• The petition has been filed by Issa Elanyi Chamao, Patrick Karani Ekirapa and Paul Ngweywo Kirui.
• They have challenged the legality and constitutionality of the committee whose formation they say contravenes various provisions of the Constitution.
Image: FILE
Three Kenyans have moved to court on a certificate of urgency seeking to stop the National Dialogue Committee from conducting the ongoing bipartisan talks between Azimio and Kenya Kwanza.
Issa Elanyi Chamao, Patrick Karani Ekirapa and Paul Ngweywo Kirui have challenged the legality and constitutionality of the committee whose formation they say contravenes various provisions of the Constitution.
They have also listed other reasons including the “use of significant public funds for a process not supported by the Constitution, legislation or the Standing Orders of Parliament”.
They also cite the omission of important stakeholders such as the Law Society of Kenya and civil society in general in the composition of the Committee otherwise known as NADCO.
Further, they say there is no legal framework to guide the collection of views from members of the public in an inclusive and participatory process and the principles to be adhered to in conducting the process.
“Short timelines (7 days) in the collection of views on pertinent issues that have a bearing on amendment of the Constitution. The Constitution is not solely an instrument for the political class,” the petitioners state via an affidavit sworn by lawyer Peter Wanyama.
The petitioners further argued that there’s no legal framework to guide the process of amending the Constitution by the committee which has outlined issues for possible amendment without a background analysis or audit of the Constitution to identify gaps.
“The issues identified by the Committee are politically driven,” they said.
In their prayers, the petitioners want the court to certify the application as urgent and to hear it on first instance and the court to issue a conservatory order stopping the National Dialogue Committee from considering issues for the amendment of the Constitution.
“Pending the hearing and determination of this Application inter parties, a conservatory order be issued stopping the Clerk of the Senate and Clerk of the National Assembly from incurring public funds to support an entity known as the National Dialogue Committee and its Secretariat,” the petitioners say and urge the court to issue orders on costs.
The petitioners have listed the ten members of the NADCO, the National Assembly, the Senate and the Attorney General as respondents.
They have listed the Independent Electoral and Boundaries Commission (IEBC), Law Society of Kenya (LSK) and Katiba Institute as Interested parties.
In an advert published on September 1, 2023, the bipartisan committee invited members of the public to submit their memoranda on 13 issues.
The Committee wanted views on the Cost of Living and related issues, the implementation of the two-thirds gender rule, and governance issues, including promoting national unity and inclusivity in public appointments and adequate checks and balances.
Others are restructuring and reconstitution of the Independent Electoral and Boundaries Commission, boundaries delimitation, audit of the 2022 presidential election, the National Government Constituencies Development Fund, the National Government Affirmative Action Fund and the Senate Oversight Fund.
The advert signed by delegation committee leaders Kimani Ichung’wah (Kenya Kwanza) and Kalonzo Musyoka (Azimio la Umoja One Kenya coalition) is further seeking views on the preposition to form the office of the leader of the Official Opposition, the office of the Prime Cabinet Secretary and preventing interference with political parties/coalitions.
Should the court issue the prayers sought by the petitioners, the move will likely deal a blow to the process seen by many as the last resort to bring the two feuding political outfits to a consensus and end the political rivalry that almost took the country to the precipice following bloody street protests.
The Opposition Azimio led by Raila Odinga has insisted that the faction won the August 9, 2022 presidential contest but the win was rigged by the IEBC in President William Ruto’s favour.
Ruto was on August 15, 2022, declared winner of the contest with 7.1 million votes against Raila’s 6.9 million but Raila claims, without evidence, that he won by 8.1 million against Ruto’s 5.9 million votes.
Raila lost the resultant petition at the Supreme Court.
Former IEBC chairperson Wafula Chebukati and former commissioners Abdi Guliye and Boya Molu declined to appear before the bipartisan committee on Thursday saying “the issues raised by the committee are either within the mandate of other agencies or have been resolved by legally mandated agencies”.
They insisted they conducted the presidential polls in accordance with the tenets of the constitution and legal provisions.
“It is neither our wish nor our desire to participate in a process whose outcome would be to sully the Constitution and some of its organs,” they said.
“With tremendous respect to the committee, our participation in the talks would be an unmitigated betrayal to the staff who were tortured and murdered and an unfortunate reward for impunity,” they added.