ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested duty to ensure reasonable access to its services in all parts of the Republic. To them, the aim of the provisions of Article 6(3) and Article 56 is not discretionary but affirmative to the intent no one is left behind. It is irrelevant that the IPPMS was not intended to discriminate against marginalized populations, however in reality the impact disproportionately affects the marginalized and affected further excluding them from the political process. 97. It was therefore submitted that because of this disparate impact of the rolling out of IPPMS, the marginalized should be consulted in framing and implementation of this system and this is so because it has a direct impact on their political rights and justifies the adoption of affirmative measures to enable their participation in the electoral process. From the above, it was submitted that the 2nd Respondent has a duty to put in place affirmative measures as a means of reparation to facilitate participation in an effective and inclusive manner consistent with the exercise of the right. This, however, was not done in the rolling out and the use of the IPPMS to fill the past gap of exclusion. Reliance was placed on the Federation of Women Lawyers Kenya (FIDA-K) & 5 others vs. Attorney General & Another [2011] eKLR that the concept creates an obligation that minority should be given preference to make up for a history of discrimination that has placed them at an unfair disadvantage. It is primarily a benefit to the recipient and seeks to distribute the benefit in a way that compensates for past injustices and its lingering effects. In the Petitioners’ contention, these affirmative measures mean coming up with ways and methods alive to the potential challenges and opportunities that can be harnessed making use of flexibility to party membership and IPPMS for this key population. In this regard, they cited the Indian Case of State of Bombay vs. F. N. Balsara 93 AIR 1951 SC 318 at p. 326 where the court quoted with approval the following extract from Professor Willis’ Constitutional Law, 1st Ed. At 578. 98. It was submitted that the Respondent’s in implementing the IPPMS operated on the assumption that all Kenyans have the same social and economic status without creating a reasonable distinction. However, the marginalized groups for various factors ranging from historical are not in equal position to access these services are disadvantaged. The Petitioners submitted that contrary to the Respondents’ notion, the solution to manage the political problem of exclusion of the marginalized cannot be adopting the most severe form of restriction to the exercise of the political right is warranted in the open and democratic society. In this case, the implementation of IPPMS has left the majority in the whims of political parties-those who control the state in any case. In their view, the Court will need to resolve whether this is a case that presents competing rights and what the fair balance in resolving that competition is. For example- should a person wishing to resign from one party, but is unable to effect the change on the IPPMS before the closure of the register, be denied participation in the primaries of a party whose agenda they support" Should political parties with pending resignation notification from past members without access to the system limit their participation in other political parties" Is there a fair balance that the Court can strike that is proportionate" 99. Lastly and perhaps most critically, they posed, should citizens with no access to internet or the IPPMS who are enlisted in political parties without their consent be disadvantaged" Should the violation of their political rights under Article 38 persist unabated is the most relevant factor in court’s ultimate decision" 100. Regardless, even if this Court finds that the lack of a regulatory framework safeguarding the rights of minorities cannot be a bar on the Respondent to implement the IPPMS entirely, the Petitioners are of the view that still the gaping holes in the legislative and regulatory fabric place a heavy burden on this Court in light to the ill-timed launch and reliance of the system for the 2022 election year. 101. As regards the Respondents’ fear that there will be anarchy if the use of the IPPMS is suspended pending legislative and regulatory framework to protect the marginalized is a gross misstatement, it was submitted that this is unfounded since there have been numerous nominations since the passing of the constitution without the reliance of the IPPMS. To the Petitioners, from the many mismatches and wrong entries, it is clear that this IPPMS is not ready to be used exclusively as the list determining the eligibility of voters to participate in the party primaries. Even of more concern is that much of the list rely on citizens using technology to access the portal where they can then resign or join a political party of choice. 102. The Petitioners noted that the Government, the interested party’s, own data is showing that a big part of Kenya cannot access 4G network or gadgets to enable them register. Consequently, one can imagine what this means to the marginalized groups right to political participation under article 38 and the opportunity of minority candidates successfully going through party nominations with the massive dislocations of these citizens from voting. 103. It was contended that while in theory, legislation is a product of democratic action, public participation, and informed debate and that when implementation of laws and regulations is in a manner consistent with the values and principles of the Constitution, they provide crucial guidance for the Court as it carries out its duties; when State organs fail to carry out their legislative and http://www.kenyalaw.org - Page 11/29