ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested 7. This Petition, it was pleaded, comes at a crucial time when the 2022 General Elections are closely approaching, with party primaries to nominate party candidates slated for April 2022. According to the Petitioners, the inability to access the IPPMS, to register for, or change party membership, will be greatly prejudicial to members of minorities and indigenous peoples, and thereby violate their right to participation. This, without any justifiable reason, discriminates against minorities and indigenous peoples, who by no choice of theirs, find themselves outside the internet use map, and grossly violates the Constitution. 8. In the Petitioners’ opinion, apart from the expression of intention to digitise processes and procedures for ease of access, it was also incumbent upon the State to sensitise the electorate on the reforms it intended to implement prior to the roll out of the IPPMS as this would have adequately aligned with the Constitution’s objective to ensure that every person fully and equally enjoys all rights and fundamental freedoms enshrined therein. To the contrary, the State proceeded to launch the IPPMS without public participation which action is retrogressive, and more so quashes the lifeline offered to minorities and indigenous communities through the promulgation of the Constitution, 2010. 9. In examining this Petition, this Court was implored to acquaint itself with the historical and institutional injustices minorities and indigenous communities in Kenya have endured, and at the same time consider the numerous strides taken to overcome these barriers. 10. In support of the petition, the Petitioners relied on the meaning of “marginalised community” and “marginalised groups” under Article 260 of the Constitution, Articles 2(5) of the Constitution as read with the African Charter on Human and Peoples’ Rights that establishes the African Commission on Human and Peoples’ Rights, therefore, making its decisions final and binding to the State parties. They also cited the decision in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council vs. Kenya, 276/2003. 11. According to the Petitioners, in its fourth periodic International Covenant on Civil and Political Rights (ICCPR) report submitted to the United Nations Human Rights Committee (UNHRC), under Article 1 on self-determination, the government officially recognises the existence of indigenous peoples in Kenya, noting that they form part of marginalised communities, and states that they must be protected through specific affirmative action designed to ensure that they enjoy their human rights and fundamental freedoms on an equal footing with others. 12. It was further pleaded that since 2010, Kenya’s Human Rights record has been reviewed thrice by the United Nations (UN) Universal Peer Review (UPR) mechanism in 2010, 2015 and most recently 2020. In 2010, Kenya accepted a recommendation to implement the recommendations and decisions of its own judicial institutions and of the African Commission on Human and Peoples’ Rights, particularly those relating to the rights of indigenous peoples. In 2015, among others, Kenya accepted key recommendations critical to indigenous peoples’ rights; strengthen effectively the protection of the rights of indigenous peoples, including to their ancestors’ lands; and continue implementing the legislation on the protection of the rights of indigenous peoples and their lands. In the latest review, Kenya accepted a recommendation to consider further measures to enhance the meaningful participation of indigenous peoples in all matters affecting them. 13. The petitioners further referred to Rangal Lemeiguran & Others vs. Attorney General & Others [2006] eKLR, where the High Court affirmed the existence of indigenous peoples in Kenya and ruled that they had the right to influence the formulation and implementation of public policy, and to be represented by people belonging to the same social cultural and economic context as themselves. The High Court further observed that Representation is a clear constitutional recognition of a positive right of the minority – to participate in the State’s political process and to influence State policies. 14. For definition of, “marginalised group” the Petitioners referred to Article 260 of the Constitution of Kenya, 2010 and the Report by the UN Special Rapporteur Fransesco Capotorti in the context of Article 27 of the International Covenant on Civil and Political Rights (ICCPR). 15. The Petitioners also cited the definition of the terms “ethnic minorities” “special interest groups” in section 2 of the Political Parties Act, 2011 and relied on The Preamble to the Constitution as regards the aspiration of Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law; Article 1 on the sovereign power; Article 2 and the application of the general rules of international law to Kenya and the place of ratified treaties in Kenyan legal system; Article 3 on the obligation to respect, uphold and defend the Constitution; Article 6(3), on access to State services in all parts of the Republic; Article 10 on the binding nature of the national values and principles of governance; Article 19 on the centrality of the Bill of Rights; Article 20(1) on the binding force of the Bill of Rights and the extent of the enjoyment of the rights http://www.kenyalaw.org - Page 3/29