Commissioner for the Implementation of the Constitution v Attorney General & another; Kenya Paraplegic Organisation (Interested Party) (Civil Appeal 351 of 2012) [2013] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal struck down the rule that allowed losing presidential candidates to occupy special interest seats reserved for marginalized groups.
What this practically means
#Executive summary
#Key legal issues
#Meaning of 'special interests' in Article 97(1)(c) of the Constitution
Special interests are equated with marginalized groups; they are interests which the normal electioneering process has failed to capture and represent, and include the youth, persons with disabilities, workers, and ethnic, religious, linguistic, cultural and racial minorities
Applying harmonized interpretation of Articles 98(1)(c)(d) and 177(1)(c), which expressly reserve Senate and county assembly seats for the youth, persons with disabilities and marginalized groups, the court concluded that Article 97(1)(c) must logically refer to the same marginalized groups. The rationale for special seats is to open political space for those historically unable to win competitive elections.
Constitutionality of Section 34(9) of the Elections Act
Section 34(9) is unconstitutional, invalid and void because it arbitrarily superimposes well-heeled presidential and deputy presidential candidates on a list of the disadvantaged and marginalized
The court found no rational connection between presidential candidates and the expressly mentioned special interests. It held Parliament enacted the provision for considerations other than those in the Constitution, providing a 'soft landing' for losing presidential contestants, thereby doing violence to the constitutional scheme protecting vulnerable groups.
Method of constitutional interpretation - harmonization and ejusdem generis
Constitutional provisions with a common theme must be read together and not in isolation; the ejusdem generis rule confines 'special interests' to classes akin to the youth, persons with disabilities and workers
The court faulted the High Court for testing the section against Article 97(1)(c) alone. Reading the provisions together reveals their common thread. Presidential candidates cannot fit within the genus of marginalized and vulnerable groups, so their inclusion in the party list fails the ejusdem generis test.
Role of courts in constitutional adjudication against majoritarian instincts
Courts must robustly affirm protections of vulnerable groups even where these are counter-majoritarian; public opinion and parliamentary preference are no substitute for constitutional adjudication
Endorsing Makwanyane, FIDA-K and Njoya, the court held that the 2010 Constitution uprooted parliamentary supremacy, that every act of every organ must be judged against the Constitution, and that the task of judging constitutional validity rests on the superior courts, which must not defer to Parliament where legislation falls short of constitutional fidelity.
Legal principles established
#- 'Special interests' under Article 97(1)(c) of the Constitution bear the same meaning as marginalized groups, and only classes that have suffered marginalization and disadvantage qualify for nomination to the special seats
- Section 34(9) of the Elections Act, permitting the inclusion of Presidential and Deputy Presidential candidates in party lists for special interest seats, is unconstitutional, invalid and void
- In testing the constitutionality of Section 34 of the Elections Act, a court must analyse all the related constitutional articles (97(1)(c), 98(1)(b)(c)(d) and 177(1)(b)(c)) together, not Article 97(1)(c) in isolation
- The ejusdem generis rule applies to the interpretation of 'special interests including the youth, persons with disability and workers' in Article 97(1)(c)
- Political parties may not define for themselves what constitutes special interests; the Constitution itself is sufficiently clear on what these are
Court orders
#- 1.Appeal allowed
- 2.Declared that Section 34(9) of the Elections Act is invalid and void
- 3.Set aside the judgment of Majanja J dismissing Petition No. 389 of 2012
- 4.No order as to costs
- On appeal from
- High Court of Kenya
- Petition No. 389 of 2012
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court sitting as a Constitutional Court (constitutional interpretation jurisdiction exercised on appeal from High Court determinations)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commissioner for the Implementation of the Constitution v Attorney General & another; Kenya Paraplegic Organisation (Interested Party) (Civil Appeal 351 of 2012) [2013] KECA 8 (KLR)", Case Analysis (2013). Civil Appeal (from Petition No. 389 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/8/eng@2013-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.