Petition E043, E057 & E109 of 2022
EN Maina, DO Ogembo & HI Ong’udi, JJ
April 20, 2022
IN THE MATTER OF THREATENED CONTRAVENTION OF ARTICLES 1, 2, 3, 4(2), 10, 12(1) (a), 19, 20, 21, 22, 23, 24, 27, 35,38,47,81, 82, 83,84, 91, 92,93,94, 163, 250,258, 259 and 260 OF THE CONSTITUTION OF KENYA 2010.
AND
IN THE MATTER OF RULES 23 AND 24 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF THE POLITICAL PARTIES ACT NUMBER 11 OF 2011
AND
IN THE MATTER OF ELECTIONS ACT NO 24 OF 2011
AND
IN THE MATTER OF THE POLITICAL PARTIES (AMENDMENT) ACT, 2021.
IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 1(3), 10,
1 | Page 25(c), 27(1), 47(1) AND (2), 50, 159 AND 168(2) OF THE CONSTITUTION OF KENYA
Between
Salesio Mutuma Thuranira……………………………………………………………..1st Petitioner
Katiba Institute……………………………………………………………………………………….2nd Petitioner
Africa Center for Open Governance (AFRICOG)…………………………………………………..3rd Petitioner
Kenya Section of the International Commission of Jurists (ICJ-Kenya)………………….4th Petitioner
Usawa Kwa Wote Party………………………………………………………………………………….5th Petitioner
and
Attorney General……………………………………………………………………………………………1st Respondent
Speaker of the National Assembly…………………………………………………………….2nd Respondent
Speaker of the Senate……………………………………………………………………………3rd Respondent
and
Registrar of Political Parties…………………………………………………………….Interested Party
Azimio La Umoja…………………………………………………………….Interested Party
Jubilee Party of Kenya…………………………………………………………….Interested Party
John Kinyanjui Theuri…………………………………………………………….Interested Party
Section 34(fd) of the Political Parties Act 2022 was unconstitutional as regulation of political party nominations was the mandate of Independent Electoral and Boundaries Commission and not the Registrar of Political Parties.
Brief facts
The petitioners challenged the legality of the Political Parties (Amendment) Act, 2022 (the Act) that was assented to on January 27, 2022 on multiple grounds. Among them were the grounds that there was no sufficient public participation undertaken as the stakeholders were not consulted, that the Act was discriminatory, that the Act was unconstitutional for taking away the Auditor General’s constitutionally mandated role of auditing and reporting on the accounts of political parties funded from public funds; and that the Act was vague, ambiguous and uncertain.
Issues
- What was the definition of a political party?
- Whether creation of a coalition political party without dissolving the constituent political parties curtailed the enjoyment of the citizens’ political rights under article 38 of Constitution.
- Whether the Political Parties (Amendment) Act, 2022 was unconstitutional for lack of meaningful public participation.
- Whether provisions of the Political Parties (Amendment) Act, 2022 were vague, ambiguous and uncertain.
- Whether section 22 of the Political Parties (Amendment) Act 2022 that removed the obligation by the Auditor General to audit accounts of political parties was contrary to the constitutional obligation on the Auditor General to audit and report on the accounts of political parties funded from public funds.
- Whether section 4 of the Political Parties (Amendment) Act, 2022 in so far as it made it discretionary for political parties to promote gender parity and representation in Parliament of youth, persons with disabilities, ethnic and other marginalized communities was unconstitutional.
- Whether section 24 of the Political Parties (Amendment) Act 2022 in so far as it did not require participation of registered party members in selection of delegates for purposes of indirect nominations was a violation of political rights and public participation.
- Whether the implementation of significant changes to the structure of political parties at the later stage of the electoral process undermined the reliability and credibility of the electoral process.