The IEBC Judgement

This is the second and final part of the IEBC ruling. The first part was published in yesterday's paper.

The following were the findings of the court:

Under Article 259(1) of the Constitution, the Constitution is to be interpreted in a manner that promotes its purpose, values and principles; advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance. In interpreting the Constitution, the letter and the spirit of the supreme law must be respected. Various provisions of the Constitution must be read together to get a proper interpretation. Article 89 could not be read or interpreted in isolation. The mandate of the IEBC was to be read, and the right to fair representation and equality of the vote determined, against the background of the entire Constitution.

Since section 4 of the Fifth Schedule to the IEBC Act granted the right to apply for review either under the IEBC Act or the Constitution, the purported limitation on the Court to determine the matter within thirty days of filing the application was inconsistent with Article 89(11) of the Constitution which provided that the application for review shall be heard and determined within three months of the date on which it is filed. No person or body could claim not to be subject to or beyond the powers of the High Court when it is alleged that he or she has committed a transgression in exercise of a legitimate power conferred by the Constitution and the law. The jurisdiction of High Court can only be ousted by very clear and express language in the Constitution. The jurisdiction of the High Court to review the boundary delimitation process was not granted by statute but was founded in the Constitution Article 165; it is the jurisdiction of the High Court to satisfy itself of the propriety of any act or decision done by any person or body pursuant to the Constitution and the law.

In discharging the function of review contemplated by Article 89(11), the court was not constrained by the statutory provisions or common law remedies. The duty was a constitutional duty and the relief must accord with the task at hand. The High Court had the powers to grant appropriate relief if contravention of the Constitution is established, even if the State and the IEBC were to be inconvenienced. The review contemplated in Article 89(11) was a review of the procedures and merits of the delimitation exercise. Where an application is made, the court assumes all the plenary powers necessary to ensure that the IEBC complied with the Constitution.

Therefore in exercising its jurisdiction in relation to the delimitation process, the High Court is meant to correct, modify, verify, eradicate, amend, override or suppress any illegality or unconstitutionality committed by the IEBC in exercise of its mandate of delimitation under Article 89. The requirement of Article 89(2) of the Constitution that the review of constituency and ward boundaries was to be completed at least twelve months before a general election did not apply to the review of boundaries preceding the first general elections under the Constitution. This left no doubt that it was intended that the first general elections under the Constitution be carried out based on the work done by the IIBRC. Therefore, the provisions of Legal Notice No. 14 of 2012 took effect and applied to the next general elections.

The internationally recognized and accepted principles of boundary delimitations were representativeness, equality of voting strength, independent and impartial authority, transparency and non-discrimination. The decision as to whether to delimit an electoral area and the means adopted depends on a country’s specific administrative, political, social conditions and the financial resources available.

The purpose of the right to vote enshrined in the Constitution was not equality of voting power per se, but the right to "effective representation”. Effective representation and good governance compelled that factors other than absolute voter parity such as geography and community of interest be taken into account in setting electoral boundaries. The creation of electoral units must meet the necessary conditions and there must be a pressing and substantial need that is rationally connected to the concept that the creation will result in fair and effective representation while the differing representational concerns of urban and rural areas may be properly considered in drawing constituency and ward boundaries. The one-person one-vote principle was tempered by the unique circumstances of Kenya and the specific provisions of the entire Constitution. The delimitation of the boundaries as required by Article 89 required the IEBC to take into account the criteria contained in Article 89(5) and (6).

The effect of treating the marginalized and minority communities in the exact same manner as the larger communities in the delimitation process would have been far more discriminatory, and would never eliminate the mischief intended to be reduced by Article 27 of the Constitution [on the right to equality and freedom from discrimination]. Instead, it would undermine the achievement of social justice.

The IEBC was not restricted by the Constitution in the number of wards it could create and neither could it restrict itself to creating five wards per constituency. However, it adopted an objective, rational and valid process of determining the number of County Assembly Wards in line with the mandate imposed by the IEBC Act on it to resolve outstanding issues from the first review. The methodology used by the IEBC in conducting the first review did not breach of the Constitution or the Fifth Schedule to the IEBC Act.

However, the IEBC was duty bound to ensure public participation in the process of delimitation. The nature and extent of that participation was for the IEBC to determine provided it was meaningful and gave effect to the purposes of the Constitution, that is, to promote accountability, transparency and good governance. Giving effect to the principles of consultation and public participation meant that the IEBC was to give great weight to public consensus where this was possible. In order to give effect to this value, the IEBC was obliged to consider the submissions made to it and give reasons for its ultimate decision. It is the giving of reasons that distinguishes an arbitrary decision from one that is founded in law. The IEBC had not properly discharged its obligation for public participation and consultation.

It was not fatal for the IEBC to fail to consult the Attorney General on the delimitation plan. However, consulting the Attorney General expresses fidelity to the law and could, in the future, lead to a result that reduces the scope of litigation. Costs remained in the court’s discretion and like all forms of discretion, it must be exercised judicially, in light of the particular facts of the case and giving due regard to the national values and principles of governance set out in the preamble to the Constitution and Article 10 in order to achieve the objects of Article 259(1) on construing the Constitution. Each of the parties was to bear their own costs.

In applying its findings in disposing of the consolidated petitions and applications, the Court issued orders for the renaming of certain wards; the moving of some wards, locations and sub-locations into other constituencies; the moving of some locations into certain wards and for the amendment of the maps of the affected constituencies in the IEBC Final Report and Legal Notice No.14 of 2012 accordingly.