30 February 2007

     
 

Reference No. 1 of 2006

 
     

East African Court of Justice

     
     

Prof. Peter Anyang Nyong’o, Abraham Kibet Chepkonga, Fidleis Mueke Nguli, Hon. Joseph Kamotho, Mumbi Ngaru, George Nyamwea, Dr. Paul Saoke, Hon. Gilbert Ocheng Mbeo, Yvonne Khamati and Hon. Rose Waruhiu

 

v.

Attorney General of Kenya, Clerk of the East African Legislative Assembly and Secretary General of the East African Community

     
     
 

ruling

 
     
 

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BEFORE:

PRESIDENT: Moijo M. Ole Keiwua
VICE – PRESIDENT: J. N. Mulenga
JUDGES: Kasanga – Mulwa, Mary Stella Arach-Amoko; Harold R. Nsekela

   

PermaLink:

http://www.worldcourts.com/eacj/eng/decisions/2007.03.30_Nyong_o_v_Attorney_General_Kenya.htm

   

Citation:

Anyang Nyong’o v. Attorney General of Kenya, Ref. No. 1 of 2006, Ruling (EACJ, Feb. 6, 2007)

Editor's Note:

INTERVENERS 1: Abdirahin Haita Abdi, Sara Godana Talaso, Christopher Nakuleu;
INTERVENER 2: Reuben Onserio Oyondi;
INTERVENERS 3:SafinaKwekweTsungu, Cathrine Ngima Kimura, Clerkson Otieno Karan, Augustive Chemonges Lotodo, Gervase Buluma Kafwa Akhaabi;
INTERVENERS 4:Hon. Uhuru Kenyatta, Hon. William K. S. Ruto and Hon. Billow Kerrow

 
     
 
 
 

[1] This is a reference under Article 30 of the Treaty for the Establishment of theEast African Community (the Treaty), in which the above named claimantsseek to invoke this Court’s jurisdiction under Article 27 of the Treaty. Theycontend that the process in which the above named 1st, 2nd and 3rd intervenerswere deemed to be elected as Kenya’s nine members of the East AfricanLegislative Assembly (the Assembly), and the rules made by the KenyaNational Assembly and invoked for effecting the said process infringe theprovisions of Article 50 of the Treaty. They make diverse prayers, but we needrefer to only the pertinent ones with which this judgment is concerned andwhich we would paraphrase as follows, -

(a) That this Court interprets and applies Article 50 of the Treaty to the saidprocess and rules and declares them to be void;
(b) That costs of the reference be awarded to the claimants.

We consider the rest of the prayers are not maintainable under Article 30.

BACKGROUND

[2] Under Article 2 of the Treaty, the contracting parties, namely the United Republic of Tanzania, the Republic of Kenya and the Republic of Uganda, (the Partner States) established among themselves an East African Community (the Community) and under Article 9 established diverse organs and institutions of the Community. One of the eight organs established under the Treaty is the East African Legislative Assembly (the Assembly), which is the legislative organ of the Community. It consists of twenty-seven elected members and fiveex officio members.

[3] Article 50 of the Treaty provides that the National Assembly of each PartnerState shall elect nine members of the Assembly in accordance with suchprocedure as it may determine. The Article also stipulates that the electedmembers shall, as much as feasible, be representative of specified groups, andsets out the qualifications for election.

[4] When the first Assembly was due to be constituted in 2001, the National Assembly of Kenya, “in exercise of the powers conferred by Article 50(1) ofthe Treaty» made The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001» (the election rules). The first nine members of the Assembly, whose term expired on 29thNovember 2006 were elected under those rules.

[5] On 25th and 26th October 2006, pursuant to the election rules, the House Business Committee of the National Assembly deliberated upon lists of names presented to it as persons that were nominated by the three parliamentarypolitical parties entitled to nominate candidates for election to the Assembly. The parties are the Kenya African National Union (KANU), the Forum for the Restoration of Democracy – People (FORD – P), and the National Rainbow Coalition (NARC). All together, five lists were presented to the Committee. Two lists, of three nominees each, were from KANU; one list of one nomineeonly, was from FORD – P. Each of the other two lists contained five nomineesof NARC. One was submitted by the party leader through the Clerk to theNational Assembly as provided by the election rules. The other was presentedto the Committee, in its afternoon session on 25th October, by the Government Chief Whip.

[6] The Committee unanimously approved the only nomination from FORD – P. In the course of the deliberations, KANU withdrew one of its lists and the Committee approved, also unanimously, the three nominees on the remaininglist. Finally, with regard to the nominations from NARC, the Committeeconsidered the two lists and then, according to its minutes,

[7] “resolved to consider the list submitted by the Government Chief Whip for purposes of nomination…»
[8] Although it is not expressly stated in the minutes, and noreasons therefor were recorded, the Committee thereby impliedly rejected the nominees on the list submitted by the party leader of NARC, except for one Gervase Buluma Kafwa Akhaabi who was on both lists.

[9] On 26th October 2006, the Committee, after amending the previously approvedlist of KANU nominees, approved –

1. TsunguSafinaKwekwe,
2. Kimura Catherine Ngima,
3. Karan Clarkson Otieno,
4. Lotodo Augustine Chemonges,
5. AkhaabiGervase,
6. Bonaya Sarah Talaso,
7. Nakuleu Christopher,
8. AbdiAbdirahinHaither, and
9. Reuben OnserioOyondi

[10] as“duly nominated to serve» in the Assembly and “further resolved that thelist be tabled before the House» in accordance with the Election Rules.

[11] The list was accordingly tabled in the National Assembly on that day in aMinisterial Statement by the Vice President of the Republic of Kenya, asLeader of Government Business in the National Assembly and Chairman ofthe House Business Committee. Thereafter the names were remitted to the 3rdRespondent as members of the Assembly elected by the National Assembly ofKenya.

[12] On 9th November 2006, nearly three weeks before the 2nd Assembly was dueto commence, the claimants filed the reference in this Court with an ex parteinterlocutory application for an interim injunction to prevent the said nine persons from taking office as members of the Assembly until determination ofthe reference. By order of the Court the interlocutory application was heardinter partes on 24th and 25th November 2006. The Court delivered its ruling on the application and on two objections raised therein on 27th November 2006, in which inter alia, it granted the interim injunction restraining the 3rd and 4threspondents from recognizing the nine nominees as duly elected members ofthe Assembly until disposal of the reference.

PARTIES TO THE REFERENCE

[13] All the claimants are resident in Kenya. In the reference, the 1st and 2ndclaimants are stated to be suing as officials of the Orange DemocraticMovement (ODM) and the 4th and 5th claimants are stated to be suing asofficials of the Liberal Democratic Party (LDP). The 3rd, 6th and 7th claimants6are stated to be suing as officials of NARC, Democratic Party (DP) and Forum for Restoration of Democracy in Kenya (FORD – K) respectively. But despitehighlighting the stated official capacities in the pleading, nothing significantturned on them during the trial and therefore, in this judgment, we consider the said claimants in the same individual capacities as the 8th, 9th, 10th and 11thclaimants. It should be mentioned, however, that the 3rd, 9th, 10th and 11thclaimants were the NARC nominees on the list submitted by the party leader,which was inexplicably rejected by the House Business Committee.

[14] Six respondents were initially cited in the reference. At the hearing of the aforesaid interlocutory application the 2nd, 5th, and 6th respondents objected to their being joined to the case, and the Court upheld the objection in its ruling delivered on 27th November 2006, on the ground that the only matters whoselegality the Court had to determine were those done by Kenya as a Partner State through its National Assembly. They were struck out, leaving the three respondents named above.

[15] Following the interim injunction, which took immediate effect, the nine affected nominees and the KANU party filed separate applications under Article 40 of the Treaty and r.35 of the Court Rules, for leave to intervene inthe reference. By a consolidated consent order dated 17th January 2007, leave to intervene limited to supporting the respective cases of the claimants or the respondents was granted. The 1st interveners are the three KANU nominees, the 2nd is the nominee of FORD – P and the 3rd interveners are the five personsapproved by the House Business Committee as the NARC nominees. The 4thinterveners are officials of KANU party.

PLEADINGS AND ISSUES

[16] There are numerous averments in the reference, many of which areunnecessary, notwithstanding counsel’s explanation that their purpose is toshow the full context of the claimants’ case. With due respect to learnedcounsel, we are constrained to observe that much of the “over-pleading» hasled to some degree of confusion in regard to the jurisdiction of this Court and the claimants’ cause of action. Be that as it may, in our view, the claimants’core pleading that leads to the prayers we referred to at the beginning of this judgment is captured in two paragraphs, which read thus –

“29. It is the contention of the claimants that the wholeprocess of nomination and election adopted by the National Assembly of Kenya was incurably and fatallyflawed in substance, law and procedure and contravenes Article 50 of the East African Community Treaty in so faras no election was held nor debate allowed in Parliamenton the matter.
30. The claimants also contend that any such rules that may have been invoked by the Kenya National Assemblywhich do not allow election directly by citizens orresidents of Kenya or their elected representatives is nulland void for being contrary to the letter and spirit of the Treaty”.

[17] In a nutshell, the response of the 1st respondent is premised on the following four propositions as basic pleas, namely, that –• In 2001, the Kenya National Assembly, pursuant to Article 50 of theTreaty, determined its own procedure for election of the nine members of the Assembly in form of the election rules, which embody the democratic principle of proportional representation.

• In October 2006, the National Assembly, acting through its HouseBusiness Committee, in accordance with its Standing Orders and the election rules, went through the process of electing the nine members to the 2nd Assembly.

• Neither the election rules nor the process of electing the nine membersconstitute an infringement of the Treaty or are otherwise unlawful.

• The reference does not disclose a cause of action.

[18] The 3rd and 4th respondents plead jointly that no cause of action is disclosedagainst them as they were not privy to the activities of the Kenya National Assembly about which the reference complains. In the alternative they pleadthat the cause of action, if any, ceased when they obeyed the interiminjunction, which had been the purpose for their being made parties in the case.

[19] Out of these pleadings, the Court framed the following three broad issues –

1. Have the complainants disclosed any cause of action within themeaning of Article 30 of the Treaty?
2. Was an election undertaken within the meaning of Article 50 of the Treaty?

3. Do the Kenya Election Rules i.e. The Treaty for the Establishment ofthe East African Community (Election of Members of the Assembly)Rules 2001, comply with Article 50 of the Treaty?

EVIDENCE

[20] The main facts relied on by all the parties, most of which are outlined in the background section of this judgment, are not in controversy. Only onewitness, Yvonne Khamati, the 10th Claimant, gave oral evidence and was9cross-examined at length by counsel for all the parties. We hasten to observe, however, that the lengthy questioning of the witness appeared to be more foreliciting from her some desired evidence than for challenging the veracity of her testimony. Even the uncommon mode of adducing evidence of a speech made by Hon. Norman Nyagah, the Government Chief Whip, through herproducing a DVD recording of the speech, for the Court to view and hear, was not challenged. The rest of the evidence was adduced by affidavits.

[21] At the scheduling conference, it was intimated that the 1st respondent would object to the Hansard copies annexed to the reference being used in evidence. This appears to have prompted the claimants to adduce affidavits fromMembers of Parliament who participated in the proceedings reported in thesaid Hansard copies. During the trial, however, the course of objecting to theuse of Hansard was not pursued, and counsel for all the parties, including the1st respondent, referred to the copies annexed to their respective pleadingswithout objection.

[22] In view of our finding that the evidence material to the issues for determination is not contentious, it is unnecessary to discuss it in any detail. Where necessary, we shall consider the evidence that is not reflected in the background section of the judgment, as we discuss the framed issues.

[23] The Advocates for the claimants, the 1st respondent and the 1st intervenersfiled written submissions. In addition, the respective counsel for all the partiesas well as for the amicus curiae made oral submissions at the hearing.

Applicable principles

[24] The Treaty describes the role and jurisdiction of this Court in two distinct butclearly related provisions. In Article 23, the Treaty provides –

“The Court shall be a judicial body which shall ensure theadherence to law in the interpretation and application of and compliance with this Treaty.’’

[25] It then provides thus in Article 27(1) –

“The Court shall initially have jurisdiction over the interpretation and application of this Treaty.”

[26] The Treaty, being an international treaty among three sovereign states, is subject to the international law on interpretation of treaties, the main one being “The Vienna Convention on the Law of Treaties”

[27] The three Partner Statesacceded to the Convention on different dates; (Uganda on 24 June 1988,Kenya on 9 November 1988 and Tanzania on 7 April 1993). The Articles of the Convention that are of particular relevance to this reference are Article 26that embodies the principle of pactasuntservanda, Article 27 that prohibits aparty to a treaty from invoking its internal law as justification for not observingor failing to perform the treaty and Article 31, which sets out the general rule of interpretation of treaties. Article 31 reads –

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the11treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.4. A special meaning shall be given to a term if it is established that the parties so intended.”
(Emphasis is added)

[28] Learned counsel for the claimants urged that in addition to seeking guidance from the Vienna Convention in interpreting the Treaty, the Court should, in respect of Article 50 of the Treaty, apply what he referred to as the principle of equivalence, which ensures that in the interpretation and application of rightsand obligations created under a treaty there is equivalence in the states that are bound by the treaty. In other words, treaty provisions must be uniformlyinterpreted and applied in the states that are parties to the treaty.

[29] For the 1st respondent on the other hand, the Court was urged to exercise itsjurisdiction with care bearing in mind the historical perspective of the Treatywith particular reference to the recitals in its preamble in which the PartnerStates recall the causes of the collapse of the former East African Communityin 1977 and in which they resolve to act in concert to strengthen their cooperationadhering to fundamental and operational principles set out in theTreaty. In apparent support of this submission learned counsel for the 3rdinterveners stressed the fundamental principle in international law of sovereignequality of states, under which any matter over which a state does notexpressly relinquish sovereignty, remains within its sovereignty. A state cannotlose sovereignty over any matter by implication of international law.

SUBMISSIONS ON ISSUE NO.1

[30] The claimants’ submission on the first framed issue is that the averments inthe reference show a cause of action within the meaning of Article 30 of theTreaty. They argue that the claimants are competent to make the referencesince they are legal and natural persons resident in East Africa. The referenceand the supporting documentary evidence, show that the contentiousnominations were made pursuant to Article 50 of the Treaty as were theelection rules under which the nominations were done. The election rules andthe process of the nominations and approval of the nominees as members ofthe Assembly are “regulations, decision and action” of a Partner State whoselegality is contestable under Article 30. In the reference, the claimants ask theCourt to interpret Article 50 relative to the said process and rules and todetermine if the process and the rules infringe the Article. They contend thatthis is therefore, a justiciable cause of action. They also reiterate that thisCourt has jurisdiction to determine the reference and to grant the prayers madetherein.

[31] On the other hand the 1st respondent submits that the claimants have notdisclosed any cause of action under Article 30 of the Treaty. In order toestablish a cause of action, a litigant must have locus standi. The litigant musthave sufficient interest in the subject matter upon which a court is toadjudicate. Secondly, the litigant must be seeking a remedy in respect of alegal right, which has been infringed or violated.

[32] According to the 1st respondent there are two view points of the issue of locusstandi in the instant reference. First, from a strict perspective, since the subjectmatter of the reference, namely whether the election of Kenya’s members of theAssembly was undemocratic and unlawful, is a matter of public interest, theonly person that has locus standi as the protector of public interest, is theAttorney General of the Republic of Kenya. Secondly, from a broaderperspective, the 1st, 4th and 7th claimants, being members of the NationalAssembly, may claim to have locus standi on the ground that they havepersonal interest to ensure that the National Assembly elects strictly inaccordance with Article 50. That approach, however, should be avoided as itwould make a mockery of democracy to allow them to refer to the Court anissue that they lost to the majority in a democratic debate in the House.

[33] The 1st respondent also maintains that the claimants failed to show that theyhave a right conferred by the Treaty, which was contravened. Article 30 doesnot confer any right on any of the claimants. It is only a procedural provisionfor enforcing rights conferred under other provisions of the Treaty. If Article 30is interpreted to confer a right on every resident of the Partner State, the Courtwould be turned into an institution of resolving philosophical discussion andspeculation and cease to be a court of law. Since under Articles 34 and 52 theTreaty vests interpretation jurisdiction in the national courts also, the substanceof the reference should be dealt with by the High Court of Kenya under Article52. If this Court rules on the legality of the contentious election it would beusurping the power of the High Court of Kenya.

[34] In support of the foregoing submissions, learned counsel for the 3rd interveners,also contended that the claimants do not have a cause of action maintainable inthis Court, which is an international court. Their grievance raises twhether the 3rd interveners were elected to the Assembly. The Treaty expresslyprovides in Article 52 that when that question arises, it shall be determined bythe relevant institution of the Partner State. The claimants did not seek remedyfrom the High Court or other institution of the Republic of Kenya. Under theprinciples of international law, they cannot access this Court before exhaustingthe local remedy provided by the Treaty itself.

[35] Learned counsel for the 3rd and 4th respondents, stressed that both under thepleadings and in the evidence no claim was made against either of the tworespondents. They were not alleged to be persons whose activities gave rise tothe reference. They were not shown to have infringed a right conferred on theclaimants by the Treaty. No nexus was established linking the 3rd and 4threspondents to the activities complained of in the reference. The claimants didnot disclose, let alone prove, any cause of action entitling them to a claim andan award against the two respondents. Although, in the interlocutory applicationfor injunction they were properly joined, they ought to have been dischargedafter compliance with the injunction order.

[36] Further, the 3rd and 4th respondents contend that they cannot be party to thereference because they are neither a Partner State nor an institution of theCommunity whose acts or regulations are referred to the Court under Article30.

FINDING ON ISSUE NO.1

[37] From the submissions, we discern the following five grounds upon which thecontention of non-disclosure of a cause of action is based, i.e that –

• the claimants failed to show the essential elements of a cause of action,namely, that their rights or interests were violated or infringed upon;
• Article 30 does not create any right; it creates a forum for adjudication ofrights vested by other provisions of the Treaty;
• The substantial question raised in the reference, whether the 3rdinterveners are elected members of the Assembly, is not within thisCourt’s jurisdiction;
• the claimants have not exhausted the local remedy provided by theTreaty; and
• in the case of the 3rd and 4th respondents, it is not shown that they areliable for the matters, which are subject of complaint in the reference.

[38] A cause of action is a set of facts or circumstances that in law give rise to aright to sue or to take out an action in court for redress or remedy. In AutoGarage vs. Motokov, (No.3) (1971) EA 514, a decision of the Court of Appealfor East Africa, Spry V.P., described a common law cause of action at p.519 Dthus –

“if a plaint shows that the plaintiff enjoyed a right, that the righthas been violated and that the defendant is liable, then, in myopinion, a cause of action has been disclosed and any omissionor defect may be amended. If on the other hand, any of thoseessentials is missing, no cause of action has been shown and noamendment is permissible.”

[39] That description sets out the parameters of actions in tort and suits for breach ofstatutory duty or breach of contract. However, a cause of action created bystatute or other legislation does not necessarily fall within the same parameters.Its parameters are defined by the statute or legislation which creates it.

[40] This reference is not an action seeking remedy for violation of the claimants’common law rights. It is an action brought for enforcement of provisions of theTreaty through a procedure prescribed by the Treaty. The Treaty provides for anumber of actions that may be brought to this Court for adjudication. Articles28, 29 and 30 virtually create special causes of action, which different partiesmay refer to this Court for adjudication. Under Article 28(1) a Partner Statemay refer to the Court, the failure to fulfill a Treaty obligation or theinfringement of a Treaty provision by another Partner State or by an organ orinstitution of the Community. Under Article 28(2) a Partner State my alsomake a reference to this Court to determine the legality of any Act, regulation,directive, decision or action on the ground that it is ultra vires or unlawful or aninfringement of the Treaty or any rule of law relating to its application oramounts to a misuse or abuse of power. Under Article 29 the Secretary Generalmay also, subject to different parameters, refer to the Court failure to fulfill aTreaty obligation, or an infringement of a provision of the Treaty, by a PartnerState.

Article 30 provides –

“Subject to the provisions of Article 27 of this Treaty, anyperson resident in a Partner State may refer for determinationby the Court, the legality of any Act, regulation, directive,decision or action of a Partner State or an institution of theCommunity on the grounds that such Act, regulation,directive, decision or action is unlawful or is an infringementof the provisions of this Treaty.”

[41] It is important to note that none of the provisions in the three Articles requiresdirectly or by implication the claimant to show a right or interest that wasinfringed and/or damage that was suffered as a consequence of the mattercomplained of in the reference. We are not persuaded that there is any legalbasis on which this Court can import or imply such requirement into Article 30.

[42] In the 1st respondent’s written submissions, and in the supplementary oralsubmissions by the learned Deputy Solicitor General of Kenya a number ofauthorities were cited in support of the contentions that the claimants had nolocus standi and/or had not disclosed a cause of action. Unfortunately nocopies were availed to the Court despite undertaking to do so. One that we areable to comment on is the decision of the High Court of Kenya in JaramogiOgingaOdinga vs. Zachariah R. Chesoni& Attorney General, Misc.Appl.No.602 of 1992, a copy of which was availed by counsel for the 6th respondentat the hearing of the interlocutory application. In that case, the High Court ofKenya held that section 60 of the Constitution of the Republic of Kenya doesnot confer any right to a litigant nor create a cause of action. By way ofanalogy, it is argued that Article 30 ought to be interpreted in the same way. Wedo not need to discuss the decision in any detail. We respectfully agree with thatinterpretation. But we hasten to point out that the provisions of section 60 of theConstitution of Kenya are not similar or comparable to the provisions of Article30 of the Treaty. The section only vests jurisdiction, albeit unlimitedjurisdiction, in the High Court of Kenya.The court held –

“The court’s unlimited powers ought to be and are used withjudicial restraint and only in situations where ends of justicemay be defeated by failing to exercise them. To use theseinherent or residual powers, the court must be satisfied ongrounds placed before it that the powers should indeed be used.That, in our opinion, is what section 60(1) provides for. It doesnot create causes of action or courses to follow in thoseactions.”

[43] In Article 30, however, the Treaty confers on any person resident in a PartnerState the right to refer the specified matters to this Court for adjudication and aswe have just said, by the same provision it creates a cause of action.

[44] Section 60 of the Kenya Constitution, is comparable to provisions of the Treatythat only vest jurisdiction without creating causes of action, like Articles 27, 31and 32, which respectively vest in this Court jurisdiction to interpret the Treaty,to hear and determine disputes between the Community and its employees andto hear and determine arbitration disputes in specified circumstances. We find amore plausible comparison with Article 30 of the Treaty to be in Article 137 ofthe Constitution of the Republic of Uganda, which in clause (1) vests in theConstitutional Court the jurisdiction to interpret the Constitution and in clause(3) confers on any person the right to petition that court on an allegation thatany Act of Parliament or other law, or any act or omission by any person orauthority is inconsistent with, or contravenes the Constitution, for a declarationto that effect. The Supreme Court of Uganda has in several decisions held thatthe Article thereby creates a cause of action. (See Ismail Serugo vs. KampalaCity Council & Attorney General; Constitutional Appeal No.2/98).

[45] Turning back to the claim in this reference, we note that the claimants make nosecret of the fact that they were prompted to bring this reference by what theyclaim to be unlawful substitution of the 3rd interveners for the 3rd, 9th, 10th and11th complainants as the NARC nominees and the resultant deeming of theformer as elected members of the Assembly. Those circumstances per se raisethe question whether the 3rd interveners are elected members of the Assemblyand the question is squarely within the parameters of Article 52(1), whichprovides –

“Any question that may arise whether any person is an electedmember of the Assembly or whether any seat on the Assembly isvacant shall be determined by the institution of the PartnerState that determines questions of the election of members of the National Assembly responsible for the election in question.”

[46] Needless to say, this provision also creates a cause of action under the Treaty.However, it is the one cause of action under the Treaty over which this Courthas no jurisdiction. Obviously, that is why the 1st respondent persistently seeksto strait-jacket this reference into the parameters of Article 52(1), to cushion theinitial argument that this Court has no jurisdiction over the reference, and additionally to contend that no cause of action triable by this Court is disclosed.

[47] We should mention at this juncture that the same argument is reiterated insubmissions on the second framed issue, presumably in an effort to show that itis a non-issue. There, it is argued that the fact of the election is not disputable,and that the substantive dispute arises from the two lists of nominees submittedby NARC’s party leader and party whip, respectively. Four of the nominees onthe party leader’s list who were not elected, claim that they were the rightfulnominees who should have been elected instead of the 3rd interveners who wereon the party whip’s list. That dispute is not within the ambit of Article 30.Basically, it is a dispute on who should have submitted the NARC partynominees, which dispute should have been solved through the internal partymechanism. Outside the party, it is, at most, a dispute as to whether the 3rdinterveners were lawfully elected and should have been referred to the HighCourt of Kenya under Article 52.

[48] But, under whatever context, the arguments turn round to one central theme,namely that the Court ought not to determine this reference. In our view, thesubtle variation introduced in submissions by learned counsel for the 3rdinterveners that the Court had jurisdiction to grant the interim injunction and tohear the reference but has no jurisdiction to grant the remedies prayed for,makes no material difference. We shall dispose of the said theme here and willnot return to it under any other framed issue.

[49] We agree that if the only subject matter of the reference were thosecircumstances surrounding the substitution of the 3rd interveners for the saidfour claimants, this Court would have no jurisdiction over the reference. Inparagraphs 29 and 30 of the reference, however, the claimants have referred tothe Court two other issues, which we consider to be the core and materialpleadings for purposes of the reference. It is those pleadings that disclose thespecial causes of action, which evoke this Court’s jurisdiction under the Treaty.And it is only those pleadings that will be subject of adjudication in thisreference. While it is apparent that the reference of the two issues is an afterthought, in our considered opinion it is not tantamount to abuse of court processas submitted by the 1st respondent.

[50] In the ruling delivered on 27th November 2006, we held that the Court hasjurisdiction to hear and determine the reference. We find no reason to reviewthat decision. Whatever we say on the matter hereafter is to provide the detailsof our reasons for the decision as we undertook to do in the said ruling.

[51] Under Article 33(2), the Treaty obliquely envisages interpretation of Treatyprovisions by national courts. However, reading the pertinent provision withArticle 34 leaves no doubt about the primacy if not supremacy of this Court’sjurisdiction over the interpretation of provisions of the Treaty. For clarity, it isuseful to reproduce here, the two Articles in full. Article 33 provides –

“1. Except where jurisdiction is conferred on the Court by theTreaty, disputes in which the Community is a party shall not on21that ground alone, be excluded from the jurisdiction of thenational courts of the Partner States.
2 Decisions of the Court on the interpretation and application ofthis Treaty shall have precedence over decisions of the nationalcourts on a similar matter.
(Emphasis is added)

[52] And Article 34 provides –

“When a question is raised before any court or tribunal of aPartner State concerning the interpretation or application of thisTreaty or the validity of the regulations, directives, decisions oractions of the Community, that court or tribunal shall, if itconsiders that a ruling on the question is necessary to enable it togive judgment, request the Court to give a preliminary ruling onthe question.”

[53] The purpose of these provisions is obviously to ensure uniform interpretationand avoid possible conflicting decisions and uncertainty in the interpretation ofthe same provisions of the Treaty.

[54] Article 33(2) appears to envisage that in the course of determining a case beforeit, a national court may interpret and apply a Treaty provision. Such envisagedinterpretation, however, can only be incidental. The Article neither provides fornor envisages a litigant directly referring a question as to the interpretation of aTreaty provision to a national court. Nor is there any other provision directlyconferring on the national courts jurisdiction to interpret the Treaty. Article 30on the other hand, confers on a litigant resident in any Partner State the right ofdirect access to the Court for determination of the issues set out therein. Wetherefore, do not agree with the notion that before bringing a reference underArticle 30, a litigant has to “exhaust the local remedy». In our view there is nolocal remedy to exhaust.

[55] We would express reservations about the supplementary or alternative notionthat a litigant who fails to secure relief from the national courts under Article 52would have recourse to this Court to seek the same relief.

[56] Lastly, the 3rd and 4th respondents were not joined for being privy to the actionsof the Republic of Kenya or for any wrong they did. They were joined, aslearned counsel rightly concedes, because of the relief sought by the claimants,namely the prayer that they be restrained in the terms set out not only in theinterlocutory application but also in the reference. The submission would havemade more sense if it came prior to the hearing of the reference.

[57] Accordingly we answer issue no.1 in the affirmative.

SUBMISSIONS ON ISSUE NO.2

[58] The main thrust of the claimants’ submissions on the second and third issues isthat no election, within the meaning of Article 50 of the Treaty, was undertakenand that the election rules do not provide for election. The process provided forby the election rules and what actually transpired amount to the antithesis of anelection.

[59] The claimants maintain that the expression “shall elect” as used in Article 50can only mean “shall choose by vote». That is the ordinary meaning as definedin several dictionaries, and as it is understood and practiced not only in all threePartner States, but also in international democratic practice worldwide. Underthe Constitution and electoral laws of Kenya that govern the elections of thePresident, and of the Speaker, Deputy Speaker and Members of Parliament,election means election through voting. The provision in the Treaty that “the23National Assembly “shall elect” therefore, does not import a concept that isunknown to or that differs from that envisaged and practiced by the Republic ofKenya.

[60] The affidavit evidence shows that three parliamentary political parties, namelyNARC, KANU and FORD-K, submitted to the House Business Committeenames of persons nominated for election as members of the Assembly. On 26thOctober 2006, the Chairman of the House Business Committee simply tabled inthe National Assembly a list of names of nine persons stated to be nominated bythe said political parties. That list did not include the names of the 3rd, 9th, 10thand 11th claimants who had been validly nominated as NARC nomineesbecause at the initiative of Hon. Norman Nyagah, the Government Chief Whip,the House Business Committee had replaced them with the names of the 3rdinterveners. As stipulated by the election rules, the nine persons were therebydeemed to be elected by the National Assembly.

[61] Significantly, when introducing the nine names to the House, the Vice-President, who is also Leader of Government Business, said, as his predecessorhad said on the equivalent occasion in 2001, that the nine persons were “appointed». Both leaders knowing the difference between “elected” and “appointed”, used the latter word because what had transpired in the HouseBusiness

[62] Committee was not an election but an appointment of the ninepersons. Besides, this was consistent with what the said Government ChiefWhip said in his speech recorded on the DVD, bragging immediately prior tothe process, that only he would name those to be sent to the Assembly. All thatgoes to show that what transpired was not an election by the NationalAssembly, but was at best “an appointment» by the Government controlledHouse Business Committee.

[63] The submissions on this issue, for the 1st respondent and the supportinginterveners, may be summarised as follows. The words “election” and “elect”as used in Article 50 do not necessarily connote choosing or selecting byvoting. They are not defined in the Treaty. Black’s Law Dictionary defines “election” as –

“the process of selecting a person to occupy an office (usuallya public office)”

[64] Furthermore, though under Article 6 of the Treaty the Partner States arecommitted to adhere to “democratic principles”, no specific notion ofdemocracy is written into the Article or the Treaty. Besides, while Article 50provides for the National Assembly of each Partner State to elect nine membersof the Assembly, it gives no directions on how the election is to be done, exceptfor the stipulations that the nine must not be elected from members of theNational Assembly and that as far as feasible, they should represent specifiedgroupings. Instead, it is expressly left to the National Assembly of each PartnerState to determine its procedure for the election. This is in recognition of thefact that each Partner State has its peculiar circumstances to take into account.The essence of the provision in Article 50 is that “the National Assembly ofeach Partner State shall elect … nine members of the Assembly … inaccordance with such procedure as [it] may determine.”

[65] Learned counsel for the 1st interveners, supplements this submission with theargument that the power and discretion of the National Assembly under Article50(1) is so unfettered that the National Assembly may determine a procedure ofelection that excludes itself from actual or physical voting. In exercise of that25power and discretion, the Kenya National Assembly determined its procedurein 2001 by making the election rules, which must be respected.

[66] It is not in dispute that only entitled parliamentary political parties nominatedcandidates for election and submitted their names to the House BusinessCommittee. Being satisfied that they were qualified to be elected and that theycomplied with the terms of Article 50, the House Business Committee approvednine of the nominees on 26th October 2006 and on the same day tabled theirnames before the National Assembly. Thereupon, by virtue of the election rules,the nine nominees were deemed to be elected by the National Assembly. TheSpeaker confirmed that the process was conducted in accordance with theelection rules. The process is a mode of democratic election by proportionalrepresentation as practiced not only in Kenya but also in several otherdemocratic countries.

[67] The question that the Court should have been appropriately asked to consider iswhether the process conforms to the conditions stipulated in Article 50.However, the question did not arise since it was neither alleged, let aloneproved, that any of the nine elected persons was not qualified nor that thespecified representations, namely representations of various political parties,shades of opinion, gender and other special interest groups were not achieved.

[68] Learned counsel for the 2nd intervener supplemented the submissions in supportof an affirmative answer to the second framed issue, with the contention that aproper interpretation of Article 50 is not to consider the meaning of theexpression «to elect» in isolation but as one with the procedure that Article 50empowers the National Assembly to determine. For the purpose of Article 50as set out in the election rules. If the Court undertakes the task of givingdictionary meaning to the expressions «to elect» and “an election» it will beassuming the role of making rules of procedure, which is the preserve of theNational Assembly.

FINDING ON ISSUE NO.2

[69] The first step towards answering the second framed issue is to resolve theconflict of two basic concepts on the import of Article 50 that underlie thesesubmissions. One concept is that the Article imposes on each NationalAssembly the function of electing nine members of the Assembly from therespective Partner States, with a discretionary power to determine the procedureit will follow in executing that function. The other concept is that the Articleconfers on the National Assembly of each Partner State the responsibility, withunfettered discretion, to determine how the nine members of the Assembly fromthe respective Partner States are to be elected. To find out which of the twoconcepts reflects the correct object and purpose of Article 50 as intended by theparties to the Treaty, we have to consider the provisions of the Article in thecontext of the Treaty as a whole.

[70] However, in view of paragraph 3(b) of Article 31 of the Vienna Convention, itis necessary to consider first if Kenya’s practice in its application of Article 50since 2001, establishes any agreement of the parties regarding the interpretationof that Article. No evidence was adduced on the practice by the other twoparties in their application of Article 50. However, from the differencesbetween the election rules and the equivalent rules of procedure adopted by theNational Assemblies of Tanzania and Uganda, copies of which were availed to27Court in the course of oral submissions by counsel, it is evident, and we are ableto conclude, that no agreement of the parties regarding interpretation of Article50, can be inferred from the said practice. On the surface, the Tanzania rulesprovide for elaborate elections by the National Assembly, while the Ugandarules are silent on the issue of election, save that in rule 2 “election» is definedas “a process of approval of names nominated by political parties and presentedto the House by the Speaker», and in rules 10 and 11 they provide for theSpeaker to announce to the House the “nominations» of members of theAssembly and for the publication in the Gazette of the names of the “electedmembers» as soon as the Speaker announces them. Clearly, there is glaring lackof uniformity in the application of Article 50.

[71] As we said earlier in this judgment, the Treaty creates eight organs of theCommunity. It prescribes the composition of each organ and how itsmembership is to be constituted. Memberships of four of the organs, namely,the Summit, the Council, the Co-ordination Committee and SectoralCommittees are principally constituted by specified ex officio members andadditional members determined by the Partner States from time to time. Theyare all serving officials of the Partner States. The membership of the Court, thejudicial organ of the Community, consists of judges appointed by the Summiton recommendations of the Partner States. The Secretariat, the executive organof the Community is also constituted by appointees. The Secretary General isappointed by the Summit upon nomination by a Head of State. The DeputySecretaries General are appointed by the Summit on recommendation of theCouncil. And the Counsel to the Community is appointed on contract.

[72] The Assembly is differently constituted. Its composition is prescribed in Article48. It is the only organ composed of two categories of membership, namely, 27elected and 5 ex officio members. In Article 50, the Treaty prescribes how thefirst category of membership is to be constituted, and qualifications ofmembers.Article 50 is titled –

“Election of Members of the Assembly»

[73] and the full text reads –

1. The National Assembly of each Partner State shall elect, notfrom among its members, nine members of the Assembly, whoshall represent as much as is feasible, the various politicalparties represented in the National Assembly, shades of opinion,gender and other special interest groups in that Partner State, inaccordance with such procedure as the National Assembly ofeach Partner State may determine.
2. A person shall be qualified to be elected a member of theAssembly by the National Assembly of a Partner State inaccordance with paragraph 1 of this Article if such a person:

(a) is a citizen of that Partner State;
(b) is qualified to be elected a member of the NationalAssembly of that Partner State under itsConstitution;
(c) is not holding office as a Minister in that PartnerState;
(d) is not an officer in the service of the Community;and
(e) has proven experience or interest in consolidatingand furthering the aims and objectives of theCommunity.

[74] Clearly, the overriding object and purpose of Article 50 is to prescribe aspecial mode of constituting the first category of membership of the Assembly.This is done by providing in express, unambiguous and mandatory terms thatthe section of the Assembly comprising 27 members shall be constituted bymembers elected severally by the National Assemblies of the Partner States,each of which is entitled to elect nine members. We should observe that this isa notable departure from provisions of Articles 56 and 57 of the 1967 Treatyfor East African Co-operation, under which each Partner State was mandatedto “appoint nine» of the “twenty-seven appointed members» of the LegislativeAssembly.

[75] It is also significant that unlike in respect of the other organs, the Treaty doesnot leave it to each Partner State to appoint or nominate for appointment orotherwise determine the members of the Assembly. In our view, according tothe ordinary meaning of the expression “the National Assembly of eachPartner State shall elect nine members of the Assembly», the NationalAssembly of each Partner State is unconditionally assigned the function ofelecting nine members of the Assembly. In other words Article 50 constitutesthe National Assembly of each Partner State into “an electoral college» forelecting the Partner State’s nine representatives to the Assembly. We think thatthere can be no other purpose of naming the National Assembly in this regardother than to constitute it into an electoral college.

[76] The rest of the provisions of Article 50 do not add to or subtract from thatassignment. They only serve to leave two matters in the National Assembly’sdiscretion. First, while the Article provides that the nine elected members shallas much as feasible be representative of the specified groupings, by implication30it appears that the extent of the feasibility of such representation is left to bedetermined in the discretion of the National Assembly. Secondly, the NationalAssembly has the discretion to determine the procedure it has to follow incarrying out the election.

[77] In our considered view, the decision to constitute the National Assembly ofeach Partner State into an electoral college was a deliberate step towardsestablishing a legislature comprising people’s representatives. The NationalAssembly, being an institution of people’s representatives, is next to the peoplethemselves, the second best forum for electing such representatives. We aretherefore not persuaded by the submission of counsel for the 1st interveners thatthe discretion of determining the procedure of electing the representativesincludes an option for the National Assembly to assign the function to any otherbody. That submission has the effect of extending the discretion beyond what isprovided in Article 50. It also offends the well established principle articulatedin the maxim:

“Delegatapotestas non potestdelegari» (a delegated powercannot be delegated.

[78] The next step towards answering the second framed issue is to consider what ismeant by the words “election» and “elect» in the setting they are applied inArticle 50 and in the context of the Treaty as a whole. The 1st respondent andthe supporting interveners capitalise on the absence of any definition of thosewords in the Treaty and on the fact that the words are capable of bearingmeanings other than choosing by vote. However, neither fact leads to anymaterial consequence. The absence of any definition of the words in the Treatyis not ground to contend that the parties to the Treaty attached no meaning tothem. The phenomenon of double or even multiple meanings of words is a31common occurrence but does not prevent a court giving the word interpretationin the context it is used. In International Law and Order by Prof. GeorgScwarzenberger, (Stevens & Sons, London 1971), under the Chapter on TreatyInterpretation, the learned author, commenting on Article 31 of the ViennaConvention on the Law of Treaties, which we reproduced earlier in thisjudgment, says at p.121 –

[79] “In accordance with the general rule on interpretation in theVienna Convention, the object of treaty interpretation is to givetheir “ordinary» meaning to the terms of the treaty in theircontext and in the light of its object and purpose.Unfortunately, almost any word has more than one meaning.The word “meaning» itself has at least sixteen differentmeanings. Thus if parties are in dispute on any term of a treaty,each one of them is likely to consider the meaning it attaches toa particular word as the ordinary meaning in the context and inthe light of the object and purpose of the treaty.»

[80] Fortunately, the words that are under consideration do not bear a multiplicity ofmeanings. It is common ground that the ordinary meanings of the words “election» and «to elect» are “choice» and “to choose» respectively; and that inthe context of Article 50 the words relate to the National Assembly choosing orselecting persons to hold political positions. What is in contention is whetherthe parties to the Treaty intended the choice or selection to be done through aprocess of voting or through any other process to be determined by each of thethree National Assemblies.

[81] The phenomenon of multiple meanings of words makes interpretation ofdocuments a very difficult task; but the task is not insurmountable. Rules ofinterpretation have been designed to ease the burden, hence the need to invokethem. Indeed, in the instant case, the contention revolves more on the intentionof the parties to the Treaty than on the meaning of the words. Two trite rules ofinternational law, which emanate from the principle of pactasuntservanda, areof particular relevance here. One is that treaty provisions are presumed to havemeaning and must not be construed as void for uncertainty, in the way contractsbetween private persons may be construed at municipal law. The other is thatthe parties to a treaty cannot be taken to have intended an absurdity. (SeeManual of Public International Law Edited by Prof. Max Sorensen, UgandaPublishing House Ltd. 1968; para. 4.30 and 4.31).

[82] In our view, it would lead to unnecessary uncertainty, if not to absurdity, ifArticle 50 were construed to mean that the parties to the Treaty intended toattach no meaning to the words “election» and «to elect» used in Article 50,leaving it to each National Assembly to adopt its preferred meaning of thewords through the rules of procedure it determines. Counsel for the 1stinterveners advanced a theory that the matter was intentionally left open-endedbecause of differences in the level of political development of the PartnerStates, and in support of the theory relied on the inclusion of the principle ofasymmetry among the operational principles of the Community set out inArticle 7 of the Treaty. With due respect to learned counsel, we find no legal orfactual basis for his perception or speculation that at the time of entering intothe Treaty the Partner States were at different levels of political development.To our understanding, the operational principle of asymmetry he cited insupport of his argument, relates to the acknowledged economic imbalances forwhose rectification the parties have, by appropriate protocol, set a formula andtime-frame. It is not applicable to any imagined uneven political developmentof the Partner States.

[83] We think that Articles 5 and 6 have a bearing on the subject at hand. By theTreaty, the Partner States established themselves into the Community, for theachievement of elaborate objectives set out in Article 5. For purposes of thisjudgment it suffices to say that the overall objective is developing andstrengthening co-operation in specified fields for the mutual benefit of thePartner States; and further establishing among themselves into several stages ofintegration up to a Political Federation, in order to attain inter alia raisedstandard of living and improved quality of life for their populations. Article 6outlines five sets of fundamental principles that the parties chose to govern theirachievement of the Community objectives. Again for the purpose of thisjudgment it suffices to highlight only (a) and (d), namely the principles of –

• mutual trust, political will and sovereign equality;
• good governance including adherence to the principles ofdemocracy…

[84] Two other facts are worthy of taking into account. Ordinarily a reference to ademocratic election of persons to political office is understood to mean electionby voting. Secondly, in all three Partner States, the National Assembly has thefunction of electing its Speaker and Deputy Speaker. It executes that functionby voting in one form or another.

[85] The Constitution of the Republic of Kenya provides in sections 37 and 38 thatthe Speaker and the Deputy Speaker, respectively, shall be elected by theNational Assembly. Those provisions are reiterated in the Standing Orders,which then set out elaborate procedure of conducting the election by ballot. Incontrast, Order 154 provides that Members and the Chairman of any selectcommittee shall be “nominated» by the House Business Committee unless34nominated by the House on setting up the select committee. Under Order 155,the House Business Committee may “appoint»
in place of a member whosemembership has ceased or who is absent, another member to act. In thescenarios under Orders 154 and 155, no voting is envisaged.

[86] In view of all the foregoing, we find it very unlikely that in adopting Article 50,the parties to the Treaty contemplated, let alone intended, that the NationalAssembly would elect the members of the Assembly other than through votingprocedure. Needless to say, an election through voting may be accomplishedusing such diverse procedures as secret ballot, show of hands or acclamation.The electoral process may or may not involve such preliminaries as campaigns,primaries and/or nominations. An election may be contested or uncontested. Inour considered view, the bottom line for compliance with Article 50 is that thedecision to elect is a decision of and by the National Assembly.

[87] The evidence before us leads to only one conclusion, namely that the NationalAssembly of Kenya did not undertake or carry out an election within themeaning of Article 50 of the Treaty.

SUBMISSIONS ON ISSUE NO.3

[88] On the third issue specifically, the claimants contend that the election rules donot meet the threshold set by Article 50, and to that extent have no bearing onthe Article. In formulating the election rules, the Kenya National Assemblydisregarded the limits of its discretion under Article 50. This is particularlyborne out by the evidence from the Hansard reports of the debate in the35National Assembly in 2001. The evidence clearly indicates that the rules wereadopted notwithstanding that their inconsistency with Article 50 was articulatedby a number of contributors to the debate. In that connection, during theproceedings of 26th October 2006, in the course of ruling that the NationalAssembly was bound by the election rules it adopted against his advice in 2001,the Speaker observed that the Kenya National Assembly was living a lie withregard to election of members of the Assembly and urged the House to re-lookat his rejected draft rules as it had a right and duty to amend inter alia rules thatare not in consonance with the expectations of the public.

[89] Learned counsel for the claimants urged that in interpreting the Treaty relativeto the election rules, the Court must bear in mind the principle of equivalence,which requires that the Treaty be applied uniformly among the Partner States;and the principle of primacy of Community law in case of conflict with nationallaw.

[90] The 1st respondent on the other hand submits that the election rules do complywith Article 50. Under the Treaty each Partner State has the discretion tochoose any democratic electoral system for the election of the members of theAssembly. The election rules made by the Kenya National Assembly establishsuch a democratic electoral system of proportional representation. They do notinfringe Article 50 in any way and the Court should respect them.

[91] The 1st interveners support the submission that the election rules were lawfullymade by the Kenya National Assembly within its discretion under, and incompliance with, Article 50(1). They submit that in interpreting that Article andapplying it to the election rules, the Court should take the rules as they are, andnot consider whether the rejected drafts were better. The Court cannot question36the validity of the rules on basis of whether they are democratic enough. Theywere made by the competent authority, and were adopted in a democraticmanner after a detailed and focused debate. The Court may only determine if inmaking the rules the National Assembly complied with its mandate todetermine a procedure that caters for the stipulations under Article 50.

[92] In addition it is contended that the claimants are estopped from challenging thevalidity of the election rules, which they recognized and relied on up to theconclusion of the election.

FINDINGS ON ISSUE NO.3

[93] We should at the outset reiterate that the point we have to decide on under thisissue is whether the election rules constitute an infringement of Article 50 ofthe Treaty. It is therefore, immaterial that the claimants or any of them mayhave previously regarded the election rules as valid or may have done anythingor taken any step in pursuance of their provisions. We say this because it is ourfirm view that once a question of infringement of the Treaty is properly referredto this Court under Article 30, the question ceases to be of purely personalinterest. This court would be failing in its duty under Article 23 if it refuses todetermine the question on the ground of the claimant’s previous conduct orbelief.

[94] Furthermore, it is well settled that the doctrine of estoppel cannot be raisedagainst the operation of statute. (See Maritime Electric Co. Ltd vs. GeneralDairies Ltd., (1937) 1 All ER 748; Southend-on-Sea Corporation vs. Hodgson(Wickford) Ltd., (1961) 2 All ER 46 and T. Tarmal Industries vs.Commissioner of Customs and Excise (1968) EA 471. Similarly in our view,estoppel cannot be invoked to prevent an inquiry into an alleged infringement37of the Treaty. If the rules made in exercise of power conferred by Article 50 areultra vires, they cannot be saved on the ground that the claimants previouslyregarded them as intra vires.

[95] The point of inquiry under this issue is what the rules provide in regard to “election of the members of the Assembly.» Consequently, the 1st respondentmisses the point when he submits that through the rules the National Assemblyadopted a democratic system of proportional representation. Proportionalrepresentation can be effected through nomination and/or appointment as is thecase, under Article 33 of the Kenya Constitution, for the “nominated members»of the National Assembly. In any case, it is the Treaty that provides forproportional representation in the Assembly, and which directs that therepresentation shall be achieved by election. The critical point is not whetherthe rules provide for proportional representation but whether they provide forelection of members of the Assembly on basis of proportional representation asprovided by Article 50.

[96] The election rules provide in rule 4, that the National Assembly shall elect thenine members of the Assembly “according to the proportion of every party inthe National Assembly». To that extent, there is partial compliance with Article50. However, the apparent absence of any provision to cater for gender andother special interest groups is a significant degree of non-compliance,notwithstanding the discretion of the National Assembly in determining theextent and feasibility of the representation.

[97] The major deviation from Article 50 is that the election rules do not provide forthe National Assembly to elect the members of the Assembly. Rule 5 providesfor the nomination of candidates by the political parties and sets out the procedure for submitting nomination papers to the House Business Committee.Rules 6 and 7 then provide –

“6. The House Business Committee shall consider thenominees of the parties delivered to it under sub-rule (4) of rule5 and shall ensure that the requirements of Article 50 of theTreaty are fulfilled.
7. Upon being satisfied that the requirements of rule 6 havebeen complied with, the House Business Committee shall causethe names of nine nominees of the parties to be tabled beforethe National Assembly and such nominees shall be deemed tohave been elected as members of the East African LegislativeAssembly in accordance with Article 50 of the Treaty.»(Emphasis is added)

[98] It is not clear if “the requirements of Article 50» mentioned in rule 6 and “therequirements of rule 6» mentioned in rule 7 are the same or different, thusmaking the role of the House Business Committee in the process ratheruncertain. What we can deduce from the rules is that its role is to vet thenominees to ensure that they qualify to be elected and presumably that they arerepresentative of the groupings specified in Article 50. Be that as it may, it isplain from the two rules that the nine nominees are not elected by the HouseBusiness Committee, contrary to a spirited effort by counsel for the 3rdinterveners to argue that the House Business Committee is “an electoralcollege». If that were so, it would be unnecessary to stipulate that the nomineesare deemed to be elected by the National Assembly. Indeed the use of theexpression “nominees are deemed to be elected» signifies that the nominees arenot elected.

[99] The same learned counsel persuasively argued that the word “deem» is a goodlegal word in common usage. He asserted: “We deem that which in law oughtto have taken place, to have taken place»We agree that the word “deemed» is commonly used both in principal andsubsidiary legislation to create what is referred to as legal or statutory fiction.The legislature uses the word for the purpose of assuming the existence of a factthat in reality does not exist. In St. Aubyn (LM) vs. A.G. (1951) 2 All ER 473,Lord Radcliffe describes the various purposes for which the word is usedwhere, at p.498 he says –

[100] “The word “deemed» is used a great deal in modern legislation.Sometimes it is used to impose for the purpose of a statute anartificial construction of a word or phrase that would nototherwise prevail. Sometimes it is used to put beyond doubt aparticular construction that might otherwise be uncertain.Sometimes it is used to give a comprehensive description thatincludes what is obvious, what is uncertain and what is, in theordinary sense, impossible.»

[101] It is common ground that the election rules were made “in exercise of thepowers conferred by Article 50(1) of the Treaty», and obviously for the purposeof implementing the provisions of the said Article. In rule 7, the legislature usedthe word “deemed» in order to create the fiction that upon the names of partynominees being laid on the table they would in law be elected by the NationalAssembly as members of the Assembly although in reality they are not soelected. The reason for creating that fiction is that Article 50 of the Treatyexpressly provides that the nine members of the Assembly from each PartnerState shall be elected by the National Assembly. In other words the fiction wascreated to circumvent an express provision of the Treaty.

[102] In Indira Sawhney vs. Union of India, JT (1999) (9) SC 557: (2000) 1 SCC168, a statutory declaration of non-existent facts as existing, which wasunrelated to existing facts was held to be in violation of Articles 14 and 16 ofthe Indian Constitution. Similarly we hold that rules made for the purpose of40implementing provisions of the Treaty cannot be permitted to violate anyprovision of the Treaty through use of legal fiction. To uphold the legal fictionin rule 7 of the election rules would be tantamount to upholding an amendmentof Article 50, by one Partner State unilaterally. We can find no justification fordoing so.

[103] The dichotomy that this situation poses is as follows: The National Assembly ofany democratic sovereign state has the powers of regulating its conduct throughrules of procedure by whatever name called. Once made and adopted, they arebinding until revoked, amended or otherwise modified by the NationalAssembly itself. Ordinarily what the National Assembly does in accordancewith such rules is lawful and valid. However, a state, which in exercise of itssovereign power binds itself to an international treaty, may end up facingconflicting demands, namely the demand to abide by its treaty obligations andthe demand to abide by its own rules that conflict with the former.

[104] In the reference, the claimants plead, and in the written submissions by counselit is reiterated, that the election rules were not gazetted or published. However itwas not seriously canvassed, let alone proved, that failure to gazette or publishthem rendered the rules invalid or of no legal effect. In the written submissionthe rules are described as “window dressing» with no bearing on Article 50,with the additional passing remark: “They have not even been gazetted orpublished independently». We make this observation because proof that therules are of no legal effect would have erased or avoided the dichotomy. As itis, however, we start from the position that the rules are binding on the NationalAssembly and then consider if their inconsistency with or infringement ofArticle 50 renders them unlawful and not binding on the National Assembly.

[105] As we pointed out earlier in this judgment, the Treaty provides in Article 33(2)that decisions of this Court on the interpretation of provisions of the Treatyshall have precedence over decisions of national courts on a similar matter. Thatprovides a clear-cut solution in the event of conflicting court decisions. But theTreaty does not provide a similarly explicit solution to the dichotomy where aTreaty provision (say Community rule) is in conflict with a national rule.

[106] We think the solution lies in the basic principle at international law, to the effectthat a state party to a treaty cannot justify failure to perform its treaty obligationby reason of its internal inhibitions. It cannot be lawful for a state that withothers voluntarily enters into a treaty by which rights and obligations are vested,not only on the state parties but also on their people, to plead that it is unable toperform its obligation because its laws do not permit it to do so. The principle isembodied in Article 27 of the Vienna Convention on the Law of Treaties,which reads –

“A party may not invoke the provisions of its internal law asjustification for its failure to perform a treaty. This rule iswithout prejudice to article 46.»

[107] We were referred to several judicial decisions arising from national law thatcontravened or was inconsistent with European Community law, as persuasiveauthorities on this subject. (See AlgemeneTransportenExpeditieOnderneming van Gend en Loos vs. NederlandseAdministratie derBelastingen [1963] ECR 1; Flaminio Costa vs. ENEL [1964] ECR 585; andAmminstrazionedelleFinanzedelloStato vs. Simmenthal [1978] ECR 629).In some cases the national law in issue was in existence when the Communitylaw came into force, while in others it was enacted after the Community law. Ineither case where there is conflict between the Community law and the national42law the former is given primacy in order that it may be applied uniformly andthat it may be effective.

[108] For purpose of illustration, it suffices to briefly describe what are commonly called the Factortame cases. Spanish fishermen who owned British registered fishing boats challenged in the British courts new English legislation for being discriminatory in breach of European Community law. They applied for aninterim injunction to postpone the operation of the new legislation pending apreliminary ruling on a reference made to the European Court of Justice (ECJ) to determine if the law was contrary to Community law. The House of Lords dismissed the application on the ground that under the English law the courtscannot issue an injunction against the Crown. That decision was also referred tothe ECJ which held that the full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting an interim relief. On basis of the preliminary ruling by the ECJ, the House of Lords in R vs. Secretary of Statefor Transport, ex p. Factortame Ltd. (No.2) [1991] 1 A.C. 603, reconsidered and reversed its previous decision.

[109] In the instant reference, the position of the 1st respondent and the supportinginterveners appears to be on weaker ground. First, while we appreciate that theelection rules were subject of a full debate touching on the provisions of Article50, and that the rules were adopted through a democratic decision, the decisionwas made irrespective of the awareness of the possibility that the rules were aninfringement on Article 50. Secondly it is noteworthy, that the NationalAssembly made the rules not in exercise of sovereignty inherent in a state, butin exercise of a discretionary power conferred on it by the Treaty. It was boundto make rules that conform to the primary purpose of the Article that conferred43the power, which primary purpose is to provide for the election of ninemembers of the Assembly by the National Assembly of each Partner State. Thatpurpose is defeated by the provision of rule 7 of the election rules, whichprovides for a fictitious election in lieu of a real election.

[110] We therefore find that the election rules infringe Article 50 to the extent of their inconsistency with it, which we have identified.

[111] In the result we declare that the National Assembly of Kenya did not undertake an election within the meaning of Article 50 of the Treaty, and that the election rules in issue infringe the same Article.

[112] We order that the claimants shall have costs of the reference to be borne by the1st respondent and to be taxed by the Registrar taking into account that a single applicant could have presented the reference. All other parties shall bear their own costs.

[113] Before taking leave of this reference we are constrained to observe that the lack of uniformity in the application of any Article of the Treaty is a matter for concern as it is bound to weaken the effectiveness of the Community law and in turn undermine the achievement of the objectives of the Community. Under Article 126 of the Treaty the Partner States commit themselves to take necessary steps to inter alia “harmonise all their national laws appertaining to the Community». In our considered opinion this reference has demonstrated amply the urgent need for such harmonization.

[114] Secondly, we also are constrained to say that when the Partner States entered into the Treaty, they embarked on the proverbial journey of a thousand miles which of necessity starts with one step. To reach the desired destination they have to ensure that every subsequent step is directed forward towards that destination and not backwards or away from the destination. There are bound to be hurdles on the way. One such hurdle is balancing individual state sovereignty with integration. While the Treaty upholds the principle of sovereign equality, it must be acknowledged that by the very nature of the objectives they set out to achieve, each Partner State is expected to cede some amount of sovereignty to the Community and its organs albeit in limited areas to enable them play their role.

Dated at Arusha this day of 2007

 
 

MOIJO. M. OLE KEIWUA
PRESIDENT

JOSEPH. N. MULENGA
VICE PRESIDENT

AUGUSTINO.S .L . RAMADHANI
JUDGE

KASANGA MULWA
JUDGE

HAROLD R. NSEKELA
JUDGE

 
     

 

 

 

 

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