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[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
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