David Mwaure Waihiga v Public Service Commission, National Assembly, Parliament, Ethics and Anti-Corruption Commission & Attorney General [2017] KEHC 9541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION   NO. 291 OF 2015

IN THE MATTER  OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE DOCTRINE OF REASONABLENESS AND PROPORTIONALITY

AND

IN THE MATTER OF THE PRINCIPLES OF DEMOCRACY, FAIRNESS, EQUITY AND JUSTICE

AND

IN THE MATTER OF CONTRAVENTION AND VIOLATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS AS ENSHRINED UNDER ARTICLES 24, 27, 28 AND 38 OF THE CONSTITUTION OF THE REPUBLIC KENYA

AND

IN THE MATTER OF SECTIONS 5 (3) (A) OF THE ETHICS AND ANTI-CORRUPTION COMMISSION (CAP 65A)

AND

IN THE MATTER OF ARTICLES 7 & 8 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

DAVID MWAURE WAIHIGA...................................................................PETITIONER

VERSUS

THE PUBLIC SERVICE COMMISSION.....................................1ST RESPONDENT

THE NATIONAL ASSEMBLY.......................................................2NDRESPONDENT

PARLIAMENT................................................................................3RDRESPONDENT

ETHICS AND ANTI-CORRUPTION COMMISSION...................4THRESPONDENT

THE HON. ATTORNEY GENERAL...............................................5THRESPONDENT

JUDGMENT

Introduction

1. This petition challenges the constitutionality of Section 5 (3) (a) of the Ethics and Anti-Corruption Commission Act[1] which provides:- "A person shall not be qualified for appointment as a chairperson or as a member if the person- (a) is a member of a Political Party." The Petitioner argues that the said provision is discriminatory, unfair, unreasonable, irrational, disproportionate and violates the doctrine of legitimate expectation.

2. I am fully aware that the Right to equality and freedom from discrimination  is a question of grave constitutional importance, hence,  I approach it with trepidation, extreme care and sensitivity. The claim of direct or indirect unfair discrimination implicates the right to equality in our Constitution.[2]This is a fundamental right entrenched in our Bill of Rights, and therefore this claim intrepidly raises a constitutional issue.[3]

The petitioners case

3. The gravamen of the Petitioners case is that Article 27 of the Constitution guarantees Equality and Freedom from discrimination while Article 38 guarantees Political Rights. Thus, the Section 5 (3) (a) of the Ethics and Anti-Corruption Commission Act,[4]the Petitioner argues offends Article 27 and violates Political rights under Article 38.

4. The Petitioner cites Article 79of the Constitution which provides that Parliament shall enact legislation to establish an independent Ethics and Anti-Corruption commission, which shall have the status and powers of a commission under Chapter fifteen of the Constitution, for the purposes of ensuring compliance with, and enforcement of, the provisions of Chapter six of the Constitution. He avers that  none of the  Commissions established under Chapter fifteen of the Constitution has a provision in its enabling legislation similar to section 5 (3) (a) the subject of this Petition.

5. To fortify his case, the Petitioner specifically refers to Section 18 of  the Judicial Service Commission Act[5]which expressly provides that a person holding any of the following offices shall relinquish that office on appointment as a member of the Commission, namely; (a) a member of Parliament, (b) a member of a local authority; or (c) a member of the executive committee of a political party. The Petitioner avers that by implication, a person   can apply for such positions regardless of being   a member of a governing body of a political party and would be required to relinquish his or her position after appointment.

6. The Petitioner further avers that legislations creating independent commissions established under Chapter 15 of the Constitution such as The Kenya National Commission on Human Rights Act,[6]  The Independent Electoral and Boundaries Commission Act,[7] The Parliamentary Service Commission Act[8] and The Public Service Commission[9] do not have similar provisions, hence section 5 (3) (a) of the Ethics and Anti-Corruption  Commission Act is out rightly discriminatory and unfairly limits a person's right to participate in certain public bodies created by the Constitution. Further, such restriction only applies to State officers.

7. The Petitioner further avers that under Article 250 (2), the Chair Person and each members of the Commissions are to be identified and recommended for appointment in a manner  prescribed by national legislation, approved by the National Assembly and appointed by the President.

8. The Petitioner avers that he is the Chair Person of Agano Party and that the impugned provision unreasonably and unjustifiably  limits rights under Article 38 and that it locks out a particular group of persons who are equally qualified to apply for such positions.

First, Fourth and Fifth  Respondents' Grounds of Opposition

9. The fourth Respondents filed grounds of opposition on 22nd July 2015 while the first and fifth Respondents filed theirs on 15th February 2017. The common thread in their grounds are:-(a) that the Petitioners rights under Article 38 are not absolute, (b) that the restriction under the impugned section is reasonable and justifiable in a democratic society, (c) that there are no grounds to issue the injunction sought, (d) that the Petition is unmeritorious.

10. The second and third Respondents did not file any Response to the Petition nor did they participate in the Proceedings.

Petitioners Advocates' submissions.

11. The petitioners' counsel  submitted that:- (i) the impugned section discriminates against persons involved in political parties; (ii) while a similar provision has been replicated in some constitutional commissions[10] it has all together been omitted in others;[11](iii)that the Judicial Service Commission Act[12] expressly provides that a person holding any of the following offices (a) a member of Parliament, (b) a member of a local authority; or (c) a member of the executive committee of a political party shall relinquish that office on appointment as a member of the Commission.

12. Counsels submitted that a  qualified Kenyan may be disqualified on account of the said provision in violation of rights under Articles 38, 27 and 28 of the Constitution and that the said restriction is unreasonable.[13]Counsel also submitted that such an indefinite limitation is unjustifiable[14]and cannot pass the proportionality test.[15]In counsels view, the inclusion of the impugned provision was informed by a narrow view of leadership and demonizing participating in a political party.

First and Fifth Respondents' Submissions

13. Counsel for the first and fifth Respondents submitted that every law enjoys a presumption of validity and its upon the Petitioner to demonstrate its unconstitutionality[16]and that in order to nullify a legislation, there must be a clear and unequivocal breach of the Constitution.[17]

14. Counsel also submitted that the court is under an obligation to interrogate the objects and purposes of a given legislation before declaring it unconstitutional[18]and that there is a rational relationship between the object sought to be achieved and the means chosen and that the legitimate purpose accords with the constitutional values in Article 10 and that the constitution reflects the national soul, identification of ideas, aspirations of a nation and articulation of the values bonding its people and disciplining its government.[19]

Fourth Respondents Counsels Submissions

15. The fourth Respondents' counsel cited the definition of 'governing body" of  political party under Section 2 of the Political Parties Act[20]which means a committee responsible  for administering the affairs of a political party and added that public institutions should be politically neutral, and stated that the impugned limitation is justifiable and reasonable, necessary and proportionate and that there is a legitimate expectation of citizens to have a non-partisan Ethics Anti-Corruption Commission and the need to insulate it from possible political influence. Counsel also cited the importance of managing perceptions in the fight against corruption[21]and argued that guarding against real danger of political predisposition is a less restrictive means and also such  limitation is reasonable in a democratic society and insisted that the mode of appointment of members of the Judicial Service Commission is different from the appointment of commissioners of the  Ethics and Anti-Corruption Commission.

Issues

16. Upon analyzing the opposing facts presented by the parties and the submissions by the advocates, I find that only one issue distills itself for determination, namely, whether or not the impugned provision offends Article 27 of the Constitution.

Analysis of the facts, submissions, the law and authorities

17. I have in several previous decisions rendered in this court  argued  that the disposition of issues relating to interpretation of statutes and determining constitutional questions must be formidable in terms of some  statutory and constitutional principles that transcend the case at hand and is applicable to all comparable cases. Court decisions cannot be had hoc. They must be justified and perceived as justifiable on more general grounds reflected in previous case law and other authorities that apply to the case at hand.[22]

18. In interpreting the Constitution, the court should attach such meaning and interpretation that meets the purpose of guaranteeing Constitutionalism, non-discrimination, separation of powers, and enjoyment of fundamental rights and freedoms.

19. In Law Society of Kenya vs Kenya Revenue Authority & Another,[23] I observed that:-

"Courts have at one time or the other  have felt the need to bridge the gap between what the law is and what  it is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute, a document or an action of an individual which is certain to subvert the societal goals and endanger the public good."

20. Indisputably, there exists a presumption as regard constitutionality of a statute.  The Rule of presumption in favour of constitutionality, however, only shifts the burden of proof and rests it on the shoulders of the person who attacks it. It is for that person to show that there has been a clear transgression of constitutional principles.[24]But this rule is subject to the limitation that it is operative only till the time it becomes clear and beyond reasonable doubt that the legislature has crossed its limits.

21. Article 2 (4) of the Constitution provides that any law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid.

22. Article 259 of the Constitution provides that the Constitution shall be interpreted in a manner that promotes it's purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights and permits the development of the law; and contributes to good governance. Consistently with this, when the constitutionality of legislation is in issue, the court is under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.[25]

23. Thus when the constitutionality of legislation is challenged, a court ought first to determine whether, through “the application of all legitimate interpretive aids,”[26] the impugned legislation is capable of being read in a manner that is constitutionally compliant.

24. Our Constitution requires a purposive approach to statutory interpretation. The technique of paying attention to context in statutory construction is now required by the Constitution.[27] As pointed out above, the constitution introduces a mandatory requirement to construe every piece of legislation in a manner that promotes the ‘spirit, purport and objects of the Bill of Rights.’”

25. The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.[28] The often quoted dissenting judgment of Schreiner JA eloquently articulates the importance of context in statutory interpretation:-

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”[29]

26. A contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute. When confronted with legislation which includes wording not capable of sustaining an interpretation that would render it constitutionally compliant, courts are required, as discussed above, to declare the legislation unconstitutional and invalid. As it stands, this exposition is generally accepted, but it must be said that context is everything in law, and obviously one needs to examine the particular statute and all the facts that gave rise to it.

27. It is indeed an important principle of the rule of law, which is a foundational value of our Constitution, that statutes be articulated clearly and in a manner accessible to those governed by the legislation.[30] A contextual interpretation of a statute, therefore, must be sufficiently clear to accord with the rule of law.

28. It is equally important that the court should also as far as possible, avoid any decision or interpretation of a statutory provision, which would bring about the result of rendering the statute unworkable in practice  or create a situation that will go against clear provisions of the law governing the subject in issue. In this case, it is important to bear in mind the goal nd objects of the act of Parliament. What was the mischief the legislation was intended cure.

29. The starting point of interpreting a statute is the language itself. In the absence of an expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.  Thus, when the words of a statute are unambiguous, then this first canon is also the last, judicial inquiry is complete.

30. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court cannot not go to its aid to correct or make up the deficiency. Courts decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but cannot not legislate itself.

31. Where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external aid is admissible to construe those words.

32. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that the external aid may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

33. The Supreme court of India in  Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others[31]observed that:-

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”

34. The touchstone of interpretation is the intention of the legislature. The legislature may reveal its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute  should serve as the starting point for any  inquiry into its meaning.[32]To properly understand and interpret a statute, one must read  the text closely, keeping in mind that the initial understanding of the text may not be the only plausible interpretation of the statute or even the correct one.[33] Courts generally assume that the words of a statute mean what an “ordinary” or “reasonable” person would understand them to mean.[34] If the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute.

35. There are important principles which apply to the construction of statues such as (a) presumption against "absurdity" – meaning that a court should avoid a construction that produces an absurd result; (b) the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces "unworkable or impracticable" result;(c)presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an "anomaly" or otherwise produces an "irrational" or "illogical" resultand (d)  the presumption against artificial result – meaning that a court should find against a construction that produces "artificial" resultand, lastly,(e)  the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to "public interest," " economic", "social" and "political" or "otherwise."

36. The court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution. In interpreting a statute, the court should give life to the intention of the lawmaker instead of stifling it.

37. Mindful of the imperative to read legislation in conformity with the Constitution, but only to do so when that reading would not unduly strain the legislation, I turn to an analysis of the constitutionality of section 5 (3) (a) of the Ethics and And-Corruption Commission Act[35] which I have been invited to declare as unconstitutional.

38. The impugned section reads "A person shall not be qualified for appointment as a chairperson or as a member if the person- (a) is a member of a Political Party."The crucial question which must be answered is what is the standard by which the constitutional validity of the said section should be judged. In this regard such a question should be answered with reference to the standards of review laid down by our courts when the constitutional validity of a statute is challenged which include two main standards:-

a. The first is the “rationality” test. This is the standard that applies to all legislation under the rule of law;

b. The second, and more exacting standard, is that of “reasonableness” or “proportionality”, which applies when legislation limits a fundamental right in the Bill of Rights. Article 24 (1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”

39. I am persuaded that the  said provision is "reasonably related" to a legitimate purpose, that is:- (i) to ensure political neutrality of the persons charged with the responsibility of fighting the cancer of corruption; (ii) to guard against possible (whether real or perceived) political interference by persons who may be inclined towards a certain political disposition; (iii) to maintain public trust and confidence in the institution charged with the task of fighting corruption; (iv) maintain the independence of the commission.

40. In determining reasonableness, relevant factors include (a) whether there is a "valid, rational connection" between the provision and a legitimate and public interest to justify it, which connection cannot be so remote as to render the provision arbitraryor irrational; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to the affected person.  I hold the view that reasons stated in paragraph 39 above do demonstrate sufficient public interest to warrant such a limitation.

41. Public interest is a common concern among citizens in the management and affairs of local,   state, and national government.It does not mean mere curiosity but is a broad term that refers to the body politic and the public will. In Black’s law Dictionary,[36] “Public Interest” is defined as  follows:-

"Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in affair of local, State or national government...”

42. It is my view that the impugned provision is reasonable and valid and that the restriction serves public interest. The provision is logically related to the legitimate public concerns of ensuring that the war against corruption is fought gallantly on all fours including shielding the commissioners from political interference.

43. Like most constitutional rights, political rights under Article 38 are not absolute. A law prescribing the qualifications for persons to be appointed to the commission aimed at ensuring its independence from political party inclinations cannot be said to be unconstitutional.

44. The provision in question advances a compelling public interest to manage the war against corruption free from political persuasions efficiently as opposed to the individual interests of persons who may be interested in looking for an opportunity to maintain their political party allegiance and continue to serve in independent commissions. Such a scenario goes against the spirit, purpose and intention of the legislature to establish fiercely independent institutions.

45. A law aimed at promoting the legitimate public interest is fair, reasonable, and is in my view consistent with the provisions of the constitution particularly Article 232 on the values and principles of public service which includes impartiality.The provisions of the constitution must be read and interpreted in a wholesome manner. The political rights must be read and appreciated with the constitutional rights that prescribe values and principles of public service, leadership and integrity and national values and principles of governance.

46. My  reading of the challenged section does not  in any manner reveal any infringement of the provisions of the constitution. The challenged provision is clear and precise, and unambiguous. However, if at all any limitation is imposed on the rights of the petitioner or any citizen,  then in my view such a limitation is proportionate considering the  purpose of the law in question. In my view, the challenged provision is necessary in a democratic society to ensure the fight against corruption proceeds untainted by perceived or real political inclinations of the commissioners. To me, the provision  satisfies the requirements set out under article 24 of the Constitution in that the limitation is provided under the law and that the same is reasonably justifiable in a modern democratic society.

47. To me, the guiding principles in a case of this nature are clear. The first step is to establish whether the law differentiates between different persons.[37]The second step entails establishing whether that differentiation amounts to discrimination.[38]The third step involves determining whether the discrimination is unfair. This is where the answer lies. Period.

48. In Willis vs The United Kingdom[39] the European Court of Human Rights observed that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations.

“...a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available members of society”.  (See Andrews vs Law Society of British Columbia [1989] I SCR 143, as per McIntyre J.)

49. From the above definition, it is safe to state that the Constitution prohibits unfair discrimination. In my view, unfair discrimination is differential treatment that is demeaning. This happens when a law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.

50. The principle of equality attempts to make sure that no member of society should be made to feel that they are not deserving of equal concern, respect and consideration and that the law or conduct complained of is likely to be used against them more harshly than others who belong to other groups.

51. The test for determining whether a claim based on unfair discrimination should succeed was laid down by South Africa Constitutional Court in Harksen v Lane NO and Others[40] cited above in which the Court said:-

“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on article 27 the  Constitution.

They are:-

(a)Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate  purpose? If it does not then there is a violation of  the constitution. Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:-

(i)Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or  to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation……..

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (…..of the ..Constitution).

52. The clear message emerging from the authorities, both local and from elsewhere, is that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason is a most reprehensible phenomenon.  But where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination.

53. I find it appropriate to borrow with approval the words of the High court of Botswana in  Mmusi and Others vs Ramantele and Another [41]whereby it rendered itself thus:-

"The theoretical premise upon which this judgment is anchored recognizes that equality is better understood and applied not in the abstract, but in its proper context. It recognizes, in the words of the renowned American Judge, Oliver Wendell Holmes, that general prepositions of law do not solve concrete cases (Lochner v New York 198 US 45, 76 (1905) (Holmes J dissenting))The theoretical premise further recognizes that human wrongs are the source of human rights and that inequalities in a particular society, rather than in an imagined society, are the appropriate foundation of a better understanding of equality provisions in national Constitutions."

Determination

54. It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.

55. The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose.

56. The rationality requirement is intended to prevent arbitrary differentiation. The authorities on equality suggest that the right to equality does not prohibit discrimination but prohibits unfair discrimination.

57. The question that often arises is what makes the discrimination unfair. The determining factor is the impact of the discrimination on its victims. Unfair discrimination principally means treating people differently in a way which impairs their fundamental dignity as human beings. The value of dignity is thus of critical importance to understanding unfair discrimination.

58. In view of my analysis of the law, facts and authorities enumerated above, I find that  this petition has no merits and that the reliefs sought are unwarranted. Consequently, I dismiss this petition with  no orders as to costs.

Orders accordingly

Signed, Dated and Delivered   at Nairobi this9thday ofNovember2017

John M. Mativo

Judge

[1] Act No. 22 of 2011

[2] Article 27

[3]Sali vs National Commissioner of the South African Police Service and Others [2014] ZACC 19; 2014 (9) BCLR 997 (CC) (Sali) at paras 38 and 97.

[4] Supra note 1

[5]Act. No. 1 of 2011, An Act of Parliament to make provision for judicial services and administration of the Judiciary; to make further provision with respect to the membership and structure of the Judicial Service Commission; the appointment and removal of judges and the discipline of other judicial officers and staff; to provide for the regulation of the Judiciary Fund and the establishment, powers and functions of the National Council on Administration of Justice, and for connected purposes

[6] Cap 5B, Laws of Kenya

[7] Act No. 9 of 2011

[8] Act No. 10 of 2000

[9]Act No. 10 of 2017

[10] These are The Kenya National Commission on Human Rights Act, The Independent Electoral and Boundaries Commission Act, The Parliamentary Service Commission Act, The Public Service Commission Act

[11] These are The National Land Commission Act, The Commission on Revenue Allocation Act, The Salaries and Remuneration Commission Act, The Teachers Service Commission Act and The National Police Service Commission Act.

[12] Act No. 1 of 2011

[13] Counsel cited Union of Civil Servants & 2 Others vs IEBC {2015}eKLR ( Pet. No. 281 of 2014)

[14] Counsel cited Deepak Chamanlal Kamani vs Principal Immigration Officer & 2 Others {2007} eKLR

[15] To fortify his argument counsel cited Chaskalso J in S. vs Mawkwanyane & Another Case No. CCT/3/94 & Roe vs Wade {1973}, U.S. Supreme Court

[16] Counsel cited Ndyanabo vs A.G. {2001} & Coalition for Reform and Democracy (CORD) vs A.G. & Another {2015} eKLR

[17]Counsel cited Timothy Njoya vs A.G. & Another {2014}eKLR & Council of Governors & 3 Others vs Senate & 53 Others {2015}eKLR

[18] Counsel cited Institute of Social Accountability & Another vs National Assembly & 4 Others, High Court Pet No. 71 of 2014, (2015}eKLR

[19] Counsel cited State vs Acheson 1991 (20 SA 805 at page 813

[20] Act No. 11 of 2011

[21]  Helen Souzman Foundation vs President of South Africa & Others; Hugh Glenister vs President of South Africa and Others {2014}ZACC 32

[22] See Wechsler, {1959}. Towards Neutral Principles of Constitutional Law, Vol 73, Havard Law Review P. 1.

[23] Petitio No. 39 of 20117

[24] See Charanjit Lal Chowdhury Vs. the Union of India and others AIR 1951 SC 41 : 1950 SCR 869

[25] Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001(1) SA 545; 2000 (10) BCLR 1079 (CC) at para 22.

[26] National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 24

[27]Ngcobo J while interpreting a similar provision in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others, [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).

[28] Thornton Legislative Drafting 4ed (1996) at 155 cited in JR de Ville above n 18 at 244.

[29]  University of Cape Town vs Cape Bar Council and Another 1986 (4) SA 903 (AD). See also Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662-3.

[30] Dawood and Another v Minister for Home Affairs and Others; Shalabi and Another v Minister for Home Affairs and Others; Thomas and Another v Minister for Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC) ; 2000 (8) BCLR 837 (CC) at para 47.

[31] {1987} 1 SCC 424

[32]Katharine Clark and Matthew Connolly, Senior Writing Fellows, April 2006,  "A guide to reading, interpreting and applying statutes"https://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/statutoryinterpretation.pdf

[33] Christopher G. Wren and Jill Robinson Wren, The Legal Research Manual: A game Plan for Legal Research and Analysis(2d. ed. 1986)

[34] Plain meaning should not be confused with the “literal meaning” of a statute or the “strict construction” of a statute both of which imply a “narrow” understanding of the words used as opposed to their common, everyday meaning.

[35] Supra

[36] Sixth Edition

[37]  See note 18 below (at para 48).

[38] Ibid Par 54

[39]No. 36042/97, ECHR 2002 – IV

[40] {1997} ZACC 12; 1998 (1) SA 300(CC); 1997 (11) BCLR 1489(CC) (Harksen) at para 48.

[41] (MAHLB-000836-10) [2012] BWHC 1 (12 October 2012)