The ongoing bipartisan talks between the government and the members of the Opposition face yet another hurdle after three petitioners moved to court challenging it.
In a move similar to what befell the Building Bridges Initiative (BBI), the three have moved to the High Court in Nairobi seeking its intervention in the ongoing talks.
In the petition against the National Dialogue Committee, the three want the court to stop the talks pending the hearing and determination of their case.
Those named as respondents in the case are co-chairs Kimani Ichung’wah and Kalonzo Musyoka, and members Cecily Mbarire, Aaron Cheruiyot, Omar Hassan Omar, Catherine Wambilianga, Opiyo Wandayi, Eugene Wamalwa, Amina Mnyazi and Okong’o Mogeni.
Also named as respondents are the National Assembly and the Senate. The Independent Electoral and Boundaries Commission, the Law Society of Kenya and Katiba Institute are named as interested parties in the case.
In the case of BBI, which was a post-2017 election creation of the then President Uhuru Kenyatta and Opposition chief Raila Odinga, the High Court, the Appelate Court and Supreme Court judges dealt a death blow to proposals of the talks, which were set to culminate in a referendum to change the Constitution of Kenya.
The ongoing National Dialogue is a post-2022 poll creation of President Ruto and Raila Odinga, and seeks to settle issues arising after a hotly contested presidential election. So far, the talks team, which seats at the Bomas of Kenya, has received presentations and memoranda from interested individuals and groups - including institutions and professional bodies - some of which touch on constitutional clauses that will require constitutional review through a referendum.
On Friday, in the application through lawyer Peter Wanyama, petitioners Issa Elanyi, Patrick Karani Ekipara and Paul Kirui, sought to have the matter certified as urgent and heard on a priority basis.
They argue that the petition raises substantial law questions that require determination by an uneven number of judges.
“It is public knowledge that the said National Dialogue Committee has been meeting at Bomas of Kenya to insensibly negotiate ‘issues of concern to the people of Kenya,” reads the petition in part.
They noted that on September 1, 2023, the National Dialogue Committee published an advertisement in the dailies titled ‘Public Participation and Submission of Memoranda by the Public to the National Dialogue Committee on Issues of Concern to the People of Kenya.
In the advertisement members of the public were required to submit views to the Clerk of the National Assembly or Clerk of the National Assembly within seven days.
Among the issues outlined for public participation were the cost of living and related issues, the implementation of the two-thirds gender rule, including promoting national unity and inclusivity in public, restructuring and reconstitution of the Independent Electoral and Boundaries Commission, boundaries delimitation, the National Government Constituencies Development Fund, the National Government Affirmative Action Fund, the Senate Oversight Fund, the office of the leader of the Official Opposition, the office of the Prime Cabinet Secretary.
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The Committee is required to consider the issues and report to the leadership of Kenya Kwanza and Azimio Coalitions within 60 days and to Parliament.
Elanyi, Karani, and Kirui said it is not clear how the issues were arrived at.
They said the committee cannot cherry-pick and lemon sale issues for a constitutional amendment.
“Are they conclusive? Why pick issues that appear to safeguard the self-interest of the political elite?” Why pick issues that appear to safeguard the self-interest of the political elite?” they stated.
They noted that Parliament cannot agree to constitute IEBC.
“Its ‘restructuring and reconstitution’ is part of the agenda of the National Dialogue Committee. It is clear that politicians are using the composition of IEBC as some political chess game, in a never-ending political contest where their interests rank first in time. This posturing damages the institutional independence of the Commission, kills its institutional profile, and prestige,” read the petition.
The Standing Orders of Parliament they said do not provide for the formation of Committees of Parliament that comprise non-members of Parliament such as Kalonzo and Eugene.
“It is patently clear that the National Dialogue Committee is operating unconstitutionally. The political elite seems to be using the Committee for political self-dealing. It is imperative that the Court stops the operations of the Committee and issue a structural interdict order that requires Parliament to enact legislation to guide consideration of constitutional questions that are before the National Dialogue Committee,” read the petition.
They noted that if not restrained the Committee will waste public resources in a process that is void and unconstitutional.
They said pending the legislation, the Court should issue an order that allows the implementation of the Constitution and legislation regarding the composition of IEBC so that critical functions of the Commission don’t stall.