ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested 190. For an election to meet the threshold of Article 81 of the Constitution, it must, inter alia, be administered in an efficient and accountable manner at every stage of the process. An electoral process that is conducted in firefighting manner cannot, in my respectful view, be efficient. When we conduct our electoral processes in that manner at every electoral period, to expect different results can only be termed as miraculous. It is therefore my view the petitioners’ assertion that the launch of the IPPMS a few months to election was ill-timed cannot be said to be entirely without merit. 191. This, therefore, was a classic case in which, all things being equal, this Court would have suspended the Integrated Political Parties Management System until after elections. My position is supported by the decision in Consumer Federation of Kenya (Cofek) vs. Minister for Information & Communications & 2 Others [2013] eKLR where the court expressed itself as hereunder:‘21…I am satisfied that the Petitioner has established that the citizens will be prejudiced by the digital migration and they will suffer irreparable injury which would never be adequately compensated in damages. I say so, for reasons that will be seen shortly. 22. The Petitioners have clearly demonstrated that the citizens freedom of information will be limited by the digital migration. In my view, it is not enough for the Respondents to contend that they have fully sensitized the public on the import and created awareness of this digital immigration. It is equally not sufficient for them to allege that they have cushioned the consumers by subsidizing the costs of the set-top boxes to affordable amounts in order to make them accessible to a common Kenyan. The Respondents has not availed such evidence before this Court. I am satisfied that the Petitioner has clearly demonstrated that the consumers who have not acquired the required set-tops to receive the digital transmission will be heavily prejudiced by this migration which harm cannot reasonably can never be compensated in damages. 23.Even though the Respondents have proven the extensive measures they have undertaken to create public awareness of this digital migration since 2006, I am in agreement with the Petitioner that the timing of the switch is not proper. As a country, we are in a crucial stage of the electioneering period. Accordingly, the consumers have the right to benefit from the information available in the broadcast media as well as the information available in other media forums to enable them make informed decisions. In any event, I do not see the hurry for the migration. I am fully aware that the Respondents and the government has everything set and is prepared for the digital migration especially in Nairobi and its environs. The rest of the country is unaffected.’’ 192. I find that the State developed the Integrated Political Parties Management System without adhering to the provisions of Article 56 of the Constitution. Not only should it have ensured that the system did not curtail the rights of the marginalised by putting in place alternative avenues through which the said communities would still realise their democratic rights but that the said alternatives were sufficiently brought home to those affected in good time to enable them take advantage of the said options. 193. I also agree with the Petitioners that currently there is no sufficient statutory or regulatory regime dealing with the rights of the marginalised groups or communities in this country. It may well be the dearth of such regimes that has confined the minorities and the marginalised communities to the periphery. I agree that in order for the rights contemplated under Articles 10, 56 and 91 of the Constitution to be realised, the State ought to take appropriate steps to make provisions that give meaningful effect to the same. The State cannot continue paying lip service to the constitutional provisions while the people for which the said provisions are meant to protect are treated as if they are outside looking in. In my view, without any statutory or regulatory framework effectuating the rights of the marginalised, the State is simply perfecting tokenism and it was the realisation that the State was not upholding the rights of the marginalised that the Constitution expressly provided for the same. 194. It was urged that this Court ought not to interfere with the functions of the 2nd Respondent. It is however, my view that where the 2nd Respondent fails to perform its functions or performs them in a way that violates the rights and fundamental freedoms of an individual, then this is the proper forum for the victim of such violation to have his grievances addressed. The very reason for establishing a new legal order and vesting power to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened in this Court was to protect the rights of minorities and others who cannot protect their rights adequately through a democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people in our society. It is only if there is willingness to protect the worst and weakest among us, that all of us can be secure that our own rights will be protected. See State vs. Makwanyane & Another (CCT3/94) (1995) ZACC3. http://www.kenyalaw.org - Page 26/29