The National Assembly during a past session.
The Speaker and the Clerk of the National Assembly have objected to a petition by a Member of the County Assembly (MCA) of Mombasa seeking inclusion of the Ward Development Fund (WDF) in a constitution (Amendment) Bill.
The Clerk argues that the inclusion or exclusion of any fund including WDF is a legislative prerogative provided it complies with constitutional principles.
“This court lacks the jurisdiction to direct, compel or order the National Assembly on how to exercise its legislative authority,” states part of the notice of the preliminary objection by the Clerk to a petition before court.
The Clerk further argues that the petitioner has a forum to air their views on the Bill through public participation as provided for under the constitution.
“The petition is misguided and misleading as it seeks to compel the National Assembly into including WDF. The constitution does not require the establishment of WDF in national legislation,” part of the objection states.
On his part, the Speaker says that he has been improperly joined in the petition in view of the fact that what is challenged in the petition are matters that fall peculiarly within the mandate of the National Assembly and that he has no control.
The Speaker says that the petition does not satisfy the threshold of what constitutes a constitutional petition.
The Attorney General on the other hand says that the Bill is yet to undergo various stages that could determine the inclusion or exclusion of the WDF in the proposed amendments to the constitution.
The AG says that the petitioner has the remedy of declaring the amendment to the constitution as unconstitutional even if denied conservatory orders.
The Bill seeks to amend the constitution to entrench the National Government Constituencies Fund (NG-CDF), Senate Oversight Fund and the National Government Affirmative Action Fund (Ngaaf) in the constitution
The petitioner, Mr Jacktone Madialo, says that proceedings of the National Assembly did not objectively consider the contents of the Bill which left out the inclusion of WDF as such they (proceedings) were mired in misinformation, undue influence and concealment of all material and relevant issues.
The petitioner says that the contents of the Bill contravenes the Bill of Rights and that it is inconsistent with the constitution in that by excluding WDF it seeks to exclude MCAs who are on the ground and is therefore null and void to the extent of inconsistency.
In his petition at the High Court in Mombasa, Mr Madialo argues that the core business of MPs is to enact laws and not to execute development agendas as the role ought to be under the purview of MCAs.
“The exclusion of the WDF and as such, any such proceedings were mired in misinformation, undue influence and concealment of all material and relevant issues,” argues the petitioner.
The MCA also wants the court to certify that the petition raises substantial questions of law and want it referred to the Chief Justice Martha Koome to empanel a bench of uneven number of judges being not less than three to hear it.
Through lawyer Lawrence Obonyo, the MCA has sued the Cabinet Secretary of National Treasury and Planning, Speaker of the National Assembly, Clerk of the National Assembly, Chairperson-Justice & Legal Affairs Committee (JLAC) and the Attorney General.
In the meantime, the MCA seeks that pending hearing and determination of the petition the court does issue an order suspending the intended public participation exercise in relation to the Bill and also its coming into force, implementation or operation.
At the same time, the Clerk of the National Assembly wants the petition transferred to the High Court in Nairobi for hearing and determination.
He argues that four cases have been filed at the High Court in Nairobi challenging the Bill and that they are substantially and factually similar hence the need to have them heard and adjudicated by one court to avoid conflicting decisions over the same matter.
“The transfer of the petition will ensure that the respondents’ constitutional right to a fair trial by protecting them from a multiplicity of cases based on the same cause of action and facts at different courts across the country,” argues the Clerk.
On Thursday, Justice Jairus Ngaah sitting in Mombasa directed parties to file their responses to the application seeking to transfer the case to Nairobi and fixed it for hearing on May 19.
