ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested 69. He opined that the said replying affidavits are totally false in so far as the Respondent appears to presuppose that the manual and digital party registration systems are accessible, equal and similar alternative modes of party membership; and that with the two all Kenyan can access either registration systems. Further the cost, accessibility, reliability of manual registration in far-flung areas where marginalized minority groups reside makes it inaccessible, yet parties are not motivated to incur logistical costs. The alternative IPPMS system is inaccessible for these groups due to a lack of internet, gadgets, network and technological capabilities. 70. While not denying that the two systems are available for party registration, the Petitioners averred that the Respondent failed to demonstrate any affirmative measures taken on the implementation of the two mechanisms available to ensure minorities are not left behind, and that they are protected as provided under Article 91(e) and 56 of the Constitution. It was therefore his view that the 2nd Respondent has taken a minimalist approach in enforcing compliance by political parties and failed to demand the political parties to meet their constitutional mandate, yet has used the same box-ticking approach to lockout marginalized communities from political participation. This mandate, it was averred, includes:(a) Article 23(1) under which the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (b) Article 10(2)(b) on the national values and principles of governance which include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. (c) Article 56(a) which enjoins the State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups— participate and are represented in governance and other spheres of life. (d) Article 81(a) which requires that the electoral system ought to comply with the principles such as freedom of citizens to exercise their political rights under Article 38. (e) Article 91(1)(e) to respect the right of all persons to participate in the political process, including minorities and marginalised groups. 71. It was reiterated that the intervening period between rolling out and implementation of the IPPMS was too short to achieve meaningful public participation for the 2022 April party nomination. Further, the evidence annexed to the 2nd Respondent’s did not demonstrate how the people, whose right to political participation is impeded by the IPPMS, were involved as stakeholders. 72. It was noted that the 2nd Respondent has made registration to a political party a condition precedent to the exercise of their political rights and in the same breath failed to avail the viable option for effective participation to the marginalized and minority groups. In his view, the 2nd Respondent’s duty to ensure that no person is a member of more than one political party is not an excuse to disenfranchise vulnerable section of the population in a manner not provided for under Article 24 of the Constitution. While appreciating that the Constitution provides for limitations, any limitation to the exercise of a fundamental right must be by law, reasonable and justifiable and must choose less restrictive means to achieve the purpose of the limitation. In this case, rather than unconstitutionally restrict the right to political participation by the marginalized groups, should instead choose the least restrictive means to enforce the law. 73. In the deponent’s view, the 2nd Respondent in ensuring compliance by political parties that only those members registered to the political parties participate in the primaries should charge any person found culpable in participating in a nomination they are not supposed to participate with an election offence which approach is less restrictive compared to locking out the entire population of marginalized communities. 74. It was noted that since there have been numerous nominations done before Political Parties Amendment, Act 2022 that established the IPPMS, the apprehension by the 2nd Respondent that there will be anarchy if the IPPMS is not used in the forthcoming party primaries is unfounded and stretches reality to breaking point. In his view, party nominations can be conducted within the law, under due process whilst respecting the right to political participation of all citizens under article 38 until such a time that adequate legislation and policy are formulated to comply with Article 56. 75. It was further noted that the office of the 2nd Respondent has presided at the indiscipline and anarchy of the elected political party leaders who champion causes of other political parties that didn’t sponsor them to offices they hold. However, the 2nd http://www.kenyalaw.org - Page 7/29