The declaration form containing those results was a primary document and all other forms subsequent to it were only tallies of the original and final results recorded at the polling station. The people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the chairperson of the IEBC. The responsibility of the Appellant to deliver a credible and acceptable election in accordance with the Constitution was so grave and so awesome that it had to approach and execute it with absolute fealty, probity and integrity.
The IEBC had to in all its dealings be truly above suspicion and command respect of the people of Kenya for whom it acted. Much depended on it, the present and future peace of the country. The High Court was not at fault in holding that to the extent that section 39 2 and 3 of the Elections Act and regulation 87 2 c of the Elections General Regulations provided that the results declared by the returning officer were provisional, and to the extent that regulation 83 2 provided that the results of the retuning officer were subject to confirmation by the IEBC.
Those provisions were inconsistent with the Constitution and therefore null and void. Attorney-General CTH ex rel. Constitution of Kenya, articles 2 1 4 ; 10; 81;82;83 2 3 ; 86 b c ; 87 2 c ; 88; ;; 2 3 c 4 10 ; ; 3 d i ii 5 a ; 3 ; ;; — Interpreted.
Elections Act, Act No 24 of sections 39 1 2 3 — Interpreted. Elections General Regulations, regulations 76, 77, 78, 83 2 3 ; 84 1 ; 87 2 c — Interpreted. Barak, A. Garner, BA. Goldsworth, J. Murungi , K. William, H. When the people of Kenya adopted, enacted, and gifted themselves and their future generations the Constitution, it was not an ordinary, common- place act. Nor was it an empty ritual. Rather, it was an epochal moment, pregnant with meaning and significance, and speaking to the indomitable will of the people to take charge of their destiny and bend the arc of history to align with their most cherished aspirations and ideals as to how they wished to be governed, and to organize their affairs.
And it is no accident that Chapter One of the Constitution proclaims the sovereignty of the people, the supremacy of the Constitution and imposes on every person a solemn obligation to respect and defend the Constitution.
The Constitution goes on to declare our Republic to be a multi party democratic State founded on the national values and principles of governance captured in Article These values are not mere suggestions or aspirations to be attained at some future date, by generations yet unborn. They are directive and obligatory principles that are immediately and presently binding on all State organs, State officers, public officers and all persons whenever any of them apply, or interpret the Constitution; enact, apply or interpret any law; or make or implement public policy decisions.
They are broad and all inclusive in their reach, sweeping in their sway and peremptory in their command. They include, but are not limited to;. The people of Kenya arrived at those principles out of a studious consideration and appreciation of the travails and trials of our nationhood and the struggles and sacrifices that they, and their heroic compatriots, had made to bring freedom and justice to our land.
They were also keenly aware that the ties that bind them in united nationhood are periodically stretched and strained at election time and so sought to insulate the electoral process from the deleterious perils and malaise of opacity, corruption, crime and malpractice.
The antidote they prescribed was an electoral system founded on, and infused with, clearly defined core principles including, in particular, free and fair elections that are conducted by an independent body, are transparent in character and administered in an impartial, neutral, efficient, accurate and accountable manner.
This appeal, as were the proceedings giving rise to it, are a call to the Judiciary to authoritatively pronounce on whether those constitutional principles are upheld and given effect to, or are violated and infringed, by certain provisions of the Elections Act the Act and the Regulations made thereunder, in so far as they relate to the results of presidential elections. The petition was filed pursuant to Article 3 d of the Constitution and sought declarations regarding the constitutionality of provisions of the Act and the Elections General Regulations, , the Regulations , which are specified below.
The petition was brought against the appellant as the body charged under Article 88 of the Constitution with the responsibility of conducting and supervising free and fair elections in Kenya. For his part, the 4th respondent was sued in his capacity as the principal legal adviser to the Government, who is also responsible for representing it in legal proceedings, and, for promoting, protecting, and upholding the rule of law and defending the public interest.
The 1st, 2nd and 3rd respondents prayed for the following reliefs in their petition: -. A declaratory order that sections 39 2 and 3 of the Elections Act, are contrary to the provisions of Articles 86 and 2 of the Constitution and are therefore null and void;. A declaratory order that regulations 83 2 , 84 1 and 87 2 of the Elections General Regulations, are unconstitutional and contrary to Articles 86 b c and 2 of the Constitution and therefore null and void;.
A declaration that respective constituency returning officers are the persons responsible for the conduct and declaration of constituency presidential election results;. A declaration that constituency presidential elections results once declared and announced by respective constituency returning officers are final results for the purposes of that election;.
A declaration that constituency returning officers possess a fundamental and an inalienable mandate to announce and declare the final results of a presidential election at constituency level and that such declaration is final and is not subject to alteration, confirmation or adulteration by any person or authority, other than election court, pursuant to Articles 86 and 2 of the Constitution of Kenya.
Before the hearing of the petition, the 5th respondent, Katiba Institute, a legal Non-Governmental Organisation focusing on the implementation of the Constitution of Kenya applied and was admitted in the petition as amicus curiae and permitted to make written and oral submissions on the dispute.
The petition was subsequently determined on the basis of the pleadings on record as well as written and oral submissions. Upon hearing the parties, the High Court held that it had jurisdiction to hear and determine the petition; that the issues raised in the petition were not res judicata and allowed the petition in the following terms:.
The appellant was aggrieved by the judgment and decree of the High Court and lodged in this Court an appeal founded on 23 grounds, which ultimately they condensed into four broad grounds contending that the High Court erred by:.
Nyamodi , Mr. Kilonzo and Ms. Ewang raised the following three issues, namely, the difference between announcement and declaration of election results; the person responsible for declaration of the result in a presidential election, and the purpose and effect of section 39 2 and 3 of the Act. On the second issue, the appellant submitted that the Act empowers it to appoint returning officers to supervise the conduct of elections for various offices.
The appellant further submitted that under regulation 3 1 , the constituency returning officer is appointed to supervise the conduct of elections for members of the National Assembly and County Assemblies, while the county returning officer is appointed under regulation 3 4 to supervise elections of Governor, Senator and Woman Representative. The appellant therefore contended that the returning officer referred to in Article 86 c is any returning officer appointed by it for purposes of supervising the conduct of an election while for purposes of the presidential election, the returning officer is its chairperson.
Referring to Article 3 c and 10 it was urged that the same vests the duty to declare the results of the presidential elections in the appellant and its chairperson. Turning to the third issue, the appellant urged that the Independent Review Commission the Krieglar Commission , appointed to investigate all aspects of the presidential election in Kenya recommended that election results be declared final only after proper scrutiny and verification. It submitted further that Article 3 c as read with Article 10 emanated from that recommendation and that sections 39 2 and 3 of the Act and regulation 83 2 were intended to give effect to those constitutional provisions.
That Article, it was submitted, does not apply to elections of any other office save the office of president, a distinction that the High Court failed to appreciate. Regarding Article 86, the appellant submitted that its purpose is to set out the constitutional principle that election results should be announced promptly and that Article 2 does not provide for the manner of declaration of presidential results.
The appellant maintained that in a presidential election, the only act that takes place at the polling station is counting and announcing of the results, with the verification and tallying being escalated upwards.
Lastly, the appellant submitted that the constituency returning officer is not mandated to declare the results of the presidential election; that the High Court assigned to him a role not contemplated by the Constitution; and that upholding the High Court judgment would mean that in a presidential election, there would be returning officers, declared results, and possibly election petitions and respondents, which would be impracticable and an absurdity. Moving on to the second ground, the appellant submitted that Article 3 c requires it to verify the count before declaring the result of the presidential election and for that purpose its chairperson is required to tally and verify the count from all polling stations before declaring the result.
According to the appellant therefore, the collation, tallying, verification and confirmation of presidential results is a purely mathematical exercise for the purpose of consolidating the results received from each returning officer and that it is on that basis the results are referred to as provisional.
As regards the constituency returning officer, the appellant maintained that his role is to collate and publicly announce the results from each polling station in the constituency in a presidential election in line with Article 2 and to deliver to its chairperson the collated results which he in turn tallies and verifies in line with Article 3 c , before declaring the result in accordance with Article On the penultimate ground, the appellant submitted that under Article 3 a , the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the election of the president.
That jurisdiction, it was contended, was not shared with the High Court and the High Court therefore erred in arrogating itself a jurisdiction that it did not have.
In its view, disputes relating to elections to the office of president are not only those that arise after the presidential results have been declared, but include those disputes which might arise before, during and after the conduct of elections.
The appellant also added that the High Court assumed jurisdiction over the matter because it erroneously found that the process of election of the President had not commenced, yet on 17th March, by Gazette Notice No. The appellant further contended that Africa Centre for Open Governance Africog in which the 1st respondent is a director, was a party to the petition.
The appellant cited Okiya Omtatah Okoiti v. The appellant therefore urged us to find that the High Court erred by entertaining issues that were barred by res judicata. The 4th respondent, Prof. Githu Muigai, SC , appeared in person assisted by Mr. Mutinda and supported the appeal, though he elected not to address the issue of jurisdiction and res judicata , opting instead to adopt the submissions made by the appellant.
The Attorney-General began by submitting that the High Court erred by holding that Section 39 2 and 3 of the Act and the Regulations contravened Articles 86 and , and were therefore unconstitutional. The Attorney-General argued that such an approach was not a proper basis for constitutional interpretation; that a legitimate interpretation demanded fidelity to the Constitution; and that an illegitimate interpretation results in an illegitimate amendment of the Constitution.
Citing Interpreting Constitutions: A Comparative Study, Oxford University Press, by Prof Jeffrey Goldsworthy, the Attorney-General argued that judges, unlike other political actors, should be constrained by the laws of interpretation. In his view, whilst both the literal meaning of the provision and the spirit of the Constitution ought to be considered, where the provision is clear and unambiguous, it was unnecessary to invoke the spirit of the Constitution.
As far as he was concerned, there were no inconsistencies between Articles 86 and and sections 39 2 and 3. It was urged that in interpreting the Constitution, the correct tools and techniques must be employed, based on an honest, transparent and rational reading of the constitutional text.
Mckinlay v. The Commonwealth and a scholarly text by Aharon Barak titled, Purposive Interpretation in Law, Princeton University Press, , it was submitted that the language of the text of the Constitution must be respected and were it to be ignored, the result would be divination rather than interpretation.
Furthermore, that a broad purposive or normative interpretation should be limited to cases concerning human and family rights so that, in all other cases the court is called upon to do no more than to construe the text of the concerned provision.
We were urged to err on the side of caution by finding that the chairperson of the appellant is the person authorized to conduct the presidential election, to verify the count and to declare the final result, and that the High Court erred by holding that there was conflict and inconsistency between the constitutional and the statutory provisions in question, when that was not the case. At best, he asserted, the alleged inconsistencies were illusory and that, had the High Court employed the proper and literal interpretation of both Articles 86 and , it would have concluded that there was no inconsistency between them and section 39 2 and 3 of the Act.
Those provisions, he maintained, address sequential steps that explain a chain of events and are not unrelated episodic events and further, that whilst voting in all elections is regulated by Article 86, announcement or declaration of the result of the presidential election is regulated by Article and the Act. While admitting that there may be situations when context is important in interpreting a statutory or a constitutional text, he nevertheless maintained that the underlying intent of the provision in question is what is important and that there must be a good reason why there is a clear distinction between presidential and other elections, although they are held on the same day.
He added that Article 3 c empowers the appellant, after the counting of votes in the polling stations, to tally, verify the count, and declare the results. He added that Form 38 is the instrument of final declaration in all the other elective positions, which is issued to the successful candidate pursuant to the results announced by the returning officer.
Accordingly, contrary to the judgment of the High Court, the declaration by the returning officers at the constituency cannot be final as regards presidential elections. The Attorney-General submitted further that to give effect to Article 86 which requires transparency and prompt announcement of election results, Parliament set up a mechanism under section 39 2 and 3 of the Act for the announcement of results from polling stations, constituency tallying centres, county tallying centres and the national tallying centre.
He added that results declared by the constituency returning officer for the Governor, Senator, Woman Representative and President are provisional but final as regards the Member of the National Assembly and Member of County Assembly. Similarly, in his view, results declared by the county returning officer are final in respect of Governor, Senator and Woman Representative, but provisional in respect of the election for the President.
As far as he was concerned, there was no tension between regulation 83 2 and 3 as was held by the High Court. He submitted that regulation 83 3 concerns the decision of the returning officer on the validity or otherwise of a ballot paper or vote, whereas regulation 83 2 concerns the results of the presidential election as shown in Form 34 which are subject to confirmation by the appellant in terms of Article 3 c. He concluded that the confirmation envisaged by section 39 2 3 of the Act and regulation 83 2 and 87 2 c is intended to give full effect to Articles 86 and 3 c and is therefore constitutional, contrary to the holding by the High Court.
Opposing the appeal, the 1st, 2nd and 3rd respondents, who were represented by Mr. Otieno, Prof. Sihanya and Mr. Oginga , learned counsel, submitted that in interpreting the Constitution, the courts must pay due regard to its values and adopt an interpretation that is both substantive and purposive, while bearing in mind the mischief that the Constitution sought to cure.
While accepting that there were provisions of the Constitution best suited for literal interpretation, the said respondents contended that the provisions in issue were not of that kind because they were informed by the desire to ensure transparency at the lowest electoral units.
On the authority of the advisory opinion of the Supreme Court in In the Matter of the Interim Independent Electoral Commission supra , the trio submitted that the spirit and tenor of the Constitution must inform the process of interpretation bearing in mind the ills that the Constitution set out to cure.
Turning to the question of declaration of results, these respondents submitted that the results of a presidential election announced at the constituency were final and not subject to any changes or alteration, except by the election court. In their view, by dint of Article 2 , voting in the presidential election takes place at the constituency level where each constituency is required to conduct and hold presidential elections.
Under Article 86 b , they further urged, polling takes place at the polling stations in the constituency after which, the results are counted, tabulated and promptly announced by the presiding officer.
Once announced, they contended, such results are final as regards the polling station to which they relate and are thereafter transmitted from the polling station to the returning officer. Article 86 c then requires the results from different polling stations to be openly and accurately collated and promptly announced by the returning officers.
In the view of these respondents, elections are held in each constituency, and in accordance with Article 89 of the Constitution, Kenya is divided into constituencies. According to them, there is no distinction between presidential and other elections.
The polling station is manned by a presiding officer who at the end of the day counts the votes cast and announces the results, which are then passed on to the returning officer.
Once this is done, the appellant is obliged to tally the results, which can only be done by the returning officer, who is part and parcel of the appellant. They further submitted that the appellant as a body corporate operates through its officers called returning officers and donates to them power to conduct elections. They added that the locality where the elections are held infuses transparency and accountability to the electoral process as required by Article 85 of the Constitution, and that at the constituency level once the results are declared, candidates are obliged to sign declaration forms.
Having made such declarations, they submitted, it was not open to any other entity, elsewhere, to alter those results. To do so, they contended would not only be an absurdity but would undermine the transparency and integrity of the electoral process.
In the view of these respondents, to the extent that counting and tabulation of the votes takes place at the polling station, confirmation of the results can only take place at that level because no recount or re-tallying can take place at the national level in the absence of the necessary election materials. To the three respondents, finalizing the results at the polling centres and the constituency is consistent with the constitutional principle of devolution under Article 10 and that it is transparent, constitutional, and in the public interest to finalize results at the polling station and the constituency.
If it was the intention of the Constitution that the appellant should at the national tallying centre confirm or alter the announced results, they maintained, it would have provided so in express terms. Turning to the jurisdiction of the High Court to hear and determine the petition, the three respondents submitted that the High Court properly exercised its jurisdiction under Article 3 d i of the Constitution which confers on it jurisdiction to hear any question on the interpretation of the Constitution, including determination of whether any law is inconsistent with the Constitution.
It was their position that the petition did not challenge the election of a president-elect and therefore could not to have been filed in the Supreme Court. Lastly, on whether the petition was res judicata, the three respondents submitted that issues raised in the petition had never been litigated and determined by a court of competent jurisdiction and that they, as parties, had not previously litigated upon the matter before any other court.
Accordingly, we were urged to find that res judicata could not be raised against the petition. Taking their turn, learned counsel for the amicus curiae , Ms. Nkonge and Mr. Central to the petition, they contended, was the integrity of the electoral process. In the view of the amicus curiae , the real issue was not about reconciliation of electoral materials at the constituency and national levels, but the certainty of votes cast.
For good measure they added that the law provided sufficient safeguards against human errors in the electoral system. Turning to jurisdiction, the amicus curiae submitted that the questions presented in the petition and the reliefs sought therein directly engaged the jurisdiction of the High Court under Article 3 d i and ii.
It was further contended that the subject matter of the petition was not the validity of a presidential election, but the consistency of a law or regulations with the Constitution. In the view of this party, the jurisdiction of the High Court to determine the consistency of a law with the Constitution was original, and unfettered and could only be exercised by the Supreme Court at first instance, where, in the course of determining the validity of a presidential election, a question of constitutionality of a law was introduced and required determination of the Supreme Court to comprehensively dispose of the question of validity of presidential election.
It was further contended that even if the Supreme Court had jurisdiction to resolve the issue, that jurisdiction was shared with the High Court and judicial prudence dictated that the High Court should be accorded the first chance to determine the questions presented in the petition.
Lastly, on this issue, the amicus curiae submitted that jurisdiction arises at the time of the institution of the suit, and is not lost because of subsequent intervening events, such as the declaration of commencement of election of the president.
As regards res judicata , the amicus curiae submitted that the petition was a matter of public interest, which should not be defeated by the principle of res judicata.
Finally, we heard Mr. Orengo, SC, Dr. Otiende and Mr. Mwangi , for the 6th respondent. It bears pointing out that this respondent did not participate in the petition before the High Court but instead applied and joined the proceedings in this Court with the consent of all the other parties.
The 6th respondent took the view that to the extent that the appellant claimed that section 39 2 and 3 of the Act and regulations 83 2 and 87 2 c empowered it to confirm, alter, vary or verify the presidential election results declared by the constituency returning officer, those provisions were inconsistent with Article 86 and 2 of the Constitution.
It was further submitted that under Article 86 b , it was the duty of the presiding officer to count ballots, verify and announce results at the polling stations whereas under Article 86 c , it is the duty of the returning officer to verify, tally and announce the results at the constituency level.
The 6th respondent disagreed with the Attorney-General that Article of the Constitution is self-contained, contending that the election of the President, just like any other election, must comply with the general principles set out in Article 81 and be conducted generally in accordance with the Constitution.
On jurisdiction, the 6th respondent submitted that there was no election, the validity of which was under challenge in terms of Article of the Constitution. It contended that the petition before the High Court did not raise any question relating to the validity of the election of the President held in and that at the time it was filed, there was no president-elect as contemplated by Article From wrong timing to being unconstitutional, here are the issues surrounding new efforts to change the Charter as the House committee on constitutional amendments this week started deliberations on the matter once again.
Several issues hound the renewed push of lawmakers to amend the Constitution, supposedly only to grant Congress the power to loosen up its economic restrictions through ordinary laws.
Aside from the question of whether opening up the economy to greater foreign control will indeed help the country through Charter change Cha-cha , there is also the issue of whether the votes of the member House of Representatives and the member Senate should be counted jointly or as separate bodies.
Senators were incensed by the declaration of Ako Bicol party-list Rep. Alfredo Garbin Jr. This will give Congress the power to pass laws to loosen up the following restrictions against foreign control and private ownership:. Neoliberalism refers to market-oriented policies that usually include the elimination of price controls, the deregulation of capital markets, the lowering of trade barriers and the reduction of state influence in the economy.
We have to undertake these reforms. This will not only speed up our economic growth but will also improve our quality of economic growth. We need to relax our rules.
Yes, I agree that now is the not the time to do it. Kasi dapat kahapon pa It should have been done yesterday. This is a necessary step. Instead of blaming the Constitution for favoring Filipinos in the control of the economy, Guzman said the protections should be used to extract gain from limited foreign investment. If lawmakers really wanted to address the fallout of the COVID pandemic, Guzman said a meaningful fiscal stimulus — which would put money in the hands of struggling people and businesses so they can consume again — would have a more immediate effect.
President Duterte wanted the current attempt to change the Constitution to include the party-list system or remove it altogether from the Charter. But now, Sotto seemed cool to the idea of amending the Constitution for that goal. Instead, he said he would file a bill on Monday, Jan.
However, lawmakers may be hard-pressed to get economic Cha-Cha off the ground if they could not even agree on the proper procedure.
This was in response to Sagip party-list Rep. Download Free PDF. Lecture slides on Doctrine of Precedent. Innocent Mgeta. A short summary of this paper. Download PDF. Translate PDF. Mgeta 1 innomgtz gmail.
In the course of delivering a judgment, the judge will set out their reasons for reaching a decision. First, on procedural matters, the African Court referenced its power to draw on external sources [para. Second, in interpreting the content of the various rights invoked, the African Court reiterated its procedural powers and proceeded to draw heavily on external sources:. Tanzania and Peter Joseph Chacha [para.
It was in these two cases that the African Court decided it had jurisdiction ratione materiae [para. The Respondent, Tanzania, also invoked other sources, and reached beyond the continent in support of its position.
In their rebuttal, the Applicant relied on the work of the African Commission to refute this point [para. The African Court in turn relied on its own jurisprudence in Nobert Zongo et al. In the end, the African Court exercised the full extent of its powers under articles 3 1 and 7 of the Protocol and found that Tanzania had violated articles 1, 7 1 a , c and d of the Charter, and article 14 3 d of the ICCPR [para.
Therefore showing that the African Court would not limit itself to only using other human rights instruments as a tool for interpretation, but could also find violations of such other instruments. The case of Peter Joseph Chacha v. Tanzania is perhaps the odd one out of three cases discussed here. The African Court issued a ruling on admissibility, finding the application inadmissible, unlike the other two cases discussed above, which were decided on the merits.
Nevertheless, the case of Mr Chacha set an important precedent when it comes to Applicants not having to reference specific provisions of the Charter in order to claim a violation thereof, as well as on the exhaustion of domestic remedies. While the African Court did not see the initial lack of clarity on which Charter rights the Applicant was invoking as a ground to dismiss the claim, his lack of exhaustion of domestic remedies was [para. On the issue of invoking Charter rigths, Mr Chacha made reference to a violation of Tanzanian law, and not the Charter as such in his initial application.
In subsequent submissions, Mr Chacha alleged that his rights contained in articles 3, 5, 6, 7 1 , 14, and 26 of the African Charter were violated [para. In deciding the case, the African Court relied on a number of external sources. But it was not only the African Court that did so.
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