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Wednesday, November 29, 2023

Collaborative constitutionalism: Revisiting the remedy of suspended orders of invalidity


By Teddy Musiga

On the eve of the repeat presidential election in October 2017, the High Court of Kenya sitting at Nairobi rendered a decision that was later subjected to an appeal on that very day. The preliminary decision of the Court of Appeal was also delivered by dusk of the same day. Briefly, the High Court held that the Independent Electoral and Boundaries Commission (IEBC) failed to accord political parties and independent candidates a list of persons proposed for appointment as constituency returning officers at least fourteen days prior to the proposed date of appointment, and that the IEBC was in violation of Regulation 3(2) of the Elections (General) Regulations, 2012, as read with Articles 38 and 81 of the Constitution of Kenya, 2010. However, the High Court declined to issue the reliefs sought by the applicant, which would have had the effect of the said returning officers not being able to preside over the fresh presidential elections that had been slated for the following day.

Later that day, an appeal was lodged at the Court of Appeal and the Court of Appeal gave ex parte orders to the applicants presumably to “forestall a constitutional crisis pending the inter parties hearing”. Specifically, they held, “the impugned decision of the High Court had the potential of rendering the presidential election slated for 26th of October, 2017 irregular even before the said elections were held thus precipitating another election outside the stipulated sixty days, and in contravention of the provisions of Article 140(3) of the Constitution of Kenya, 2010”. Subsequently, they suspended the implementation of the High Court decision pending the hearing of the application inter parties.

Perhaps, it is the miscomprehension of the decision of the High Court that can be said to have triggered the appeal filed and heard later that day ostensibly to get clarity on what the High Court meant in its decision. This piece therefore seeks to look at both decisions from the perspective of collaborative constitutionalism and to revisit how the remedy of suspended orders of invalidity can be deployed in constitutional litigation.

Background facts

The background to the dispute before the High Court was that, on October 19, 2017, the ex parte applicants filed an application seeking judicial review orders of certiorari to quash the decision of the respondent (IEBC) communicated in the Kenya Gazette, dated the October 12, 2017 titled, “Appointment of Constituency and Deputy Constituency Returning Officers”. The applicants argued, “the Respondent in a clear demonstration of bad faith and breach of the Constitution and the law proceeded to purport to make the appointments of constituency and deputy constituency returning officers without following the laid down procedure of the law, ignoring the need for transparency and accountability in the process and violated the provisions of Regulation 3 of the Elections (General) Regulations, 2012.

Regulation 3 of the Elections (General) Regulations, 2012 generally requires that the appointment of constituency returning officers be done in a transparent and competitive manner, and thereafter published in the Kenya Gazette. The provision also provides that prior to the appointment of such officers, the IEBC shall provide a list of the persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them to make any representations.

The applicants argued that they had made several inquiries from various political parties to find out whether they had received the lists of the said proposed constituency and deputy constituency returning officers. The Executive Directors of those political parties responded in the negative and even filed affidavits in court to the effect that they had not received any lists of the proposed constituency returning officers as at October 12 when those officers were gazetted by IEBC. According to the applicants, the persons purportedly appointed through the impugned Notice could not therefore to conduct constituency elections, their purported appointment having been done in an illegal manner that is contrary to express provisions of the law. They also argued that the process leading to the impugned decision was illegal, procedurally unfair and violated the basic tenets of the rule of law, principles of the electoral system captured in the Constitution and the requirements of the said Regulations.

Ultimately, the High Court rendered its decisions by faulting the IEBC for not according political parties and independent candidates a list of persons proposed for appointment as constituency returning officers at least fourteen days prior to the proposed date of appointment; and also admonished them for being in violation of Regulation 3(2) of the Elections (General) Regulations, 2012. That notwithstanding, the High Court declined to grant the orders sought in the words:

“…Where there is an avenue for redress available to the victim and the harm likely to be occasioned to the public by granting the reliefs sought instantly outweighs the benefits to be achieved by granting the same, then the Court, in the exercise of its discretionary powers, notwithstanding the finding of transgressions, may decline the orders sought in the meanwhile and deal with the matter at such later stage.”

The High Court’s decision to decline granting the orders sought by the applicants is what can be termed as invoking the remedy of suspended orders of invalidity. The subsequent paragraphs of this article will therefore look at the nature of the suspended orders of invalidity.

Justice Erastus Githinji. He sat in the bench that stayed Justice Odunga’s orders.

Collaborative constitutionalism and the nature of the suspended orders of invalidity

The transformative nature of Kenya’s Constitution, 2010, places a burden on judicial officers to be able to craft innovative remedies when addressing the disputes presented before them. In doing so, the courts are then expected to breathe life into constitutional and legislative provisions by fashioning and restructuring remedies in litigation to ensure that no wrongs are left un-remedied as captured in the age old Latin maxim, “Ubi jus, ibi remedium”.

As such, over the years, various remedies have emerged either by judicial innovation or by express constitutional or statutory provisions. For instance, the foremost constitutional remedy is to be found at Article 2(4) of the Constitution of Kenya, 2010, which provides that where a court of law finds that a law or a conduct is inconsistent with constitutional provisions, it must declare it unconstitutional to the extent of the inconsistency. Other constitutional remedies include declarations of unlawfulness, and remedies for proceedings brought under the enforcement of the Bill of Rights (to be found at Article 23 of the Constitution and they include declaration of rights, injunctions, conservatory orders, declaration of invalidity of any law that denies violates, infringes or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24, and orders for compensation and orders of judicial review. Notwithstanding the specific remedies provided for under the Constitution, Article 165 (3) of the Constitution also requires courts to fashion remedies not only for violation of constitutional provisions but also for all manner of infractions of the law.

Thus, outside the traditional remedies such as orders of judicial review, injunctions, declarations or compensation redressing the grievances of claimants who pursue their grievances in court, over the years, courts have also been developing the following remedies, among them declarations of invalidity, structural interdicts and damages amongst others. This paper, deliberately so, chooses to only look at the order of suspended declaration of invalidity in an attempt to perhaps give an explanation to the decision of the High Court under review in this piece.

In the instant case, the judge used his discretionary powers in declining to grant the reliefs sought by the applicants by quoting Halsbury’s Laws of England:

“The Court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief, the court will take into account the conduct of the party applying, and consider whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question, would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. The Court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow ‘contemporary decisions to take their course, considering the complaint and intervening if at all, later and in retrospect by declaratory orders”.

This paper takes the position that notwithstanding the High Court’s use of its discretionary powers in declining to grant the reliefs sought, the actual technique that was deployed in the case was the use of the suspended orders of invalidity.

Generally, courts, when confronted with interpretation of statutes, usually invoke suspended orders of invalidity. In such cases, it is a remedial device by which a court strikes down a constitutionally invalid law but suspends the effect of its order such that the law retains force for a temporary period. Over time, the concept of use of suspended orders of invalidity has grown and several exceptions have also arisen. For instance, its application is no longer confined to instances of striking down legislative statutes but also in instances where the court gives an interpretation of a given legislative text. Where it finds lack of compliance with the said legislative text, it exercises the discretion to suspend the declaration of “illegality” on the said acts of non-compliance. Put the other way, that remedy can also be implied where a court declares acts by public bodies as contrary to the law but declines in setting aside those decisions of the public bodies. Such was the case in the instant case where the High Court found that the Independent Electoral and Boundaries Commission failed to comply with Regulation 3(2) of the Elections (General) Regulations, 2012, but went ahead to suspend the effect of its finding. In such a case, the suspension of granting the order does not act as condoning the illegalities; rather, it serves the purpose of averting other undesired consequences.

For instance, was the High Court to grant the reliefs that the applicants sought, perhaps it would have meant that the repeat presidential elections that were scheduled for the following day would not have taken place. The Court being cognisant of that fact stated:

“In this case, this Court must balance the said interests. If the Court grants the prayers sought herein it would mean that the Constituency Returning Officers (CROs) and the Deputy County Returning Officers (DCROs) will not preside over the fresh Presidential elections proposed for tomorrow as Regulation 3 requires the Respondent to provide the list of the proposed CROs and the DCROs 14 days before gazettement; yet there is no prayer before me seeking an order for either cancellation or postponement of the said elections. For the said elections to proceed in the absence of the said officers would in my view constitute a crisis of unimaginable magnitude. Simply put, it would be a recipe for chaos”.

Thus, the approach taken by the High Court can be said to be one akin to the Canadian concept of dialogic remedies, which loosely refers to remedies that are based on cooperation between the courts and other branches of government. Such an approach to remedies promises a harmonious relationship between the Judiciary and other branches of government than the one of conflicts that has historically prevailed. As Canadian jurisprudence has demonstrated, dialogic remedies often promote healthy partnerships between courts and other political actors, as they are often concerned with producing systemic reforms to prevent violations in future.

Related to the concept of dialogic remedies is the emerging concept of collaborative constitutionalism that is being propounded by an Irish Scholar – Prof Eoin Carolan. With regard to suspended orders of invalidity, he argues that suspended declarations might more appropriately be regarded as reflective of a relationship of collaborative constitutionalism. He argues that those orders are beneficial because they allow courts to move beyond a binary measure to be valid or invalid, and to develop a more calibrated response in those limited situations where the preservation in force of unconstitutional law is preferable to the legal discontinuity that would otherwise result. Perhaps those were the lenses in which the High Court looked at the dispute before it when confronted with a binary choice of finding the illegality in the actions of the respondents and declaring as such.


Collaborative constitutionalism or dialogic adjudication shows us that where there is engagement and partnership between courts and other political actors, then strong political opposition is equally subdued. In the instant case, the High Court can be said to have ingeniously settled the dispute presented before it without raising political temperatures in terms of collaborative constitutionalism.

From the outset, this piece set out to demonstrate that perhaps it was the miscomprehension of the High Court decision that triggered the appeal to the Court of Appeal. Had the Respondents perhaps understood the High Court’s decision, no appeal would have been lodged at the Court of Appeal. In any event, the High Court judge expressly said that he declined to grant the reliefs sought. The effect of the High Court decision was simply that, notwithstanding the non-compliance with the provisions of Regulation 3(2) of the Elections (General) Regulations, 2012 by the Respondents, the reliefs sought by the applicants were declined in the public interest, and that CROs could proceed with heir jobs the following day. ^

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