Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Information Communication Technology Association (ICTAK) (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 40 (KLR) (Election Petitions) (27 August 2017) (Ruling)
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Information Communication Technology Association (ICTAK) (as Amicus Curiae) [2017] eKLR
Neutral citation:
[2017] KESC 40 (KLR)
Republic of Kenya
Presidential Election Petition 1 of 2017
DK Maraga, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ
August 27, 2017
Between
Raila Amolo Odinga
1st Petitioner
Stephen Kalonzo Musyoka
2nd Petitioner
and
Independent Electoral and Boundaries Commission
1st Respondent
Chairperson of the Independent Electoral and Boundaries Commission
2nd Respondent
Uhuru Muigai Kenyatta
3rd Respondent
and
Information Communication Technology Association (ICTAK)
Amicus Curiae
Guiding principles in determining an application to be enjoined as amicus curiae (friend of the court) in a presidential election petition.
Electoral Law – presidential election petition – application to be enjoined as amicus curiae - guiding principles applicable in determining an application to be enjoined as amicus curiae - whether an application to be enjoined as amicus curiae that addressed points of law which were addressed by other parties in the petition was valid - Supreme Court Rules, Rule 54.Civil Practice and Procedure – application to be enjoined as amicus curiae - application to be enjoined as amicus curiae in a presidential election petition - guiding principles applicable in determining an application to be enjoined as amicus curiae - whether an application to be enjoined as amicus curiae that addressed points of law which were addressed by other parties in the petition was valid - Supreme Court Rules, Rule 54.
Brief facts
The applicant filed an application based upon rule 54 of the Supreme Court Rules, and other provisions of the law to be enjoined as amicus curiae.The applicant relied on the grounds that: the intended amicus curiae had been greatly involved in ICT policy as well as technical matters in Kenya; had a legitimate interest in being enjoined in the petition, so as to make submissions on diverse election-technology questions which had a bearing on the determination of the matter; and that the participation of the intended amicus curiae in the proceedings would contribute substantially towards realizing a professionally-sound decision.The petitioners opposed the application on grounds that the time frame for hearing and determining the petition was limited and as such the interests of justice would not be served by admitting the applicant. The 1st and 2nd respondents contested the proposed joinder on grounds that the applicant had not established any expertise or knowledge that would aid the court in determining the petition as required under rule 54(2) of the Supreme Court Rules, 2012. The 3rd respondent opposed the application on grounds that the applicant did not meet the legal threshold for admission as amicus curiae
Issues
- What were the guiding principles applicable in determining an application to be enjoined as amicus curiae in a presidential election petition?
- Whether an application for admission as amicus curiae that addressed points of law that were addressed by other parties in the petition was valid.
Relevant provisions of the Law
Supreme Court (Presidential Election Petition) Rules, 2017Rule 54 (1) The Court may –(a) in any matter allow amicus curiae;(b) appoint a legal expert to assist the Court in legal admissions;(c) at the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter;“(2) The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public interest or any other relevant factor.
Held
- To be allowed joinder, the applicant had to meet the legal requirements provided under rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017 as read with Rule 54 of the Supreme Court Rules, 2012.
- An amicus brief should be:
- limited to legal arguments ;
- The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
- An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
- The applicant had indicated that the amicus brief would be limited to legal arguments. However, the amicus brief addressed points of law already addressed by other parties.
- The applicant had not demonstrated what specific question it sought to address. The applicant’s propositions bore a general orientation that was not focused on a specific question falling for determination before the instant court. The application did not meet the requisite threshold.
Application dismissed with no orders as to costs.
Citations
CasesKenya
- Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Application 29 of 2014; [2014] KESC 6 (KLR) - (Explained)
- Muruatetu, Francis Karioko & another v Republic & 4 others Petitions 15 & 16 of 2015; [2017] KESC 2 (KLR) (Consolidated) - (Explained)
- Constitution of Kenya, 2010 articles 81, 86 - (Interpreted)
- Elections (General) Regulations, 2012 (Act No 24 of 2011 Sub Leg) In general - (Cited)
- Elections (Technology) Regulations, 2017 (Act No 24 of 2011 Sub Leg) In general - (Cited)
- Elections Act, 2011 (Act No 24 of 2011) sections 39, 44, 44A - (Interpreted)
- Societies Act (cap 108) In general - (Cited)
- Supreme Court (Presidential Election Petition) Rules, 2017 (Act No 7 of 2011 Sub Leg) rule 4(2)- (Interpreted)
- Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 54(2) - (Interpreted)
Ruling
A. The Application
1.The applicant’s notice of motion, dated August 21, 2017, was filed on the same day. The application is supported by the affidavit of Adrian Kamotho Njenga, sworn on the same date. It is attended with an amicus brief, dated August 25, 2017. The application is based upon rule 54 of the Supreme Court Rules, and other provisions of the law.
2.The orders sought are:(a)That this application be heard and determined before the hearing of the election petition;(b)That the Information Communication Technology Association of Kenya (ICTAK), the applicant herein, be enjoined in the said petition as amicus curiae.
3.The grounds of the application are as follows:(a)That the intended amicus curiae has been greatly involved in ICT policy as well as technical matters in Kenya;(b)That the intended amicus curiae has a legitimate interest in being enjoined in the petition, so as to make submissions on diverse election-technology questions which have a bearing on the determination of the matter.(c)That the participation of the intended amicus curiae in the proceedings will contribute substantially towards realizing a professionally-sound decision, that incorporates the public interest.
4.The applicant submits that it had been registered by the Government of Kenya on the February 20, 2007 under the Societies Act, and that it stands out as the prime association for ICT professionals, and industry players in Kenya.
5.The applicant states its objectives as: to extend the frontiers of knowledge and of application of ICT; to advance competence in the practice of ICT, and promote the formulation of effective policies in the application of ICT in society. It enumerates its programmes as including: ICT Policy Development and Advocacy; ICT Industry Research; ICT Value awards; Cyber Security Awareness and Training; ICT Systems Audit; Continuous Professional Development Programs; and hosting the International Conference on Future and Emerging Technologies (ICEFICT). In that context, the applicant contends that it will provide crucial insight such as to enlighten the court, as regards the contested Information Communication Technology (ICT) issues which are likely to arise.
6.The applicant further submits that it will, from a professional standpoint, advance the position that successful deployment of electoral systems is contingent upon the fulfilment of the conditions contemplated under the Elections (Technology) Regulations, 2017.
7.It also submits that it will provide highlights from a balanced standpoint, as to whether transmission failure, if adjudged to have occurred, would have affected the results of the presidential election. The applicant states that it will offer an objective appraisal of the technology issues arising in the petition.
8.The applicant submits that at the hearing, it will urge the Supreme Court to assess whether the 1st respondent properly discharged its duty as prescribed under articles 81 and 86 of the Constitution, as read with sections 39, 44 and 44A of the Elections Act,2011, regulations 82 and 87 of the Elections (General) Regulations,2012 , and the provisions of the Elections (Technology) Regulations, 2017.
9.This application is contested by the petitioners in their replying affidavit dated August 26, 2017. They urge that, given the limited time-frame for hearing and determining the petition, the interests of justice would not be served by admitting the applicant.
10.The 1st and 2nd respondents also filed a replying affidavit, as well as written submissions, both dated August 25, 2017, contesting the proposed joinder. It is their position that the applicant has not established any expertise or knowledge that would aid the court in determining the petition, as required under rule 54 (2) of the Supreme Court Rules, 2012.
11.The 3rd respondent has also filed a replying affidavit, dated August 25, 2016, and written submissions, in opposition to the application. He contends that the applicant does not meet the legal threshold for admission as amicus curiae, quite apart from not assuring the court of an impartiality of views.
B. Admission to Amicus Status: The Law
12.To be allowed joinder, the applicant has to meet certain legal requirements. The relevant law is rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017 as read with rule 54 of the Supreme Court Rules, 2012.
13.Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017 provides:
14.Rule 54 of the Supreme Court Rules, 2012 provides:
15.In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No 12 of 2013, [2015] eKLR, this court considered the role of amicus curiae, and set out the guiding principles applicable in determining an application to be enjoined in that capacity, as follows (para. 41):“(i) An amicus brief should be limited to legal arguments.“(ii) The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law…“(iv) An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.”
16.These principles were further affirmed in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR. Now applying these clear yardsticks to the applicant herein, we note, firstly, that the applicant indicates that the amicus brief will be limited to legal arguments. In the second place, however, we are not convinced that the amicus brief addresses points of law not already addressed by the other parties.
17.The petitioners’ and the respondents’ cases relate to, inter alia, the interpretation and application of articles 81 and 86 of the Constitution, as read with sections 39, 44 and 44A of the Elections Act, 2011, regulations 82 and 87 of the Elections (General) Regulations, 2012, and provisions of the Elections (Technology) Regulations, 2017 in so far as they bear upon the election of the President.
18.Each of the parties has relied on experts, speaking by way of affidavits; and each party has lodged submissions on the said provisions. The applicant has not demonstrated what aspect of such matter it seeks to address. The applicant’s propositions bear a general orientation that is not focussed on a specific question falling for determination before this court. We are, in the circumstances, not satisfied that the application meets the requisite threshold, and we dismiss the same, with no orders as to costs.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF AUGUST, 2017.…………………………………………………………D K MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT…………………………………………………………P M MWILUDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT…………………………………………………………M K IBRAHIMJUSTICE OF THE SUPREME COURT…………………………………………………………J B OJWANGJUSTICE OF THE SUPREME COURT…………………………………………………………S C WANJALAJUSTICE OF THE SUPREME COURT………………………………………………………… N. S. NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………………………I LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the original.REGISTRARSUPREME COURT OF KENYA.