Where and when we buried Chapter Six

By Shadrack Muyesu

In November 2012, six petitioners went to court to challenge the nomination of President Uhuru Kenyatta and his Deputy William Ruto as the Jubilee party flag bearers in the 2013 Presidential elections. At the time, the two were facing criminal charges at The Hague. 

According to the petitioners, the confirmation of charges against the two by the Pre-trial Chamber disqualified them under Chapter Six of the Constitution of Kenya, 2010 and the Leadership and Integrity Act, 2012, and as such the Independent Electoral and Boundaries Commission was wrong in accepting their candidature. Inter alia, the High Court in the International Center for Policy and Conflict & 5 others v. AG and 5 others (2013) eKLR was therefore tasked with determining whether the Hague trial raised integrity issues warranting the prayed for disqualification.  

The importance of this petition cannot be overstated. Not only did it concern the first election post the Constitution of Kenya, 2010 but also, with the matter, the Court had the opportunity of shaping the fate of Chapter Six at that early stage. Misapplication would render the provision a still birth. The sensitivity of the issues and the importance of the players meant that the Constitution itself was on trial.

To make a determination, the Court would have to define the import of Articles 50(2) on the presumption of innocence and 99(3) which provide that a candidate in an election shall not be disqualified on account of Chapter Six unless all possibilities of appeal or review of the relevant sentence or decision had been exhausted. In so doing, the Court made some very curious findings.

The jurisdiction of the High Court and a misstatement of the law

Foremost, the Court concluded that it did not have jurisdiction to deal with the issue. Specifically, it found that whether the Uhuru and Ruto (the third and fourth respondents therein) were qualified candidates was within the exclusive jurisdiction of the Supreme Court. Secondly, despite the charges facing them at the Hague, that the two had a right to be presumed innocent until found guilty and as such, could not be disqualified on this account. Lastly on the subject, the Court adjudged that where there existed sufficient and adequate mechanisms to deal with a specific issue or dispute by other constitutional organs, the jurisdiction of the court could not be invoked until the mechanisms had been exhausted. It was a tragedy. 

Anchoring its finding was the Supreme Court’s Advisory opinion in the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory Opinion Application No. 2 of 2012, [2012] eKLR where at paragraph 100, a presidential election was defined to include all the processes leading up to the ballot placing arising disputes within the purview of Article 163 (3)(a) of the Constitution. Article 163 (3)(a) gives the Supreme Court exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President arising under Article 140. (emphasis mine)

On its behalf, Article 140 states: “(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. (2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. (3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.

Is the Supreme Court’s power limited by the express language of Article 140 of the Constitution? The Supreme Court asked and indeed answered this question in the following terms:

An analogy may be drawn with other categories of elections; Article 87(2), on electoral disputes, thus provides: “Petitions concerning an election, other than a Presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.” It is clear that Presidential elections have separate provisions, in Article 163(3) (a) which provides: “The Supreme Court shall have – (a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140……” On a literal construction, it may be stated that the foregoing reference to “the elections to the office of President” suggests the draftspersons contemplated that several rounds of election may be involved, before the emergence of a duly elected President. [102] besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election.

This reasoning is weird. In attempting a holistic, purposive interpretation, the Supreme Court committed the grave sin the Late Antonin Scalia J. warned of all purposivists – it read into the Constitution provisions that were not there to start with thereby rewriting the document and detracting from the original intent of the drafters and its owners. It is mortal sin.

Even for a purposivist, the proper approach would have been to read Article 163(3) (a) together with Article 140. Done this way, it is obvious the drafters confined the Supreme Court to disputes that arose after the ballot- not before as well as the learned Judges had us believe. Article 163(3)(a) refers us to Article 140. As quoted above, Article 140 contemplates a ballot outcome. In other words, by dint of the two provisions, a presidential election petition can only be filed in the Supreme Court if it challenges the outcome of a presidential election. The Judges simply ignored Article 140 in their reasoning. 

Shoring up its mistake, the High Court then referred to Rule 12 of the Supreme Court (Presidential Election Petition) Rules 2013 which further elaborated the Supreme Court’s jurisdiction in Presidential election petition.

Rule 12 states as follows:

“(1) A person may file a petition challenging— (a) the validity of the election of the President- elect; or (b) a declaration by the Commission under Article 138(5). (2) The grounds upon which a petition under sub-rule (1) may be filed include—(a) the validity of the conduct of a presidential election; (b) the validity of the qualification of a President-elect; (c) the commission of an election offence as provided under Part VI of the Elections Act; (d) the validity of the nomination of a presidential candidate; or (e) any other ground that the Court deems sufficient, provided such ground shall not be frivolous, vexatious or scandalous.”

In the Court’s view, expressed at paragraph 89, Rule 12 was all the more clear that any question relating to the qualification or disqualification of a person who has been duly nominated to contest the position of President of the Republic of Kenya could only be determined by the Supreme Court– another purposivist mistake. 

Like Article 140, Rule 12 (1) contemplates petitions challenging an election outcome. Sub rule two refers the reader back to sub rule one. It provides grounds for a presidential election petition which comes after a ballot. The Court, while speaking of a holistic approach to interpretation, went back to adopting a narrow approach in separating rather than reading the sub rules in tandem. 

On the issue of jurisdiction, it is clear that the decision of the Supreme Court was arrived at through lack of care. And while Article 163(7) enjoins every other court to apply the law as laid down by the Supreme Court, good practice allows courts to ignore such precedent if it was arrived at, as in the present instance, per incuriam. The High Court properly guided ought to have either disregarded the opinion in the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory Opinion Application No. 2 of 2012, or at the very least, regretted the error while accepting to be bound. It did neither.

The mistake didn’t end there. Having established that exclusive and original jurisdiction lay with the Supreme Court, the High Court completed a remarkable turn-around a couple of paragraphs later when it stated that exclusive, original jurisdiction in fact, lay with the IEBC! It stated as follows in paragraph 106:

Even if it was to be argued that the 3rd, 4th and 5th Respondents do not meet the integrity and leadership qualification as spelt out under Article 99 (2) (h) and Chapter Six of the Constitution, then the institution with the Constitutional and statutory recognition would be the IEBC under Article 88 (4) (e) of the Constitution and Section 74 (1) of the Elections Act and Section 4(e) of the IEBC Act. This then divests the court of its original jurisdiction and places an exclusive mandate on IEBC (my emphasis).

In one part, paragraph 86, the Court had said that all disputes regarding the nomination and election of a president should be taken to the Supreme Court in the first instance. In another, the Court was now saying that these disputes should first be referred to the IEBC. It was novel interpretation of the law!

Two things can be deduced from this. The sharp rejoinder could have either been a subtle acknowledgment of the Supreme Court’s error or simply an act of confusion. Either way it goes to show that, like many things in life, mistakes have a way of catching up with those who make them. The Courts had made a great mistake and in trying to paper the cracks, had worsened the situation.

IEBC’s Jurisdiction

The IEBC draws its mandate from Article 88 of the Constitution and Section 4 of the IEBC Act. Inter alia, Article 88 tasks the Commission with the registration of candidates for an election; observation, monitoring and evaluation of elections, development of a code of conduct for candidates and parties contesting elections and monitoring of compliance with the Elections Act, 2011 and the enabling regulations in relation to the nomination of candidates by parties (the Elections (Party Primaries and Party Lists) Regulations, 2017). Further, Article 88(4)(e) tasks the Commission with settlement of electoral disputes including those relating to and arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. 

Section 74 of the Elections Act reiterates the position Article 88(4) (e). Section 4 of the IEBC Act meanwhile states the mandate of the Commission to include regulation of the process by which parties nominate candidates for elections; registration of candidates for elections and settlement of election disputes including disputes relating to and arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. 

Read together, three terms stand out: nomination, registration and elections. Understanding them is key in establishing the jurisdiction of the Commission vis a vis that of the superior courts in electoral processes. Even at this early stage, it seems quite clear to me that the drafters distinguished the terms and established different dispute resolution mechanisms for each process. 

Rule 2 of the Rules on Procedure on Settlement of Disputes defines nomination as the submission to the Commission of the name of a candidate in accordance with the Constitution and the Elections Act. Nomination is the result of party primaries. When a party nominates a candidate, it simply offers the candidate to represent it in a subsequent election.

A party nominates a candidate according to its own constitution after which it forwards the name of the selected candidate to the Commission for registration and gazettement.  Before gazettement, the Commission will check for inter alia, compliance with the Elections (Party Primaries and Party Lists) Regulations, 2017 and Article 99 of the Constitution. A nominee who falls short on either scale cannot be allowed to be allowed to run. 

With this in mind and by dint of their Rule 4, the Rules on Procedure on Settlement of Disputes apply to registration of persons (as voters); (b) nomination of candidates; (c) violation of the electoral code of conduct and (d) any other election related complaint. The Ejusdem generis rule must be applied in interpreting Rule 4 (d). It therefore goes that a petition to the Commission must be one that inter alia challenges a party primary process.  A petition that contests the illegal registration and gazettement and of a nominee falls outside the mandate of the Commission

To gazette a political party nominee in spite of the Elections (Party Primaries and Party Lists) Regulations, 2017 and Article 99 of the Constitution is to commit an illegality. In line with the old principle, the Commission cannot be a judge where it is the culprit. An analysis of the IEBC Case Digest: Decisions of the IEBC Dispute Resolution Committee backs this conclusion. 

On the back of this analysis therefore, the petitioners were properly before the High Court. Not only were they challenging the decision of the IEBC to gazette the third and fourth respondents, in so doing, they raised constitutional issues which could only be interpreted by the High Court. By dint of Article 165 which establishes the High Court, the IEBC lacked jurisdiction to determine the petition, the crux of which was whether the charges at The Hague disqualified the third and fourth respondents from contesting the 2013 presidential election.   The Supreme Court didn’t have jurisdiction either considering that the issues raised concerned a process prior to the ballot. As already stated, concerning the issue, the Supreme Court’s jurisdiction is confined to determining presidential election out comes. Both the Supreme Court and the High Court erred when they found otherwise.

Presumption of innocence

Prima facie, there is nothing wrong with the way the Court approached this issue. It’s a question of personal philosophy. Yet, bearing the consequences of the decision, one ought to ask themselves, would have the Court have arrived at a different conclusion without desecrating established legal principles? If yes then an alternative finding, one that honours the greater public good then and in the future would have sufficed. Such a finding can only be the fruit of a bold and an imaginative Court.

Quoting Prof Hebert Wechsler, Scalia in A Court of One speaks thus of the duty of a superior court:

While the Supreme Court cannot escape the duty of deciding whether actions of other branches are consistent with the Constitution, when a case is properly before them, what mattered most is the standard to be followed in the interpretation of (The Constitution). Rather than seeking to right an individual wrong, a correctly decided case is one that rests with reasons all issues in the case, reasons that in their generality and neutrality transcend any immediate result that is involved. 

In short, a proper decision is one that is futuristic. And Scalia gives us hope that, as long as the judge is disciplined enough, they can say anything without departing from neutral principles of law. To paraphrase another great jurist of his time, Albie Sachs J., the most important issue is justification. As long as the beautiful absurd can be legally justified, it is good. 

As the learned Judges herein correctly observed, the spirit of The Constitution is critical in giving meaning to its text. Quoting Father John W. O’ Malley, Scalia explains that the spirit of the Constitution is its overriding vision that transcends the particulars of the document. Its vagueness can be understood if we pay attention to the style of the document, its unique literary form and vocabulary and draw out its implications. By examining the letter of the law (form and vocabulary) one can find the Spirit. The spirit is the future, a goal and it is the result of a holistic approach to constitutional interpretation. 

What did Kenyans intend then with Article 99 (3) of the Constitution? What is its meaning? Knowing full well the hierarchy of norms within the Constitution, the court system, the drawn out nature of litigation and the fact that the bodies established in law come with their own dispute resolution mechanisms which must be exhausted before the jurisdiction of the courts can be invoked.
Appreciating the history of the Constitution and reasons behind Chapter Six as aptly laid out by the Court. And knowing also that everyone intending to hold public office is subject to the Chapter and Article 99(3), without belabouring related provisions of law, I am convinced that Kenyans did not intend that suspects hold high office.

A panacea

The proper standard is that laid out in often cited Giella vs Cassman Brown (1979) EA and one applied in Democratic Alliance v. The President of the RSA & Others (263/11) [2011] ZASCA 241. That as long as a petitioner can show that there is a strong case against the respondents; that the Republic stands to suffer irreparable damage and that the balance of convenience tilts in his favour and Kenyans whom he represents, the Court should bar a candidate until his innocence is proven. In lay terms, as long as your (Uhuru Kenyatta and William Ruto in this case) name is mentioned and that a court is convinced that there is a strong case against you, you should step aside. It is the clarion call throughout the Constitution, that indicted officers shall step aside pending investigations.

Yet not for the learned judges of the High Court. Perhaps afraid of the effects of a disruptive determination on boiling hot political climate, they took the easy route offered by legal realism and in the process and gave the Republic over to the merciless mercies of impunity that reigns supreme today. With a realistic decision, they had destroyed the last standing bastion in Chapter six so then what we have is a Leadership and Integrity Act that is largely unactionable. 

Legal realism relies on a judge’s judicial hunch. Applying this formula, a judge makes a decision before hearing the parties before trying to find authorities to back his claim. Unlike formalists who are turned by law and evidence, they start with the answer the answer before making the calculation. A keen eye will notice when someone is trying to fit something where it doesn’t belong.  (