ghts Development (CEMIRIDE) & 2 others v Attorney General & 2 others; Independent Electoral and BoundariesCommission (Interested The National Super Alliance & Others, the Court of Appeal was emphatic in paragraphs 80 and 81 that: “80. In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that Article 10 (2) of the Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles. Kenyans did not promulgate the 2010 Constitution in order to have devolution, good governance, democracy, rule of law and participation of the people to be realized in a progressive manner in some time in the future; it could never have been the intention of Kenyans to have good governance, transparency and accountability to be realized and enforceable gradually. Likewise, the values of human dignity, equity, social justice, inclusiveness and nondiscrimination cannot be aspirational and incremental, but are justiciable and immediately enforceable. Our view on this matter is reinforced by Article 259(1)(a) which enjoins all persons to interpret the Constitution in a manner that promotes its values and principles. 81. Consequently, in this appeal, we make a firm determination that Article 10(2) of the Constitution is justiciable and enforceable and violation of the Article can found a cause of action either on its own or in conjunction with other Constitutional Articles or Statutes as appropriate.” 174. Article 56 of the Constitution provides that: The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups— (a) participate and are represented in governance and other spheres of life; (b) are provided special opportunities in educational and economic fields; (c) are provided special opportunities for access to employment; (d) develop their cultural values, languages and practices; and (e) have reasonable access to water, health services and infrastructure. 175. The State is therefore obliged to ensure that where the prevailing circumstances disadvantage the marginalized, affirmative action programmes designed to ensure that minorities and marginalised groups, inter alia, participate and are represented in governance and other spheres of life are put in place. Therefore, where a system such as the IPPMS would have the effect of disadvantaging the marginalized, the Constitution places a duty on the State to ensure that there are in place such affirmative action programmes aimed at ensuring that minorities and marginalised groups are not thereby disadvantaged. I therefore associate myself with the views expressed in Federation of Women Lawyers Kenya (FIDA-K) & 5 others vs. Attorney General & Another [2011] eKLR that the concept creates an obligation that minority should be given preference to make up for a history of discrimination that has placed them at an unfair disadvantage and that it is primarily a benefit to the recipient and seeks to distribute the benefit in a way that compensates for past injustices and its lingering effects. 176. The question that begs answer is whether by developing the IPPMS the State did restrict the rights of those who are unable to access internet services due to lack of the necessary infrastructure from fully enjoying their political rights. It is not in doubt that some parts of the country have no access to internet. It is the duty of the State to ensure that in the event that it wishes to develop a particular service that depends on internet connectivity, that service is availed to all parts of the country and if not then an alternative similarly efficient system is availed. If the government, under the guise of improving the efficient of its services purports to ignore a particular segment of the society and in the process violates their freedoms and fundamental rights, such an action cannot be justified on the basis of efficiency. 177. This must necessarily be so because Article 81(b) of the Constitution provides that the electoral system ought to comply with inter alia, the principle of freedom of citizens to exercise their political rights under Article 38. Therefore, while Section 34B (1) of the Political Parties Act commands the 2nd respondent to establish a Political Parties Management Information System, an electronic system powered by technology, for the purpose of processing the political parties’ records and data for the purpose of the Act, in designing any system that is geared towards development or improvement of the electoral system, the State must at all times http://www.kenyalaw.org - Page 23/29