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day-to-day operations of the entity such a decision need not be subjected to public engagement. 135. The issue is not foreign to our Courts. In Commission for Human Rights & Justice v Board of Directors, Kenya Ports Authority & 2 Others; Dock Workers Union (Interested Party) [2020] eKLR, the Petitioner claimed that public participation was ignored in the recruitment of the Managing Director of Kenya Ports Authority. In a rejoinder, the Respondents argued that Section 5(1) of the KPA Act mandated the Kenya Ports Authority to appoint the Managing Director. They further argued that Boards of Directors of State corporations are independent and that their decisions are only fettered by the law. It was also argued that public participation had been conducted through representation of board members who were involved in the recruitment process. Rika, J, expressed himself as follows: Should the process of appointment of the Managing Director of the KPA, be equated to the process of making legislation or regulations in public entities? The High Court, in Robert N. Gakuru& Others v. Governor Kiambu County & 3 others [2014] eKLR, held that it behoves County Assemblies, in enacting legislation, to do whatever is reasonable, to ensure that many of their constituents are aware of the intention to enact legislation. The constituents must be exhorted to give their input. Should the level of public participation be the same, in appointment of the Managing Director of a State Corporation? Should the Respondents exhort Kenyans to participate in the process of appointment of the Managing Director? In the respectful view of this Court, appointment of the Managing Director, KPA, is a highly specialized undertaking, which is best discharged by the technocrats comprising the Board, assisted by human resource expert committees as the Board deems fit to appoint. The existing law governing the process of appointment of the Managing Director KPA leans in favour of technocratic decision-making. Democratic decision-making, involving full-blown public participation may be suitable in the processes of legislation and related political processes, such as the Makueni County Experiment and the BBI, subject matter of Dr. Mutunga’s case studies. But technocratic decision-making suits the appointment of CEOs of State Corporations. Even as we promote democratic [people-centric] decision-making processes, we must at the same time promote technocracy, giving Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022 Page 39 of 59

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Marube Ombeta, Kamotho Njenga v. Independent Electoral and Boundaries Commission

Judgment

Question Presented: Whether the Independent Electoral and Boundaries Commission (IEBC)’s decision to implement the two-thirds gender rule for the 2022 elections is unconstitutional. Whether the IEBC’s decision to reject the petitioner’s candidate nominations list for the National Assembly and the Senate was unconstitutional.

Alleged Acts: Petitioners alleged that the IEBC’s decision relating to the implementation of the two-thirds gender rule was unconstitutional because it did not allow for public participation and stakeholder consultations, and did not follow fair administrative procedures, in accordance with Articles 10 and 47 of the Constitution. Additionally, petitioner Marube Ombeta alleged that the IEBC acted unconstitutionally when it required petitioner’s candidate nominations list for the National Assembly and the Senate to comply with its decision relating to the two-thirds gender rule, in contravention of Articles 4(2), 27, 38, and 91 of the Constitution.

Procedural history: There were two petitioners who alleged the same violation by the IEBC and filed separate proceedings: Petition No. E211 of 2022 (Cliff Marube Ombeta vs. Independent Electoral and Boundaries Commission & United Democratic Alliance Party (Interested Party)) and Judicial Review Misc. Application No. E071 of 2022 (Adrian Kamotho Njenga vs. Independent Electoral and Boundaries Commission & Office of the Registrar of Political Parties & 9 Others (Interested Parties)). On May 19, 2022, the High Court of Kenya at Nairobi, Constitutional and Human Rights Division ordered the petitions to consolidate into the present case. Note that an appeal has been filed by the IEBC and is pending before the Court of Appeals.

Summary: The respondent IEBC (the election management body of Kenya) issued a letter dated April 27, 2022, advising all registered political parties that the IEBC would reject candidate nomination lists for the National Assembly and the Senate that did not comply with the two-thirds gender principle enshrined in the Constitution. Then, on May 5, 2022, the IEBC sent a notice to the United Democratic Alliance Party (UDA) rejecting its nomination list on those grounds. Petitioner Cliff Marube Ombeta is a Member of the UDA and a nominee for a National Assembly seat. He alleges that the notice “purport[ed] to penalize innocent aspirants and voters by barring them from exercising political rights when in fact the IEBC had failed to facilitate compliance by devising administrative mechanisms to be used during party nominations.” He also alleges that the IEBC is “seeking to overthrow the will of the people” by not allowing them to choose their own representatives, in accordance with Articles 1, 38, and 81(a) of the Constitution. Finally, the petitioner claims that the IEBC did not take proper administrative actions, in accordance with Article 88(4)(e) of the Constitution, to ensure political parties complied with its new law. Petitioner Adrian Kamotho Njenga is an Advocate of the High Court of Kenya who seeks to “quash” the IEBC’s notice. He argues that the IEBC did not issue its decision on the two-thirds gender rule until after political party nominations were complete; this fact, coupled with the IEBC’s failure to devise an administrative procedure to inform political parties of the new rule, placed the burden of failure to comply on candidates and then punished all candidates “communally” for noncompliance by barring them from elections. It also contravened Section 13 of the Elections Act, which requires candidates to be nominated at least ninety days before an election. In Mombasa High Court Constitutional Petition No. 159 of 2018 and Law Society of Kenya vs. The Attorney General & Others, the Court determined the threshold for public participation and/or stakeholders’ consultations in decisions made by public entities. It held that if the entity’s exercise of statutory authority “only impacts on the normal and ordinary day-to-day operations of the entity,” subjecting it to public participation would do more harm than good. However, if the exercise of statutory authority “transcends the borders of the entity into the arena of, and has a significant effect on the major sector players, stakeholders, and/or the public,” there is “ample justification” for submitting it to public participation. In the instant case, the Court found that the IEBC’s notice had a significant effect on the general public because political parties, their members, and their candidates “all stood to be gravely and adversely affected” by the notice. Accordingly, the Court held that the notice should have been subject to public participation or stakeholders’ engagement. IEBC’s failure to do so violated Article 10 of the Constitution. The Court also held that the IEBC’s decision to reject the UDA’s nominations list violated Article 47 of the Constitution because the decision was “unreasonable, arbitrary, inconsiderate, unfair and unproportional” and “directly interfere[d] with various other rights and fundamental freedoms which are guaranteed in the Constitution.” Furthermore, the decision violated Article 38 of the Constitution because the IEBC’s rushed process “trampled” on political parties’ freedom to “make political choice in nominating candidates in a political party” and contravened Article 91 of the Constitution because Parliament had not passed legislation to codify the two-thirds gender rule and the IEBC had not provided guidance on how the decision would protect political rights. Accordingly, the Court ruled that the decision violated “national values and principles of governance” protected by Article 10 of the Constitution including, but not limited to, “integrity,” “transparency,” and “accountability.”

Conclusion: The Court declares that the IEBC’s decision relating to the enforcement of the new two-thirds gender rule and its decision to reject the nomination list of the UDA are unconstitutional.

Legal Issue(s)

Candidate Registration
Gender
Quotas

Applicable Law(s): Articles 10, 27, 38, 47, and 91 of the Kenyan Constitution; Law Society of Kenya vs. The The Attorney General & Others; Mombasa High Court Constitutional Petition No. 159 of 2018

Region: Africa

Country: Kenya

Language of Decision

English

Court: Supreme Court

Election Type: Parliamentary

Date of decision: Jun 13, 2022

Geolocation

Latitude: -1.2733651085511815

Longitude: 36.77278343707012

: Geolocation

Primary Documents

Petition No. E211 of 2022 Judgment - Political Parties Two-Third Gender Rule (1).pdf
English
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Election Judgments - IFES

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Marube Ombeta, Kamotho Njenga v. Independent Electoral and Boundaries Commission

Primary Documents

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