Summary Of Court Of Appeal Decision ON Election Date

Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR

Court of Appeal at Nairobi

EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A

On August 27, 2010, Kenya promulgated a new constitution – the Constitution of Kenya 2010. The new constitution provided for a new structure of government and contained transitional provisions governing the conclusion of the term of the serving government and the establishment and commencement of the term of the new government through a general election.

Previously, in 2008, Kenya’s legislature had passed the National Accord and Reconciliation Act, 2008 to establish a coalition government through a National Accord, which was a reconciliation framework brokered after the violent aftermath of the disputed results of the general election held in December 2007. A dispute arose on the interpretation of some provisions of the new constitution and the National Accord and Reconciliation Act, 2008 on the question of what would trigger the first general election under the new constitution and how the date of the election would be reckoned. These provisions were:

The National Accord and Reconciliation Act, 2008:

* Section 6: The coalition shall stand dissolved if - (a) the Tenth Parliament is dissolved;…”

The Constitution of Kenya 2010:

* Article 101(1): “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year”.

* Article 102(1): “The term of each house of Parliament expires on the date of the next general election”.

* Article 262 provided that the transitional and consequential provisions set out in the schedule were to take effect on the date that the Constitution came into force on August 27 2010.

* The Sixth Schedule, section 3(2) provided that certain provisions of the former Constitution would continue to apply until the first general elections. That section excluded section 59 which gave the President the power to prorogue and to dissolve Parliament at any time. The section further provided that the provisions of the former Constitution concerning the executive and the National Accord would continue to operate until the first general elections.

* The Sixth Schedule, section 9(2): “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term”.

* The Sixth Schedule, section 9(2): “Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.”

* The Sixth Schedule, Section 10 provided that the National Assembly existing immediately before the date of the promulgation of the new constitution would continue as the National Assembly for the purposes of the Constitution for “its unexpired term”.

* The Sixth Schedule, section 12 provided that the President and the Prime Minister would continue to serve in accordance with the former Constitution and the National Accord until the first general elections unless they vacate office under the former Constitution and the Accord.

* The Sixth Schedule, section 12(2) allowed the Cabinet and the Assistant Ministers under the repealed constitution to continue holding office until the first general elections under the new constitution unless they vacated or were removed from office in accordance with the former Constitution and the National Accord.

In interpreting these provisions, the High Court had found, among other things, that, firstly, following the repeal of the former Constitution, the President had no power under the Constitution to dissolve Parliament. Secondly, it had found that the date of the first elections under the new Constitution would be determined by reference to Sections 9 and 10 of the Sixth Schedule as follows: -

In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with Sections 6(b) of the National Accord and Reconciliation Act, 2008 or, Upon the expiry of the term of the 10th Parliament on the 5th of the Anniversary of the day it first sat which is designated by Legal Notice No.1 of 2008 on 15th January 2008 and the term therefore expired on 14th January, 2013 and the elections shall be held within sixty days of 15th January, 2013.

Two appeals were lodged in the Court of Appeal against these findings. One of the appeals was lodged by an entity which had not been a party to the proceedings in the High Court on the ground that the entity was directly affected by the decision of the High Court and that the Constitution entitled it to file the appeal. The two appeals were consolidated.

Held:

1. On the locus standi of one of the appellants:

Even though in the first instance appeals to the Court of Appeal will invariably be brought by persons who were parties in the suit from which the appeal emanates, this is not to say that a person who was not party to the suit cannot go to the Court on appeal. Each case must be considered on its own merit.

2. A person who was not a party in the original suit has the obligation to establish that it is affected by the judgment or order, subject of the appeal - and the required interest is not to be restricted to proprietary or financial interest only - and to establish that there are good reasons for not having pursued its interest in the High Court. Where a matter is of public interest and relates to the protection and promotion of the Constitution, it may be in the interest of justice to admit such a party.

3. However, it would not be proper for such a party to canvass matters in the Court of Appeal which were not the subject of the litigation in the High Court. On the principles of interpreting a constitution:

Some of the important principles which apply to the interpretation of a constitution are:

1. A court should avoid a construction that produces an absurd, unworkable or impracticable result;

2. A court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result;

3. The court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise.

4. The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration.

On the merits of the appeals:

1. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution.

2. It was not within the province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule.

3. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms.

4. The High Court was right in its second finding that the first elections under the

new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2012.

Per Martha Koome JA, dissenting:

Held:

1. A party before the High Court has to demonstrate how they are affected by the decision being appealed against. The appellant should have first sought leave before the High Court so as to demonstrate the general public interest it was pursuing and given reasons why it did not appear before the High Court to agitate its case.

2. Having also considered that the life of Parliament is five years as per the Section 59 (5) of the repealed Constitution, which was saved by section 10 of the Sixth Schedule to the new Constitution, then section 9(1) of the Sixth Schedule should not have been read as a stand-alone leaving out the provisions of Section 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed Constitution.

3. If Sections 9 and 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed constitution were read conjunctively and given their purposeful meaning within the prevailing context that traditionally general elections are held within five years, the National Assembly should dissolve sixty days before the expiration of term. The dissolution of Parliament sixty days after the expiry of its term would contradict section 10 of the Sixth Schedule as it extended the period of the National Assembly beyond the term of five years.

4. The National Assembly should have been dissolved sixty days before the expiration of its term - that should have been on or about 14th November, 2012. This way, the current National Assembly would not go beyond its lifespan of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15 2013.

By majority decision: The order of the High Court providing that the general elections could be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the Accord was set aside.

The order of the High Court providing that the general elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat - which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008 and the term therefore expires on 14th January, 2013 - so that the election shall be held within sixty days of 15th January, 2013, was confirmed.