Three petitioners have moved to court to challenge the constitutionality of the ten-member national dialogue committee.
In their petition certified as urgent, Issa Chamao,Paul Kirui and Patrick Ekirapa argues that entrusting the amendment of the Constitution exclusively to politicians sets a dangerous precedent.
“Politicians cannot be trusted, they have openly demonstrated a peculiar fecundity to push through issues in their self-interest, using the Constitution of Kenya to play back and forth political chase games. Proposals to amend the Constitution must reflect the sovereign will of the people of Kenya derived from a multi-sectoral consultative and participatory process that meets the minimum standards of the Constitution.” Reads part of the petitioned filed by Peter Wanyama advocates at the constitutional and human rights division of the Milimani courts.
They say the dialogue team cannot purport to deal with matters that can alter the 2010 constitution urging the court to stop the operations of the committee and issue an order obligating parliament to enact legislation to guide consideration of constitutional questions that are before the national dialogue committee.
“Article 256 of the Constitution provides that the Constitution can be amended through Parliamentary initiative. This clause reinforces the provision of Articles 1 (2) and 1 (3) of the Constitution that delegate sovereign power of the people to Parliament. The logical corollary is that Parliament cannot delegate this power to the National Dialogue
Committee or any other person or entity.” Says the petitioners.
In endorsing the operations of the dialogue committee, the petitioners are accusing parliament of violating their role in safeguarding financial probity as outlined in Article 201 of the Constitution.
“Article 201(d) of the Constitution provides that one of the principles of public finance is that public money should be used in a prudent and responsible way. The National Dialogue Committee is already incurring public funds in its sittings, remuneration of the technical teams, consideration of the memoranda, conducting public hearings and the compilation of the Report. It is reported that it will incur up to Kshs. 100 million of public funds in the illegal sittings.” Reads the petition.
Submitting that Article 2(2) of the Constitution provides that no person may claim or exercise state authority except as authorized under the constitution, the petitioners argue that the national committee is exercising its authority illegally.
The petitioners say the court should issue an order allowing implementation of the constitution and legislation regarding the composition of IEBC so that critical functions of the commission do not stall. They argue the move will allow the constitution of the IEBC in good time and allow for the operationalisation of plans for the 2027 general elections in a consultative process.
The committee, which is deliberating issues the opposition has with the government, has already kicked off proceedings after it signed its framework agreement on August 30, giving it 60 days to hold talks and submit a report to Parliament.
In the Committee, the Kenya Kwanza Alliance Party is represented by majority leader Kimani Ichungw’ah who is the delegation leader deputized by Embu Governor Cecily Mbarire with other members comprising of Kericho Senator Aaron Cheruiyot, EALA MP Omar Hassan Omar and Bungoma woman representative Catherine Wambilianga.
The Azimio Coalition is led by wiper leader Kalonzo Musyoka deputized by the leader of minority Party Opiyo Wandayi, DAP-K Party leader Eugene Wamalwa,Nyamira senator Okong’o Mogeni and Malindi MP Amina Mnyazi.
