ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested single constitutional change that it is currently reviewing. The court, it was urged, must determine an aggregated doctrine that would allow courts to review a specific amendment together with the surrounding legal environment with which it would interact. 91. Further reliance was placed on the International Covenant on Civil and Political Rights, Declaration on the Rights of Persons belonging to National or ethnic, Religious and Linguistic Minorities; Framework Convention for the Protection of National Minorities; the European Charter for Regional or Minority Languages; African Charter on Human and Peoples Rights; and Copenhagen Document are international or regional legal instruments which enjoin State Parties to undertake to guarantee to persons belonging to National Minorities the right of equality before the law and of equal protection of the law. In this respect, any document based on belonging to a national minority is prohibited. The Constitution, it was noted, enjoins the State to further enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms and that by dint of the Article 2 of Constitution of Kenya, 2010, these international and regional instruments are part and parcel of Kenya’s laws and have binding force of the law under that provide that the Constitution provides that the general rules of international law shall form part of the law of Kenya. Further, any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. 92. It was submitted that the centrality of the national values and principles of governance in constitutional discourse is further reinforced by the interpretive clause of the Constitution which demands that the Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance in Article 259 of the Constitution. In the Petitioners’ view, the principles of equality and equity are captured as a right-based principle under the right to equality and freedom from discrimination to the effect that every person is equal before the law and has the right to equal protection and equal benefit of the law. The objective of the right, it was submitted, is provided to include the full and equal enjoyment of all rights and fundamental freedoms. Particularly, the Constitution is loud on the need for non-discrimination on the basis of ethnicity or origin, culture, language, religion, including the right to equal opportunities in political, economic, cultural and social spheres. Accordingly, the Petitioners contended, the State is enjoined not to discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Further the state is further commanded to give the full effect of the realization of rights guaranteed including the duty to the state to take legislative and other measures including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination under Article 56 of the Constitution. 93. The question presented by this issue, according to the Petitioners, is whether the State has fulfilled its duty to legislative and other measures including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination in the implementation of the IPPMS, and whether the absence of such legal and administrative affirmative framework is fatal for the use of the IPPMS in the upcoming party primaries. In this regard, reliance was placed on the case of S vs. Zuma 1995 2 SA 642 (CC) where the Constitutional Court affirmed that a right must be interpreted in a manner that seeks to realize the objectives of the right. 94. Affirmative action, it was submitted, stems from the historical perspective where marginalized groups experienced exclusion and underrepresentation in political, economic, social, and public service sectors. To remedy the situation, the Constitution enjoins the State and its organs to address the needs of vulnerable groups within society, including women, older members of society, and persons with disability, children, youth, members of minority marginalized communities, and members of particular ethnic, religious or cultural communities. 95. The State, it was submitted, is further enjoined to ensure that any measures taken under the above clause adequately provide for any benefits to be open on the basis of genuine need. In terms of political representation, the Constitution enjoins Parliament to enact legislation to promote the representation in Parliament of, among others, ethnic and other minorities and marginalized communities under Article 27(6) of the Constitution of Kenya, 2010. 96. The Petitioners however lamented that concerning the measures put in place for affirmative action program actions and policies especially in exercise of their human rights, the legislative and regulatory guidance is scant, at best. There is no legislative or regulatory framework governing the inclusion of marginalized groups in the main stream political social economic spheres. The state was accused of being derelict in their constitutional duty as the duty bearer to give effect to this right without just cause. As for the 2nd Respondent, the Petitioners submitted that it has taken a minimalist and textualist approach in resolving historical and present exclusion of marginalized participation within the political process, a situation far removed from Human Rights approach prescribed by the 2010 transformative charter. In their view, the use of the facially neutral IPPMS system by the Respondents has an unjustified adverse impact on members of the marginalized group violating the tenets of Article 6(3) of the constitution that places a http://www.kenyalaw.org - Page 10/29