National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission; Hon Attorney General & another (Interested Parties) (Petition 328 of 2017) [2017] KEHC 4466 (KLR) (Constitutional and Human Rights) (21 July 2017) (Judgment)
National Super Alliance (Nasa) Kenya v Independent Electoral & Boundaries Commission & 2 others [2017] eKLR
Neutral citation:
[2017] KEHC 4466 (KLR)
Republic of Kenya
Petition 328 of 2017
K Kimondo, A Mabeya & HI Ong'udi, JJ
July 21, 2017
IN THE MATTER OF SECTIONS 44A AND 109 OF THE ELECTIONS ACT (NO.24 OF
2011)
AND
IN THE MATTER OF ARTICLES 2(1), (4), (5), (6), 10, 19, 20, 21, 22, 23, 36, 38, 81,
82(2), 86, 88, 162(2) (B), 232, 258 &259 OF THE CONSTITUTION OF THE
REPUBLIC OF KENYA
Between
National Super Alliance (Nasa) Kenya
Petitioner
and
Independent Electoral & Boundaries Commission
Respondent
and
Hon Attorney General
Interested Party
Jubilee Party of Kenya
Interested Party
Judgment
A. Introduction.
1.This petition revolves around the use of technology in the forthcoming general elections. Section 44 A of the Elections Act 2011 (as amended from time to time and hereafter the Act) requires the Independent Electoral and Boundaries Commission (hereafter the IEBC or the respondent) to put in place a complementary mechanism for identification of voters; and, for transmission of election results. The mechanism is supposed to be simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.
2.The petitioner contends that the IEBC was mandated to make regulations, with the approval of Parliament, at least 60 days before the general election. The petitioner’s case is that IEBC has failed to consult with “relevant stakeholders” or to make the matter public. It further contends that since there are “less than 40 days to the elections”, a declaration should issue that the identification of voters and transmission of results for the election to be held on 8th August 2017 be exclusively electronic.
B. The reliefs sought.
3.The petitioner therefore prays for three key reliefs. Firstly, for a declaration that the respondent should have developed the complementary mechanism within 60 days before the 2017 general elections. Secondly, for a declaration that the respondent has failed to do so within the prescribed period as envisaged by section 44A of the Act. Thirdly, the petitioner craves for a declaration that the identification of voters and transmission of results for the election to be held on 8th August 2017 be exclusively electronic. There is also a prayer for costs.
4.The petition is contested in toto by the respondent and the two interested parties. The retort by the respondent is that the mechanism was put in place a long time ago by dint of Regulations 69 and 83 of the Elections (General) Regulations 2012 (as amended by Legal Notice No. 72 of 2017, hereinafter the Regulations). The respondent submitted that technology is not a magical ward; and, is susceptible to failure or hacking. One of the key security and reliability standards in the electoral process is thus an “optional specification for a voter-verified paper audit trail”.
5.The 1st and 2nd interested parties contend that exclusive use of electronic voter identification or transmission of results could violate political rights enshrined in Article 38 of the Constitution. The interested parties also submitted that public participation could take various forms informing the public of the steps being undertaken by an administrative body. The respondent’s position is that the complementary mechanism is a support mechanism which enhances the integrated electronic electoral system. It was also intended to give effect to electoral tenets and obligations under international instruments to which Kenya is a signatory. We were implored to dismiss the petition with costs.
C. The nature of the petition, pleadings, depositions and the description of the parties.
6.The petition is dated 29th June 2017. The substratum of the petition is that the conduct of the IEBC is inimical to the constitutional rights of citizens to a free and fair election guaranteed by Articles 10, 38 (2), 81, 82 and 86 of the Constitution. It is also pleaded that the conduct of the respondent has infringed upon the rights of citizens to access information enshrined in Articles 33 and 35 of the Constitution. In a synopsis, the petitioner avers that IEBC has not been accountable or transparent; and, that public confidence in the electoral process has accordingly been eroded.
7.The petition is supported by the deposition of Norman Magaya, the Chief Executive Officer of the petitioner, sworn on 29th June 2017; and two supplementary affidavits by the same deponent sworn on 12th July 2017 and 17th July 2017. The petitioner is described as a coalition of “several political parties with a substantial voter support base” in the Republic.
8.The respondent is an independent commission established under article 88 of the Constitution and tasked with the responsibility of conducting and supervising elections and referenda in Kenya. Its grounds of opposition are dated 11th July 2017. They are two-pronged: first, that the respondent has complied with the law. Accordingly, the petition is misconceived. Secondly, that the petitioner is asking the Court to legislate and to permeate its boundaries.
9.The 1st interested party is the Attorney General. The office is established by Article 156 of the Constitution. The Attorney General is sued in his capacity as the principal legal adviser to the national government. The Attorney General has also filed grounds of opposition dated 14th July 2017. There are four grounds. They can be condensed into two. Firstly, that the Regulations made pursuant to section 109 of the Act provide for a complementary mechanism. Secondly, that the prayer in the petition that the elections to be held on 8th August 2017 be exclusively electronic offends Articles 38, 82, 83 and 86 of the Constitution.
10.The 2nd interested party is a duly registered political party under the Political Parties Act. There is a replying affidavit filed on 17th July 2017 by Mary-Karen Sorobit, the Deputy Director and Legal Affairs Director of the party. We shall shortly examine all the affidavits in detail.
D. The affidavits by the petitioner and by the 2nd interested party.
11.The relevant parts of the supporting affidavit of Norman Magaya are paragraphs 5 to 10. He deposes as follows-
12.The same deponent has sworn two supplementary affidavits. The first is dated 12th July 2017. It seeks to widen the boundaries of the petition by annexing an audit of the register of voters by the audit firm KPMG. The deponent avers that he is apprehensive that dead voters will take part in the forthcoming general election. This may explain why learned counsel for the respondent, Professor Lumumba Otieno, claimed the petition as originally pleaded was now mutating.
13.At paragraphs 5 to 7, the deponent avers-
14.Finally, there is the further affidavit of Norman Magaya sworn on 17th July 2017. The deponent broadens the petition even further. He avers that the electronic KIEMS equipment to be used in the elections was not subjected to pre-export verification. He states as follows at paragraphs 6 to 9-
15.The respondent and the 1st interested party did not file any replying affidavit. They were content with their grounds of opposition referred to earlier. The 2nd interested party, Jubilee Party, filed a replying affidavit. Like we said, it is sworn by Mary-Karen Sorobit. In a synopsis she raises concerns of reliability and integrity of electronic systems. She also draws experiences from other jurisdictions including Ghana, India, The Netherlands, Finland and some State and County elections in the USA. She also deposed that the petitioner is attempting to repeal the impugned provision through the back door.
16.At paragraphs 8, 9, 10, 11, 12, 15 and 16 she deposes as follows-
E. Petitioner’s submissions.
17.The petitioner filed submissions and a list of authorities dated 12th July 2017. Lead counsel for the petitioner Mr. Orengo submitted that prior to enactment of Section 44 of the Elections Act the electronic electoral system was unclear. He said the system was largely manual. Reference was made to the annexed Kriegler Report to demonstrate the inherent mischief. Counsel cited the Supreme Court decision in Raila v IEBC& Others Petition 5 of 2013 [2013] eKLR where the Court agonized over the multiple voter registers. Counsel submitted that this was the backdrop to the Integrated Electronic Electoral System under Section 44 of the Act. The section envisages biometric voter registration; electronic identification of voters; and, electronic transmission of results.
18.Learned counsel submitted that section 44A of the Act requires IEBC to put in place a complementary mechanism for identification of voters and transmission of election results. He submitted that the IEBC has not put in place regulations covering the full spectrum of the right. He blamed the respondent for delay noting that the President of the Republic assented to the amendments to the Act way back on 9th January 2017.
19.Professor Sihanya, who also appeared for the petitioner, cited the case of Public Citizen Health Research Group v Commissioner Food 7 Drug Administration 740 F.2d 21, 34 (D.C. Cir. 1984) where the US Court of Appeals, District of Columbia Circuit, held that reasonableness of delay “must be judged in the context of the statute which authorizes the agency’s action”.
20.Referring to the Hansard, counsel submitted that there was no unanimity in Parliament during the passage of section 44A. To the extent that the Act was passed by the requisite majority in the House, we found this submission baffling. Counsel submitted that the intention of the legislature was to link the complementary mechanism in Section 44A to the electronic system in section 44. He buttressed his argument by referring to section 2 of the Act which defines the terms “register” and ”biometric” for example.
21.Counsel relied on the decision in IEBC v Maina Kiai & Others, Court of Appeal, Nairobi, Civil Appeal 105 of 2017 [2017] eKLR. The learned judges hailed the electronic system as a guarantee for accuracy and integrity of the election results. Reference was also made to guiding values and principles of governance including the rule of law; accountability; democracy; and, participation of the people enshrined in Article 10 (2) of the Constitution.
22.In the petitioner’s view, section 44A was not meant to deal with isolated incidents of missing biometrics of a voter at a polling station. There are solutions for such situations. Mr. Orengo gave the example of the Manual on Identification of Voters in Ghana, 3rd Edition (Page 260 of the bundle of authorities). That submission was in conflict with the petitioner’s written submissions at paragraph 20. There the petitioner states that “borrowing from countries like Ghana, the complementary system is in the form” stated in the above manual.
23.He submitted that section 44A was meant to deal with a major collapse of the electronic system. He said that IEBC seems to be addressing the minor failures of technology. He posed the question: What if the devices fail? He said the answer from IEBC is that they would fall back on a manual system. He submitted that that would not meet the test in the Constitution or section 39(1C) of the Act particularly with regard to the presidential election.
24.The petitioner submitted at length on political rights enshrined in Article 38 of the Constitution. Counsel submitted that IEBC has a constitutional duty to conduct a free and fair election. Reference was made to Articles 81, 82 and 86 of the Constitution.
25.Learned counsel also referred to Article 86 which mandates IEBC to ensure that at every election; (a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and, (d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.
26.Professor Sihanya cited Articles 23 and 47 of the Constitution and section 7 of the Fair Administrative Act for the proposition that the Court has coercive power to compel IEBC to set up the complementary mechanism. To buttress his argument, he relied on the decision in Fose v Minister of Safety and Security 1997 (3) Sa 786 (Cc).
27.Mr. Paul Mwangi, who teamed up with Mr. Orengo and Professor Sihanya, made the closing arguments. He said that Regulations 69 and 83 created confusion. He re-emphasized that the purpose of the complementary mechanism was to complement the electronic system. He submitted that a mechanism is one that kicks in when the primary one fails. In his view, Regulations 69 and 83 are not the type contemplated by section 44A of the Act.
28.Counsel wondered what would happen if there is widespread failure of the electronic system under section 44 of the Act. He said that Regulation 83 on transmission of results is not based on any widespread failure of the electronic system. Referring to section 112 of the Evidence Act, he submitted that the complementary mechanism was a fact especially within the knowledge of the IEBC. The IEBC did not file a replying affidavit. He submitted that it thus failed to prove that there was public participation in making the Regulations.
29.Learned counsel also submitted that IEBC was obligated under Article 35 of the Constitution to publish information on the complementary mechanism, if any. He concluded that in the absence of a credible complementary mechanism, the general elections should be postponed as provided for in section 55B of the Act.
F. The respondent’s submissions.
30.We now turn to the submissions by the respondent. The original submissions are dated 14th July 2017. There are supplementary submissions filed on 17th July 2017. Learned counsel Mr. Nyamodi submitted that the petition does not question the efficacy or constitutionality of the complementary mechanism; or, whether the system is manual or electronic. He opined that Regulation 69 (e), 75 and 83 (1) (h) and (i) of the Regulations clearly provide for a complementary mechanism. On the other hand, section 39 (1C) of the Act has an electronic system of transmitting poll results. Reliance was placed on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others Court of Appeal at Nairobi, Civil Appeal No. 290 of 2012 [2013] eKLR.
31.Learned counsel submitted that the petitioner failed to prove that its constitutional rights have been violated. He dealt at length with the legislative process leading to the Election Laws (Amendment) Act 2016 that introduced section 44A of the Elections Act. In the written submissions, the respondent asked us to interpret the meaning of the word notwithstanding prefacing section 44A. He relied on the decision of the Indian Supreme Court in Chandavakar Rao v Ashalata Guram [1986] 4SCC 447.
32.Counsel emphasized the independence of the IEBC by dint of Article 249 of the Constitution. Reliance was placed on the case of Diana Kilonzo & another v IEBC & 10 others Nairobi High Court Petition 359 of 2013 [2013] eKLR. He implored us not to grant prayer 3 of the petition because the petitioner has not asked us to pronounce ourselves on the constitutionality or otherwise of section 44A of the Elections Act. In support of that proposition, counsel relied on Law Society of Kenya v Kenya Revenue Authority Nairobi High Court Petition 39 of 2017 [2017] eKLR, Richard Ogendo & others v Attorney General & others and Ogden v Saunders 44 USSC 1827.
33.Professor Lumumba, also appearing for the respondent, referred us to the caveat by Ronald Dworkin in Law’s Empire that “Judges ought to remember that their office is jus dicere and not jus dare; to interpret law and not to make new law, or give law”.
34.Lastly, Mr. Mukele, who also appeared for the respondent, sought to demonstrate that the respondent had engaged the public before making the Regulations. However, the respondent failed to file documentary evidence within the timelines that we set. In a considered ruling; and, to ensure proportionate justice; and, in view of the urgency of the matter, we declined to extend time to file new materials. Counsel then submitted that the onus to prove that there was no public participation fell squarely upon the petitioner. In his view, the petitioner failed to discharge its onus of proof.
G. The submissions by the 1st interested party.
35.Mr. Mutinda appeared on behalf the Attorney General. He associated himself fully with the submissions by the respondent. He relied on the submissions filed on 14th July 2017 and a bundle of authorities filed on even date. He added that the complementary mechanism in Regulations 69 and 83 (1) (h) and 81(1) is closely linked with political rights enshrined in Article 38, 81, 82(1) 83 and 86 of the Constitution. The elections of 8th August 2017 are deemed to be the “first election” under sections 44 and 44A of the Elections Act. He submitted that the word complementary means “harmonious or compatible”. As we shall discuss shortly, our view is slightly different.
36.Learned counsel submitted that Regulations 69 and 83 were brought into force by Legal Notice No. 72 of 2017 pursuant to Section 109 of the Elections Act. As the constitutionality of the regulations has not been raised, he implored us to dismiss the petition. He also relied on Ndyanabo -vs- Attorney General [2001] E.A 495 on the rebuttable presumption of constitutional validity of legislation. He submitted that the petitioner had failed to rebut the presumption.
H. The submissions of the 2nd interested party.
37.The 2nd interested party filed submissions on 17th July 2017 together with a list of authorities. Learned counsel Mr. Ahmednasir took up cudgels on the legal persona of the petitioner. He also submitted that the petition had not been pleaded with particularity; and, that Norman Magaya perjured himself by falsely claiming that there was no complementary mechanism.
38.Regarding public participation, counsel submitted that the petitioner had participated in the legislative processes that led to the impugned section and Regulations. He was of the view that there was no factual basis for the petition; and, that it was lodged in bad faith. He submitted further that section 44A does not oblige the IEBC to put up an advert or a gazette notice of the Regulations. He said the Commission had already shared with the public the aspects of the complementary mechanism. He referred us to pages 1 to 86 of the bundle of authorities which, in his view, contain the complementary mechanism. He also implored us to take judicial notice of the subsidiary legislation.
39.Learned counsel Mr. Macharia, who teamed up with Mr. Ahmednasir, submitted that section 85 of the Evidence Act presumes a gazetted law to be valid. He also referred us to R v Speaker of the National Assembly & 4 others, Nairobi Judicial review 657 of 2016 that had been filed by parties allied to the petitioner seeking similar reliefs. To him this was evidence of bad faith.
40.Counsel submitted further that Articles 81, 83 and 86 of the Constitution do not expressly call for an electronic system of elections. He cited at length the materials annexed to the replying affidavit of Mary-Karen Sorobit for the proposition that technology is susceptible to malfunction or attack; and, it is not 100% reliable. That is why the system should have a component of a “voter–verified paper ballot”. He said the interpretation of the law by the petitioner would disenfranchise the citizens and defeat Articles 38, 81, 82, 83 and 86 of the Constitution. He relied on the decision of the German Federal Constitutional Court (Bundesverfassungsgericht)Judgment of the Second Senate of 3rd March 2009 [BVerfG] 2 BvC 3/07; 2 BvC 4/07 for that proposition. He also cited the Supreme Court decision in Raila v IEBC& Others Petition 5 of 2013 [2013] eKLR on the use of technology in elections.
41.Learned counsel submitted that the IEBC has in any case published Regulations for a complementary mechanism vide Legal Notice No. 72 of 2017 on 21st April 2017; and, which was well within 60 days of the forthcoming general elections. He submitted further that section 44A of the Act does not oblige the IEBC to subject the process to public participation. He relied on the decisions in The Matter of the Principle of Gender Representation in the National Assembly, Supreme Court Advisory Opinion No. 2 of 2012 [2012] eKLR, Amos Kiumo & 19 Others v Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 8 Others High Court, Meru, Petition 16 of 2013 [2014] eKLR and Kenneth Otieno v Attorney General & another Nairobi, High Court Petition 127 of 2017 [2017] eKLR.
42.Lastly, learned counsel implored us to respect the constitutional boundaries between the Court and other independent organs set up by the Constitution. For that proposition, he referred us to the decisions in Doctors for Life Case Doctor's for life International v The Speaker National Assembly and Others (CCT12/05)[2006] ZACC II and in The Matter of the Principle of Gender Representation in the National Assembly, Supreme Court Advisory Opinion No. 2 of 2012 [2012] eKLR.
I. Analysis and determination.
43.We are greatly indebted to all the learned counsel for their elaborate submissions; diligence; and, courtesy to the Court. If we do not make direct reference to all the cited cases and materials, it is not for their lack of relevance.
44.We have anxiously considered the petition, depositions, grounds of opposition, rival submissions and the precedents. From the pleadings and submissions, the issues that arise for our determination are as follows:a)Whether the petitioner has the locus to bring these proceedings; and, whether the petition is a constitutional petition properly so called.b)What electoral system obtains in Kenya?c)Whether a complementary mechanism has been put in place in terms of section 44A of the Elections Act.d)Whether the respondent set up regulations to operationalize section 44A of the Act; and if so, whether there was any public participation in the making of the Regulations.e)Who will bear the costs of the petition?
45.Before delving deeper into the issues it is important to lay the constitutional framework governing elections in Kenya. Kenya is a democratic Republic. In the design of our Constitution, all sovereign power belongs to the people. Article 1 of the Constitution is emphatic on that matter-
46.The guiding values and principles of governance including the rule of law; accountability; democracy; and, participation of the people are enshrined in Article 10 (2) of the Constitution. Article 38 of the Constitution on the other hand guarantees the citizens political rights. Article 38 (2) and (3) are particularly relevant to the dispute before us. Article 38 (2) provides that every citizen has the right to free fair and regular elections based on universal suffrage and the free expression of the will of the electors. Article 38 (3) on the other hand provides as follows-
47.The respondent is an independent commission established under Article 88 of the Constitution. It is tasked with the responsibility of conducting and supervising elections and referenda in Kenya. Articles 81, 82, 83 and 86 of the Constitution contain fundamental principles underpinning a free and fair election. For example, Article 81 (e) provides as follows-
48.This petition revolves around the use of technology in the forthcoming general elections. Due to historical electoral malpractices which culminated in the 2007/2008 post-election violence, there was need for reforms. The Kriegler Commission of 2008 recommended as follows-
49.Those experiences informed constitutional and statutory reforms to the Kenyan electoral system. We have already set out the key constitutional provisions of the 2010 Constitution. The Elections Act was amended to introduce sections 39, 44 and 44A dealing with the use of technology in elections; and, a complementary mechanism.
50.Section 39 sets out an elaborate process for determination and declaration of election results. It provides as follows:-
51.Section 44 of the Act on the other hand deals with the integrated electronic electoral system. It provides-
52.Section 19 of the Election Laws (Amendment) Act introduced section 44A into the Elections Act as follows:
53.The issue of use of technology in elections has occupied courts in Kenya and other jurisdictions. In the case of Raila Odinga & 5 Others v Independent Electoral And Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court at paragraph 233 of its judgment stated thus-
54.It is clear from this judgment that when the electronic system fails there should be a fall-back system to avoid the entire election falling into shambles. The complementary mechanism in Ghana closely mirrors our Regulations 69 and 83. This Ghanaian position is contained in the Manual on Election Adjudication in Ghana 3rd Edition (DPI Print Ltd, Accra, 2016). Chapter 10(c) and (d) of that manual deals with failure of the biometric system in presidential and parliamentary elections.
55.The German Federal Constitutional Court (Bundesverfassungsgericht) has had occasion to pronounce itself on electronic voting. In Judgment of the Second Senate of 3rd March 2009 [BVerfG] 2 BvC 3/07; 2 BvC 4/07, the Court found that even where electronic voting systems are deployed, the citizen should still be able to check and ascertain the results reliably without expert knowledge; and, that it was not possible for a voter to independently verify the integrity of the elections using the electronic system only. The Court in the relevant part stated:
56.A Report titled Implementing and Overseeing Electronic Voting and Counting Technologies on electronic voting in the Netherlands commissioned by the National Democratic Institute and the International Foundation for Electoral Systems concluded that electronic voting was unreliable. As a result, MOIKR, the body mandated to deal with elections in the Netherlands, decided that paper ballots were the preferred mode. See page 273 of the report. Electronic voting was not sufficiently transparent and verifiable, as there was no way of determining whether votes had been accurately recorded or stored.
57.The constitutional right of citizens to vote and elect their leaders is guaranteed in Article 38(2) and (3) of our Constitution. The Court of Swaziland in the case of Zwane & 562 Others v Elections & Boundaries Commission & Anor (1513/3013)[2013] SZHC 240 (17 October 2013) had this to say of the right to vote:-
58.The IEBC has a constitutional duty under Article 86 of the Constitution to ensure that at every election; (a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and, (d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.
59.The process of accounting and verification in an election is closely intertwined with the concept of transparency and accountability. This promotes free and fair elections. Any electoral regulations should therefore ensure that only registered voters who present themselves at a polling station participate in the poll; and, that each vote is accounted for.
60.We shall now turn to the issues we framed earlier. We shall deal first with the question of locus of the petitioner. Learned Counsel for the 2nd interested party, Mr. Ahmednasir, appearing with Mr. Macharia, submitted that although the petitioner is a legal person, it lacks capacity to present a constitutional petition. He submitted that a constitutional petition for enforcement of the Bill of Rights can only be lodged by a human person. The petitioner on the other hand is a conglomeration of political parties.
61.Counsel further submitted that the petitioner only cited Articles 36 and 38 of the Constitution; and, that there was no averment that the rights under those Articles had been breached. On his part, Mr. Mwangi, Learned Counsel for the petitioner, submitted that under Article 22 of the Constitution, any party is at liberty to present a petition on behalf of another. He submitted further that Article 260 defines a person to include a company or association.
62.Article 22 of the Constitution provides as follows-
63.Article 260 on its part provides, inter alia,:
64.The petitioner described itself in the petition as a “coalition of several political parties in Kenya with a substantial voter support base”. To our minds, a conglomeration of political parties answers to the description of an incorporated body of persons under Article 260. Mr. Ahmednasir admitted that the petitioner had elsewhere been held to be a legal person. That being the case, we hold that the petitioner has legal standing to bring these proceedings.
65.The 2nd interested party objected to the petition on the basis that the petition does not satisfy the requirements of a constitutional petition properly so called. It was submitted that the petition did not precisely set out the rights under the Bill of Rights that had been breached. The petitioner did not address this issue.
66.The principles governing the precision with which a constitutional petition should be pleaded were well stated in Anarita Karimi Njeru v Republic High Court, Nairobi Misc. Crim. Appl. 4 of 1979 [1979] eKLR. The petitioner should specifically set out the provisions of the Constitution that are alleged to have been violated; provide the particulars of the alleged violation; and, how the respondent has violated those rights. This position has been reiterated in Martin Nyaga Wambora & Others v Speaker of the Senate & 6 Others High Court, Kerugoya Petition 3 of 2014 [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others Court of Appeal, Nairobi, Civil appeal 290 of 2012 [2013] eKLR. In Mumo Matemu’s case the Court of Appeal observed as follows:-
67.In the present case, the heading of the petition cites Articles 10, 19, 20, 21, 22, 23, 162(2)(b), 258 and 259 of the Constitution. In addition, it stated that it was a matter for enforcement of the fundamental rights enshrined under Articles 2(1), 2(4), 2(5), 2(6), 10, 36, 38, 81, 82(2), 86, 88 and 232 of the Constitution. However, in the body of the petition, the petitioner did not plead with exactitude the particular rights or freedoms that had been breached or were likely to be violated by the respondent. What the petitioner pleaded loosely was that Article 38(2) of the Constitution guarantees the right to free fair and regular elections; that Articles 81 and 86 directs the respondent to ensure that whatever method or system used for election is simple, accurate, verifiable, secure, transparent and accountable; that such electoral mechanism was to be established by way of Regulations within 60 days before the general election and only with the approval of Parliament. The petitioner then concluded that the respondent had not established a mechanism to meet the constitutional and statutory threshold of simplicity, accuracy, verifiability, security, accountability and transparency. This was then followed by prayers for the three declarations.
68.With greatest respect to the drafters of the petition, it falls far short of the test set in the Anarita Karimi Njeru case (supra) as to precise pleading of the rights violated. To our minds, the petitioner did not plead that any of the fundamental rights had been breached or was about to be violated. It was left to this Court to gather from the supporting affidavit and two supplementary affidavits of Norman Magaya of 12th July 2017 and 17th July 2017 to establish what the petitioner’s complaint was. Accordingly, it is our determination that the petition dated 29th June 2017 did not satisfy the criteria of a constitutional petition for enforcement of fundamental rights and freedoms.
69.It is because of the imprecise manner in which the petitioner’s claim was pleaded in the petition that counsel for the respondent and the interested parties objected to certain submissions by Prof. Sihanya. They argued that the petition was mutating. We nevertheless allowed Prof. Sihanya to address us on the objected matters but directed that we shall rule on them in this judgment.
70.After carefully analyzing the supporting and supplementary affidavits, we have established that the petitioner’s complaint is the following: that although Articles 81 and 86 of the Constitution require the respondent to establish an electoral system that is simple, accurate, verifiable and transparent; and, that although section 44A of the Elections Act provides for a complementary mechanism for identification of voters and transmission of election results, the respondent had failed to establish the same less than 30 days to the next general election. Since counsel for all the parties ably addressed us on the matter, we see no prejudice suffered and we shall proceed to make our determination on the matter.
71.The next issue relates to the electoral system obtaining in Kenya. The electoral system and processes are underpinned by Chapter Seven of the Constitution. As already stated, the net effect of Articles 81, 82 and 86 of the Constitution is that the electoral system to be put in place should be simple, accurate, verifiable, secure, transparent and accountable. This is captured in sections 39 and 44 of the Elections Act. We have already set out above those provisions of the Constitution and the Act.
72.Under sections 39 and 44 of the Act, the use of technology in our electoral system is entrenched. Registration of voters, their identification at the point of voting and the transmission of election results is purely electronic. However, the actual voting, tallying and collating of votes is wholly manual. Unlike in the 2013 general elections, when the use of technology was left to the discretion of the respondent, section 44 of the Act, which was introduced by the amendments made in 2016 and 2017 respectively, establishes an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
73.Section 44(2) of the Act requires the respondent to procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before the elections and to test, verify and deploy such technology at least sixty days before the general election. This is to be undertaken in a consultative manner and through Regulations that have to be approved by Parliament within thirty days of that section coming into force. The respondent has complied with the requirement by dint of the Elections (General) Regulations 2012, as subsequently amended, and culminating with the latest amendments contained in Legal Notice No. 72 of 21st April 2017.
74.Accordingly, the legal regime obtaining in this country at the moment in the electoral system requires an integrated electronic system that enables biometric voter registration; electronic voter identification; and, electronic transmission of results.
75.This leads us to the question whether the respondent has developed a complementary mechanism under section 44A of the Act. The petitioner contended that; pursuant to the Election Laws (Amendment) Act No. 1 of 2017 section 44 of the Act was amended by inserting section 44A. The latter requires the respondent to put in place a complementary mechanism for identification of voters and transmission of election results that complies with the provisions of Article 38 of the Constitution. It was further contended that under section 109 of the Act, the said mechanism ought to have been put in place by regulations with the approval of Parliament at least 60 days before the general elections; that the respondent has not complied with the aforesaid provisions of the Act and that it is therefore time barred from developing such a complementary mechanism. The petitioner therefore contended that a declaration should issue that the voter identification and transmission of results of the elections of 8th August, 2017 should exclusively be electronic.
76.Mr. Orengo, Learned counsel for the petitioner submitted that section 44A of the Act was a product of a process that ended up in the enactment of the Election Laws (Amendment) Acts of 2016 and 2017; that prior to the enactment of that section, the electoral system in Kenya was manual. He submitted that since section 44A was for a complementary mechanism, the mechanism must be electronic. Counsel referred to the Hansard of Parliament during the debate and submitted that there was no evidence that the system envisaged under section 44A of the Act was manual.
77.It was further submitted for the petitioner that section 44A was meant to deal with circumstances where the entire system set up by section 44 of the Act collapses. In the petitioner’s view, the mechanism was not meant to deal isolated incidents in polling stations in terms of what the respondent had put in place. Prof. Sihanya on his part urged the Court to direct its mind to three questions: What the components of the complementary system anticipated in S44A are; whether the respondent had complied with the section within 60 days and whether the mechanism was constitutional; and, finally, what remedies are available to the petitioner in the circumstances.
78.In opposition to the petition, the respondent only filed grounds of opposition. The respondent contended that it had put in place the complementary mechanism under section 44A of the Act. It was submitted on behalf of the respondent that the complementary mechanism envisaged in section 44A was actualized in Regulations 69 and 83 introduced by Legal Notice No. 72 of 2017.
79.On the part of the two interested parties, it was contended that Regulations had been promulgated to give effect to Articles 38, 81, 82, 83 and 86 of the Constitution; that the complementary mechanism under section 44A of the Act had been introduced pursuant to Regulations made under section 109 of the Act; that what the petitioner was seeking was meant to restrict the citizens’ political rights under Article 38; that the petition was an attempt to repeal section 44A which the constituent parties of the petitioner had failed to block in Parliament or through the case of R v Speaker of the National Assembly & 4 others, Nairobi Judicial review 657 of 2016. We have carefully considered those matters.
80.A plain interpretation of section 44A shows that the legislature intended the establishment of a mechanism that is complementary to the one set out in section 44 of the Act. The system under section 44 is an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results. It places emphasis on the use of technology.
81.In the The Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011, the word complementary “means forming a complement or addition, … combining in such a way as to form a complete whole or enhance each other” while complement means “a thing that contributes extra features to something else so as to enhance or improve it…”. That being the plain and literal meaning of the word complementary, our view is that section 44A of the Act presupposes a mechanism that will complement, add, enhance or improve the mechanism already set out in section 44 of the Act.
82.It follows therefore that the complementary mechanism in section 44A need not be similar, same, akin or parallel to the one set out in section 44 of the Act. All that is required for that mechanism is that it should add to or improve the electronic mechanism in section 44 of the Act. But at the same time, be simple, accurate, verifiable, secure, accountable and transparent. It should allow the citizens to fully exercise their political rights under Article 38 of the Constitution. This complementary mechanism only sets in when the integrated electronic system fails.
83.It was the petitioner’s contention that the mechanism envisaged under section 44A is akin to the one in section 44 of the Act; that the debate in Parliament did not indicate that the complementary mechanism was to be manual. With greatest respect, we do not think that there is any ambiguity in the language used in section 44A to resort to the Hansardof Parliament in order to decipher the true intention of the legislature in this case. The language and meaning in that section is plain and clear. To our mind, what was required of the respondent was to put in place a mechanism that would complement the one set out in section 44 of the Act. The particulars of the mechanism, whether electronic, manual, or any other mode was not expressly provided in section 44A. If that were the intention of Parliament, nothing would have been easier than to specify so.
84.One other thing that buttresses our position that the mechanism contemplated in section 44A of the Act is independent of the one set out in section 44 of the Act, is the use of the words ‘Notwithstanding the provisions of section 39 and section 44, …’. The use of the term ‘notwithstanding’ makes the mechanism in section 44A independent of what is contained in sections 39 and 44. The authors of Stroud’s Judicial Dictionary of Words and Phrases 6th Edition, London, Sweet and Maxwell 2000 at page 1732 have defined notwithstanding as follows:
85.On the other hand, the Blacks Law Dictionary, 9th edition, Bryan and Garner, 2009, defines the word notwithstanding to mean “despite, inspite of”. In this regard, the use of the term notwithstanding in section 44A means that inspite of what the provisions of section 39 and 44 stipulate as to the mechanism in our electoral system, the respondent is to put in place a mechanism to complement sections 39 and 44 of the Act. All that is required is that the said mechanism be simple, accurate, verifiable, secure, accountable and transparent; and, one which will not disenfranchise the citizens.
86.We are fortified in our finding by the decision of the Supreme Court of India in Chandavakar Rao v Ashalata Guram [1986] 4SCC 447. It was held-
87.Accordingly, our determination on what constitutes the components of the complementary mechanism to be established under section 44A of the Act is: that the mechanism should be separate but which is meant to improve or augment the mechanism already set out in section 44. That mechanism has to be simple, accurate, verifiable, secure, accountable and transparent. It must also comply with Article 38 of the Constitution, that is, it must ensure that every citizen’s right to register as a voter, vote at an election or vie for political office is safeguarded.
88.The next issue for determination is whether the respondent has established the complementary mechanism. The respondent contended that it has done so through Regulations 69 and 83 vide Legal Notice No. 72 of 21st April 2017. In the said Legal Notice, Regulations 69 and 83 were amended. Regulation 69 (e), at the relevant part, now provides as follows-
89.Regulation 83 on the other hand provides-
90.The net effect of the two Regulations is to introduce a manual mechanism of identifying a voter; and, transmitting the election results. We are at this juncture alive to the Court of Appeal decision in IEBC v Maina Kiai & Others, Court of Appeal, Nairobi, Civil Appeal 105 of 2017 [2017] eKLR. The Court of Appeal was emphatic that the results for the presidential election declared at the constituency tallying center are final and only subject to an election petition. In this regard, the delivery of the forms by the returning officer to the chairman of IEBC under Regulation 83(1) (i) will be but to physically deliver what would have already been declared with finality at the constituency level. Therefore, the mischievous act by the respondent of repealing Regulation 83 (3) is meaningless and futile.
91.In the circumstances, we hold that the respondent has put in place a complementary mechanism for identification of voters and transmission of election results as required by section 44A of the Act. It should be remembered that the Constitution has not specified the type of mechanism, whether, electronic or manual that should be put in place. That duty was well within the province of the legislature which has spoken through sections 39, 44 and 44A of the Act and the Regulations thereunder.
92.There was the contention by the petitioner that the Regulations should have been made within 60 days of the section coming into force. Firstly, section 44A is an independent provision. It is not part of section 44 of the Act. If it was the intention of Parliament for section 44A to be part of section 44 of the Act, nothing would have been easier than to have done so. It could have enacted that section as section 44(9). Secondly, nowhere in section 44A is there any reference to timelines as to when the Regulations, if any, under that section were to be enacted.
93.This leaves the question whether the IEBC has set up Regulations in compliance with Section 44A as read with Section 109 of the Elections Act. Section 109 of the Act empowers the respondent to make Regulations for the better carrying out of the purposes and provisions of the Act. Pursuant to the aforesaid provisions the respondent enacted the Elections (General) Regulations 2012. These Regulations have been amended a number of times the latest being by Legal Notice No. 72 of 21st April 2017. It is the petitioner’s case that the respondent has not enacted any Regulations in respect of a complementary mechanism as provided for under section 44A of the Act. However the petitioner did not cite before this Court any provisions of the law that compel the respondent to enact any Regulations to operationalize Section 44A.
94.Section 109 (1) of the Act is permissive as far as the making of Regulations is concerned; and, cannot be used to advance the petitioner’s case. This is unlike section 44 which specifically provides in mandatory terms for the enactment of Regulations within set time frames. We therefore find that the Regulations made to operationalize Section 44 and in particular Regulations 69(e), 82 and 83 provide an alternative mechanism for the operationalization of section 44A.
95.The other issue raised by the petitioner was alleged lack of public participation in the making of the Regulations. Public participation is a means by which citizens take part in the conduct of public affairs, directly or through their chosen or elected representatives. It is one of the national values enunciated in Article 10(2) of the Constitution. In King & Others v Attorney Fidelity Fund Board Of Control & Another (561)/2004)[2006] the Court of Appeal of South Africa held that:-
96.In R v Speaker of the National Assembly & 4 others, Nairobi Judicial Review 657 of 2016, the Coalition for Reform and Democracy (CORD) sought leave to apply for orders in judicial review to prohibit the Speakers and Members of Parliament from transacting, discussing and carrying out any business in respect of among other bills, the bill affecting the amendments to the Elections Act 2011. This is but a confirmation that there were discussions and debates in Parliament in respect of the amendments to the Act.
97.Section 44(6) and Section 109(3) of the Act make it mandatory for Regulations made under Section 44(5) to be submitted to Parliament for approval. The Regulations are supposed to be gazetted under Section 109(4) of the Act. All these procedures were adhered to. The Regulations resulting therefrom have not been challenged. There is therefore a general presumption that the Regulations as enacted are constitutional and have met the requirement for public participation.
98.There is a rebuttable presumption of constitutionality of statutes. This position was affirmed by the Court of Appeal of Tanzania in Ndyanabo v Attorney General [2001] E. A 495. The decision was a restatement of the law in the English case of Pearlberg v Varty [1972] 1 WLR 534. In the former, the Court held that:
99.See also Katiba Institute & another v Attorney General, Nairobi, High Court petition 209 of 2016 [2017] eKLR.
100.This position is also in tandem with sections 60 and 85 of the Evidence Act. Section 85 provides as follows-
101.In view of the foregoing, we find that Regulations 69 and 83 of the Elections (General) Regulations 2012 have the full force of law as they were approved by the Parliament which represents Kenyans.
102.The petitioner contended that in the absence of a credible complementary mechanism, the general elections should be postponed as provided in section 55B of the Elections Act. We disagree. We take judicial notice that Parliament has been dissolved. Secondly section 55B applies where an election date has been appointed but there is (a) likelihood of a serious breach of peace; (b) a natural disaster; or, (c) occurrence of an electoral malpractice of such nature and gravity as to make it impossible to proceed with the election. Thirdly and most importantly, the date for the general elections provided by Articles 101 and 136 of the Constitution is cast in stone.
103.The petitioner had also prayed for a declaration that the identification of voters and transmission of results for the election to be held on 8th August 2017 be exclusively electronic. We wish to emphasize again that every citizen has a right under articles 38(3), 81, 83(3) to be registered as a voter, to vote and to have every vote counted. The electronic system failed during the 2013 general election. We have already dealt with the question of reliability of technology from other jurisdictions. Technology can be susceptible to hackers, software bugs, badly trained frost workers or power outages which could intentionally or accidentally erase or alter voting data captured by the machines leading to failure.
104.Finally this Court has to consider the impact or consequences if the exclusive electronic system fails. It would throw the entire election into jeopardy and imperil our democracy. We therefore find that it would not be feasible to declare that the elections to be held on 8th August 2017 be exclusively electronic.
105.The upshot is that the entire petition is devoid of merit. It is hereby dismissed with costs to the respondent and the interested parties.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2017.KANYI KIMONDOJUDGEA. MABEYAJUDGEH. ONG’UDIJUDGEJudgment read in open court in the presence of -Mr.….................................................for the Petitioner instructed by Murumba & Awele Advocates.Mr.….................................................for respondent instructed by V. A. Nyamondi & Company Advocates.Mr.….................................................for the 1st interested party instructed by the Honourable Attorney General.Mr.….................................................for the 2nd interested party instructed by Mbugua, Atudo & Macharia Advocates.Mr. …….................... Mr. …….................... & Mr. ….....................Court Clerks.