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104. In making the argument that the judgment in the Katiba Case was in rem, she deposed that it would be discriminatory to excuse the Petitioners’ party or any other party from complying with the judgment yet 43 out of 81 political parties had complied. 105. It was her case that allowing the consolidated Petitions requires the Court to contradict and ignore Article 91(1)(f) which commands every political party to “respect and promote human rights and fundamental freedoms, and gender equality and equity, Section 110(1) of the Elections Act that establishes the Electoral Code of Conduct and Paragraph 5 thereof and section 9(1) of the Political Parties Act requiring the Constitution or rules of every political party to provide for all the matters specified in the Second Schedule to the Act including, under paragraph 24 to 26 among other provisions of law. 106. In rebutting the 2nd Petitioner’s claim that there was no mechanism for realization of the gender principle rule, Ms. Nkonge deposed that IEBC’s has since maintained a public notice on its website publicizing the Electoral Code of Conduct, notifying every political party, Independent Candidate and every person participating in an election or referendum under the Constitution and the Elections Act to subscribe to and observe the Electoral Code of Conduct. 107. Reference was further made to IEBC’s twitter post of December 2018, the press conference of 9th August, 2021, its website public post of 18th August, 2021. The tweet of January 2022 all of which were aimed at notifying the public that the political parties ought to comply with the two-thirds gender principle. 108. On a different line of argument, Ms. Nkonge deposed that the 2nd Petitioner was an official of the United Democratic Party and not as a neutral public spirited individual. 109. She purposed to lend credence to her position by referring to IEBC’s letter of 5th May, 2022 to UDA on the engagements it had had with UDA and maintained the position that the claim by the 2nd Petitioner that IEBC did not engage political parties is unfounded. Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022 Page 20 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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