National Assembly v Katiba Institute & 6 others (Civil Appeal 243 of 2018) [2023] KECA 1174 (KLR)

The court held that definitions sections control the meaning of terms throughout a statute and must conform to the Constitution. The amended definition ignores article 166(3) qualifications for a Supreme Court judge replicated in section 6(1) of the IEBC Act, and permits a person not appointed as the Constitution stipulates to assume the post of Chairperson. Applying vagueness and overbreadth doctrine, the court found the definition creates room for unconstitutional application and agreed with the trial court.

Article 250(2) and (3) prescribe the manner of appointment and mandatory qualifications for the Chairperson, anchored in article 166(3). Section 7A(6) effectively suspends section 6(1) of the Act and thereby article 250(3). The court held that when the Constitution prescribes the manner of appointment, Parliament cannot by statute provide a different manner; any such law falls foul of article 2(4). The same reasoning applies to section 7B, which the court agreed was similarly unconstitutional.

The court noted the Supreme Court in Attorney-General & 2 others v Ndii & 79 Others (with dissent) resolved the quorum question. The court nonetheless affirmed the trial court's findings, holding that a quorum of three out of seven members with decisions by majority of those present and voting could allow a minority of Commissioners to bind the Commission, which is constitutionally objectionable for an independent commission.

The removal of the requirement for a prescribed form for transmission opens results to adulteration and manipulation. Section 39(1E) creates conflict between electronically transmitted and physically delivered results; section 39(1F) saves results not transmitted electronically, a backward step against articles 10, 81 and 86; and section 39(1G) renders live-streamed results valueless for declaration, mocking free, fair and credible elections.

Following counsel's concession and the doctrine of severance drawn from Schachter v Canada, the court held the trial judge should have determined whether section 39(1D), which merely obliges the Commission to verify that transmitted results are an accurate record of results at polling stations, could stand independently of the defective section 39(1E). It could, and the severance remedy should have been deployed.

The Supreme Court had already interpreted section 83 as harmonized with the Constitution. The amendment introducing the conjunctive 'and' and the word 'substantially' was a departure from constitutional requirements for free, fair and transparent elections. However, the High Court's order had over-reached by nullifying the entire section rather than only the amendment; on concession and the court's own analysis, the order was varied to invalidate only the amendment.

The court reviewed paragraphs 40 to 51 of the High Court judgment and found the judge had conducted a lengthy review of decided cases enunciating principles of constitutional interpretation, including the US v Butler formulation, and applied them to the impugned provisions. The appellant's separation-of-powers challenge to the trial court's approach therefore failed.