Case ID:99329

Maendeleo Chap Chap Party & 2 others v Independent Electoral And Boundaries Commission & another [2017] eKLR

Case Metadata

Case Number:

Petition 179 of 2017

Parties:

Maendeleo Chap Chap Party, Hellen Sambili & Carnicius Jackson Mesoh v Independent Electoral and Boundaries Commission & Attorney General

Date Delivered:

12 May 2017

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Enock Chacha Mwita

Citation:

Maendeleo Chap Chap Party & 2 others v Independent Electoral And Boundaries Commission & another [2017] eKLR

Court Division:

Constitutional and Human Rights

County:

Nairobi

Case Summary:

Section 28 of the Election Act, which prohibited election candidates from defecting from one political party to another within 120 days before general elections, is not unconstitutional.

Maendeleo Chap Chap Party & 2 others v Independent Electoral and Boundaries Commission & another

Petition No 179 of 2017

High Court at Nairobi

Milimani Law Courts

Constitutional and Human Rights Division

E C Mwita, J

May 12, 2017

Reported by Beryl A Ikamari

Constitutional Law

-interpretation of the Constitution-allegation that a statutory provision was unconstitutional and it limited rights found in the Bill of Rights-whether section 28 of the Elections Act which prohibited election candidates from defecting from one political party to another within 120 days before general elections amounted to an unjustified limitation on freedom of association and political rights to participate in the affairs of a political party of choice-Constitution of Kenya 2010, articles 24, 36, 38, 103(1)(e) & 259(1); Elections Act, No 24 of 2011, section 28.

Statutes

-Elections Act-whether section 28 of the Elections Act which prohibited election candidates from defecting from one political party to another within 120 days before general elections amounted to an unjustified limitation on freedom of association and political rights to participate in the affairs of a political party of choice-Constitution of Kenya 2010, articles 24, 36, 38, 103(1)(e) & 259(1); Elections Act, No 24 of 2011, section 28.

Brief facts

The 2

nd

Petitioner, a member of the National Assembly for Mogotia constituency and the 3

rd

Petitioner, a member of the National Assembly for Dagoretti North Constituency, sought to seek re-election under the Mandeleo Chap Chap Party. Initially, they offered to run for re-election under the Jubilee Party but they were unsuccessful in the party primaries. They sought to decamp and seek re-election under the Maendeleo Chap Chap party. However, section 28 of the Election Act, as amended by section 10 of the Election laws (Amendment) Act, 2017, provided that defections from one political party to another were not permissible within 120 days before general elections. The 2

nd

and 3

rd

Petitioners were seeking to defect to another political party outside of the allowed time limits.

They sought to challenge the constitutionality of section 28 of the Election Act, as amended by section 10 of the Election Laws (Amendment) Act, 2017. They stated that the provision was a violation of their rights to freedom of association under article 38 of the Constitution and the right to participate in the affairs of a political party of their choice.

Issue

Whether section 28 of the Election Act, as amended by section 10 of the Election laws (Amendment) Act, 2017, which prohibited election candidates from defecting from one political party to another within 120 days before general elections, was unconstitutional.

What does the Court consider in determining the constitutionality of a statute?

Relevant provisions of the Law.

Constitution of Kenya 2010, article 24;

24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

(a) the nature of the right or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Constitution of Kenya 2010, article 36;

36. (1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

Constitution of Kenya 2010, article 38(1);

38. (1) Every citizen is free to make political choices, which includes the right—

(a) to form, or participate in forming, a political party;

(b) to participate in the activities of, or recruit members for, a political party; or

(c) to campaign for a political party or cause.

Constitution of Kenya 2010, article 103(1)(e);

103. (1) The office of a member of Parliament becomes vacant—

...

(e) if, having been elected to Parliament––

(i) as a member of a political party, the member resigns from that party or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political party;

...

Constitution of Kenya 2010, article 259(1);

259. (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

Elections Act, No 24 of 2011, section 28;

1. A political party that nominates a person for an election under this Act shall submit to the Commission a membership list of the party;

a. In the case of general election, at least one hundred and twenty days before the date of election; and

b. In the case of by-election, forty five days before the date of the by-election.

Held

Under article 259(1) of the Constitution, the interpretation of the Constitution was to be done in a manner that promoted its purposes, values and principles, advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permitted the development of law and contributed to good governance. In determining questions of unconstitutionality of a statute, the Court would consider the impugned legislation alongside the provisions of the Constitution said to be infringed and determine whether the impugned legislative provision was unconstitutional.

The rebuttable presumption of constitutionality of a statute was applicable to determinations on constitutionality of a statute. A party alleging that a statutory provision was unconstitutional, had an obligation to prove that allegation. The legislature as the people's representative was assumed to know the challenges that the citizens they represented faced and laws were enacted to solve those challenges.

Section 28 of the Elections Act, as juxtaposed with article 36 of the Constitution on freedom of association, did not stop the Petitioners from joining a political party. It only limited the time within which they could change membership from one political party to another political party in the critical period towards a general election or a by-election.

Article 38 of the Constitution gave people the right to seek elective positions to any elective public body or office under the constitution, or political party in which he was a member. The Constitution, under article 103(1)(e) did not allow party hoping (changing membership from one political party to another) after a member of the National Assembly had been elected through a political party or as an independent. The Constitution required people to make choices, to either belong to a political party or to remain independent. That was why party hoping was a ground for losing one's position as a member of Parliament. It was intended to bring order and discipline within political parties and allow democracy to flourish within parties. Section 28 of the Elections Act was intended to aid that position on party hoping.

Article 24 of the Constitution provided that a right in the Bill of Rights could not be limited except as provided by law. The extent of the limitation had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. That limitation had to take into account the nature of the right or fundamental freedom, the importance of the proposed limitation, the nature and extent of limitation, the need to ensure that the enjoyment of rights and fundamental freedoms by any individual did not prejudice the rights and fundamental freedoms of others, the relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.

Section 28 of the Elections Act limited the right to change political parties within parties one hundred and twenty (120) days to the general election. That was a necessary limitation to allow for preparations for the general elections. The limitation on change of political parties was provided for in both section 28 of the Elections Act and article 103(1)(e) of the Constitution. The limitation was reasonable as it allowed political parties and the IEBC to complete nomination processes and meet the timelines set for elections.

Section 28 of the Elections Act and article 103(1)(e) of the Constitution were meant to instil discipline and a democratic political culture. People were to join parties because they believed and shared in their vision and ideology. A person was required not to join a political party only for purposes of competing for an elective position without necessarily believing in the party’s policies and ideals. That would not encourage democracy in political parties.

Article 259 required that the Constitution be interpreted in a manner that contributed to good governance. Good governance was required not only in Government but also in political parties. There could not be good governance in a country if political parties were not properly governed. Steps like those provided in section 28 of the Elections Act had to be taken to bring order within political parties.

The IEBC had an obligation to know who was standing for election and in which political party. Allowing party hoping till a few days to the election date would result in poor governance within the IEBC. The limitation imposed in section 28 of the Elections Act was reasonable and justifiable to the extent that it allowed the IEBC to undertake its constitutional mandate to the fullest extent.

There was a complaint that the right to fair administration had been breached. The IEBC was enforcing the law and not carrying out an administrative task which required a fair hearing.

The request for the Court to extend the period within which the 2

nd

and 3

rd

Petitioners could present their nomination documents was not permissible. In requiring such documents to be provided within a given timeframe the IEBC was not exercising discretion which the Court could interfere with. It was enforcing a legal requirement applicable to all political parties and citizens.

Petition dismissed.

Extract:

Cases

East Africa

1.

Nairobi Metropolitan PSV Saccos Union Limited & 25 others v County of Nairobi Government & 3 others

Petition 486 of 2013 – (Approved Upon)

2.

Olum

&

another

v

Attorney

-

General

[2002] 2

EA

508 – (Followed)

Canada

1.

R v Big M

Drug Mart Ltd

[1985] 1 SCR 295; [1986] LRC – (Followed

)

United States of America

1.

US v Butter,

297 USI [1936] – (Followed)

East Africa

Statutes

1. Constitution of Kenya, 2010 articles 4,24, 36, 38 (2); 47; 82(1) (b); 88 (4) (k); 91; 92; 99(1) (b); 103 (1) (e); 259 (1) – (Interpreted)

2. Election Laws (Amendment) Act, 2017 (Act No 24 of 2011) section 10 – (Interpreted)

3. Elections Act, 2011 (Act No 24 of 2011) section 28(1) (a) – (Interpreted)

4. Political Parties Act, 2011 (Act No 11 of 2011) In general – (Interpreted)

Advocates

1. Mr Nyamu for the Petitioners

2. Mr Gumbo for the 1

st

Respondent

3. Mr Ogosso for the 2

nd

Respondent

Case Outcome:

petition disallowed and dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 179 OF 2017

IN THE MATTER OF ARTICLE 2, 22, 23, 36, 38, 159,165,258 & 259

OF

THE

CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE ELECTIONS (AMMENDMENT) ACT, 2017

BETWEEN

MAENDELEO CHAP CHAP PARTY.............................................................1

ST

PETITIONER

HELLEN SAMBILI.........................................................................................2

ND

PETITIONER

CARNICIUS JACKSON MESOH.................................................................3

RD

PETITIONER

– VERSUS –

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.....1

ST

RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..........................................2

ND

RESPONDENT

JUDGMENT

Introduction

1. This petition challenges the constitutionality of Section 28 of the Elections Act, 2011, as amended by

Section 10

of the

Election Laws (Amendment) Act, 2017

, restricting party hoping

one hundred and twenty (120) days

before a general election.

2. The 1

st

petitioner is a Political Party duly registered under the Political Parties Act. The 2

nd

petitioner is a sitting Member of the National Assembly for Mogotio constituency and currently a member of the 1

st

petitioner, while the 3

rd

petitioner is, said to be Member of the National Assembly, for Dagoretti North Constituency. Both intend to run for re-election under the sponsorship of the 1

st

petitioner.

The Petition

3. The facts of this petition are straight forward. The 2

nd

and the 3

rd

petitioners were members of

Jubilee Party

. They offered themselves for nomination as candidates for their respective constituencies in the forthcoming general election under

Jubilee Party,

but were unhappy with the conduct of the entire nomination exercise. They decamped to the 1

st

petitioner on whose ticket they intended to seek re-election. to the National Assembly.

4. According to the record, the 2

nd

and the 3

rd

petitioners resigned from

Jubilee Party on 27

th

April, 2017 and on

the same day joined the 1

st

petitioner as members. It has been stated that by virtue of

section 28

of the

Election Act

, as amended by

section 10

of the

Election laws (Amendment) Act, 2017,

the 2

nd

and the 3

rd

respondents, may not be able to stand for election under the sponsorship of the 1

st

petitioner because by the time they joined the 1

st

petitioner they were already outside the 120 days, and the impugned law could not allow them to

“defect”

to another Political Party. They say the amendment to section 28 is a violation of their freedom of association under

Article 36

and the right to participate in affairs of a Political Party of choice under

Article 38

of the constitution. They have therefore filed this petition seeking the following orders:–

i.

A declaration that section 28 (1) (a) of the Elections Act, 2011 as amended by section 10 of the Elections (Amendment) Act, 2017 violates fundamental rights guaranteed under Articles 36 and 38 of the constitution of Kenya, 2010.

ii.

A declaration that Section 28 (1) (a) of the Elections Act, 2011 as amended vide section 10 of the Elections (Amendment) Act, 2017 does not amount to reasonable and justifiable limitations to the employment of the fundamental rights and freedom under Articles 36 and 38 as envisaged under Article 24 of the constitution of Kenya, 2010.

iii.

A declaration that Section 28 (1) (a) of the Elections Act, 2011 as amended vide Section 10 of the Elections (Amendment) Act, 2017 is inconsistent with the construction of the constitution of Kenya, 2010 as envisaged under Article 259 (1) of the constitution and therefore null and void.

iv.

A declaration that Section 28 (1) (a) of the Elections Act, 2011 as amended vide Section 10 of the Elections (Amendment) Act, 2017 changing the window period within which an aspirant can resign from a party and join another from forty five (45) days to one hundred and twenty (120) days is unreasonable, unfair, prohibitive and a clog to the enjoyment of the rights guaranteed under Articles 36 and 38 of the constitution and to the promotion and advancement of fundamental rights and freedoms guaranteed by the constitution hence null and void.

v.

A declaration that deadline for submissions of membership list set by the 1

st

Respondent pursuant to Section 28 (1) (a) of the Elections Act, 2011 following the amendments vide Section 10 of the Elections (Amendment) Act, 2017 is unreasonable and hence a violation to the petitioners’ rights and freedoms guaranteed under Articles 36, 38 and 47 of the constitution of Kenya, 2010.

vi.

A declaration that the 2

nd

and the 3

rd

Petitioners are entitled to join the 1

st

Petitioner, participate in its affairs and seek election to the National Assembly as candidates holding the 1

st

Petitioner party ticket.

vii.

The cost of the petition.

Response by 1

st

Respondent

5. The 1

st

respondent filed a replying affidavit by

Praxides Toroney

, director of legal affairs in the 1

st

respondent, sworn on 8th May, 2017. It was averred that the 1

st

respondent is responsible for regulating the process by which political Parties nominate their candidates for election and has mandate to monitor political parties’ compliance with electoral Laws, that the 1

st

respondent is simply enforcing legislation enacted by the National Assembly to ensure there is efficient preparation for elections, and that the impugned provisions were enacted by the National Assembly in which the 2

nd

and the 3

rd

Petitioners are members. The 1

st

respondent therefore averred that the impugned provision is constitutional and does not in any way infringe on the petitioners’ right to political participation.

Response by 2

nd

Respondent

6. The 2

nd

respondent filed grounds of opposition dated 8

th

May, 2017 and filed on the same day. He stated that both the motion and petition are

Res-judicata

since a similar matter had been determined, being

petition No. 56 of 2017

which had challenged the same provision. The 2

nd

respondent further stated that the petitioners had not demonstrated that the impugned

section 28

as amended, had infringed on their freedom to belong to a Political Party of their choice, and participate in political activities under

Articles 36

and

38

of the constitution. It was also stated that, the aim of taming Party “

hoping

” through

section 28

as amended had foundation in

Article 103 (1) (e)

of the constitution hence it did not in any way violate the constitution.

Petitioners’ Submissions

7. Mr. Nyamu, learned counsel for the petitioners, submitted at length both orally and by written submissions on the unconstitutionality of the impugned provision. Counsel reiterated what was contained in both in the petition and affidavits, arguing that the 2

nd

and 3

rd

petitioners, right to join a Political Party of their choice on which to run for a political seat had been violated by limiting the period within which they could resign from one political party and join another.

8. Mr. Nyamu submitted that, the 2

nd

and 3

rd

petitioners resigned from Jubilee Party on 27

th

April, 2017 when they were already late and joined the 1

st

petitioner which promised to allow them run on its ticket but they are in a dilemma given that

section 28 (1) (a)

prohibited movement from one party to another

one hundred and twenty (120) days

to the general elections, which they feel curtailed their right to change parties.

9. In a nutshell, Mr. Nyamu’s submission was that the limitation violates

Articles 36

and

38

of the constitution and is therefore unreasonable and unjustifiable, and to that extent, it violated

Article 24

of the constitution. He asked the court to declare

section 28

of the

Elections Act, 2011

as amended by

Election Laws

(Amendment) Act, 2017

unconstitutional, and extend time to allow the 2

nd

and 3

rd

petitioners present their documents and run on the 1

st

petitioner’s ticket.

First Respondent’s Submissions

10.

Mr. Gumbo,

learned Counsel for the 1

st

Respondent, Submitted that, the impugned Section came into effect in January 2017, and all along, the petitioners were aware of the existence of the provision, that a

Public Notice

was published notifying the general public including candidates, of the calendar of events leading up to the date of election 8

th

August, 2017, and the petitioners were fully aware of the calendar. Counsel submitted that any party wishing to challenge the calendar or the legislation had sufficient time to do so. According to counsel, although, the petitioners who were aware of the existence of the law and calendar, participated in the nomination process of

Jubilee Party

, only to leave on 27

th

April 2017 and join the 1

st

petitioner. Yet they could have taken the chance to stand as independent candidates.

11. Learned counsel submitted that the impugned provision is constitutional and does not in any way violate

Articles 36, 38

or

24

of the constitution. According to counsel, the limitation was justified and only limited the time when one could cross from one party to another, but not the right to change parties at all. Counsel contended that to the extent that the petition challenges the constitutionality of

section 28

, the same is

res-judicata,

since a decision has been made on the constitutionality of the impugned section in

Council of Governors v Attorney General & Another, petition number 56 of 2017

.

Second Respondent’s Submissions

12.

Mr. Ogosso,

learned counsel for the 2

nd

Respondent agreed with the 1

st

respondent’s submissions, and reitarated that the petition is indeed

res-judicata

following the decision in the

Council of Governors v Attorney General case

(supra), since the issue in that petition was substantially the same to that in the present petition, that the respondents in that petition are the same, to this petition except that the petitioners are different. The petition also challenged the constitutionality of

section 28

of the

Elections Ac

t as amended, which is the same issue in the current petition.

13. In counsel’s view, therefore, there is foreclosure hence the same issue cannot be re litigated in court. Counsel referred to a number of decisions on res-judicata to support his contention that indeed the petition is

res-judicata.

14. On the constitutionality of

section 28,

Mr. Ogosso submitted that there was no doubt that the impugned section is constitutional, and did not in any way violate the petitioners’ rights. According to counsel,

section 28

has to be read together with

Chapter 7

of the constitution as well as the

Political Parties Act.

He also argued that there was no violation to

Article 47

since the 1

st

respondent was enforcing provisions of the law.

Analysis and Determination

15. From the pleadings, submissions and authorities, there is only one issue for determination in this petition, that is;

whether section 28 (1) (a)

of the

Election Act, 2011,

as amended by

section 10

of the

Election Laws (Amendment) Act, 2017

is unconstitutional. Determining constitutionality of a provision or a statute requires interpreting the impugned Provision vis-à-vis the

Articles

of the constitutions alleged to be offended by the statutory provision and draw a conclusion on the constitutionality or otherwise of the impugned provision.

16.

Article 259(1)

of the constitution decrees that the constitution should be interpreted in a manner that

promotes its purposes, values and principles, advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permits the development of law and contributes to good governance(emphasis)

.

17. In the case of

Olum v The Attorney General {2000}EA,

the Constitutional Court of Uganda dealt with the issue of constitutionality of a section of a Statute and stated that to examine the constitutionality of a section of a statute or Act of Parliament, the

court has to consider the purpose and the effect of the impugned statute or section thereof. If its purpose does infringe a right guaranteed by the constitution, the court has to go further and examine the effects of its implementation. If either its purpose or its implementation infringes a right guaranteed by the constitution, the impugned Statute or Section thereof shall be declared unconstitutional

.(Emphasis)

18. The same position was stated in the case of

R V Big M. Drugmart Ltd {1986}, LRC

by the constitutional court of Canada thus;

“Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is unmated by an object the legislature intends to achieve. The object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked for guidance in ascertaining the legislation’s object and thus validity.”

19. When confronted with the question of unconstitutionality of a statute or provision, the court has to lay the impugned legislation alongside the provision of the constitution said to be offended and determine whether indeed the impugned provision is unconstitutional. This was stated in

US Vs. Butter, 297 USI {1936},

that

where an act of Congress is appropriately challenged as being unconstitutional, the judicial branch has only one duty; to lay the Article of the constitution involved beside the statute challenged and decide whether the latter squares with the former

.

20. There is also a rebuttable presumption of constitutionality of a Statute. And party, who alleges that a Statute or Provision of a Statute is unconstitutional, has an obligation to prove that allegation. The presumption of legality is important because the legislature as representative of the people is taken to know the challenges faced by citizens they represent and therefore, the laws enacted are intended to solve those problems. This principle was well stated in the case of

Hamdarada Nakhana Union of India Air (1960) 354

, thus;

“In examining the constitutionality of a statute, it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and, the elected representatives in a legislature and it enacts laws which they consider to be reasonable for purposes for which they were enacted, presumption is therefore in favour of the constitutionality. In order to sustain the presumption of constitutionality, the court may take into account matters of common knowledge, the history of the times and may assume every state or facts as existing at the time of legislation.

21. This principle has been applied locally in many cases notably, the case of

Nairobi Metropolitan PSV Saccos Union Limited & 25 others vs County of Nairobi Government & 3 others [2013] eKLR

. Like the principle of he who alleges must prove, the onus is always on the person challenging the constitutionality of a legislation to prove the alleged unconstitutionality.

22. The impugned

Section 28

provides;

1.

“A political party that nominates a person for an election under this Act shall submit to the Commission a membership list of the party;

a.

In the case of general election, at least one hundred and twenty days before the date of election; and

b.

In the case of by-election, forty five days before the date of the by-election.”

23. After receiving the membership lists, the commission is required under

sub-section 2,

to publicize the lists as received from Political Parties. This provision was introduced by the Election Laws (Amendment) Act, 2017. Section 28 has undergone a couple of amendments. When the Elections Act, 2011 was enacted section 28 originally provided as follows;

“

A Political Party that nominates a person to any election under this Act, shall submit to the commission a Party membership list of the party at least three months before the nomination of the candidate.”

24. This provision was subsequently amended by

Act No. 12 of 2012

to read:

“A Political Party that nominates a person for election under that Act,

shall submit to the commission a Party membership list of the Party at least ninety days before the date of the general election.” (

Emphasis).

25. It is therefore clear that prior to the impugned amendment, party lists were to be submitted to the 1

st

respondent within

ninety days

(

three months

) before the election whereas, previously, it was before nominations. However, the amendment made in 2012 provided that Party lists be submitted ninety days before the general election. The provision has now reduced the period from three months (Ninety days) to One Hundred and Twenty Days (Four months) before the date of the general election.

26. The petitioners’ complaint is that the law as it now stands, has prevented them from changing parties “(

Party hoping)

” a popular trend in the country and the petitioners have therefore argued that the provision has infringed on their rights to political association under

Articles 36

and

38

of the constitution. The respondents have on their part contended, that the provision has not infringed on the petitioners’ rights, and in their view, the provision is constitutional.

27.

Article 36

is on the freedom of association which include

s freedom to form, join and participate in the activities of an association

,

and not compelled a person to join an association

.

Sub Article 3

is to the effect that

a legislation may not unreasonably restrict registration of an association and registration of an association may not be cancelled without a fair hearing.

28. Juxtaposing

section 28 (1) (a)

with

Article 36

, it is clear that the impugned section does not stop the petitioners from joining a Political Party. It has only limited the time when one cannot join another Political Party, during the critical period towards a general election or by-election.

29.

Article 38

which is on Political choices has also been cited with an allegation that the impugned section has violated the petitioners’ political rights under this Article.

Article38

provides that

every person has the right to form or participate in forming a Political Party, Participate in activities of a Political Party, the right to free, fair and regular elections based on universal suffrage and free expression of the will of elector.

The Article gives people the right to seek elective positions to any elective public body or office under the constitution, or political party in which he is a member.

30. It is also important to note, that

Article 38 (2)

provides that

citizens have a right to free, fair and regular elections

which can only be a product of planning and preparation thereby guarantee a democratic elections which is the hallmark of an open and democratic society.

31. The object and purpose of the impugned provision can be discerned from the preamble to the Act which states that it is

an Act of Parliament to give effect to Article 99 (1) (b) of the constitution, to amend the Elections Act, 2011…

to provide for electoral processes and connected purposes.

The purpose of the legislation was to provide for an electoral process, or roadmap to the elections. That informs why the section provides that those party lists should be submitted at least one hundred and twenty (120) days before the date of election.

Article 99

is generally on qualifications to run for the position of Member of Parliament, which means the impugned section was intended to provide for electoral roadmap to elections in the country and streamline the electoral process which would also allow the 1

st

respondent deal with any issues arising from nominations by political parties.

32. The provisions being challenged, as can be seen from the petition and submissions by counsel for the petitioners, curtailed the petitioner’s ability to hop from their former party to the 1

st

petitioner and run on its ticket. In fact, the 2

nd

and the 3

rd

petitioner were candid that they felt short changed in their former party and were seeking refuge in the 1

st

petitioner for a ticket to stand for election.

33. Party hoping is not allowed by the constitution.

Article 103 (1) (e)

prohibits party hoping after one has been elected through a political party or as an independent. The constitution requires people make choices, either to belong to Political Parties or remain independent. That is why Party hoping is a ground for losing one’s position as a member of parliament. This was intended to bring order and discipline within political parties and allow democracy to flourish in those parties, section 28 without a doubt was intended to aid this.

34. The petitioners have argued that the limitation imposed by

section 28

is unreasonable and for that reason, it violates

Article 24

of the constitution.

Article 24

provides that a right in the Bill of Rights cannot be limited except by law, and even then, only to the extent that the limitation is

reasonable

and

justifiable

in an open and democratic society based on human dignity, equality and freedom, taking into account the nature of the right or fundamental freedom, the importance of the proposed limitation, the nature and extent of limitation, the need to ensure that the enjoyment of rights and fundamental freedom by any individual does not prejudice the rights and fundamental freedoms of others, the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

35. Section 28 has only limited the right to change parties one hundred and twenty (120) days to the general election. The respondents have argued and correctly in my view that this is a necessary limitation to allow for preparation of general elections. The limitation to change parties is not only in section 28 but also in Article 103 (1) (e) of the constitution. The limitation is reasonable because it allows both political parties and the 1

st

respondent complete nomination processes and meet the timeline set for elections. The importance of limitation and purpose cannot therefore be over emphasized. Citizens have a right and time to decide whether to join Political Parties and if so which ones or run as independents. These are rights granted by the constitution. However, they should be excised timely.

36. In the case of the 2

nd

and 3

rd

petitioners, it is clear from their pleadings that they were doubtful that there would be a democratic nomination process within their own party. They were to make a decision, either to stick to the party and abide by the nomination results or join another party before the closure of the window of opportunity or still stand as independents. They waited until the moment only for them to change parties knowing that the law did not allow.

37. I must also point out that Article 103 (1) (e) and section 28 are meant to instill discipline and a democratic political culture. People join parties because they believe and share their vision and ideology. A Political Party takes time to build its image and a sense of recognition. It is not possible that, a person should only join a political party for purposes of competing for an elective position without necessarily believing in the party’s policies and ideals. That, in my respective view, cannot be said to be encouraging democracy in political parties.

38.

Article 259

is also clear

that the constitution be interpreted in a manner that contributes to good governance.

Good governance is not only in government but also in political parties and all organs and institutions. There cannot be good governance in in a country if political parties are not themselves properly governed. And steps must be taken like those in section 28 to bring order within political parties. The 1

st

respondent has an obligation to know who is standing for election, in which political parties otherwise allowing party hoping till a few days to election date, will itself cause poor governance within the 1

st

respondent.

39.

Article 91

also binds Political Parties to democratic ideals and good governance where they conduct free, fair and regular elections, which should include free and fair nominations. Article 92 allowed

Parliament to enact legislation to regulate Political Parties and any other matters necessary for the management of Political Parties.

Parliament enacted the Political Parties Act and the Elections Act, including the impugned provision. These are all meant to regulate management of Political Parties at various stages. It must not also be lost that,

Article 88

of the constitution gives mandate to the 1

st

respondent to

conduct and supervise elections as prescribed in an Act of Parliament (Elections Act), to regulate the process by which parties nominate candidates for elections, and settlement of disputes, including those relating to or arising from nominations by political parties

. These are constitutional functions and for that reason, the limitation imposed by section 28 is reasonable and justifiable to the extent that it allows the 1

st

respondent undertake its constitutional mandate to the fullest extent including mandate under

Article 88 (4) (k) to monitor compliance by Political Parties of election laws enacted under Article 82 (1) (b) relating to nomination of candidates.

40. Article 4 of the Constitution declares Kenya as a Sovereign Republic and a multi-party democratic state founded on national values and principles of governance. One of the national values is good governance, integrity transparency and accountability. This is the same value that is required of political parties under Article 91 of the Constitution to among others, abide by democratic principles of good governance, promote and practice democracy, respect human rights, and promote the objects of the constitution. Political parties are required to respect laws enacted under Article 82 and 92 that is the Political Parties Act and the Elections Act.

41. Kenya cannot be a democratic mult party state if political parties like the 1

st

petitioner and by extension; members of political parties do not comply with laws meant to regulate preparation and conduct of free fair and democratic elections.

It is perhaps important to point out here that according to the record the 3

rd

petitioner had lodged an appeal to his former party’s Appeals Tribunal on the same date 27

th

April 2017, disputing the Preliminary nomination results, but has not disclosed what the outcome of that appeal was. Having subjected himself to the internal dispute resolution mechanism of the party he should have waited for the outcome and follow the route through the Political Parties Disputes Tribunal to the High Court. Instead he used this petition as a way of evading the dispute resolution process to come to this court.

42. I do not find favour in the petitioners’ argument that the law is unreasonable and injustifiable simply because it sets timelines within which political parties should file nomination lists, and after which no one will be allowed to change parties. Such regulation is necessary if the 1

st

respondent is to carry out its mandate and deliver a credible election.

45. The impugned section was the subject of litigation in the case of

Council of Governors and another v The Attorney General and Another

(Supra). And I agree

Mativo J’s

holding that a

law requiring political parties to file a list of party members within a set time frame to a general elections or a law requiring internal party nomination is necessary to the integrity of the electoral process, and

is not unconstitutional. I have not been persuaded therefore that there is good reason to differ from the holding in the above case on the necessity of the law and its constitutionality.

44. The court has also been asked to find that there was breach of Article 47 of the Constitutional. The answer to this complaint is that the 1

st

respondent was enforcing the law. It was not performing an administrative act to require a fair hearing. On the request that the court extends the period to enable the 2

nd

and 3

rd

petitioners present their documents; the answer again is simple; that the 1

st

respondent was not exercising a discretion which the court can interfere with. This is a legal requirement that applies to all political parties and citizens.

45. In conclusion, I do not find is merit in this petition. Political parties and their members must accept that our transformative constitution values institutional democracy and good governance. Election is not an event but a process and parliament enacted a law to guide that process. The 1

st

respondent must therefore be allowed to take full charge if its mandate and deliver to Kenyans a fair transparent and credible election as is required of it by the constitution and the law.

For the above reason, the petition is disallowed and dismissed with costs.

Dated, Signed and Delivered at Nairobi this 12

th

Day of May, 2017

E C MWITA

JUDGE