elections irregularities be barred from conducting the upcoming elections. The applicants argue that the 1st – 4th Respondents have proposed that these members of IEBC be removed using mechanisms other than those that have been provided for by law. They state that Commissioners Abdi Guliye and Boru Guyo can only be removed in accordance with Article 251 of the Constitution and the CEO/Secretary to the Commission can only be removed in accordance with section 10 (8) of the Independent Electoral and Boundaries Commission Act.

7. The applicants also argued that the intended removal of the members of IEBC contravenes the Supreme Court’s decision in Moses Masika Wetangula vs Musikari Nazi Kombo & 2 Others [2015] eKLR.The core of this decision is that inquiry of whether a person is guilty of an electoral offence must be in accordance with the law and due process must be followed. Therefore notwithstanding that the electoral laws create offences and provide the penalties, the finding of conviction or acquittal must be made within the framework of criminal procedure in order to secure the right to fair trial of the accused person.

8. Counsel urged the court to halt the actions of the 1st -4th Respondents which if not halted would result in the removal of the members of IEBC unlawfully. He argued that it was in the public interest that the 1st - 4th Respondents conduct themselves in a manner that conforms to the Political Parties Act. Counsel also asked the court to hear the matter in full before 26th October, 2017.

9. Mr. Kahiga the Learned Counsel for the 5th and 6th Respondents (IEBC and Wafula Chebukati respectively) and Ms. Gitiri for the 8th Respondent (the Attorney General) did not oppose prayers 2 and 3 of the application. Mr. Kahiga submitted that he would be objecting to prayer 4 which prayer the applicants expressly stated that they were not pursuing at this point. They consequently supported the application as argued by the applicants’ counsel. Ms. Mukele Learned Counsel for the 7th Respondent (the Registrar of Political Parties) had no objection to the application being granted in its entirety stating that none of the prayers was directed at the Registrar of Political Parties.

Analysis and determination

10. The application as argued was unopposed as the 1st -4th Respondents did not enter appearance and the rest of the Respondents did not object to prayers (2) and (3). That notwithstanding, it is trite that the court is still enjoined to consider the application on its merits. The applicants have an obligation to justify the prayers they seek.

11. Conservatory orders are intended to preserve the subject matter of the dispute (Bidco Oil Refineries Ltd –vs- Attorney General & 3 others (2012) eKLR).The court hearing the application must avoid making definite findings of law or fact so as not to prejudice the hearing of the main petition and that must be left to the trial court. (Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR. The party seeking the orders must establish that he has a prima facie case with a probability of success and that if the conservatory orders are not granted then he is likely to suffer prejudice as a result of the violation or threatened violation (Centre for Rights, Education and Awareness & 7 Others vs Attorney General [2011] eKLR).Moreover, because the orders are not remedies between individuals but are rather remedies in rem meaning they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person, (Judicial Service Commission v Speaker of National Assembly & Another [2013] eKLR),the court must have regard to the impact of those orders to the public interest. In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others, S.C. Application No. 5 of 2014, the Supreme Court expounded on this as follows-

“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes...” (Emphasis mine).

12. By their petition, the applicants primarily seek to secure their right to free and fair elections under Article 38 of the Constitution in the forthcoming presidential election. They have argued that this right is under threat because the independence and autonomy of IEBC has been threatened by the 1st- 4th Respondents who have made several demands in their position paper. The applicants’ argument is that if these demands are acceded to then IEBC will be crippled and rendered unable to conduct the coming elections. In addition, they argue that there was danger that the current office holders will be replaced with politically aligned officers who will not be impartial in the election.

13. The applicants want the 1st -4th Respondents restrained from demanding that the changes in their Position Paper be made as a prerequisite for their participation in the forthcoming election. It is this action of pushing for the changes that the applicants regard to be an obstruction of and interference with the functions of IEBC. Under the third prayer, the applicants have specifically cited the demand for removal of the officials of IEBC and have alluded in the supporting affidavit to a ploy between the 1st -4th Respondents and the chairman of IEBC to restructure the composition of IEBC. They therefore want the Respondents to be restrained from removing any current serving officials.

14. The issue that this court must determine is whether the 1st- 4th Respondents should be restrained from continuing to push for the changes. The Concise Oxford English Dictionary defines a position paper (in business and politics) as ‘a written report of attitude or intentions regarding a particular matter’. To the mind of the court, this document is not a statutory instrument with the force of law and accordingly the demands contained therein remain demands, opinions or proposals for engagement with IEBC and other stakeholders.

15. This court is alive to the established harmonization principle of constitutional interpretation that there is no constitutional provision that is greater or lesser than another (John Harun Mwau v Independent Electoral and Boundaries Commission & another [2013] eKLR).The applicants’ right to free and fair elections must be considered against the provisions of Article 33 (1) of the Constitution which provides for the freedom to seek, receive or impart information and ideas, and Article 10 (2) (a) which provides for democracy and participation of the people among the national values and principles of good governance. It must also be considered against section 26 of the Independent Electoral and Boundaries Commission Act which enjoins IEBC to observe the principle of public participation and the requirement for consultation with stakeholders.

16. The import of the above provisions of law seen against the 1st -4th Respondents’ Position Paper is a matter that should be fully ventilated and properly determined at the hearing of the petition. It suffices to say here that the applicants have not in the present application disclosed any unlawful act committed or about to be committed by the Respondents in drawing up its Position Paper.

17. The applicants failed to show how in making these demands the 1st -4th Respondents interfered with the independence of IEBC or otherwise obstructed it from performing its functions. IEBC made an incoherent response to the application. Although it acceded to the application, it was categorical in its grounds of opposition which were also addressed to the present application that the 1st -4th Respondents have not interfered with its functions. It stated at paragraph 5 of the grounds of opposition “that there is no evidence that the alleged demands may interfere with the discharge of the mandate of the Independent Electoral and Boundaries Commission and the court is being asked to engage in an academic exercise”. It restated that it was an independent body and would only carry out its functions as per the enacted law. According to it, the NASA Position Paper had no bearing on the performance of its duties.

18. Taking into account the above and the material before me I find that the applicants have not demonstrated any sufficient cause to deserve prayer (2). They have not demonstrated how the applicants have interfered with or otherwise obstructed IEBC. They have failed to demonstrate how their right to a free and fair election is under threat, to justify the conservatory orders sought.

19. The third prayer concerned the removal of the Commissioners, members of the secretariat and electoral officials and replacing them with politically and informally appointed officers for purposes of conducting the elections. From the submissions of counsel and the averments in the supporting affidavit, what the applicants are looking to restrain is the implementation of the demands of the 1st -4th Respondents particularly the demand to remove the officials regarded by the 1st –4th Respondents as culpable for the omissions in the impugned presidential election.

20. As rightly submitted by the applicants’ counsel the Commissioners of IEBC can only be removed on grounds set out by Article 251(1) and through the detailed procedure provided for by Article 251 (2-7) of the Constitution. The secretariat on the other hand can only be removed in accordance with section 10 (8) of the IEBC Act by IEBC. The other electoral officials who are appointed by IEBC pursuant to its powers under section 12 of the IEBC Act, may only be removed by the same body according to the said provision.

21. As stated above the NASA Position Paper is not a legislative instrument and the 5th and 6th respondents have already stated that they are not bound by the Position Paper and do not have to enforce the demands in it. It is upon the bodies that have been vested with the requisite powers to appoint and remove the officers to follow the law in discharging their mandate.

22. At this point the applicants have not demonstrated any intention by the bodies to contravene the law in any manner. There was no evidence of an intention to implement the proposals in the Position Paper and further that in so doing the relevant bodies would be acting unlawfully. To the extent that the applicants limited their grievances to the publication of demands in the NASA Position Paper and did not show the court any unlawful actions of the 1st – 4th Respondents, this court is unable to find reason to issue the orders of injunction against them.

23. From the foregoing, it is my finding that the application dated 19th September, 2017 is unmerited. The prayers (2) and (3) in that application are hereby denied. Each party shall bear its own costs of this application.

Ruling delivered, dated and signed in open courtthis 10th day of October 2017

……………………..

R. LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

Ms. Gitau holding brief for Mr. Kibe for Petitioners

N/A for 1st – 4th Respondents

M/s Gitau holding brief for Mr. Kahiga for 5th Respondent

M/s Gitau holding brief for Mr. Kahiga for 6th Respondent

Ms. Mukele for 7th Respondent

M/s Gitiri for 8th Respondent