REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.113 OF 2015
BETWEEN
TURKANA COUNTY GOVERNMENT………………............................................................……1ST PETITIONER
NANYAGALIM AKIYOKORI SIKIRIA…………….........................................................……….…2ND PETITIONER
KAPELO EKALALE…………………………………........................................................…….…3RD PETITIONER
LORENG LOPEYEK LOKUTAN………………………..................................................................4TH PETITIONER
LOTIR EBEI NGILIMO………………………………..……........................................................…5TH PETITIONER
LILIAN ACHIA IWELETE………………………..........................................................…………....6TH PETITIONER
NATOOT MUYA………………………………..…….......................................................................7TH PETITIONER
LOORO NAPULO……………………………….................................................................…….…8TH PETITIONER
ERRENE PAULINA………………………………......................................................................…...9TH PETITIONER
NAUKOT LOBOKO LOWALE……………....................................................................................10TH PETITIONER
TARKUS AUKOT NAMAIRE………………..………..................................................................…11TH PETITIONER
LOPUS JOSEPH……………………………………..…........................................................…....12TH PETITIONER
LOMEYAN EWOI……………………………….…………..........................................................…13TH PETITIONER
EVERLYN IKAI…………………………………..…………................................................…….....14TH PETITIONER
EKAI LOKURUCHANA……………………….…………...................................................………..15TH PETITIONER
ANZALE EREKWAN………………………….......................................................................….…...16TH PETITIONER
LOIBUN SAGAL……………………………….………….........................................................…....17TH PETITIONER
LOCHWEI NGOROK…………………………………..………............................................…..…..18TH PETITIONER
SIMON ESINYEW…………………………………………….………..........................................…19TH PETITIONER
EKAI LOKAPEL……………………………………………….…….….............................................20TH PETITIONER
EKURUDI DAVID..................................................................................................................................21ST PETITIONER
AND
HON. ATTORNEY GENERAL…………………..………..................................................................1ST RESPONDENT
CABINET SECRETARY INTERIOR AND COORDINATION OF NATIONAL GOVERNMENT......2ND RESPONDENT
TURKANA PROFESSIONALS…………………...................................................................1ST INTERESTED PARTY
COUNTY GOVERNMENT OF WEST POKOT......................................................................2ND INTERESTED PARTY
BARINGO COUNTY................................................................................................................3RD INTERESTED PARTY
HON. ASMAN KAMAMA, HON. JOSEPH D LOTODO, VICTOR MENGICH JOSHUA AKENO (ON BEHALF OF
THE RESIDENTS OF TAITY CONSTITUENCY, EAST POKOT SUB-COUNTY)….......4TH INTERESTED PARTY
JUDGMENT
Introduction
1. This is a Petition filed in this Court on 25th March 2015 by the 1st to 21st Petitioners, seeking the following relief:
(a) A declaration that the boundaries of Turkana County are conterminous with the boundaries of Turkana District.
(b) A declaration that the purported alteration of the boundaries of Turkana District pursuant to the provisions of the Districts and Provinces Act No 5 of 1992 was illegal and therefore null and void.
(c) A declaration that subject to such rights as are granted by law to the National Government in connection with the exploitation of natural resources within Turkana County, no other person or County Government is entitled to harness and exploit, use and/or abuse the natural resources within the Turkana County except as may be authorized by law or with the authority of the County Government of Turkana.
(d) A declaration that the superimposition of the administrative boundaries upon the geographical of Turkana County in ways that impose administrators from neighboring counties upon the 2nd – 21st petitioners and the people of Turkana County to participate in the election of leaders from neighbouring counties violate the petitioners’ right to fair administrative action contrary to Article 47 of the Constitution.
(e) A declaration that the superimposition of electoral boundaries of Turkana County in ways that impose administrators from neighbouring counties upon the people of Turkana County or in ways that compel the people of Turkana County to participate in the election of leaders from the neighbouring counties violates the integrity of the County Government of Turkana besides violating the right of the petitioners herein to participate in the political life of their County contrary to the provisions of Article 38 of the Constitution of Kenya.
(f) A declaration that the perennial claims by some residents of Baringo and West Pokot Counties, that some parts of Turkana County belong to either of the counties whether on the basis of alleged historical reasons which claims are unfounded and without any lawful or constitutional basis violate the territorial integrity of the Turkana County Government as well as the sovereignty of the petitioners and the people of Turkana County and consequently violate Article 174 of the Constitution.
(g) A declaration that the perennial but baseless claims by some residents of Baringo and West Pokot counties that some portions of Turkana County belong to either of the counties which claims have been responsible for the hostilities and constant raids, banditry, destruction of properties, murder and other violation of rights of the Turkana County Government as outlined hereinabove in this petition violate Article 189 of the Constitution.
(h) An order of mandamus directed at the 2nd Respondent requiring the said 2nd Respondent to immediately deploy the National Police Service, the National Intelligence Service and the Kenya Defence Forces to protect the border between Turkana County and the counties of Baringo and West Pokot to prevent the illegal entry into the Turkana County by raiders from neighbouring counties.
(i) An order of mandamus directed at the 2nd Respondent requiring the said 2nd Respondent to immediately and forcefully evict and return to their lawful homes the Pokot raiders who have crossed the borders into Turkana County from the neighbouring counties of Baringo and who presently illegally occupying parts of Turkana County.
(j) An order of mandamus directed at the 2nd Respondent requiring the said 2nd Respondent to take such measures as are lawfully necessary to put a permanent end to the incessant raids conducted upon the people of Turkana County (including the Petitioners herein) and the consequent violation of their rights by raiders from the neighbouring Baringo and West Pokot areas.
(k) An order of mandamus directed at the 2nd Respondent compelling the 2nd Respondent to take all such measures as are reasonably practicable to provide the necessary security to protect the territorial integrity of Turkana County as well as to prevent the violation of the fundamental rights and freedoms of the petitioners herein as illustrated hereinabove.
(l) An order of damages directed at the 1st and 2nd Respondents requiring the said 1st and 2nd Respondents to compensate each of the petitioners herein for the various violations of their fundamental rights and freedoms as outlined hereinabove, with respect to each of them by paying each of the petitioners herein sums of money as this honourable Court will deem appropriate.
(m) An order declaring that all administrative and electoral units that have been created by the National Government and superimposed on the geographical boundaries of Turkana County are all illegal and unconstitutional and therefore null and void ab initio.
(n) Costs of this Petition.
(o) Any other relief or orders that this honourable Court shall deem just and fit to grant.
Background
2. The nature of the reliefs sought by the Petitioners can be divided into four categories. The first are in the form of declarators largely relating to the demarcation of the boundaries (whether electoral or geographical) of Turkana County. These are evidenced in prayers (a), (b), (d), (f), and (m).
3. The second set of declarators concerns the preservation of the territorial integrity of the County. These are set out in prayers (c), (e), (f) and (k). Further, orders of mandamus compelling the National Government to provide security to the County for the protection of its territorial integrity. This concept has been referred to throughout this Petition and during argument and thus it is necessary to flesh out exactly what it means and its application under our new constitutional dispensation.
4. The third set of orders sought are in the form of mandamus requiring the National Government to provide security to the County protecting its boundaries and “territorial integrity” from the illegal entry into the County by raiders from other Counties and the forceful eviction of Pokot raiders who are unlawfully occupying certain parts of the County.
5. Fourth, are the orders seeking compensation in the form of damages for the alleged violation of their fundamental human rights and freedoms. It has left the determination of quantum of damages to this Court.
Petitioners’ case
6. Contrary to their prayers set out in their Petition, the Petitioners argue that this case is not about the determination of the precise location of the boundaries of Turkana County and it is also not about a boundary dispute between Turkana County and Baringo County or West Pokot County or both.
7. They assert that they acknowledge and accept the fact that the boundaries of Turkana County are established by law and any alteration thereof must be done in accordance with the law. The current border stands as they have not been altered. However, it is the territorial integrity of the county that has been subjected to violation by both state and non-state actors.
8. State actors that have been cited are the National Government and the Provincial Administration. The Petitioners aver that the Provincial Administration has created “administrative units” within Turkana County belonging to or considered to be part of neighbouring counties. Further, they argue that the National Government has also unlawfully transferred resources that belong to Turkana County Government to neighbouring counties e.g. Turkwel Gorge Plant was illegally transferred to Baringo County.
9. There are three categories of non-state actors who have been accused of violating the territorial integrity of Turkana County. They have allegedly done so by entering the borders of Turkana County and killing people, maiming, raping women, destroying and stealing property, evicting people from their homes and thereafter burning those homes or occupied them. They have further allegedly removed people from their lands and appropriated those lands for themselves, claiming that those lands belong to that territory they came from.
10. The Petitioners also argue that companies have also violated the territorial integrity of the County in that they illegally enter County borders and thereafter exploit and waste the County’s resources.
11. Further, that persons from neighbouring Countries such as Uganda, South Sudan and Ethiopia have violated the territorial integrity of Turkana County by conducting raids, killing and maiming people, stealing and destroying property.
12. These violations of the County’s territorial integrity have led to serious violations of fundamental human rights and freedoms of the people of Turkana as a community and as individuals. These include rights contained in Articles 10, 26-29, 38, 40, 42, 43, 47, 53-57 of the Constitution.
13. The claims of human rights violations made by the Petitioners is not only restricted to the individuals listed in the Petition but also encompasses the people/community of Turkana County and are enforceable on behalf of the people of Turkana County collectively.
14. The Petition is against National Government and not other Counties – Baringo County or West or East Pokot Counties. They emphasize that they do not seek relief against them. They rather seek relief against the National Government for the failure to protect Turkana County against violation of its territorial integrity.
15. It seeks to hold the National Government responsible for the atrocities committed by persons because of its failure to prevent the human rights violations of the people of Turkana County perpetrated by state and non-state actors from neighbouring Counties/Countries. Further, it seeks National Government to redress violation of fundamental rights and freedoms of the people of Turkana County. They also seek National Government to institute effective measures (whether in the form policies/legislations) that are designed to promote the enjoyment by the people of Turkana County of their fundamental rights and freedoms against the backdrop of centuries of violations and marginalization at the hands of both state and non-state actors. To vindicate the right of the individual victims of such violations to access justice the wake of such violations.
1st and 2nd Respondents’ case
16. Learned Counsel for the Respondents, Mr. Kuria, vehemently opposed the Petition and relied on the Grounds of Opposition dated 27th April 2016 and the Affidavit of Mr. Benson Kibue.
17. In essence the Respondents oppose the Petition on primarily six grounds namely:
(a) The relief sought by the Petitioners are in conflict with the provisions of Article 189(3) and (4) of the Constitution.
(b) The boundaries can only be altered in accordance with Article 188 of the Constitution.
(c) This Court should not entertain this Petition because the 1st Petitioner has failed to comply with the provisions of Part IV of the Inter-Governmental Relations Act No.2 of 2012 in dispute resolution mechanism concerning County and National Governments. The first Petitioner being a level of government ought to have resolved the dispute with National Government before filing this Petition. It ought to have invoked Section 30 of the Inter-Governmental Relations Act before it proceeded to file this Petition. They further assert that the issues before this Court are essentially about boundaries and territorial integrity. In addition, most of the bodies envisaged in the Intergovernmental Relations Act are in place.
(d) The prayers by the Petitioners’ relating to the forced removal or lock out of residents of other neighbouring counties would amount to a violation of those residents’ right to movement under Article 39 of the Constitution. Such a right cannot be justifiably limited in the manner suggested by the Petitioners and further this kind of prayer is contrary to all international instruments and cannot be sustained.
(e) The orders sought to resolve the alleged boundary dispute amongst the counties of Turkana, Baringo and West Pokot is precipitate and contrary to the provisions of Article 89 of the Constitution as read with Section 26(3) of the County Government Act No 17. On delimitation of boundaries, they aver that this Court has no jurisdiction at this point to challenge the decision of the IEBC on the boundaries and to re-open this issue of boundaries by this Petition would be to contrary to the law. In terms of Article 89 of the Constitution the IEBC can review the names and boundaries of constituencies between eight to twelve year intervals. The present case cannot be the basis for review.
(f) This Court should not grant the orders sought pertaining to the county boundaries because they would be contrary to Article 89(10) of the Constitution.
18. He argued that the gravamen of the Petitioner’s case is the lack of security in Turkana County and that the other issues relating to administrative and electoral borders, exploitation of resources are merely peripheral.
19. On the Petitioners’ alleged violation of the territorial integrity of Turkana County, the Respondents assert that under Article 5 and 6 of the Constitution the concept of territorial integrity involves independent states. That is the basis for this concept even under Article 2 of the United Nations Charter. Further, Article 3 of the Constitution makes it clear that no Government can be formed outside of the Constitution. As such the issue of territorial integrity cannot arise in this context because it relates to the interference of states and not Counties.
1st Interested Party’s case
20. The first Interested Party, Turkana Professional Association, fully supports the Petition and aligns itself with the submissions of the Petitioners.
2nd Interested Party’s case
21. The 2nd Interested Party is the County Government of West Pokot and responded to this Petition by means of a replying affidavit deposed to by its County Secretary, Mr. Joel Psimatwa Loremoi Arumonyang, dated 20th May 2015. It further filed its written submissions in this Court on 4th February 2016.
22. While it concedes that the 1st Petitioner is a County Government established in terms of Article 176 of the Constitution as a devolved unit of Government within the sovereign state of Kenya; it however submits that the 1st Petitioner does not have territorial integrity of its own within the territory of Kenya as established under the Constitution. Thus, it is subject to the Constitution and has the same rights and responsibilities as all the other 46 Counties in terms of the Constitution.
23. On the issue of territorial integrity, the 2nd Interested Party was ad idem with the Respondents’ arguments. It averred that Article 2(4) of the United Nations Charter makes provision for the territorial integrity of member states, and Article 1 of the 1993 Montevideo Convention on the Rights and Duties of States sets out the defining characteristics of a state. It argues that the 1st Petitioner being a County, does not meet the requirements of being a state and thus cannot enjoy territorial integrity.
24. It argues that there are three salient issues raised by the Petition which are:
(a) That the Districts and Provinces Act No 5 of 1992 contains an error;
(b) That West Pokot and Baringo Counties have annexed and taken over certain areas which in the Petitioners’ opinion should be in Turkana County;
(c) That National Government has deliberately failed to take steps aimed at providing security to the residents of Turkana County.
25. In response to the first issue it argues that the Districts and Provinces Act No 5 of 1992, was properly enacted in accordance with the laws prevailing at that time and there is a presumption of validity attached to this Act. It denies the existence of any error in the Districts and Provinces Act No 5 of 1992 as alleged by the Petitioners and submits that even if there was, this Court does not have the power to rectify such error in that Act or any other Act for that matter. That this is because the doctrine of separation of powers restricts this Court to interpreting the law and should the substance of a law be deemed to be erroneous by a party then only Parliament is competent to rectify the same unless it concerns the constitutionality of the legislation. That is, however not what is before this Court.
26. In terms of Articles 94 and 95 of the Constitution, only National Assembly can amend legislation.
27. In addition, it avers that the dispute involved in this case is one between, firstly, County Governments (between Turkana County Government and Baringo and West Pokot County Governments) and, secondly, between Turkana County Government and the National Government. There are however dispute resolution mechanisms in Articles 6 and 189(3) of the Constitution which clearly set out the procedure that must be followed to resolves disputes in all levels of Governments. As the Petitioners have not followed these processes, is an abuse of Court process. It has further ignored to follow the alternative dispute resolution mechanism in The Inter-governmental Relations Act, 2012. Although the mechanisms in this Act do not oust the jurisdiction of the Courts, such mechanisms must be resorted to first. This would be consistent with the system of co-operative government established under Articles 6 and 189 of the Constitution.
28. In response to the Petitioners’ allegation relating to the electoral units in Turkana, the 2nd Interested Party submits that this Court’s jurisdiction is restrained by Article 89(10) of the Constitution and further that this Court in this instance does not have jurisdiction to entertain that issue – which is “expressly reserved for the IEBC”.
29. Further, this issue raised by the Petitioners on the manner in which the electoral boundaries were drawn is res judicata in that it was determined by this Court in Judicial Review Application No.94 of 2012.
30. Moreover, it argues that the issue of boundary delimitation other than it being not a function of this Court, is an issue reserved for periodic review by the IEBC in terms of Articles 89(3) and (4) of the Constitution.
31. Lastly, in response to the Petitioners’ allegation that the National Government has deliberately failed to provide security to the residents of Turkana County, it posits that:
(a) The problem of armed insurgencies has not been unique to the 1st Petitioner and that Baringo and West Pokot Counties have been troubled with the same issue over the years. These raids have been perpetrated by unknown bandits and residents of West Pokot have been victims of theses insurgencies as well and have suffered serious injuries and loss of property.
(b) The forceful removal/eviction of the current residents of Kapedo, Nadome, Lomelo Napeiton, Kaseitet, Nasekol, Akoret, Naiserewa, Turkwel Gorge, Nasolot, Komalamarukon, Lokankapei, Koikalale, Angiolgitai, Lochakula, Tegeit, Laiterik, Turkana South Reserve, Kogito and River Turkwel would be a violation of Article 39 of the Constitution.
(c) Further, that this Court cannot grant the mandamus sought by the Petitioners requiring the immediate deployment of security to Turkana County, because it would amount to a usurpation of the powers and function of the Executive.
(d) In response to the claim for damages, the 2nd Interested Party avers that the Petitioners have failed to provide material evidence to sustain their claim, thus it should be met by a dismissal.
32. To the 2nd Interested Party, the Petition is bad in law and is further an abuse of Court process and should be dismissed with costs.
3rd Interested Party’s case
33. Learned Counsel for the 3rd Interested Party, Mr. Kipkorir, opposed the relief sought by the Petitioners in its entirety. The kernel of his argument was that this Petition is all about ethnic cleansing.
34. In terms of Article 89 of the Constitution the IEBC sets and draws the electoral boundaries and an aggrieved party can only seek a review of the IEBC’s decision.
35. The alteration of boundaries may only be altered in accordance with Article 188 of the Constitution.
4th Interested Party’s case
36. Hon. Asman Kamama, Hon. Joseph Lotodo, Mr. Victor Mengich and Mr. Joshua N Akeno were granted leave to be admitted as the 4th Interested Party on behalf of the residents of Taity Constituency, East Pokot, by an order of Odunga J dated 8th April 2015.
37. In response to the Petition, the 4th Interested Party filed its replying affidavit, dated 8th May 2015, deposed to by Hon. Mr. Asman Kamama on behalf of Hon. Mr. Joseph D. Lotodo, Victor Mengich and Joshua Akeno (all of whom represent the residents of Tiaty Constituency, East Pokot Sub-County). The 4th Interested Party also filed its written submissions on 4th May 2016 in support of its case.
38. They argue that this Petition is really about a claim by and on behalf of the Turkana County Government against other levels of Governments namely, the National Government, Baringo County and West Pokot County Governments and is not a constitutional issue. Parliament enacted the Intergovernmental Relations Act Chapter 5G of the Laws of Kenya in terms of Article 189 of the Constitution to provide for a dispute resolution mechanism to assist in the resolution of disputes between National Governments and County Governments or amongst County Governments.
39. The determination of the “administrative setup” of National Government is a policy decision not in the competence of the Courts to make. The power/mandate to make such decisions lies in the Executive. A Court would not be able to make such decision without disregarding the separation of powers.
40. They claim that issue raised by the Petitioners that National Government has created new “administrative units” within the County is a political question. This is because only the National Government can determine its administrative set up.
41. They further caution the Courts to take heed of the principle of separation of powers when determining matters before them so as not to tread in territories of other Arms of Government.
42. They further dispute the Petitioners’ allegation that the people of Baringo County are seeking to expand their County boundary into that of Turkana County. They aver that the people of East Pokot have no interest in expanding their boundaries and are content with the boundaries as recognized by law since colonial times.
43. Contrary to the allegations of the Petitioners, they submit that it is the Turkana County that has “invasive and expansionist tendencies”, frequently raiding Baringo County – including Taity Constituency. These raids or attacks have resulted in the killing of people including, maiming, rape, assault of women and children, theft of live stocks.
44. Further, that there can be no border dispute or any doubts over the border between Turkana and Baringo Counties because as far back as colonial times the areas including Silale, Kappedo, Kaseteit, Aboret, Nasakol, and Kapau were clearly demarcated to be part of Baringo County and not Turkana County; and that Turkana County Government is clearly mistaken to aver that these places fall within its territories.
45. The alteration of borders may only be done in terms of the procedure set out in Article 188 of the Constitution. In terms of this Article, the alteration of County boundaries may only be made by way of a resolution recommended by an independent commission set up for that purpose by Parliament; and passed by the National Assembly and the Senate with the support of at least a two-thirds majority by the members of the Assembly and County delegations respectively.
46. Thus this Court should not consider the Petitioners’ case attempting to redraw boundaries and have certain parts of Taity Constituency be declared as being part of Turkana County.
47. On the issue of electoral boundaries, the 4th Interested Party argues that it is exclusively the IEBC that can make declarations on electoral boundaries and Articles 88(4)(c) and 89 of the Constitution make this unequivocally clear. As such, this Court lacks the jurisdiction to order such declaration as prayed for by the Petitioners. The jurisdiction of this Court in this regard, is only confined to reviewing a decision of the IEBC as provided for under Article 89(10) and (11) of the Constitution.
48. Article 89(10) of the Constitution requires any review application of a decision of the IEBC made under Article 89 must be filed within 30 days of the publication of that decision in the Gazette and must be heard within 3 months of date of filing. The delimitation that the Petitioners complain of occurred in 2012 and therefore this Court does not have jurisdiction to consider the matter and the Constitution makes no provision for condonation of noncompliance with these time frames.
49. They have not proffered any explanation as to why they have not followed the procedures set out in the Constitution for challenging any decision of the IEBC.
50. The Turkana County has been a beneficiary of the Equalization Fund. On 27th February 2013, the Commission on Revenue Allocation launched a marginalization policy in terms of which 14 Counties were identified as marginalized, including Turkana County. Thus National Government has taken steps to address economic issues in Turkana County. It thus cannot seek preferential treatment bearing in mind the state’s limited resources. Each County must take a proactive role in the development and provision of its socio-economic services and it should not evade performing its mandate by shifting the blame and saying that it is the role of the National Government.
51. It is the 4th Interested Party’s further submission that the Petitioners have failed to show how any of their individual rights have been violated. They have merely provided general information on the border conflicts between Turkana County, Baringo County and West Pokot County and have failed to show which individuals have had their rights violated and how these rights have been violated by any resident of Taity Constituency.
52. On the issue of property violations, the 4th Interested Party aver that it is the people of Taity Constituency who have suffered property violations through constant raids looting and destruction of property by Turkana County residents.
53. Further, that the Petitioners’ claim for security intervention by the National Government is misleading because the residents of Turkana County have been the aggressors in these County border disputes and not the victims. It is rather the residents of Taity Constituency who have suffered in the hands of Turkana County residents.
54. With regards to the Turkwel Gorge Electricity Power Generation Facility, the 4th Interested Party avers that there exists a contract between Turkana County and West Pokot County Government regulating that relationship. This issue is a purely contractual dispute falling outside the jurisdiction of this Court.
55. Therefore, this Court ought to dismiss this Petition for lack of jurisdiction or any merit.
Issues
56. After careful consideration of both written and oral arguments by all of the parties’ and these are the issues for determination:
(a) Does this Court have jurisdiction to determine the legality of the alleged alteration of boundaries by the Districts and Provinces Act No 5 of 1992?
(b) Does the 1st Petitioner have territorial integrity and if so has it been infringed upon as alleged?
(c) Whether the National Government has reneged on its obligation to provide security to the residents of Turkana County.
(d) Whether the Petitioners’ should be granted the damages they seek?
Determination
Jurisdiction
57. Does this Court have jurisdiction to determine the issues raised herein? Lest we forget the importance of this question, we recall the widely cited decision of Owner of the Motor Vessel Lillian “S” v Caltex Oil (Kenya) Ltd 1989 KLR 1 in which the Court of Appeal stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
58. The above principles were further elucidated by the Supreme Court in its advisory opinion reported as In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR at paragraph 30, where it said:
“The Lillian ‘S’ case [[1989] KLR 1] establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”
59. The jurisdiction of this Court is donated to it by Article 165 of the Constitution which provides as follows:
“(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191;
(e) any other jurisdiction, original or appellate, conferred on it by legislation.”
60. It is certainly clear that this Court has a very wide jurisdictional reach spanning from the ordinary criminal and civil matters, to those of a constitutional nature. However, there are certain matters that have been specifically excluded from the Court’s jurisdiction, either by legislation or the Constitution.
61. Can this Court determine the issues of boundaries, including the alteration thereof as pleaded by the Petitioners?
62. Article 88 of the Constitution establishes the Independent Electoral and Boundaries Commission and the Constitution has explicitly given it the exclusive mandate of determining and altering constituency or ward boundaries. This is evidenced in Article 88(4)(c) bestows the responsibility for the delimitation of constituencies and wards. Further, Article 89(2) provides that;
“The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.”
63. The High Court only has a review powers of a decision of the IEBC in terms of Article 89(10) of the Constitution which states that:
“A person may apply to the High Court for review of a decision of the Commission made under this Article.”
64. Article 89(11) sets out the procedure for reviewing of a decision of the IEBC. It provides thus:
“An application for the review of a decision made under this Article shall be filed within 30 days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.”
65. With regards to County boundaries, Article 188 of the Constitution spells out the procedure for their alteration. It provides:
“(1) The boundaries of a county may be altered only by a resolution —
(a) recommended by an independent commission set up for that purpose by Parliament; and
(b) passed by—
(i) the National Assembly, with the support of at least two-thirds of all of the members of the Assembly; and
(ii) the Senate, with the support of at least two-thirds of all of the county delegations.”
66. This is a function squarely within the competence of the executive and not Judiciary. The above provisions make this very clear.
67. This Court has held severally that where there is an alternative remedy or procedure established by an Act of Parliament that remedy or procedure ought to be strictly followed. This principle was well articulated by the Court of Appeal in Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425, where it held that;
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
68. In that regard the words of the Court in Harrikinson v Attorney General of Trinidad and Tobago [1980] AC 265, hold true that;
“The notion that whenever there is a failure by an organ of Government or a Public authority or public office to comply with the law this necessarily entails the contravention of some human rights or fundamental freedoms guaranteed to individuals by Chapter 1 of the Constitution is fallacious. The right to apply to the High Court under Section 6 of the Constitution for redress when any human right or fundamental freedoms is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action.”
The Court concluded thus;
“The mere allegation that a human right has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the section if it is apparent that the allegation is frivolous, vexatious or abuse of the process of court, as being made solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
69. We are also aware of the principle established by the Court of Appeal of Trinidad and Tobago in the case of Damian Belfonte v The Attorney General of Trinidad and Tobago C.A 84 of 2004 that where there is a means of redress that is inadequate, the Court should not exercise restraint. The Court stated that;
“The opinion in Jaroo has recently been considered and clarified by the Board in A.G v Ramanoop. Their lordships laid stress on the need to examine the purpose for which the application is made in order to determine whether it is an abuse of process where there is an available common law remedy. In their lordship’s words:
“Where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that course. As a general rule, there must be some feature, which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the Court’s process. Atypical, but by no means exclusive, example of such a feature would be a case where there has been an arbitrary use of state power. Another example of a special feature would be a case where several rights are infringed, some of which are common law rights and some for which protection is available only under the constitution. It would not be fair, convenient or conducive to the proper administration of justice to require an applicant to abandon his constitutional remedy or to file separate actions for the vindication of his rights”.”
70. More recently, in the case of Kapa Oil Refineries Limited v The Kenya Revenue Authority, The Commissioner of Customs Services and The Attorney General, Petition No. 203 of 2012; the Lenaola, J had this to say at paragraph 13,
“Looking at the Petition again, I am clear that the major issue for determination in this Petition is whether it is lawful under Article 210 of the Constitution and Section 235 (1) of the EACCMA for the 1st and 2nd Respondents to demand the taxes so demanded. The issue in my view is one that ought to be determined by the procedure provided for under Section 230 of the Act.”
The Learned Judge in the case of Kapa (supra) continued at page 15 that:
“I am also aware that even if this Court has jurisdiction to determine a violation of fundamental rights and freedoms. It must also first give an opportunity to other relevant bodies established by law deal with the dispute as provided in the relevant statute. This rule was well articulated by the Court of Appeal in Narok County Council v Transmara County Council (2000) 1 EA 164 where it stated that;
“It seems to me to be plain beyond argument that the jurisdiction of the High Court can only be invoked if the Minister….refuses to give direction or in purporting to do so, arrives at a decision which is grossly unfair or perverse. In the latter case his decision at page 15 of 24 can be challenged by an application to the High Court for a writ of certiorari because under the relevant section, the decision is to be made on a fair and equitable basis.”
71. This position was similarly appreciated in International Centre for Policy and Conflict and 5 Others v The Hon. Attorney-General & 4 others [2013] eKLR where the Court held that a Court of law:
“…must first give an opportunity to the relevant constitutional bodies or State organs to deal with the dispute under the relevant provision of the parent statute. If the court were to act in haste, it would be presuming bad faith or inability by that body to act...Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted…”
72. Both the delimitation and alteration of electoral and geographical boundaries does not fall within this Court’s jurisdiction, and thus this Court cannot entertain or grant any relief sought in the Petitioners prayers relating to the same.
Territorial integrity
73. The crux of the Petitioners’ case rotates around the protection of its territorial integrity. Thus, it is important that the meaning and the extent of application of this concept be explored.
74. Article 6(1) of the Constitution divides the territory of Kenya into 47 Counties that are listed in the First Schedule. Within this territory, the Constitution establishes two distinct spheres of Government: National and County governments. Article 6(2) makes it clear that these two levels of Government, although distinct, are inter-dependent and shall conduct their mutual relations on the basis of consultation and co-operation. It is through this provision that the intention of the Constitution on the idea of a distinct but co-operative Government emerges. This is given more content in Chapter 11 of the Constitution which is entitled “Devolved Government”. The objects of devolution are set out in Article 174 of the Constitution provides:
“The objects of the devolution of Government are—
(a) to promote democratic and accountable exercise of power;
(b) to foster national unity by recognising diversity;
(c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;
(d) to recognise the right of communities to manage their own affairs and to further their development;
(e) to protect and promote the interests and rights of minorities and marginalised communities;
(f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya
(g) to ensure equitable sharing of national and local resources throughout Kenya;
(h) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and
(i) to enhance checks and balances and the separation of powers.” (Emphasis added.)
75. Further under this Chapter, Article 189 in particular provides as follows:
“189. Cooperation between national and county governments
(1) Government at either level shall—
(a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level;
(b) assist, support and consult and, as appropriate, implement the legislation of the other level of government; and
(c) liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.
(2) Government at each level, and different governments at the county level, shall co-operate in the performance of functions and exercise of powers and, for that purpose, may set up joint committees and joint authorities.
(3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.
(4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.”
76. Although the Constitution has divided Kenya into Counties, primarily for purposes related to better governance, she remains one sovereign Republic. Every territory and territorial waters that is deemed to be a part of Kenya falls under her sovereignty. This is apparent from Articles 4, 5 and 6 of the Constitution read in tandem.
77. The concept of territorial integrity features only twice in our Constitution. Firstly, it is found under Article 238 (1) of the Constitution which provides:
“238. Principles of national security
(1) National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.”
78. It appears in the second instance under Article 241 of the Constitution entitled the “Establishment of Defence Forces and Defence Council” and provides, in relevant part, as follows:
“(3) The Defence Forces—
(a) are responsible for the defence and protection of the sovereignty and territorial integrity of the Republic;
(b) shall assist and cooperate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances; and
(c) may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly.”
79. In both Articles it has been used simultaneously with the word sovereignty and in the context of provision of security for Kenya, as a country. No reference has been made to counties in either Article.
80. The Respondents and the 4th Interested Parties have correctly pointed out that territorial integrity is a principle under international law applicable to nation states/countries. Article 2 (4) of the United Nations Charter states:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” (Emphasis added.)
81. In his separate concurring opinion, Judge Koroma in the International Court of Justice’s advisory opinion reported as Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004 at paragraph 4 said:
“…in terms of contemporary international law, every State is under an obligation to refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”
82. Further, the International Court of Justice in accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403 made the following observations regarding territorial integrity at paragraph 80:
“The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”, which reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”. This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. . . . Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States. (Emphasis added.)
83. The last sentence in the above quotation really drives our point home: only states/countries enjoy territorial integrity not counties. This is further reinforced by the definition of State under Article 1 of the Montevideo Convention on the Rights and Duties of States which provides:
“The state as a person of international law should possess the following qualifications (a) a permanent population; (b) a defined territory; (c) government and (d) capacity to enter into relations with the other states.”
84. It is apparent that counties do not satisfy the requirements of this definition. As such, the 1st Petitioners claim that it enjoys territorial integrity and that the same has been violated cannot be sustained.
85. The provision of security is within the competence of the National Government by virtue of Article 238(1) of the Constitution and exercises this function through the three organs of national security listed in Article 239(1) of the Constitution, namely: the Kenya Defence Forces; the National Intelligence Service; and the National Police Service.
Obligation of the State to Provide Security
86. The Petitioners contend that the Turkana County has been the subject of attacks and raids not only from the neighbouring Counties but also from the neighbouring Countries. That there are constant raids in this part of the Country is not disputed. This position is supported by the 2nd Interested Party which asserts that the problem of armed insurgencies has not been unique to the 1st Petitioner and that Baringo and West Pokot Counties have been troubled with the same issue over the years. According to it, these raids have been perpetrated by unknown bandits and residents of West Pokot have been victims of theses insurgencies as well and have suffered serious injuries and loss of property.
87. Article 26 of our Constitution protects the right to life while Article 40 thereof protects the right to property. These rights, it is expressed under Article19(3)(a) of the Constitution, belong to each individual and are not granted by the State. It is therefore clear that the State does not grant rights and fundamental freedoms to any person. This is necessarily so because human rights are generally inherent, universal and inalienable rights of human beings. A Constitution simply recognises the natural and original human rights of mankind which any and every human being should have in order to lead a dignified life till his or her natural death.
88. That the rights and fundamental freedoms are not favours dished by the State was made clear by Nyamu, J (as he then was) in Kenya Bus Services Ltd & 2 Others v Attorney General [2005] 1 KLR 787 where he held that:
“The only difference between rights and the restrictions are that the restrictions can be challenged on the grounds of reasonableness, democratic practice, proportionality and the society’s values and morals including economic and social conditions etc. whereas rights are to the spiritual, God given, and inalienable and to the non-believers changeless and the eighth wonder of the World.”
89. Similarly, in Richard Nduati Kariuki v Honourable Leonard Nduati Kariuki & Another HCMA No. 7 Of 2006 [2006] 2 KLR 356 Nyamu J appreciated that:
“The International instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (The ICCPR) and International Covenant on Economic Social and Cultural Rights (The ICESC) give recognition that human rights belong to an individual as a human being, hence the inherent dignity and the fact that those rights are equal and inalienable of all human beings. The rights are inherent to man. They are universal and inalienable and hence their ethical base, since they are intrinsic to the human condition. They are not dependent on the states or the geographical location. They are owed to all persons. For the above reasons human rights are owed by the States to all individuals within their jurisdiction and in certain situations to groups of individuals. It is a general principle in international human rights law that human beings cannot be deprived of the substance of their rights hence reference to their individuality. It is only the exercise of some of the rights that can be limited in certain circumstances. Many Constitutions of the world provide for state responsibility for not complying with the legal obligations as regards human rights. It is now recognized, that under international law, States incur responsibility or liability for not complying with their legal obligations to respect and ensure, that is, to guarantee, the effective enjoyment of the human rights recognized either by International instruments binding on the State concerned or any other source of law. An impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the legal, source concerned.”
90. Article 21 of the Constitution enjoins the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. This Court in Florence Amunga Omukanda & another v Attorney General & 2 others [2016] eKLR expressed itself inter alia as follows:
“The State protects its citizens through the police service. The police service is the organ responsible for maintaining law and order, preservation of peace, protection of life and property as well as prevention and detection of crime including the apprehension of offenders. Under the provisions of the Constitution 2010, the police still have this obligation. Article 245(8) of the Constitution empowers Parliament to enact legislation giving effect to that provision. Consequently, Parliament enacted the National Police Service Act as Act No. 11A of 2012 under which the functions of the police are found at section 24 of the Act. In our view this obligation placed on the State to protect the lives and properties of the people stems from a holistic and philosophical interpretation of Article 1 of the Constitution. The people’s sovereign power is delegated to the three State organs. In the context of the petitions it means that the petitioners delegated their sovereign power, including the power to protect their property and lives, to the State. The State has, in turn, set out certain organs tasked with ensuring that the authority delegated to it is performed in accordance with the wishes of the people who have delegated the same to it and we have already found that organ to be the police service. As a result of this understanding between the government and the governed, the latter no longer have the power to take up arms and defend themselves save for limited situations which call for self defence.”
91. In our view the State is under an obligation to protect its citizens and it cannot ensconce itself by stating that other people are suffering the same fate as the petitioners or that the petitioners have been in that state since time immemorial. In this age and era with the advanced technology in security sector, it is inexcusable that there ought to be cross-County raids amongst communities neighbouring each other. Such inaction on the part of the State amounts to abdication of its constitutional mandate of protecting the lives and properties of its citizens.
92. We are therefore of the view that the State has abdicated its constitutional duty and we so find.
Damages
93. We now turn to the relief of damages sought under Prayer (L) of the Petition. Article 23(1) of the Constitution makes it unequivocally clear that this Court has jurisdiction on matters related to alleged violations of human rights and freedoms and to grant appropriate relief. This provision provides:
“23. Authority of courts to uphold and enforce the Bill of Rights
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.”
94. The first question on this issue of damages that has to be answered is whether there has been a violation of human rights and freedoms as alleged by the Petitioners. The pillar of the 2nd to 21st Petitioners’ case is that the National Government has failed to provide Turkana County Government with the necessary security support from the constant raids and attacks which have resulted in the murder, maiming, raping of women and girls, forceful evictions and other atrocities. The alleged perpetrators are the residence of neighbouring Counties in particular Baringo and West Pokot Counties and the source of this conflict is alleged to be the County boundaries.
95. The Petitioners’ claim has been supported by the supporting affidavits of the 2nd to 21st Petitioners’ annexed to the Petition. They have set out in detail their losses and the physical and emotional injuries that they have suffered on account of the “assailants”. However, the Petitioners have not specified with sufficient particularity the individuals responsible for these atrocities neither have they provided material evidence for their claims. On this point we reiterate the well-established principle in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272 which requires that constitutional petitions must be pleaded with reasonable precision.
96. Having considered the material placed before us, we are unable make a determination on the quantum of damages suffered by the Petitioners.
Findings
97. Accordingly, we make the following findings:
(a) The prayer for determination of the boundaries between Turkana County and the neighbouring Counties is not properly before this Court.
(b) There is no violation of territorial integrity of Turkana County since territorial integrity applies to a State as opposed to a County.
(c) The State is under an obligation to take necessary steps to maintain and protect the life and property of the people in Turkana County from external aggressions both internally and externally.
98. There is no material on the basis of which we can make a determination as to the extent and quantum of damages if any suffered by the Petitioners.
Disposition
99. In the premise we make a declaration that the Respondents are under a constitutional obligation to protect the lives and properties of the residents of Turkana County and maintain security within the County. Consequently, the State is hereby directed to take the necessary steps to ensure that the said mandate is carried out.
100. Save for the foregoing the Petition fails and is dismissed but with no order as to costs.
101. Orders Accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2016
ISAAC LENAOLA WELDON KORIR G.V ODUNGA
JUDGE JUDGE JUDGE