TO;
The Clerk of the National Assembly, National Assembly of the Republic of Kenya
Parliament Buildings
P.O. Box 41842-00100
NAIROBI.
PETITION TO PARLIAMENT UNDER ARTICLES 94, 95 AND 119 OF THE CONSTITUTION OF KENYA, 2010 AND STANDING ORDER NUMBER 219 OF THE NATIONAL ASSEMBLY STANDING ORDERS ON PUBLIC PETITION TO PARLIAMENT.
WE, the undersigned,
Bona fide citizens of the Republic of Kenya comprising of more than three hundred young professionals, and persons with disabilities;
DRAW the attention of the Honourable House to the following:-
1. The Independent Electoral and Boundaries Commission (Amendment) Act, 2024 has been enacted by parliament and consequently assented into law by His Excellence the President).
2. The said Independent Electoral and Boundaries Commission (Amendment) Act, 2024, has established the selection panel mandated to select and recommend for appointment commissioners of the Independent Electoral and Boundaries Commission.
3. Under the said Independent Electoral and Boundaries Commission (Amendment) Act, 2024, the selection panel shall consist of
(a) Two persons nominated by the Parliamentary Service Commission, representing the majority party or coalition of parties and the minority party or coalition of parties;
(b) Three persons nominated by the Political Parties Liaison Committee of whom
(i) One shall be from a party other than a parliamentary party or coalition of parties;
(ii) One shall be from the majority party or coalition of parties;
(iii) One shall be from the minority party or coalition of parties;
(c) One person nominated by the by the Law Society of Kenya;
(d) One person nominated by the Institute of Certified Public Accountants of Kenya; and
(e) Two persons nominated by the Inter-religious Council of Kenya
4. The said selection panel as established is discriminative as it does not provide for representation of the youths of Kenya and Persons with disability contrary to Article 27 of the Constitution which prohibits discrimination on account of age, race, and color or otherwise.
5. That 70% of the Kenyan population is below 35 years thus falling under the youth category.
6. That a substantial number of the Kenyan Population is made of Persons with disabilities.
7. The IEBC selection panel is established to select the incoming IEBC commissioners who will run the upcoming elections and thus it is a grave error that over 70% of the Kenyan Population have been left out in the selection panel.
8. Under the constitution of Kenya 2010, the youth and persons with disability are classified as a special category and have always been given nomination slots on matters of public importance such as the appointment of the IEBC commissioners.
9. It is imperative that the youths of Kenya and Persons with Disabilities be included and/or allocated slots in the IEBC selection panel.
10.Honourable Members, the totality of the enactment of the aforesaid Independent Electoral and Boundaries Commission (Amendment) Act, 2024, the surmise of the in light of the above leads to an inevitable conclusion of serious violation of the Constitution as we lay down herein below:-
11.Article 21 of the Constitution of Kenya, 2010 behooved all state organs involved in enactment of the said IEBC Act to address the needs of vulnerable groups within society including the youth and persons with disabilities Thus parliament was under obligation to allocate slots to the youth and persons with disability in the IEBC selection panel.
12.Articles 2 & 3 of the Constitution restates the supremacy of the Constitution and binds all persons including Parliament and the President to protect, uphold and defend the Constitution.
13.Under Articles 27 of the Constitution, the state and its organs including parliament is prohibited from discriminating others on the basis of among other things age and disability. Specifically, parliament was required to include the youth and persons with disability in the IEBC selection panel.
14.Article 10 of the Constitution establishes the rule of law and good governance as infallible principles of governance. These principles are reflected in many parts of the constitution including Article 2 above which provides that ‘any law or action that is in contravention of the constitution is void to the extent of the inconsistency and contravention.’
15.The rule of law and good governance principles requires that every state organ or state officer/public officer acts only within the powers conferred upon them by and in accordance with the Constitution. But the Principles also requires every state organ/officers to discharge a legal obligation required on them by the Constitution or any other law. Crucially, the rule of law requires state and public officers to act in accordance with the law, including and without equivocation, good governance, integrity, transparency and accountability.
16.The rule of law is instructive that any action undertaken by a state/public officer should be based strictly on the Constitution and the law. Even where a public officer undertakes an action on the premise of a discretion, that discretion has to be exercised in strict adherence to the principles of the rule of law and good governance.
17.Under article 55 of the constitution, the State mandated to take measures, including affirmative action programs, to ensure that the youth
(a) Access relevant education and training;
(b) have opportunities to associate, be represented and participate in political, social, economic and other spheres of life;
(c) access employment; and
(d) are protected from harmful cultural practices and exploitation.
18. While under article 54 of the Constitution, persons with disabilities are entitled
(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
(c) to reasonable access to all places, public transport and information;
(d) to use Sign language, Braille or other appropriate means of communication; and
(e) to access materials and devices to overcome constraints arising from the person’s disability.
19. Specifically, under article 54 above, the State is obligated to ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.
PARTICULARS OF VIOLATION
OF THE CONSTITUTION, REGARDING THE ENACTED INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMENDMENT) ACT, 2024.
20.TO THE EXTENT THAT the inclusion of the youths of Kenya and persons with disabilities from the IEBC Selection panel, is total violation of the Constitutional rule of law and good governance principles enunciated under ARTICLE 10(2) OF THE CONSTITUTION and other articles which by and at large constitute a serious violation of the Constitution.
21.TO THE EXTENT THAT the lack of representation of the Kenyan Youth and persons with disabilities in the IEBC selection panel is an affront to a good constitutional order in a democratic society such as Kenya.
22.TO THE EXTENT THAT the enacted IEBC Act denies the youth of Kenya and persons with disabilities a chance to participate in the critical decision on the reconstitution of the IEBC, thus rendering the said Act unconstitutional and violation of the Constitution contra to Articles 2,3,10, 21, 54 and 55 of the Constitution of Kenya, 2010.
23.The particulars set forth hereinabove out rightly reveals serious violation of the Constitution on parliament and other state actors which took part in enactment of the said IEBC Act and in particular establishment of the IEBC Selection panel.
THEREFORE, the Petitioners reverently pray as follows:-
a) That this Petition be certified as urgent and dispensed with in the first instance;
b) That the Honourable House proceed to debate on this petition and consider it fair and justly on its merits and thereafter urgently vote on it;
c) That the Honourable House proceed to amend the said Independent Electoral and Boundaries Commission (Amendment) Act, 2024 to provide for and/or allow the youth of Kenya and Persons with disabilities to nominate to the IEBC selection panel at least;
i. One male youth representative;
ii. One female youth representative;
iii. One person being a representative of persons with disabilities;