Kenya Small Scale Farmers Forum & 6 others v The Attorney General & 1 other

Ratification Act, 2012, mandated stakeholder involvement before ratification. Consequently, the State was ordered to create mechanisms ensuring inclusive public engagement in finalizing the agreement. Reported by Beryl A Ikamari Constitutional Law - national values and principles of governance - public participation-public participation as concerned entry into an international agreement - whether the process of negotiation for Economic Partnership Agreements with the European Union was carried on without public participation - Constitution of Kenya, 2010; articles 1 & 10, and Treaty Making and Ratification Act, No. 45 of 2012. Brief facts The Cotonou Partnership Agreement entailed an aid and trade agreement, entered into on June 23, 2000, between 77 African Caribbean and Pacific (ACP) countries and the European Union. Kenya was within the category of African, Caribbean and Pacific countries that were signatories to the Cotonou Partnership Agreement (CPA). Consequent to the agreement, Kenya engaged in negotiations which were to culminate in the ratification of a reciprocal free trade agreement known as the Economic Partnership Agreement (EPA.) The EPA was intended to create rapid and almost absolute trade liberalization amongst the signatories to the Cotonou Partnership Agreement. For purposes of the negotiations, Kenya was in a category of 16 countries known as East and Southern Africa (ESA.) The categorization was based on the geographical location of the countries. The petitioners had grievances concerning the negotiations for the Economic Partnership Agreements (EPA.) They asserted that the EPAs would bring a host of negative effects including loss of revenue amounting to 6 to 9 billion Kenya shillings, loss of competitive edge for Kenyan industries and manufactured goods, difficulties relating to market access for agricultural and non-agricultural products, increased competition from industries based in the European Union, challenges to Kenya’s major food commodities and restrictions on the movement of persons. The petitioners complained that the negotiation process was being carried on in a non-inclusive way as there was neither access to information on the negotiations, nor an opportunity afforded to the public to express their views, as relates to the EPA. Generally, it was alleged that public participation was not achieved or facilitated. Issues Whether Kenya’s negotiations for Economic Partnership Agreements with the European Union, failed to meet the constitutional requirements for public participation. Held 1. The questions as to whether the Economic Partnership Agreement would be suitable for Kenya and whether or not it would have a positive impact, entailed matters of policy which the court would not be best suited to handle. Furthermore, the court's intervention in the activities of other arms of government would be circumscribed by the doctrine of separation of powers. 2. Negotiations for the Economic Partnership Agreements were dealt with by the political arms of government and the courts were required to exercise restraint, in handling such matters, in view of the doctrine of separation of powers. However, the court would be empowered to consider issues of breaches of constitutional provisions or violations of fundamental rights and freedoms, emerging from such negotiations and agreements. 3. Where a petitioner sought relief from the court for a breach of fundamental rights and freedoms, the petitioner would be required to set out, with precision, the rights concerning which a violation was alleged and the manner in which the violation had been carried on in relation to the petitioner. However, in filing their petition, the petitioners had not clearly stated the nature of the right which was alleged to have been violated and the manner in which the violation was conducted. 4. Public participation in governance entailed an expression of sovereignty of the people and the manifest will of the people. The national values recognized in article 10 of the Constitution of Kenya, 2010, https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 2

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included inclusiveness and the participation of the people. Particularly, in the creation of new laws, public participation was expressly provided for by the Constitution. 5. Initially when the negotiation process for the EPA began, there was no express provision requiring public participation; there was no legislative or constitutional framework requiring the state to employ direct public participation in policy matters and the Constitution of Kenya, 2010 had not been promulgated. 6. The state could not be found to be in breach of provisions that did not exist at the time that the negotiation process for Economic Partnership Agreements began. 7. There was still room for public participation as concerned the Economic Partnership Agreements (EPA.) The Treaty Making and Ratification Act, No. 45 of 2012, provided for various levels of approval and appraisal before an international agreement could be ratified by parliament. These levels of approval would provide room for public participation in the making of the Economic Partnership Agreement. Petition allowed in part. (The court made orders requiring the state to create mechanisms to facilitate the participation of stakeholders in the process leading to the making of the Economic Partnership Agreement.) Citations East Africa 1.Anarita Karimi Njeru v Republic (No 1) [1979] KLR 154 –(Mentioned) 2.Commission for the Implementation of the Constitution v Parliament of Kenya and another Petition No 454 of 2012 3.Federation of Women Lawyers of Kenya (FIDA – K) and Others v Attorney General and Others Petition No 102 of 2011-(Mentioned) 4.Gacheche, Jeanne W and 6 others v Judges and Magistrate’s Vetting Board and Others Judicial Review Nos 295 of 2011; 433, 434 & 438 of 2012 (Consolidated)-(Mentioned) 5.International Centre for Policy & Conflict & 5 others v Attorney General & 4 others Petition No 552 of 2012 –(Mentioned) 6.In Re the Matter of the Interim Independent Electoral Commission Constitutional Application 2 of 2011 – (Explained) 7.Kilonzo, Diana Kethi and another v Independent Electoral & Boundaries & 2 others Petition No 359 of 2013 –(Mentioned) 8.Kubai, Cyprian v Stanley Kanyonga Mwenda Miscellaneous Application No 612 of 2002 –(Mentioned) 9.Macharia, Samuel Kamau & Another v Kenya Commercial Bank Limited & 2 others Application 2 of 2011 –(Mentioned) 10.Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others Civil Appeal No 290 of 2012 of 2012 –(Explained) 11.Mwaura, Joseph Ihuro & 82 others v Attorney General & 2 others Petition No 498 of 2009 –(Mentioned) 12Trusted Society of Human Right Alliance v Attorney General Petition No 299 of 2012 –(Mentioned) 13.Wanjiku, Beatrice & another v Attorney General & another Petition No 190 of 2011 –(Explained) South Africa 1.Doctors for Life Case Doctor's for Life International v Speaker National Assembly and Others 9CCT12/05) [2006] ZACC II –(Explained) 2.Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others [2008] ZACC 10 –(Explained) 3.Minister of Health and Others v Treatment Action Campaign and Others (2002) 5 LRC 216 –(Explained) https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 3

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4.Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5 –(Explained) Canada 1.Marshall v Canada, Communication No 205/1986 –(Explained) United States 1.US v Butler, 297 US 1(1936) –(Explained) Statutes East Africa 1. Constitution of Kenya, 2010 articles 2(5)(6); 4; 7; 33; 35; 36; 165 –(interpreted) 2.Constitution of Kenya (Repealed) sections 70(a)(b)(c); 71(1); 73(1); 74(1); 75(1); 82(2); 84(1) –(interpreted) 3.Leadership and Integrity Act, 2012 (Act No 19 of 2012) –(interpreted) 2.Societies Act (cap 108) –(interpreted) 5. Treaty Making and Ratification Act, 2012(Act No 45 of 2012) section 12 –(interpreted) International Instruments & Conventions 1.Lome Conventions, 1975 2.Cotonou Protocol, 2000 article 4 2.Universal Declaration of Human Rights (UDHR), 1948 article 21 3.African Charter on Human and Peoples’ Rights (ACHPR), 1981 articles 9, 13 4.International Covenant on Civil and Political Rights (ICCPR), 1966 article 25 JUDGMENT Introduction 1. This matter has a long history and this is the second benchreconstituted to hear it following the transfer of one of thejudges in the initial bench empanelled to determine it. 2. The Petition is brought under Section 84(1) of theRepealed Constitution and it relates generally to a State’sobligation in facilitating public involvement in publicgovernance, formulation of public policy, legislativeprocesses and in the present context, the formulation andconclusion of international agreements and treaties. The Parties 3. The 1st Petitioner, Kenya Small Scale Farmers Forum(“KSSFF”) is a society registered under the Societies Act,Chapter 108 of the Laws of Kenya with the goal ofempowering small-scale farmers with capacities at all levelsto enhance equal partnerships for sustainable and dignified livelihoods. According to its Constitution, some of itsspecific objectives include to mobilize small scale farmersfor self-organization and collective voice, create awarenesson the issues affecting small scale farmers in Kenya,campaign, lobby and advocate for change of policy infavour of small-scale farmers in Kenya and to build thecapacity of small-scale farmers to enable them participateeffectively in policy formulation by seeking to be self-reliantand effective national networks that will empower them toincrease their visibility. 4. The 2nd, 3rd and 4th Petitioners are officials in KSSFF in thecapacities of Chairman, Secretary and Treasurerrespectively. The 5th Petitioner is a small scale farmer inUasin Gishu District and she depones that she has as suchtaken substantial interest in the Economic PartnershipAgreements (EPAs). The 6th https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 4

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Petitioner is a Nairobi-basedhuman rights organization founded in 1992 committed tothe promotion and protection of human rights by allKenyans. Background 5. Kenya has in the past taken a number of measures in a bidto reform the trade sector, key among them being themovement of the country towards a free market economy.Pursuant to its international relationships with the EuropeanUnion(EU) , Kenya has been engaged in various trade arrangements and its relationship with EU countries had fora long time been governed mainly by the LomeConventions-which preceded the signing of the CotonouProtocol in 2000. 6. As one of the African, Caribbean and Pacific (ACP) group ofcountries, Kenya engaged in negotiations with the EU overreciprocal free trade agreements known as the EconomicPartnership Agreement (EPA) along with other countries.The negotiations were part of a new trading arrangementthat was set to bring about rapid and almost absoluteliberalization of trade between the ACP countries and theEU. 7. The EPA negotiations were structured to be undertaken ingroups based on geographical configuration being the Eastand Southern Africa (ESA), Southern African DevelopmentCommunity(SADC), Economic Community of West AfricanStates(ECOWAS), Central African Monetary Union(CEMAC),the Caribbean Community(CARICOM) and the Pacific Groupof countries(Pacific EPA). Kenya is in the group of countrieswhose negotiations with the EU were being conductedthrough the Eastern and Southern Africa (ESA) geographicalconfiguration comprising about 16 countries. 8. The negotiations were being carried out on the basis of theContonou Partnership Agreement (CPA) between the EU and ACP countries. The Cotonou Partnership Agreement (“TheAgreement”) is a comprehensive aid and trade Agreementbetween the 77 ACP Members States of the one part, andthe EU and its Member States, of the other part, signed inCotonou, Benin on 23 June 2000. The CPA contains theterms of agreement between the parties and provides theframework for EPA negotiations. There have beensubsequent amendments to the CPA, the last one being inthe year 2010. Kenya is one of the ACP countries thatratified the CPA. 9. By the time of filing the present Petition, trade negotiationswere ongoing and were structured along three main phaseswith the first phase taking place between the year 2002-2003 centering on general issues and principles of EPAs ofcommon interest to all ACP countries, the second wasbetween 2003-2007 involving substantive negotiations atregional levels while the third phase(July 2009) wasprojected for finalization of the negotiations. 10. According to the EPA draft text, the objective of EPA was to“Promote and expedite the economic, cultural and socialdevelopment of the ESA countries, and with a view tocontributing to peace and security and to promoting astable and democratic political environment as well asregional integration.” Petitioners’ Case 11. The Petitioners’ case is contained in the Petition dated the24th October 2007 and the three supporting affidavits, beingthat of Moses Shaha, KSSF’s Chairman, Esther Jepkogei Bettthe 5th Petitioner and Muthoni Wanyeki, then ExecutiveDirector of KHRC, the 6th Petitioner dated 24th October,2007. They also rely on the written skeletal argumentsdated 24th March 2009 and the list of authorities of thesame date. 12. The Petitioners are basically opposed to theoperationalization of the CPA and commencement of theEPA for the reason that the said agreement is not in theinterests of small scale farmers and is likely to havedetrimental effects to the economy of the Country at large. https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 5

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13. The Petitioners complain that subsequent studies on theimpact of the EPAS on the Kenyan economy have revealedthat their coming into force will lead to massive losses inagricultural produce and could push a large number offarmers out of work and extirpate their means of livelihoodowing to the heavy subsidization of agricultural produce bythe EU. 14. In support of the negative impact of EPAs, the Petitionerspoint to studies carried out by the Kenya Institute for PublicPolicy Research and Analysis (KIPPRA) on behalf of theMinistry for Trade and Industry dated September 2005 entitled “Assessment of the Potential Impact of EconomicPartnership Agreements (EPAs) on the Kenyan Economy”and the “Economic and Welfare Impacts of the EUAfricanEconomic Partnership Agreement” published by the AfricaTrade Policy Centre, a division of the UN EconomicCommission for Africa. 15. According to these reports, the Agreements would lead tovarious negative impacts including loss of revenue to thetune of 6 to 9 billion Kenya shillings, loss of competitiveedge for Kenyan industries and manufactured goods,competition under the principle of reciprocity, anddifficulties in the area of market access for agricultural andnon-agricultural products, increased competition from EU-based industries in a number of products and that ACPcountries will have to cope with and bear adjustment costsas a result of revenue shortfalls, challenges to Kenya’smajor food commodities such as wheat, rice, sugar, dairy,maize, meat and meat products and restriction ofmovement of natural persons amongst other demerits. 16. The Petitioners aver that the coming into force of the EPAscould lead to food insecurity, undermine Kenya’s foodsovereignty and impede their self determination. It is theircase that as studies have revealed, operationalization ofEPAs will affect many sectors of the economy as they willopen the Kenyan market or economy to cheap and heavily subsidized products from the EU, leading to unfaircompetition and which may ultimately lead to closure of theKenyan manufacturing industries. 17. The Petitioners plead that the Government had not carriedout any proper and adequate studies on potential humanrights impacts of the EPAs and complain about the variousdetrimental effect that EPAs will have on a number ofsectors of the Kenyan economy including fundamentalreduction in government revenue collectible from tradetariffs and customs charges and in short urged that the saidagreement is a violation or risked violating the Petitioners'fundamental rights. 18. The Petitioners also fault the process in which the DraftEconomic Partnership Agreement Text was arrived at. Theyclaim that the Draft Text does not address socio economicwelfare concerns of the Petitioners and Kenyan citizensgenerally. They further fault the process of negotiations onthe ground that the State was in breach of its obligationunder international law by failing to involve them in thenegotiations. At paragraph 24 of the Petition, they complainthat; “Contrary to the declared principles and basis fornegotiations the EPA process has been solely driven by theGovernment of Kenya with selective and discriminativeadmission of participants, thereby excluding the Petitionersor their representatives from participation in the negotiations.” 19. The 5th Petitioner swore an Affidavit dated 24th October2007 in which she states that the Kenya government hasfailed to take into account the primary conditions that mustinform and guide the negotiations before the EPA is signedbetween Kenya and its counter parts in the ESA group(within the ACP group) and the European Union. Shedeponed on several issues that Kenya had not compliedwith in the conclusion of EPA. These include;#Equal and effective participation of women and theinvolvement of non-state actors#Consideration of non-tariff barriers which may impactnegatively on EPAs#Proper scrutiny and monitoring of the EPA negotiations innational parliaments in ACP countries throughout theprocess#Effective safeguard measures to protect ACP https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 6

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producersfrom the influx of EU imports#Demand that EU addresses issues of trade liberalizationand of sequencing financial support for agriculture andfisheries during EPA negotiations. 20. The KHRC filed an affidavit in support of the Petition dated24th October 2007 sworn by its then Executive Director,Muthoni Wanyeki. KHRC faulted the process in which thegovernment undertook the negotiations on the basis that no consultation had been carried and in particular that; i. [The government] refused to institute a mechanismthat would ensure that the people, not drawn onlyfrom the private sector, have access to informationand the opportunity to express their opinion at allstages of the negotiations. ii. There has been no formal or official public hearingsinvolving stakeholders and the citizenry. iii. There is no evidence that Parliament has beeninvolved and its approval and mandate sought. iv. No impact assessments have been conducted byindependent and non-partisan researchers and oninter-disciplinary basis. 21. There is also an Affidavit filed on 21st May 2013 sworn byAndrew Odete, a Programme Officer at the KHRC to which isannexed a report commissioned on its behalf entitled,“Study on the EAC/ EU Economic Partnership Agreement:Current Status of Negotiations and the Implications toKenyan Producers and Consumers (Interim Report)(“KHRC-1”). 22. In the Petition dated 24th October 2007 the Petitioners seekthe following main prayers: 23. a) A declaration that the conduct of ongoingnegotiations on EPAs, the EPAs as presentlyconceived and the actions of the firstrespondent in regard to the said negotiationscontravene sections 70(a), 70(b), 70(c), 71(1),73(1), 74(1), 75(1) and 82(2) of the Constitutionof Kenya in relation to the Petitioners. b) A declaration that the nature of thenegotiations as reflected in the Draft Text willcontravene the Petitioners’ rights and freedomsincluding the right to life, the right to work, theright to earn a living or livelihood whichencompasses or includes the rights to basicservices such as the provision of water,security, education, roads and infrastructure. c) A declaration that the Petitioners have a rightto participate in the on-going EPA negotiationsd) An order directing the Respondents to take intoaccount the Petitioners fundamental rights andfreedoms and the human rights impact of EPAs. e) An order directing the respondents to establisha mechanism stakeholdersincluding the Petitioners in the on-going EPAnegotiations. f) An order directing the First Respondent to makeavailable to the Petitioners and otherstakeholders all the relevant information on theon-going negotiations on EPAs. g) An order directing the Respondents to involveand consult Parliament and obtain its authorityand mandate in negotiating and signing EPAs.. h) An injunctive or conservatory order staying thesigning of EPAs by the First Respondentpending and until the hearing anddetermination of this Petition. for involving In their oral submissions, Mr Norwojee, Senior counsel forthe Petitioners was emphatic that the Petitioners were moreconcerned about the process in which the EPA negotiationstook place. Mr Norwojee submitted that the government was in breach of the provisions of the Cotonou https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 7

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Agreementwhich requires the State party to consult before signing ofthe EPA. It is the Petitioners case that there was no real oreffective consultation with the non-state actors. 24. The Petitioners also contended that the Respondents hadnot furnished them with the information that would enablethem make representations. That the negotiations keptchanging and have been changing over the past five yearsand the Petitioners and the majority of small scale farmerslacked the requisite information and were ‘in the dark’ onthe current state of the negotiations. That for the above reasons, they seek the orders set outabove.The Interested Party 25. As indicated above, the Interested Party, KNCHR was insupport of the Petitioners' case and it also relied on theSupporting Affidavit of Eucabeth Oduol while Mr. Nduhiulearned counsel for the Interested Party adopted Mr.Norwojee’s submission adding that there was inadequateconsultation as there was no feedback and further that theone seminar facilitated by the Respondent was inadequate. Respondent’s Case 26. The 1st Respondent opposes the Petition on the basis of theReplying Affidavit of Amos Kimunya, then Minister for Trade, skeleton submissions dated 16th September 2012. It alsofiled a Supplementary affidavit sworn on 11th December2012 by Eric Ronge, the Director of External Trade at theMinistry of Trade in which it dismissed the Petitioners’claims as premature, moot and based on misplacedpresumptions and falsehoods. 27. Mr Ronge defended the impugned agreement deposing thatunder the EPA, agricultural products have been largelyprotected by excluding them from liberalization. That allagricultural products form part of EAC sensitive productsand that this position was motivated by the need to addressfood security and rural livelihood. That therefore, imports ofagricultural produce will be facing the same import duty asimports coming from all other countries. 28. It was his deposition that EPA provided a means for Kenyato address the negative impact of the agriculture subsidiesthat EAC countries suffered through the subsidies by EU andother developed countries, through countervailing duties. 29. Generally, Mr. Ronge countered the Petitioners’ allegationsthat Kenya stood to lose or gain very little as a result of theEPA agreement, deposing that Kenya stood to gain in manyways from the trade negotiations. 30. The Attorney General also opposed the Petition. Through theGrounds of Opposition dated 13th November, 2012, it iscontended that the Petition was odious, premature, andspeculative and has been overtaken by events. Further thatKenya is a dualistic State thus does not participate in self-executing treaty provisions and that any EconomicPartnership agreement must be ratified by Parliament. Itwas further contended that issues of Economic PartnershipAgreements are polycentric and thus the Court was limitedin its adjudication and the Petition should therefore bedismissed.Determination 31. Several issues were canvassed by the parties in the pleadingsregarding the impact of the impugned negotiations andagreement. However, after evaluating the material beforeus and after listening to the parties, the only issue that fallsfor our determination concerns the extent of the State’sobligation to allow public participation in public policyprocesses.Preliminary issues 32. Before we embark on the substance of these issues, we find itcrucial to address a few preliminary matters arising out ofSubmissions made by the Parties, Firstly, it has to be bornein mind that this court is not called upon to carry out anappraisal of the impugned agreement or negotiations to satisfy itself whether or not they are good for Kenya. Thoseare matters of policy of which this court is not best suited tohandle. The dissenting decision of the Supreme Court inU.S v Butler, 297 U.S. 1[1936], is apposite in this regardthat; “...courts are concerned only with the power toenact statutes, not with their https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 8

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wisdom....For theremoval of unwise laws from the statute booksappeal lies, not to the courts, but to the ballot and tothe processes of democratic government.” 33. This brings to fore the doctrine of separation of powers andthe extent of the Court’s intervention in governmentalfunctions that was raised on behalf of the Attorney Generalas one of the grounds of opposition. It was proffered in thatregard that Economic Partnership Agreements are dealtwith by the political arms of Government and as such thisCourt needed to exercise restraint in view of the doctrine ofseparation of powers. 34. This court has on several occasions dealt with the extent ofits powers vis a vis other government organs. The commondenominator running across these authorities being theholding that where there is a breach of the Constitution, orwhere certain actions are challenged on the basis of theirunconstitutionality, the High Court will not hesitate toexercise its supervisory and enforcement jurisdictionbestowed upon it under Article 165 to protect and promote fidelity to constitutional values. (See generallyFederation of Women Lawyers of Kenya (FIDA – K) and Others v Attorney General and Others NairobiPetition No. 102 of 2011, Trusted Society of HumanRight Alliance v Attorney General Nairobi PetitionNo. 299 of 2012, Jeanne W. Gacheche and 6 Others vJudges and Magistrate’s Vetting Board and OthersNairobi Judicial Review No. 295 of 2011, 433, 434 and438 of 2012, International Centre for Policy &Conflict & 5 Others v Attorney General & 4 Others , Petition No 552 of 2012, Diana Kethi Kilonzo and Another v The Independent Electoral & Boundaries & 2 Others, Petition No. 359 of 2013 ). 35. The Court of Appeal in the recent case of Mumo Matemu vTrusted Society of Human Rights Alliance & 5 others,Civil Appeal No. 290 of 2012 of 2012 [2013] eKLR,had this to say on separation of powers: “(49) It is not in doubt that the doctrine ofseparation of powers is a feature of ourconstitutional design and a pre-commitment in ourconstitutional edifice. However, separation of powersdoes not only proscribe organs of government frominterfering with the other’s functions. It also entailsempowering each organ of government withcountervailing powers which provide checks andbalances on actions taken by other organs ofgovernment. Suchpowers are, however, not a license to take overfunctions vested elsewhere. There must be judicial,legislative and executive deference to the repository of the function. We therefore agree with the HighCourt’s dicta in the petition the subject of thisappeal that:“[Separation of powers] must mean that the courtsmust show deference to the independence of theLegislature as an important institution in themaintenance of our constitutional democracy as wellas accord the executive sufficient latitude toimplement legislative intent. Yet, as the Respondentsalso concede, the Courts have an interpretive role -including the last word in determining theconstitutionality of all governmental actions...” 36. The Supreme Court in Re the Matter of the InterimIndependent Electoral Commission [2011] eKLR, SCConstitutional Application 2 of 2011 elucidated theessence of separation of powers thus:“[53] Separation of powers is an integral principle inKenya’s Constitution: for instance, Chapter 8 isdevoted to the Legislature; Chapter 9 to theExecutive; and Chapter 10, on the Judiciary, provides(Article 160(1)) that:“In the exercise of judicial authority the Judiciary asconstituted by Article 161, shall be subject only tothis Constitution and the law and shall not be subjectto the control or direction of any person orauthority”. [54] The effect of the Constitution’s detailedprovision for the rule of law in the processes ofgovernance, is that the legality of executive oradministrative actions is to be determined by theCourts, which are independent of the Executivebranch. The essence of separation of powers, in thiscontext, is that the totality of governance-powers isshared out among different organs of government,and that these organs play mutually-countervailing roles. In this set- https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 9

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up, it is to be recognized that noneof the several governmental organs functions insplendid isolation..” 37. In the case of Minister of Health and Others vTreatment Action Campaign and Others (2002) 5 LRC216, 248 at paragraph 99, the South African ConstitutionalCourt defined the constitutional duty of the Court in thefollowing terms:“The primary duty of Courts is to the Constitutionand the Law, which they must apply impartially andwithout fear, favour or prejudice. The Constitutionrequires the State to respect, protect, promote, andfulfill the rights in the Bill of Rights. Where Statepolicy is challenged as inconsistent with theConstitution, Courts have to consider whether informulating and implementing such policy the Statehas given effect to its constitutional obligations. If itshould hold in any given case that the State hasfailed to do so, it is obliged by the Constitution tosay so. In so far as that constitutes an intrusion intothe domain of the executive, that is an intrusionmandated by the Constitution itself.” 38. Similarly, in the Doctors for Life Case Doctor's for LifeInternational v The Speaker National Assembly andOthers 9CCT12/05)[2006] ZACC II the Court noted asfollows regarding the delicate balance; at para. 70; “What courts should strive to achieve is theappropriate balance between their role as theultimate guardians of the Constitution and therule of law including any obligation thatParliament is required to fulfill in respect of the passage of laws, on the one hand, and therespect which they are required to accord toother branches of government as required bythe principle of separation of powers, on theother hand.”We agree with and adopt these sentiments which now formthe back bone of our determination. 39. The second preliminary matter regards the applicable law. Itis notable that this matter was initiated in the year 2007long after the initial phase of the negotiations had beganand when the negotiations were ongoing and before thepromulgation of the Constitution of Kenya, 2010. We shallthus confine ourselves to the repealed Constitution savethat the provisions of the current Constitution will beevoked where necessary especially in view of the fact thatthe negotiations continue to take place post thepromulgation period. (For the proposition that theConstitution does not operate retrospectively, See generallythe case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012]eKLR, Application 2 of 2011 , Joseph Ihuro Mwaura &82 Others v The Attorney General & Others NairobiPetition No. 498 of 2009. 40. The other notable issue is that the Petition does notparticularize the specific infringements or violation offundamental rights and freedoms of the Petitioners. It is trite law that where a petitioner seeks relief from the courtfor breach of fundamental rights and freedoms, he must setout with precision the rights violated and the manner inwhich the rights have been violated in relation to him. (SeeAnarita K Njeru v R (No. 1) (1979) KLR 154 , CyprianKubai v Stanley Kanyonga Mwenda Nairobi HC Misc.No. 612 of 2002 and Mumo Matemu v Trusted Societyof Human Rights Alliance & 5 others (supra)). 41. The Petitioners in that regard couch their case primarily on thebreach of a treaty agreement, to wit, the Cotonou Protocoland which provides for engagement and participation ofnon-state actors in the negotiation. The law as weunderstand it is that breach of international law attractsinternational sanctions. Unless the Petitioners candemonstrate that as a result of the breach of treatyprovisions, their rights have been or are likely to beinfringed, we find that the treaty provisions providing forpublic participation cannot be directly enforced in theKenyan courts under the former constitutional regimeabsent domestication or direct infringement of rights knownunder the country’s Constitution. Things however aredifferent in the current constitutional dispensation as thesetreaties now form part of the laws of Kenya (See Article2(6)). We now turn on to examine the State’s obligations as below; https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 10

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Public participation 42. The Petitioners’ case is anchored on the failure ofgovernment to involve them in the negotiations. In anutshell, the Petitioners and the Interested Party areaggrieved by what they term as the lack of consultation bythe Government on the current status of the negotiations orconsultation on the consequential, adverse or beneficialeffects therefrom. They claim that there has neither beenan invite for the Petitioners to participate in the currentnegotiations nor the assessment of the consequentialimplications therein. Mr. Norwojee S.C. urged that the oneoff consultation over a span of five years could not be saidto be effective participation as the stakeholders had notmet since then. It was further their case that failure by theState to provide the requisite information regarding thenegotiations curtailed their ability to put forth their views. 43. All parties are agreed that the repealed Constitution did notcontain express provisions requiring the State to ensurepublic participation in public policy decisions. We thus turnto the international framework. The Petitioners have urgedthat the State was and is under a duty to involve them bydint of the various international instruments to which Kenyais a party. 44. International instruments recognize the general right topolitical participation that extends beyond the right to vote.Article 21 of the Universal Declaration of HumanRights (UDHR) provides as follows; “1. Everyone has the right to take part in thegovernment of his country, directly orthrough freely chosen representatives.2.Everyone has the right to equal access topublic service in his country.3.The will of the people shall be the basis ofthe authority of government; this will shallbe expressed in periodic and genuine electionswhich shall be by universal and equal suffrageand shall be held by secret vote or by equivalentfree voting procedures.” 45. We also have the African Charter on Human and Peoples’Rights, which provides as follows; At Article 9;“ 1. Every individual shall have the right to receiveinformation. 2. Every individual shall have the right to expressand disseminate his opinions within the law.” At Article 13: “ 46. 1. Every citizen shall have the right to participatefreely in the government of his country, eitherdirectly or through freely chosen representatives inaccordance with the provisions of the law. 2. Every citizen shall have the right of equal accessto the public service of his country. 3. Every individual shall have the right of access topublic property and services in strict equality of allpersons before the law.” The International Covenant on Civil and PoliticalRights (ICCPR) is even more telling. At Article 25, itprovides that; “Every citizen shall have the right and theopportunity, without any of the distinctionsmentioned in Article 2 and without unreasonablerestrictions; (a) To take part in the conduct of public affairs, directly or through freely chosenrepresentatives; (b) To vote and to be elected at genuineperiodic elections which shall be byuniversal and equal suffrage and shall beheld by secret ballot, guaranteeing thefree expression of the will of the electors; (c) To have access, on general terms ofequality, to public service in his country.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 11

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47. Article 25 has received further interpretation through theUN Human Rights Committee’s General Comment25(1996)UN Doc CCPR/C/21/Rev.1/Add.7.) whosepertinent parts read as follows;“ 1. Article 25 of the Covenant recognizes and protects theright of every citizen to take part in the conductof public affairs, the right to vote and to be electedand the right to have access to public service. Whateverform of constitution or government is in force, theCovenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizenshave an effective opportunity to enjoy the rights itprotects. Article 25 lies at the core of democraticgovernment based on the consent of the people and inconformity with the principles of the Covenant. 5. The conduct of public affairs, referred to in paragraph(a), is a broad concept which relates to the exerciseof political power, in particular the exercise oflegislative, executive and administrative powers. Itcovers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocationof powers and the means by which individual citizensexercise the right to participate in the conduct ofpublic affairs protected by Article 25 should beestablished by the constitution and other laws. 6. Citizens participate directly in the conduct of publicaffairs when they exercise power as members oflegislative bodies or by holding executive office. Thisright of direct participation is supported by paragraph (b). Citizens also participate directly in theconduct of public affairs when they choose or changetheir constitution or decide public issues through areferendum or other electoral process conducted inaccordance with paragraph (b). Citizens mayparticipate directly by taking part in popular assemblies which have the power to make decisions about local issuesor about the affairs of a particular community and inbodies established to represent citizens inconsultation with government. Where a mode of directparticipation by citizens is established, no distinctionshould be made between citizens as regards their participation on the grounds mentioned in article 2,paragraph 1, and no unreasonable restrictions shouldbe imposed. 7. Where citizens participate in the conduct of publicaffairs through freely chosen representatives, it isimplicit in Article 25 that those representatives do infact exercise governmental power and that they areaccountable through the electoral process for their exercise of that power. It is also implicit that the representatives exercise only those powers which areallocated to them in accordance withconstitutional provisions. Participation through freelychosen representatives is exercised through voting processes which must be established by laws that are inaccordance with paragraph (b). 8. Citizens also take part in the conduct of public affairsby exerting influence through public debate anddialogue with their representatives or throughtheir capacity to organize themselves. Thisparticipation is supported by ensuring freedom of expression, assembly and association.25. In order to ensure the full enjoyment of rightsprotected by Article 25, the free communication ofinformation and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a freepress and other media able to comment on publicissues without censorship or restraint and to informpublic opinion. It requires the full enjoyment andrespect for the rights guaranteed in articles 19, 21 and22 of the Covenant, including freedom to engage in political activity individually or through political parties andother organizations, freedom to debate publicaffairs, to hold peaceful https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 12

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demonstrations andmeetings, to criticize and oppose, to publish politicalmaterial, to campaign for election and to advertise political ideas.” 48. The following pointers emerge from these comments; i) Firstly, that the right to public participation is broad andopen- textured and requires a State party to provide forthe modalities of such participation in legislative orconstitutional provisions.ii) Secondly, that citizens may exercise their right to public participation either directly or through democraticallyelected representatives. iii) Third, that for this right to be actualized, there ought to befree communication of information and ideas about publicand political issues between citizens, candidates andelected representatives is essential. 49. Many Countries of the world have moved on to recognizepublic participation as a crucial aspect in the realization ofhuman rights. Such jurisdictions have laid downconstitutional and legislative platform to actualize this right.In South Africa for example, the Constitution imposes anobligation on the legislatures at all levels to facilitate publicinvolvement in the legislative and other processes of itscommittees. The Court in the Doctor’s Life Case (Supra atpara. 105) observed that; “The international law right to politicalparticipation encompasses a general right toparticipate in the conduct of public affairsand a more specific right to vote and/or be elected into public office. The general rightto participate in the conduct of publicaffairs includes engaging in public debate and dialogue with electedrepresentatives at public hearings. Butthat is not all; it includes the duty to facilitatepublic participation in the conduct of publicaffairs by ensuring that citizens have thenecessary information and effective opportunityto exercise the right to political participation.” 50. The essence of public participation has also been capturedin the subsequent case of Poverty Alleviation Network & Others v President of the Republic of South Africa &19 others, CCT 86/08 [2010] ZACC 5 , where the sameCourt stated as follows: “...engagement with the public is essential. Publicparticipation informs the public of what is to beexpected. It allows for the community to expressconcerns, fears and even to make demands. In anydemocratic state, participation is integral to itslegitimacy. When a decision is made withoutconsulting the public the result can never be aninformed decision. [34]As this Court observed in Doctors for Life, boththe duty to facilitate public involvement and thepositive right to political participation “seek toensure that citizens have the necessary informationand the effective opportunity to exercise the right topolitical participation.” This can be achieved not onlythrough elected representatives, but also byenabling citizens to participate directly in publicaffairs, “through public debate and dialogue withelected representatives, referendums and popularinitiatives or through self-organisation”. 51. The issue of direct public participation presents a cocktail ofissues that all go to the heart of this matter. As observedearlier on in the judgment, the old Constitution did notprovide for public participation. Further this Court asalready stated, is not concerned about the merits or qualityof the impugned negotiation agreements but is assessingbreach of the fundamental rights and freedoms which inany case, have not been pleaded with the particularity thatthey deserve by the Petitioners. The Petitioners also rely primarily on international instruments including the UDHR,the ICCPR and the Cotonou Agreement to couch the State’sresponsibility to allow public participation but it is to benoted that there was no express provision assimilatingthese international agreements directly into nationallegislation under the old constitutional regime. 52. Prior to the promulgation of the Constitution 2010, Kenyatook a dualist approach to the application of internationallaw. A treaty or international convention which Kenya hadratified would only apply nationally if Parliamentdomesticated the particular treaty or convention by passingthe relevant legislation. (See Beatrice Wanjiku &another v Attorney General & another, Petition No.190 of 2011 https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 13

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para. 17). An issue that would then arise iswhether the State’s obligation can be enforced purely onthe basis of these international instruments. Our simpleanswer is no. (See para. 41 above). 53. However, that is not the end of the matter. It is commonground that the negotiations are still ongoing and so thequestion here is whether the court should fold its hands anddo nothing even in the face of the new Constitutionaldispensation? We think not. And for obvious reason alreadyaforementioned. These negotiations continue to take placein the new constitutional dispensation in which publicparticipation is underlined and international agreements espoused in the new Constitutional regime. But before weembark on the new provisions and their implications on theongoing process, we find it necessary to mention somethingabout the Cotonou Agreement that is the basis of theimpugned negotiations. 54. Pertinent to the disposition of the matter is therequirements of the Agreement as far as involvement ofnon-State actors is concerned. Articles 2, 4 and 7 of theAgreement are relevant. Article 2 provides 'participation'as one of the fundamental principles . On this, it states that,“apart from central government as the main partner, thepartnership shall be open to ACP parliaments, and localauthorities in ACP States and different kinds of other actorsin order to encourage the integration of all sections ofsociety, including the private sector and civil societyorganisations, into the mainstream of political, economicand social life;” Article 4 goes on to acknowledge thesovereignty of all ACP States in determining thedevelopment principles, strategies and models of theireconomies and societies. The Article goes on to providethus, “However, the parties recognise the complementaryrole of and potential for contributions by non State actors,ACP national parliaments and local decentralised authoritiesto the development process, particularly at the national andregional levels. To this end, under the conditions laid downin this Agreement, non-State actors, ACP national parliaments and local decentralized authorities, shall, whereappropriate:- be informed and involved in consultation oncooperation policies and strategies, on priorities forcooperation especially in areas that concern ordirectly affect them, and on the political dialogue; beprovided with capacitybuilding support in criticalareas in order to reinforce the capabilities of theseactors, particularly as regards organisation and representation, and the establishment ofconsultation mechanisms including channels ofcommunication and dialogue, and to promote strategicalliances.” 55. The Petitioners have invoked the provisions of theAgreement to buttress their case that the State was underan obligation to involve, indeed ensure the participation ofthe non-state actors including the Petitioners. This nowbrings us to the crux of the issue regarding publicparticipation in the new Constitutional dispensation. 56. Under the new Constitution, various changes havepermeated governance and indeed the conduct of publicaffairs. The Constitution and in particular Article 2(5) and2(6) gave new colour to the relationship betweeninternational law and international instruments and nationallaw. Article 2(5) provides; “The general rules of international law shallform part of the law of Kenya” and Article 2(6)provides that “Any treaty or convention ratified by Kenya shall form part of the law of Kenya underthis Constitution.” 57. One of the golden threads running through the currentconstitutional regime is public participation in governanceand the conduct of public affairs. The preamble to theConstitution recognizes, “the aspirations of all Kenyans fora government based on the essential values of humanrights, equality, freedom, democracy, social justice and therule of law.” It also acknowledges the people’s ‘sovereignand inalienable right to determine the form of governanceof our country...” Article 1 bestows all the sovereign poweron the people to be exercised only in accordance with theConstitution. One of https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 14

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the national values and principles ofgovernance is that of ‘inclusiveness’ and ‘participation ofthe people.’ Other principles include rule of law, democracy,human rights, integrity, transparency and accountability.These principles bind all State organs, State officers, publicofficers and all persons generally. Under Article 129,executive authority derives from the people of Kenya to beexercised in accordance with the Constitution. Article129(2) provides that “Executive authority shall beexercised in a manner compatible with the principle ofservice to the people of Kenya, and their well-being andbenefit.” Treaties are executed by the executive on behalfof the State and at the national level, Parliamentestablished under Article 94 acts as the custodian of the legislative authority of the Republic. Under Article 94(2)“Parliament manifests the diversity of the nation,represents the will of the people, and exercises theirsovereignty.” There are also other pertinent provisionssuch as the right to access information protected underArticle 35 which states that; “35. (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person andrequired for the exercise or protection ofany right or fundamental freedom. (2) Every person has the right to the correction ordeletion of untrue or misleading informationthat affects the person. (3) The State shall publish and publicise anyimportant information affecting the nation.” 58. In the Doctors of Life Case(supra), the Court explained thatthe duty to facilitate public involvement in the legislativeprocess is an aspect of the right to political participationrecognized in affairs of State and enabled and anchored byother rights and fundamental freedoms such as thefreedom of expression, association and freedom of accessto information. All these rights and fundamental freedomsare to be found in Articles 33, 35 and 36 respectively ofour Constitution. 59. Until 14th December 2012, Kenya lacked a legislativeframework governing the process of making and ratificationof Treaties. Parliament then enacted the Treaty Making and Ratification Act, No. 45 of 2012 (“the Act’) whichcommenced operation on 14th December, 2012. Accordingto its long title, it is “AN ACT of Parliament to giveeffect to the provisions of Article 2(6) of theConstitution and to provide the procedure for themaking and ratification of treaties and connectedpurposes.” 60.This marked a departure from the past whereby treatymaking processes were camouflaged in a shroud of mysterywith the public having little or no knowledge on theirexistence or operation. Gladly, all that will be in the past.Under the Act, the national executive is responsible forinitiating the treaty making process, negotiating andratifying treaties, though this responsibility may bedelegated to the relevant State department. 61. In negotiating treaties, the national executive or therelevant State department is to be bound by the values andprinciples of the Constitution and is to take into account theregulatory impact of any proposed treaty (Section 6). TheAct injects transparency in the treaty making process byproviding for cabinet and parliamentary approvals. It alsopromotes public awareness by providing for approval andtabling of the treaties before the National Assemblyannually and the publication of the same in the local dailies.Section 12 makes it a criminal offence for any person to sign the treaty on behalf of the Government withoutCabinet and Parliament approval in accordance with theAct. 62. However, it is notable that all these progressive provisionshave not been alive in yester years and hence cannotoperate to bind actions taking place prior to theirenactment. The law is that an Act is presumed to be ofprospective effect unless the contrary is expressed. (SeeSupreme Court decision in Samuel Kamau Machariacase (supra)). https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 15

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63. The Court in Commission for the Implementation of theConstitution v Parliament of Kenya and another , Petition No. 454 of 2012 , had a chance to deal with theconstitutionality of the Leadership and Integrity Act,No. 19 of 2012 on the basis, inter alia, that there was nopublic participation, the Court observed as follows:“ [74] The National Assembly has a broadmeasure of discretion in how it achieves theobject of public participation. How this isaffected will vary from case to case but it mustbe clear that a reasonable level of participationhas been afforded to the public. Indeed, asSachs J observed in Minister of Health andAnother NO v New Clicks South Africa (Pty) Ltdand Others 2006 (2) SA 311 (CC) at para. 630,“The forms of facilitating an appropriate degreeof participation in the law-making process areindeed capable of infinite variation. Whatmatters is that at the end of the day a reasonable opportunity is offered to members ofthe public and all interested parties to knowabout the issues and to have an adequate say.What amounts to a reasonable opportunity willdepend on the circumstances of each case. 64. In the South African case of Merafong Demarcation Forumand Others v President of the Republic of SouthAfrica and Others [2008] ZACC 10 it was observed atparas 50, 51; “...But being involved does not mean thatone’s views must necessarily prevail. There is no authorityfor the proposition that the views expressed by the publicare binding on the legislature if they are in direct conflictwith the policies of Government. Government certainly canbe expected to be responsive to the needs and wishes ofminorities or interest groups, but our constitutional systemof government would not be able to function if thelegislature were bound by these views. The publicparticipation in the legislative process, which theConstitution envisages, is supposed to supplement andenhance the democratic nature of general elections andmajority rule, not to conflict with or even overrule or vetothem. [51] To say that the views expressed during aprocess of public participation are not binding when theyconflict with Government’s mandate from the nationalelectorate, is not the same as cynically stating that thelegislature is not required to keep an open mind whenengaging in a process of that kind. Public involvementcannot be meaningful in the absence of a willingness to consider all views expressed by the public.” 65. In the circumstances of this particular case, we are of theview that it is still not too late in the day for the State toinvolve the public, including the Petitioners, in thenegotiations leading to the agreement. As already seen, theAct stipulates a mechanism of appraisal before the same isratified and there is therefore still room for participation asparticipation from the initial process was curtailed forvarious reasons, key among them being that there has inthe past been no domestic legislative or constitutionalframework requiring the State to employ direct publicparticipation in policy matters. As discussed earlier, eventhe UN General Comment No. 5 recognises atparagraph (5) as follows; “5. The conduct of public affairs, referred to inparagraph (a), is a broad concept whichrelates to the exercise of political power, in particular the exercise of legislative,executive and administrative powers. Itcovers all aspects of public administration, andthe formulation and implementation of policyat international, national, regional andlocal levels. The allocation of powers and themeans by which individual citizens exercise theright to participate in the conduct of publicaffairs protected by article 25 should beestablished by the constitution and other laws.“66.Therefore, in the absence of Constitutional or other legislative provisions governing the right to participate inthe conduct of public affairs, then the State cannot be heldat fault. We are also of the view that public participationneed not be at the pre-legislative process. The Act as wehave seen provides for various modes of approval evenbefore the agreements can be ratified by the Parliament. https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 16

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67. We also find solace in the sentiments expressed by Yacoob J.in his dissenting opinion in the Doctors for Life case(supra) where he remarked that, “328]...Any contention that the ICCPR, on anyinterpretation requires member countries toensure that it is essential for the public to beconsulted before legislation is adopted and thelegislation to be invalid absent consultationwould, in my view, be liable to rejection with theridicule it deserves. Nor can it be said that theaddition of the word “opportunity” in theintroduction to the section improves theposition. The kind of right contemplated wouldhave to be facilitated by a government whetherthe word “opportunity” was in the text of thedocument or not. The hard fact is though thatthe provisions of the ICCPR are satisfied byindirect participation reasonably restricted; DFLwants unrestricted indirect participation as wellas substantial direct participation. It is notnecessary to go through any of the otherinternational instruments. All of them areunderstandably satisfied with indirectparticipation without any direct component. [329] I have examined many constitutions.None of them properly read provide thatlegislation will be invalid unless some generally stated unspecific requirement of public involvement is fulfilled. Many havemanner and form provisions that are clear and specific and that facilitate a measureof public involvement. I have found nojudgment of any court anywhere in which a legislative provision properly adopted in anopen legislature and having been read throughin the way required by the relevant instrumenthas been found to have been inconsistent withthe constitution on the basis of noncompliancewith some generalised public involvementprovision even if the prescribed manner andform provisions have all been complied with.” 68. Similar views had earlier been expressed in Marshall vCanada , Communication No. 205/1986, UN Doc CCPR/C/43/d/205/1986(1991) where the United NationsHuman Rights Committee expressed itself as follows:“5.4 It remains to be determined what is the scopeof the right of every citizen, without unreasonablerestrictions, to take part in the conduct of publicaffairs, directly or through freely chosenrepresentatives. Surely, it cannot be the meaning ofarticle 25(a) of the Covenant that every citizen maydetermine either to take part directly in the conductof public affairs or to leave it to freely chosenrepresentatives. It is for the legal and constitutionalsystem of the State party to provide for themodalities of such participation.5.5 ...Although prior consultations, such as publichearings or consultations with the most interestedgroups may often be envisaged by law or haveevolved as public policy in the conduct of publicaffairs, article 25(a) of the Covenant cannot beunderstood as meaning that any directly affectedgroup, large or small, has the unconditional right to choose the modalities of participation in the conductof public affairs. That, in fact, would be anextrapolation of the right to direct participation bythe citizens, far beyond the scope of article 25(a).” 69. We are persuaded by these arguments and find that thefact that the State did not directly involve the Petitionerscannot be said to invalidate the whole process, which now,even as we speak is understandably in its final stages. Wealso cannot find the State to have been in breach ofprovisions which were not in existence at the infant stagesof the negotiations. 70. This however does not exonerate the State of its duty post27th August 2010 when it is bound by the various principlesenunciated earlier on in this judgment as the EPAnegotiations are an ongoing process.Conclusion 71. The question then begs, ‘What is the appropriate relief toissue? The appropriate relief in our view is one that willallow for the executive to proceed with its task to concludethe agreements while at the same time allowing thePetitioners to have full access to the information relating tothe negotiations so as to make appropriate contributions ifthey so wish in fulfillment of Article 4 of the CotonouProtocol. 72. Most of the reliefs sought in the Petition centered around the expected impact of the EPAs and the infringement tofundamental rights. These however are moot and cannotissue as the Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 17

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adopted a narrower issue to wit, theState’s obligation to facilitate public participation ingovernance. The only relief that commends itself is to directthe respondents to put in place mechanisms to facilitateparticipation of the stakeholders in the ensuing process. 73. These then are our final Orders; i) We direct the Respondents in consultation with thePetitioners within Thirty days to establish amechanism for involving stakeholders including thePetitioners in the on-going EPA negotiations. ii) That the Respondents publishes information withinThirty days regarding the negotiations in particular,but not limited to publishing in at least two dailiesand other official communication the progress of thenegotiations for public awareness and in order tostimulate public debate. 74. Given the public interest nature of this Petition, we shall notaward costs. 75. We thank the counsel who appeared before us for theirerudite and helpful submissions. If we did not refer to eachargument and every authority cited it is not because it wasnot helpful. 76. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THIS 31ST OCTOBER, 2013 ….............................................. ISAAC LENAOLA JUDGE ….................................... MUMBI NGUGI JUDGE ….................................. DAVID S. MAJANJA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6747/eng@2013-10-31 18

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