Month: April 2017

Did judge err in allowing IEBC to conduct party primaries? Mugambi Imanyara & Another vs. Attorney General & 5 Others

Published in http://nairobilawmonthly.com/index.php/2017/03/31/did-judge-err-in-allowing-iebc-to-conduct-party-primaries/

March 31, 2017

By Shadrack Muyesu

Through a petition (No. 399 of 2016), lawyer Gitobu Imanyara moved to court to challenge the constitutionality or otherwise of the provisions of Section 10 (2) of The Elections (Amendments) Act, 2016. This section provides, “The Commission shall, upon the request of a political party, conduct and supervise the nomination of candidates by the political party for presidential, parliamentary or county elections in accordance with Article 88 of the Constitution.”

The petitioner also sought orders on the Constitutionality or otherwise of financing political party primaries from the exchequer, the Constitutionality or otherwise of the time frames set for the necessary preparations for the elections – that is, party primaries,as well as the apparent failure to factor in the process of resolving disputes arising from party primaries, and whether or not the timelines laid down under The Elections (Amendments) Act, 2016 may lead to a candidate being denied the Constitutionally guaranteed right to participate in an election.

In his ruling, delivered on February 16, 2017, Mativo J., sitting at the High Court, ruled that the Independent Electoral and Boundaries Commission (IEBC), while free to conduct party primaries, should not do so with funding from the exchequer or using public funds. He also ruled that, while the nomination period could disfranchise would-be candidates in the limited time available for the resolutions of disputes arising after the primaries, there was nothing in the law barring political parties from undertaking their primaries sufficiently early to enable IEBC to effectively carry on the election process.

My bone of contention lies with the former, which gives rise to the following questions: Did the good judge err in law in determining that the Commission’s mandate to oversee party primaries extends to conducting these primaries? Does the ruling create a likelihood of bias in dispute resolution, thereby flying off the handle of the rule of law, presumption of justice and separation of powers?

The problem can be debated either way. Walter Ochieng’ Khobe, a constitutional expert, agrees that nothing in the Constitution explicitly bars the IEBC from conducting such a poll and the Constitution envisages that by law the role in any other elections can be conferred.

Lawyer Charles Kanjama similarly agrees; in fact, his only contention is that the judge should have been more detailed. Kanjama takes us back to the substantial three-judge judgment in Kethi Kilonzo vs. IEBC which dealt with IEBC’s constitutional power to both deal with (conduct/supervise) nominations then deal with disputes emerging therefrom, without violating rule against bias. As an example, he reminds us that the legal power of IEBC to conduct “any other elections as prescribed by an Act of Parliament” [Art 88(4)] has been used for other elections including by the LSK. For him, nominations of candidates by political parties can take various forms, including selection by an interview panel, competitive elections, etc. Where competitive elections are used, art 38(2)(b) and 38(3)(c) read with art 88(4) and the IEBC Act allow IEBC’S engagement

However for Khobe – and Dr Munabi Okubasu, a lecturer at the Kabarak School of Law) a more structured argument would be that that there are other provisions of the Constitution that envisage fairness in adjudication and thus where IEBC has a role in the adjudication then it cannot be involved in such elections. It is this view that I shall adopt in demonstrating that the judge was in fact in error.

In arriving at his ruling, the judge addressed himself to the fundamentals of constitutional interpretation and sought to distinguish them from those guiding statutory interpretations. It was his concerted opinion that constitutions are documents sui generis to be interpreted according to principles suitable to their particular character, and not necessarily according to the ordinary rules and presumptions of statutory interpretation. He couldn’t be more correct.

Interpretation

Statutes demand a stricter approach. They are prima facie constitutional with the will of the Legislature taking pre-eminence over other principles. As he observed, the starting point of interpreting a statute is the language itself. In the absence of an expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.

Against this background, Article 88 (4) of the Constitution, which provides that the “The Commission is responsible for conducting for supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—   (d) the regulation of the process by which parties nominate candidates for elections;  (e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results…” —was, according to him, clear and unambiguous. But is it?

“…and any other elections as prescribed in an act of parliament and, in particular, for — (d) the regulation of the process by which parties nominate candidates for elections” should be considered in harmony with the rest of the Constitution and in context— by the pristine principle of noscitur a sociis, which the judge seems to be well aware of. How he quickly disfavours this route for a literal approach is therefore quite surprising. Though literal construction takes a prima facie preference in constitutional interpretation, to arrive at the real meaning, it is always necessary, to get an exact conception of the aim, scope and object of the whole constitution.

Quoting the distinguished Professor and then President of the Supreme Court of Israel, Aharon Barak, David Feldman in Statutory Interpretation and Constitutional Legislation writes, unlike statutes which thrive on legislative intent and are much more straightforward, constitutional provisions are like parables, or morality tales. They tell a story about the state, paint a picture of its unity, and try to stimulate loyalty to it: and while they appear descriptive, in reality they present the State as the drafters would like it to be, not as it was and is. Therefore, no matter how straightforward its articles may seem, judges must resist the temptation of the easy acceptable route of literal definition.

In this case, the intent of the constitution makers surely cannot be deciphered from reading of article 88 alone. We must consider an interpretation that promotes the values, purposes and principles of the Constitution, favours good governance, and advances the rule of law and human rights.

As Mugambi Imanyara rightly argued, which was also the petitioners question in Kethi Kilonzo (supra), since the Commission is also mandated to hear and determine disputes arising from the nominations, it cannot competently resolve disputes arising from a process it has presided. There is a looming question of bias, which jeopardizes the right to fair hearing and the rule of law.

Judicial activism?

Yet, the biggest problem with the judge’s interpretation of Article 88 is that it throws it (the article) into direct conflict with other articles of the Constitution particularly the right to fair hearing in Article 50 (1), the values and principles of governance under article 10, 159 (2)(e), and the Preamble, which recognises the essential values of the rule of law and human rights as bases of the Constitution.

This brings into question the Constitutionality of Article 88. The unconstitutionality of an article of the Constitution is a rarity that can only arise from one of two happenings. It can either be as a result of procedural flaw in its creation through amendment (see the dictum of Justice Kato in Rwanyarare and Haj Badru Wegulo vs. Attorney General, Constitutional petition No. 5 of 1999), or because it goes against the grain of constitutional values and principles upon which the Constitution is built— what were severally referred to as superior constitutional norms in Kesavanada Bharati vs. State of Kerala and Anr.

Curiously, the good judge disregards any of these possibilities in magnifying the problem to be that of the unconstitutionality of the entire Constitution instead. He then ventures into a long discourse on the improbability of unconstitutional constitutions— a matter that was not before the court in the first place!

In conclusion, while text remains an important strand in legal interpretation, Interpreters must consider it in the light of constitutional principles, including prohibition of arbitrariness. Only then can a sensible, workable outcome to a dispute that is consistent with a legislative text be realised.

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Assessing impact of the party-hopping provision in the Elections Law (Amendment) Bill, 2016

published in http://nairobilawmonthly.com/index.php/2016/10/04/assessing-impact-of-the-party-hopping-provision-in-the-elections-law-amendment-bill-2016

Shadrack Muyesu

Political parties have pushed and passed The Elections Law (Amendment) Bill, 2016 which bars party hopping. The celebration is that the new law will ideologize political parties whilst cementing party faithfulness. But how constitutional is the new law? How practical are its provisions? Will it really attain its purpose of coherence in political parties post nominations?

Beyond what has been put out there, questions abound as regards the true intentions of the new law. Indeed, that parliament only passed it after intense lobbying and arm-twisting by respective party hierarchies suggests that the bill could have been nothing more than an aggressive attempt to consolidate party support ahead of the 2017 elections. Theories regardless, the banning party hopping is not the way to ideologize political parties.

While it can be sufficiently influenced, political morality cannot be legislated. It is the natural gift of a democracy that has evolved overtime to maturity. The political morality of any democracy is directly proportionate to its demography and socio economic development (Fukuyama, Lipset et al). To coerce it through legislation while society remains highly stratified, politically illiterate and predominantly rural is akin to coloring a house which stands on a fickle foundation.

One of the most celebrated provisions of the new law is the extension of IEBC’s mandate, at the instance of the individual party, to overseeing party nominations (clause 10). Major factions have taken advantage of this to all but confirm that their nominations will be carried out by the IEBC. Where many would see fairness and decorum instilled into a historically chaotic process, some might argue that inviting the IEBC doesn’t guarantee fairness after all. Lest we forget, such services are to be paid for by the inviting party. Is it therefore improbable to presume that the Commission could be biased in their selection if only to please the true clients- the money paying party hierarchy?

The 90 days to elections ceiling (before which an aspirant must have declared his election vehicle- either as an independent or as the legal nominee of a party) makes participation in IEBC supervised primaries a do or die affair for most candidates (clauses 9& 11). For reasons raised above or otherwise, cases of dissatisfaction are bound to sky rocket with failing aspirants pursuing legal redress with a never- seen- before vigor. The High Court is likely to be overwhelmed with the petitions challenging the Commission’s ability to fairly determine cases where it’s the principle accused (the mandate of the commission to nominations as under section 5 of the IEBC Act 2011). Envisaging the likely scenario where most parties will conduct their primaries just months to the elections, it remains to be seen what the Court will offer in redress without diluting the litigants’ right to fair hearing or seemingly acting in vain.

Even if the courts somehow wriggled out of this conundrum, the competence and integrity of the IEBC would have been severely damaged. So close to the elections and with zero recovery time, this would set the stage for another post election crisis.

And this raises other questions, does the IEBC even have the capacity to carry out rigorous nominations for all these parties then pilot the elections- especially where they are to take place back to back? The stakes involved and the new found penetration of especially the two leading factions makes their nominations grand affairs. Granted the parties will pay, but what of personnel and infrastructure? Will the same election officials be used or will fresh recruitment be required especially in places where one faction doesn’t enjoy the support of the other hence doesn’t see the need to conduct primaries? Will these officials be vetted? Will party A be comfortable with the officiating of officials who conducted party B’s nominations in party B stronghold? If the reverse holds true doesn’t this open elections to external manipulation? Will the officials be locally recruited…infrastructure transported since let’s face it, most parties remain supremely regional? Will the commission be able to withstand the onslaught that follows?

Part hopping as a right

To the not so small matter of rights and freedoms, article 38 of the constitution of Kenya 2010 grants every citizen the right to make political choices. The right to form and participate in the affairs of a political party is unlimited except to the extent that one is a citizen. Article 36 grants every person the freedom to form, join and participate in the affairs of an association of any kind. It denounces compulsion to join any association. Article 33 grants the freedom of expression. Alongside the limitations contemplated under article 33 (2) rights and freedoms may only be limited as under article 24 and even then, where the state is the limiting agency, it is required to demonstrate sufficient cause as to why it seeks any limitation before the courts. It must show the importance and purpose of the limitation as well as demonstrate the absence of less restrictive means by which it could achieve its purpose.

As the paragraphs above have attempted to highlight, the absence of a clear dispute resolution regime to address nomination disputes vis a vis the important place of political parties in our society (politics) and the dire consequences of an unfair loss at nominations provide strong argument as to why the amendment on party hopping should be passed unconstitutional. The clamor to ideolagize political parties shouldn’t be pursued at the sacrifice of the freedom of association and the rights of access to justice, fair administrative action other political rights under article 38 among others.

Article 91 is clear on the basic requirements of political parties so is section 7 of the Political Parties Act and the import of the larger chapter 6 of the Constitution. Ideology is not one of them. If ideologizing parties was an honest intention the proper thing would have been to clearly amend an ideological requirement into the constitution and the latent acts without limiting freedoms.