ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested marginalized to be involved in governance because Kenya is in participatory democracy. They lamented that bureaucracy faceless operations and conduct of the Respondents, based on desired efficiency, while operating in secrecy, closed down the opportunities for citizens to participate in political process through the over-reliance on technology. By so doing, the Respondents are emphasizing marked inequalities along class lines lowering the prospect of equal opportunity for political participation. 84. It was contended that it is not uncommon for a society with high inequality like Kenya to come face to face with the barriers and limitation to the exercise of political rights that is undermined by economic inequality that renders the participation in governance and political participation an empty ritual and frustrating process for the marginalized. The State must go further in making necessary measures to guarantee that the marginalized actually enjoy their right to political participation and are not side-lined. In their submissions, political equality is understood as a requirement that all individuals and groups have access to the political process. As such, large disparities in political influences is disfavoured. Since political equality is often undermined by social and economic inequality, it results in political decisions favouring those already enjoying an economically and socially privileged position. As such, in order for any democratic process to be fair, those who participate in the process need the capability to function politically. This is the foundation for the constitutional requirement for the enhancement of capability of the underprivileged groups. 85. According to the Petitioners, this petition and the orders sought herein are hinged on the centrality of the Constitution in promoting the Minority Rights, principles of governance such as inclusivity and equity necessary in Kenya’s participatory democracy. Participatory democracy is the bridge that has solidified the achievements of greater rights to the minorities and marginalized. In Kenya, it was submitted, the constitutional provision fortifies such capacities on social justice, inclusivity and addressing marginalization and fragility under to Article 10 of the Constitution. 86. The Petitioners narrated the constitutional history which according to them demonstrates the different understanding amongst various groups in Kenya on exclusivity and numerous efforts for dissent and challenges upon structural and institutional framework that enable exclusion through laws and without laws. It was submitted that the history of Kenyan elections has witnessed these communities that are numerically non-dominant groups and communities thereby find themselves pushed to the periphery in both elective and nominative positions as a result of conspiracies and lobbying by the majority for highly delicate and diplomatic positions. This exclusion is furthered by the adoption of policies and operational mechanisms that exclude their participation such as the use of technology and the internet without creating measures to safeguard and guarantee their participation. 87. Fortunately for these groups and communities, it was submitted, the Constitution is in a full gear to cancel the culture of entitlement among a few and promote shared prosperity that leaves no one behind. There is no doubt that the Constitution is a radical document that looks to a future that is very different from our past, in its values and practices. 88. According to the Petitioners, the main challenge of the Respondents and Interested Party’s response to the Petition is on the interpretation on law since, according to Dworkin, law is not just rules but principles. It was argued that the Court when faced with rules must also apply the principles accepted in law and therefore the interpretation must go beyond the mechanical reading of legal text to the principles. The Petitioners’ submissions were based on the Constitution being a transformative Charter as described by Karl E. Klare and the case of Royal Media Services Ltd vs. A.G Petition No. 346 of 2012. 89. It was submitted that the Constitution mandates the State to put in place affirmative action programs designed to ensure that minority groups participate and are represented in governance and other spheres of life; are provided with special opportunities in educational and political fields for access to employment; develop their cultural values, languages and practices; and have reasonable access to water, health services and infrastructure. In support of the submissions, the Petitioners relied on the Matter of the Kenya National Human Rights Commission [2014] eKLR and the Court was urged to move far beyond abstract reading of the Constitution and look in context of Kenya’s historical constitutional amendment culture, which reveals evidence of exclusion and marginalization of marginalized and indigenous groups. They also cited Association of Retirement Benefits Schemes vs. Attorney General & 3 Others [2017] eKLR and it was contended that the transformative nature of the Constitution makes the Judiciary a key player in public policy formulation, politics and moral dispute resolution. 90. In the same vein, the Petitioners relied on In the Matter of Principle of Gender Representation in The National Assembly and the Senate, SC Advisory Opinion No. 2 of 2012 and Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the court noted that courts have the last words in determining the constitutionality of all government actions. Based on the foregoing, it was submitted that the judiciary has jurisdiction to examine and adjudicate policy and political disputes has a better chance of ensuring that power is exercised as precisely provided for in the law. Further, the Constitution legalized and justified the court to take an active role and take into consideration all prior constitutional changes in addition to the http://www.kenyalaw.org - Page 9/29