The High Court declines an invitation to nullify the appointment of special seat nominated members of the County Assemblies

The National Gender and Equality Commission (NGEC) instituted a petition, i.e. Nairobi HC Constitutional Petition No. 409 of 2017, allegedly in the public interest against the Independent Electoral and Boundaries Commission (IEBC). In the said petition NGEC avers that that prior to the 2017 general elections, 56 political Parties, as required by law, submitted their party lists to IEBC by 24th June 2017, but upon scrutiny, IEBC found that all the party lists did not comply with the Constitution or the election Regulations because of:-
a. Failure to alternate men and women as the law require;
b. Submitting incomplete lists;
c. Lack of documentary proof of age for the youth and persons with disability;
d. Failure to upload photos of nominees and submit the same in hard copies;
e. Amendment of party lists outside IEBC remarks, including deletion of names initially submitted and reorganization of names of nominees to alter priority;
f. Erroneous prioritization of members of dominant tribes and ethnic communities into persons with disabilities party lists in counties and exclusion of minority and ethnic communities;
g. Failure to alternate candidates of the male and female gender in the persons with disabilities lists with men being given priority in majority of lists;
h. Failure to prioritize persons with disabilities in lists for marginalized groups.
NGEC also averred that by a notice published in newspapers on Friday the 21st July 2017, IEBC and the Political Parties Disputes Tribunal (PPDT) advised aggrieved persons to lodge complaints arising from the "final" Party lists with the IEBC Dispute Resolution Committee and the PPDT between Friday 21st July 2017 to Sunday the 23rd July 2017. NGEC avers that the said complaints were to be heard from 21st July to the 28th July 2017.
The Petitioner stated that no Party lists had been published whether in newspapers or on IEBC's websites at the time. Further, the
Petitioner avers that it notified IEBC that the notice did not comply with the law because:-
a. The notice did not indicate the date the party lists was published;
b. The notice gave aggrieved parties only two days to file complaints which fell on a week-end, yet all the complaints were to be filed in Nairobi by the special groups across the country even though some had mobility challenges;
c. That the time line of 21st to 28th July was less than ten days provided in law.
d. That there was no list in existence at the time the political parties, candidates, special interest groups and the general public could refer to. NGEC raised several other complaints and, in the end, asked the High Court to, basically, find that the process of electing special seat members was flawed and should in effect be nullified.
Upon hearing arguments, the High Court identified the following issues:
a. Whether or not the High Court had jurisdiction to hear and determine the Petition.
b. Whether or not the reliefs sought were likely to affect persons who are not parties to the Petition.
c. Whether IEBC failed in exercising its legal mandate of supervising the entire elections for the special interests group seats for the August 8th 2017 general elections.
d. Whether this Petition is was rendered moot after the nominations were published in the Kenya Gazette and the subsequent swearing in of the nominated persons.
Jurisdiction The court correctly found that jurisdiction is the lifeblood of any adjudication and where it is lacking it would render any proceedings, no matter how well conducted, liable to be set aside for being a nullity. The court went on to find that though under article 165 of the Constitution, the High Court has unlimited jurisdiction, the Constitution itself and statute determine how that jurisdiction should be exercised. In so saying the court quoted the decision of the Supreme Court in Moses Mwicigi & 14 Others vs I.E.B.C & 5 Others in which the Supreme Court said "It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees names by the IEBC, as an integral part of the election process.
The High Court then found that upon the names of the nominated members being published in the Kenya Gazette, the dispute shifted to the election court and that the Petitioner ought to have taken the cue and pursue the dispute in the appropriate forum. The court was thus of the view that it did not have jurisdiction to deal with the appointment of the nominated members as a court other than the election court. This finding should, in our respectful view have disposed the petition but the court made pronouncements on the other identified issues. Persons not party to the suit.
The court correctly found that the orders would affect persons who were not parties to the suit. The court for this reason, found that the petition should be dismissed. Admittedly, this part of the decision may be obiter dictum, since the court had already made a finding on jurisdiction. Whether IEBC failed in its legal mandate.
The court found that the IEBC had not failed in its legal mandate. After analyzing the law, the court found that the role of the IEBC was to receive lists that conform with the Constitution and thereafter apportion seats according to the respective strength of the parties in the assemblies and this is what the IEBC did. This part of the ruling also appears to be obiter dictum, since the court had already made a finding on jurisdiction Whether the petition is rendered moot.
The court found that once the members names had been published in the Kenya Gazette the petition challenging the process of their nomination was moot. This reinforces the courts finding on jurisdiction. We think it is an interesting judgment. Some matters may have to be addressed in future. One such matter may be the increasing tendency of both State players, like NGEC and private players, bringing suits purportedly in the public interest. Article 156 (6) of the Constitution seems to suggest who should bring suits in the public interest. That provision is conspicuous by its lack of application. It may be time to think of implementing it, having regard to the intention of the framers of the Constitution or scrapping the said provision.

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