Lemeiguran v Attorney-General [Kenya, High Court.]

• Jurisdiction: Kenya
• Date: 18 December 2006
• Court: High Court (Kenya)

Kenya, High Court.

(Nyamu and Emukule JJ)

Lemeiguran and Others

and

Attorney-General and Others1

Human rights Fundamental rights and freedoms Rights of minorities Right of representation Right of expression Freedom of conscience Constitution of Kenya, Sections 1A, 78, 79 Whether Il Chamus indigenous people Whether distinct minority group or part of clan Whether Kenyan Government violating applicants' fundamental rights Minorities and indigenous people Definition Whether encompassing non-citizens Recognition and protection of rights of indigenous peoples in international instruments International Covenant on Civil and Political Rights, 1966, Article 27 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992 International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989, Articles 3, 7, 61(b) African Charter on Human and Peoples' Rights, 1981, Articles 19 and 22 Constitution of Kenya Interpretation Democracy Participation of minorities Constitutional responsibility of Electoral Commission of Kenya Whether Il Chamus having claim to representation under Sections 33 and 42 of Constitution of Kenya

Relationship of international law and municipal law Treaties Treaties and other international instruments relating to the status and treatment of minorities Whether forming part of the law of Kenya Whether to be taken into account by Kenyan courts in applying Kenyan law regarding minorities The law of Kenya

Summary: The facts:The four applicants were members of the Il Chamus2 community, which comprised approximately 25,000 to 30,000 persons living principally around the shores of Lake Baringo in the Rift Valley

Province within the Baringo Central Constituency. They brought the application against the respondents, the Attorney-General, on behalf of the Government of Kenya, and the Electoral Commission of Kenya (the ECK).3

The applicants maintained that the Il Chamus was a distinct indigenous and minority group denied the fundamental right of representation in the National Assembly under Sections 1 and 1A of the Constitution of Kenya. They also claimed denial of their fundamental rights of expression and freedom of conscience protected by Sections 79 and 78 of the Constitution respectively. They argued that the Il Chamus constituted a special interest group for the purpose of nomination under Section 33 of the Constitution.4 The applicants contended the Il Chamus had suffered politically, socially, economically and environmentally as a result of the denial of their rights. They sought relief in declarations.5

The ECK maintained that the Il Chamus was a clan of the Maasai people, not a distinct community. It argued that clan status was no basis for constituency representation and that Kenya's constituency boundaries had been properly created to ensure equal representation of all peoples in accordance with Section 42 of the Constitution.6

Held:(1) The Il Chamus were an indigenous people. On the evidence they were a unique, cohesive, homogeneous and culturally distinct minority, conspicuous by any standards. They demonstrated exceptional solidarity in preserving their culture and had all the attributes of internationally recognized indigenous peoples. They qualified as a minority under the definition in law, which was no longer confined to citizens under modern and forward-looking jurisprudence. Numerically inferior and in a non-dominant position, they possessed ethnic, religious or linguistic characteristics different from the majority and were motivated, if only implicitly, by a collective will to survive and aimed to achieve equality with the majority in fact and in law (pp. 3613).

(2) The ECK had a constitutional mandate to consider the applicants' minority status using objective criteria and it had failed to do so. A constitutional classification should further the rights of minorities to exist and be treated without discrimination, preserve their cultural identity and participation in public life. These were rights and values recognized by the Kenyan Constitution even if there was no express provision under Sections 33 and 42. In interpreting rights and freedoms, the Constitution was to be read as a whole. Constitutional rights, especially human rights and freedoms, were interdependent and indivisible; their interplay had to be fully

reflected in the electoral process. Special interests included those interests that the electioneering process had failed to represent. Fair treatment of minorities was essential for democracy, peace and stability, which underpinned justice (p. 363)

(3) International instruments, the majority of which Kenya had participated in as a Member State of the United Nations, provided, inter alia, for the participation in public affairs of every citizen (International Covenant on Civil and Political Rights, 1966) and the right of minorities to participate effectively in cultural, religious, social, economic and public life (UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992) and required governments to establish means by which indigenous peoples could freely participate at all levels of decision-making (ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989, Article 61(b)). Recognition of indigenous peoples' rights was expressed in unequivocal terms in Articles 3 and 7 of the ILO Convention and in Articles 19 and 22 of the African Charter on Human and Peoples' Rights, 1981 (pp. 3412 and 3634).

(4) The Constitution supported the Il Chamus claim to representation pursuant to Sections 33 and 42 and inadequate representation. Such minorities had the right to influence public policy, and be represented by people from the same cultural and economic context. For a political system to be truly democratic, it had to allow minorities a voice of their own, to articulate distinct concerns and seek redress. This was the spirit of Section 1A of the Constitution. Representation recognized the right of a minority to participate in the State's political process and influence its policies: Draft UN Declaration on the Rights of Indigenous Peoples (pp. 36470).

(5) Democracy was not a static concept; it had to accommodate minorities. The Court had to interpret the Constitution using a generous and purposeful approach so as to protect and enhance minority rights; as a creature of the Constitution the ECK had the same responsibility. The ECK had failed to interpret correctly the other criteria in Section 42 of the Constitution that allowed departure from the population principle, such as community of interests and adequate representation. Such an error could adversely affect the democratic process of representation. Section 1A contemplated an open and democratic society based on freedom and equality. The right to an effective vote was too important in a free and multi-ethnic society such as Kenya to be stripped of judicial protection. The applicants had helped to open up the channels of constitutional and electoral justice for others in the future as well as themselves (pp. 36981).

(6) The constitutional machinery for the representation and protection of minorities, including Section 33 of the Kenyan Constitution, had not been implemented as required by the Constitution. The ECK was to comply with the special interest criterion; the Il Chamus constituted a special interest for the purpose of nomination. The ECK was to take into account all the requirements of Section 42 in its next Boundary Review and in the creation of any new Constituencies; departures from population and size quotients based on Sections 42 and 1A were constitutionally valid (pp. 3812).

The following is the text of the judgment of the Court:

This judgment relates to an application by way of an originating summons dated and filed on 12th March, 2004 under the provisions of rules 9 and 11 of the Constitution of Kenya (Protection of Fundamental Rights & Freedoms of the Individual) Practice and Procedure Rules 2001 (Legal Notice No 133 of 2001), which requires that such application be brought by way of an originating summons under order XXXVI of the Civil Procedure Rules. This application is also premised upon the provisions of section 84(1), 1 and 1A and section 33 of the Constitution of Kenya, and all other enabling powers and provisions of law.

The application is brought by the four applicants, against the Attorney-General (on behalf of the Government of Kenya as its principal legal adviser), the Electoral Commission of Kenya (as the body charged with the creation and distribution of constituencies under the Constitution). The application is spent so far as the third respondent, the Constitution of Kenya Review Commission, is concerned as that body has now wound up its activities, and is for all practical purposes disbanded. The four applicants claim for the following declarations:

• A. A declaration that the fundamental right of representation in the National Assembly of the Republic under the provisions of section 1A of the Constitution of Kenya, has been effectively denied to the Il Chamus community;

• B. A declaration that the fundamental right of expression protected by section 79 of the Constitution of Kenya has been, is being and is likely to be contravened in relation to the applicants and the Il Chamus community;

• C. A declaration that entitlement to the fundamental rights protected by section 70 of the Constitution of Kenya has been, is being and is likely to be contravened in relation to the applicants and the Il Chamus community;

• D. A declaration that the fundamental right of the unhindered enjoyment of the freedom of conscience protected by section 78 of the Constitution of Kenya, is being and is likely to be contravened in relation to the applicants and the Il Chamus community;

• E. A declaration that the Il Chamus community of the...