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Case Brief · caselaw.co.ke
High CourtPartially AllowedNot stated in the judgment (petition dated 5th March 2013)· [2013] KEHC 6328 (KLR)

National Gender and Equality Commission v Independent Electoral and Boundaries Commission & Attorney General

High Court of Kenya
15 April 2013
10,810 words in judgment
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AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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The IEBC must ensure party lists meet constitutional standards and promote inclusion, but it cannot dictate how parties select their candidates.

What this practically means

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Executive summary

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The National Gender and Equality Commission petitioned the High Court alleging that the IEBC had failed its constitutional duty under Article 90 to conduct and supervise elections for party list seats in the National Assembly, Senate and County assemblies, and sought declarations that the party lists were null and void, conservatory orders, and mandamus compelling IEBC to supervise party elections. A three-judge bench (Lenaola, Ngugi and Majanja JJ) framed four issues. It held that the 'election' contemplated in Article 90 is the allocation of party list seats by the IEBC from lists submitted by political parties, not internal party elections; how parties compile their lists is entirely a party matter governed by their own nomination rules. The IEBC's supervisory duty is to satisfy itself that submitted lists comply with the Constitution, the Elections Act 2011 and the regulations, including qualification of nominees, gender alternation and regional and ethnic diversity. The court declined to define 'special interests', 'marginalised' or 'ethnic diversity' or to revisit the Micah Kigen decision, holding that guidelines must be developed participatorily by the IEBC with other commissions and stakeholders. However, it found the IEBC in breach: it failed to publish the final party lists in at least two newspapers of nationwide circulation as required by regulation 54(8), and it took no active steps to promote participation of vulnerable groups. Because the General Election had occurred and parliamentary nominees had been gazetted, the court declined to annul the lists or strike out names, holding that challenges to gazetted members lie only by election petition under Article 105. It ordered publication of the county assembly party lists within five days, immediate dispute-resolution mechanisms, settlement of disputes within seven days, gazettement seven days after disputes are determined, and a programme with other commissions and parties to increase participation of women, youth, persons with disabilities and marginalised groups. Each party was to bear its own costs.

Key legal issues

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01

Meaning of 'election' in Article 90 and the IEBC's role in party list creation

Holding

Article 90 does not require the IEBC to conduct or supervise internal party elections for positions on party lists; how parties compile lists is entirely within the parties' mandate, subject to their own nomination rules.

Reasoning

Reading Article 90 in context, its opening title is 'Allocation of Party list seats'. The election occurs when the IEBC allocates seats in proportion to seats won under Article 90(3), in the order of the lists. Regulation 55(1) and paragraph 19 of the Second Schedule to the Political Parties Act confirm that lists are prepared under each party's own nomination rules. Disputes over internal party processes lie with the Political Parties Disputes Tribunal or the High Court.

p. 9
02

Scope of the IEBC's duty to conduct and supervise elections for party list seats

Holding

The IEBC must satisfy itself that submitted lists meet constitutional and statutory criteria, including qualification of nominees, gender alternation, and regional and ethnic diversity, but may not direct how parties prepare the lists.

Reasoning

Sections 34-37 of the Elections Act and regulations 54 and 55 of the General Regulations give effect to Article 90. The IEBC's supervisory role is to scrutinise lists for compliance and to reject unqualified nominees under regulation 54(5), not to manage internal party nomination processes.

p. 10
03

Whether the IEBC should define 'special interests', 'marginalised groups' and related terms, and whether the court should issue guidelines

Holding

The court declined to issue guidelines or define the terms, holding that such guidelines must be developed participatorily by the IEBC with other commissions and stakeholders; the court also declined to revisit the Micah Kigen decision.

Reasoning

Following Prinsloo v Van der Linde, the court warned against sweeping interpretations in complex equality matters, preferring incremental case-by-case development. It had not heard the political parties or interrogated specific nominees. Guideline-making must be participatory under Article 10 and the court cannot take over the responsibilities of other constitutional bodies.

p. 12
04

Whether the IEBC complied with its constitutional responsibility

Holding

The IEBC failed its obligation by not publicising the party lists under regulation 54(8) and by issuing only formal guidelines without taking active steps to promote participation of vulnerable groups.

Reasoning

The evidence showed irregularities in the lists (non-members on lists, no gender balance, no deaf nominees). Publication was required to enable public scrutiny and dispute resolution under Article 88(4)(e) and section 74 of the Elections Act. The IEBC's implementation of rights must be active, not passive, per Article 21 and Article 249(1).

p. 13
05

Appropriate remedy given the post-election posture

Holding

Rather than annulling the lists, the court ordered publication of the county assembly party lists, dispute resolution within set time limits, gazettement after disputes are determined, and a programme to increase participation of marginalised groups.

Reasoning

Remedies must account for the existing legal and factual situation: the General Election had occurred, some nominees were already gazetted, and lists could not be amended. Annulling entire lists was infeasible; striking out names would prejudice parties and nominees who were not before the court.

p. 16

Legal principles established

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  • The 'election' in Article 90 refers to the allocation of party list seats by the IEBC from lists submitted by political parties, not internal party elections for positions on the lists.
  • The IEBC's duty to conduct and supervise elections under Article 90(2) extends to ensuring that submitted party lists comply with the Constitution, the Elections Act and the regulations.
  • Failure to publish final party lists in at least two newspapers of nationwide circulation under regulation 54(8) is a breach of the IEBC's supervisory duty.
  • Once gazetted under Article 105, challenges to membership of the National Assembly and Senate lie only by election petition.

Court orders

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  1. 1.The IEBC shall within 5 days from the date of the judgment publish, in accordance with regulation 54 of the Election (General) Regulations, 2012, the party lists submitted for the parties that have qualified in accordance with Article 90(3) for membership of the County assemblies under Article 177 of the Constitution in at least two newspapers of national circulation.
  2. 2.The IEBC shall immediately put in place mechanisms to resolve any disputes concerning the lists in accordance with Article 88(4)(e) of the Constitution as read with section 74 of the Elections Act, 2011 upon publication of the party lists.
  3. 3.The IEBC shall finalise settlement of all disputes submitted to it in respect of the party lists within 7 days from the date of publication of the party lists.
  4. 4.The final list of nominees shall be gazetted 7 days after the determination of any disputes.
  5. 5.The IEBC is directed to develop a program, in conjunction with constitutional and statutory commissions and political parties, to develop policies and measures geared towards increasing the participation of women, youth, persons with disabilities, marginalised groups and other vulnerable persons to effectively participate in political processes.
  6. 6.Each party shall bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 10, 21, 249(1), 27, 38, 54, 56, 59(4), 83, 88(4)(e), 89(1)(d), 90, 91(1)(e) and (f), 97(1)(c), 98(1)(b), (c) and (d), 105, 177(1)(b) and (c), 178, 197, 259(1)
  • Elections ActAct No. 24 of 2011, sections 34, 35, 36, 37, 74, Part VII
  • Election (General) Regulations, 2012Regulations 54, 55, 88(1)
  • Political Parties ActAct No. 11 of 2011, section 39, Part VI, Second Schedule paragraph 19
  • County Government Act, 2012Section 7
  • Elections (Parliamentary and County Elections) Petition Rules, 2013General
  • National Gender and Equality Act2011
  • Universal Declaration of Human RightsArticle 21
  • African Charter on Human and Peoples' RightsArticle 13
  • African Charter on Elections, Democracy and GovernanceArticles 3(7), 31(1)
  • Convention on the Rights of Persons With DisabilitiesArticles 5(2), 29
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Article 7(b)
  • Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol)General

Cases cited (22)

  • Advisory Opinion No. 2 of 2012
    [2013] eKLR

    Historical exclusion of women from elective public bodies justifying Articles 27(8) and 81(b)

  • Kituo cha Sheria v Independent Electoral and Boundaries Commission and Another
    Nairobi Petition No. 574 of 2012 [2013] eKLR

    Right of prisoners to vote; State's positive duty to ensure marginalised groups exercise the vote; framing appropriate remedies

  • Johnson Muthama v Minister for Justice and Constitutional Affairs and Another
    Nairobi Petition 198 of 2011 [2012] eKLR

    Citizens' concern that constitutional rights translate into reality

  • R v Big M Drug Mart Limited
    [1985] 1 SCR 295

    Purposive, generous interpretation of constitutional rights

  • Re The Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011

    Adopting State v Acheson on the spirit and tenor of the Constitution in interpretation

  • State v Acheson
    1991 (20 SA 805 (Page 813)

    Constitution as a mirror reflecting the national soul; spirit and tenor preside over interpretation

  • Centre for Rights Education and Awareness (CREAW) and Others v The Attorney General
    Nairobi Petition No 16 of 2011 (Unreported)

    Harmonisation - constitutional provisions must be read together

  • Tinyefuza v The Attorney General
    Constitutional Appeal No. 1 of 1997 (Unreported)

    Harmonisation principle in constitutional interpretation

  • Olum v Attorney General of Uganda
    (2002) 2 EA 508

    Harmonisation principle in constitutional interpretation

  • Attorney General of Tanzania v Rev. Christopher Mtikila
    [2010] 2 EA 13

    Clear words of a constitutional provision cannot be disregarded

  • San Antonio School District v Rodrigues
    (1973) 411 US 29

    Identifying classes saddled with disabilities or political powerlessness deserving extraordinary protection

  • Rangal Lemeiguran v Attorney General
    Nairobi HC Misc. Civil App. 305 of 2004 [2006] eKLR

    Special interests are those the normal electioneering process fails to capture and represent

  • Micah Kigen and 2 Others v Attorney General and 2 Others
    Nairobi Petition No. 268 and 398 of 2012 [2012] eKLR

    Special interests are infinite and various; parties may define them; IEBC's duty over party list criteria

  • Prinsloo v Van der Linde and Another
    1997 (3) SA 1012 (CC)

    Caution against sweeping interpretations; equality doctrine should develop incrementally

  • Community Advocacy and Awareness Trust and Another v Attorney General
    Nairobi Petition No. 243 of 2011 (Unreported)

    Support for declining to issue guidelines (cited alongside Prinsloo)

  • Federation of Women Lawyers of Kenya (FIDA – K) and Others v Attorney General and Others
    Nairobi Petition No. 102 of 2011 (Unreported)

    High Court will not hesitate to set the Constitution on its course where breached

  • Trusted Society of Human Right Alliance v Attorney General
    Nairobi Petition No. 299 of 2012 (Unreported)

    High Court's role where there is a breach of the Constitution

  • Jeanne W. Gacheche and 6 Others v Judges and Magistrate's Vetting Board and Others
    Nairobi Judicial Review No. 295 of 2011, 433, 434 and 438 of 2012 (Unreported)

    High Court's role where there is a breach of the Constitution

  • Jeffer Issak Kaur v Ministry of Justice, National Cohesion and Constitutional Affairs and Others
    Nairobi Petition No. 556 of 2012 (Unreported)

    Remedies for constitutional breaches depend on circumstances of each case

  • Kones v Republic and Another ex-parte Kimani wa Nyoike and Others
    (2008) 3 KLR EP 29

    Any person may file a petition to challenge the election of a member of Parliament

  • Ferdinand Waititu v Independent Electoral and Boundaries Commission and Others
    Nairobi Election Petition No. 1 of 2013 [2013] eKLR

    Election petitions as the mode of challenging membership of Parliament

  • John Harun Mwau and Other v Attorney General
    Nairobi Petition No. 65 of 2010 (Unreported) [2012] eKLR

    Award of costs is entirely within the court's discretion

Jurisdiction invoked
Original constitutional jurisdiction under Article 165 of the Constitution (petition for enforcement of constitutional provisions on party list seats)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Gender and Equality Commission v Independent Electoral and Boundaries Commission & Attorney General", Case Analysis (2013). Not stated in the judgment (petition dated 5th March 2013). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.