REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
PETITION NO. OF 2015
THE COUNTY GOVERNMENT ACT NO. 17 OF 2012, LAWS OF KENYA:
ARTICLES 20, 21, 22, 23 AND 165 (3)(b) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 33 (1)(a), 35(1)(b), 43 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 10, 174, 196 & 201 OF THE CONSTITUTION OF KENYA
BETWEEN
MALINDI NORTH RESIDENT ASSOCIATION (MANRA)……………..…1ST PETITIONER
MALINDI SOUTH RESIDENT ASSOCIATION (MASRA)…………………2ND PETITIONER
WATAMU ASSOCIATION……………………………………………….……3RD PETITIONER
KILIFI RESIDENTS ASSOCIATION……………………………………………4TH PETITIONER
VIPINGO RIDGE ASSOCIATION……………………………………………….5TH PETITIONER
MTWAPA STAKEHOLDERS FORUM…………………………………………6TH PETITIONER
KURUWITU RESIDENTS ASSOCIATION……………………………………7TH PETITIONER
AND
KILIFI COUNTY GOVERNMENT………………………………………………1ST RESPONDENT
KILIFI COUNTY ASSEMBLY…………..………………………………………2ND RESPONDENT
HON. JAFFAR AMASON KINGI (Sued in his Capacity as the
Governor of Kilifi County)…..……….……………………………….…………3RD RESPONDENT
PETITION
To: The High Court of Kenya
Constitution & Human Rights
Malindi Law Courts
The humble petition of Malindi North Resident Association, Malindi South Resident Association, Watamu Association, Kilifi Residents Association, Vipingo Ridge Association, Mtwapa Stakeholders Forum, Kuruwitu Residents Association all being registered Associations in the Republic of Kenya states THAT:- 1. The 1st to 7th Petitioners are all registered societies under the Societies Act Cap 108, Laws of Kenya representing the interests of different classes of Residents and Investors within Kilifi County. Their address of service for purposes of this Petition is care of KIDENDA, ONYANGO, ANAMI & ASSOCIATES, Gatundu Villas, House No. 3, Gatundu Road, Kileleshwa, P.O. Box 2294 – 00100 Nairobi.
2. The 1st Respondent is the Constitutional entity that governs the region described and demarcated as Kilifi County through its Governor, County Assembly and County Executives.
3. The 2nd Respondent is the body constituted under Article 177 of the Constitution of Kenya, whose roles are outlined under Section 8 and 21 – 24 of the County Government Act No. 17 of 2012, to exercise legislative powers.
4. The 3rd Respondent is the elected representative of Kilifi County as Governor pursuant to Article 180 of the Constitution and recognized as responsible for the exercise of overall executive County Government powers through appointed County Executives, effecting County policy and assenting to County Bills pursuant to Section 24 of the County Government Act No. 17 of 2012.
5. The Petitioners jointly and severally through their representatives have since 2013 actively attempted to engage, and have on a limited scale succeeded in interacting with, the Respondents with a view to participating in the legislative and policy making process in Kilifi County.
6. The Petitioners through their representatives have however faced numerous institutional and bureaucratic challenges when engaging with the County Officials with a view to participating in the policy and legislative process in Kilifi County with varying degrees of disappointment from outrightly being ignored to superciliously being mollycoddled by disinterested County Officers.
7. The Petitioners had filed against the County Government of Kilifi HC Petition No. 2 of 2014 in respect to the preparation of the County Finance Bill 2013/2014 which was abandoned on account of the County Officials undertaking to engage the citizens of Kilifi on a more credible basis and initiating a Public Participation process that ensures adequate citizen participation.
8. That despite this undertaking, the Respondents only partially endeavored to fulfill their promise by preparing a draft and generic Public Participation Bill sometime on or around 20th November 2014 that has to date never been finalized.
9. The Petitioners have subsequently witnessed an attempt by the Respondents to cosmetically and cunningly apply sparingly constitutionally enshrined rights and obligations by organizing Town Hall and Public fora sittings giving inordinately short notice and inadequate information and material to enable qualitative and constructive participation of Kilifi Citizens.
10. The Petitioners have on several occasions presented to the Respondents their proposals and suggestions on various Bills including but not limited to the Draft Valuation and Rates Bill and the Public Participation Bill, on the request of County Officials, but have neither gotten any feedback on their comments nor concrete evidence that their views and those of other stakeholders are being considered and or incorporated in the working drafts.
11. The Petitioners contention above that the Respondents have no intention of meaningfully having citizen participation in any of their legislative processes is supported by the circumstances surrounding the preparation of the Draft Rates and Valuation Bill where a consultative forum was scheduled to be held on or around 18th December 2014 but the Petitioners’ representatives were only notified three (3) days, on 15th December 2014, before the meeting of it’s existence.
12. The Petitioners further aver that sometime on or around 5th January 2015, a County Official in the Lands and Planning department, Mr. James Nguzo, had a meeting with representatives of the Petitioners with a view to chart a way forward on the drafting of the Kilifi County Rates and Valuation Bill with the inclusion of the citizens point of view and suggestions.
13. The Petitioners have however observed that despite some well-meaning engagements by certain officers of the County Government of Kilifi, the general conduct of the Respondents is one of indifference to a robust, consistent and accountable system of Public Participation. 14. The Petitioners contend that majority if not all of the over twenty (20) draft County Bills currently being drafted by the Respondents have been done so in a compartmentalized and secretive fashion with no reliable and credible attempt at public consultation or participation as constitutionally required. 15. The Petitioners are concerned that many of these draft County Bills shall have far reaching and sometimes adverse effect on the Citizens of Kilifi County without the Respondents explaining and allowing the common folk an opportunity to adequately interrogate these provisions.
16. The Petitioners have already observed the dangers akin to a county government that does not feel accountable to its citizens and wishes to have in place a conscientious and dependable system of ensuring public interest is extolled above personal benefit through a robust Public Participation process within the County of Kilifi.
17. The Petitioners aver that the failure by the Respondents since being sworn in to put in place systems and mechanisms that ensure that access to information and public participation at all stages of policy formulation and legislative drafting are enshrined leave them substantively at variance with Constitutional and Statutory provisions.
18. The Petitioners aver that, without prejudice to the foregoing, various constitutional and statutory provisions are being infringed upon by the Respondents.
A. PARTICULARS OF BREACH OF THE PETITIONERS’ RIGHT TO ACCESS INFORMATION
19. The Petitioners aver that they are entitled to the protection of their right to access information as espoused under Article 35 of the Constitution of Kenya and that the said rights have been fundamentally contravened by the Respondents failure to provide timely information to facilitate adequate contribution and participation by the Citizens of Kilifi County. B. PARTICULARS OF BREACH OF THE PETITIONERS’ RIGHT TO FREEDOM OF EXPRESSION
20. The Petitioner avers that the Respondents have failed to share information on whether or not their views, observations, comments and representations have been captured and or incorporated in the working draft Bills in material contravention of their right to freely seek, receive and express their ideas as provided for under Article 33 of the Constitution of Kenya. C. PARTICULARS OF BREACH OF CERTAIN EXPLICIT CONSTITUIONAL AND STATUTORY PROVISIONS
21. The Petitioners aver that the Respondents have acted in a manner inconsistent and in contravention of the National Values and Principles of Governance captured under Article 10 (1) & (2) of the Constitution of Kenya.
22. The Petitioners further aver that the Respondents are in material breach of Article 174 of the Constitution which outline the objectives of having a devolved government which includes in part empowering the people to participate in decisions affecting them. 23. The Petitioners aver that the Respondents failure to facilitate their participation and involvement in the legislative and other business of the assembly and its committees is in direct contravention of Article 196 (1) (b) of the Constitution of Kenya.
24. The Petitioners state that in as far as the Draft Rating and Valuation Bill is concerned, which is a revenue collecting legislation, the Respondents herein have substantively breached the provisions espoused under Article 201 that outline principles to be adhered to in all aspects of Public Finance, which include inter alia, openness and accountability and public participation in financial matters.
25. The Petitioners further contend that the Respondents have breached mandatory provisions under Section 87 and 115 of the County Government Act that expound on the principles that ought to be adhered to by the County Government when engaging in public participation during county planning processes.
26. The Petitioners aver that for the reason aforestated and the reasons set out in this Petition and the attached supporting affidavit the Respondents have contravened the Petitioners rights as provided under the Constitution of Kenya. The Petitioners therefore humbly pray THAT:-
A. A declaration that the conduct of the Respondents in the ongoing process of legislative and policy formulation in Kilifi County contravenes and offends Articles 10, 33, 35, 174, 196 & 201 of the Constitution of Kenya and section 87 and 115 of the County Government Act in relation to the Petitioners and Citizens of Kilifi County.
B. An order directing the Respondents to immediately embark on drafting, finalizing and implementing a county public participation policy and legislation to enshrine public participation guidelines, systems and mechanisms in Kilifi County.
C. A permanent injunctive or conservatory order staying the debate, passing and assent by the Respondents jointly and severally of any and all Legislation and or Policy until the actualization of the Constitutionally guaranteed principles of public participation through established mechanisms of engagement.
D. This Honorable Court does order the Respondents to jointly bear the costs of this petition.
E. Such other orders as this Honorable Court shall deem fit and just to grant in the circumstances prevailing.
DATED at Malindi this thirteenth day of April 2015
KIDENDA ONYANGO ANAMI & ASSOCIATES
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
KIDENDA ONYANGO ANAMI & ASSOCIATES,
GATUNDU VILLAS, HOUSE NO. 3
GATUNDU ROAD, KILELESHWA
P. O. BOX 2294-00100, (REF: KCA/002/015L)
NAIROBI
TO BE SERVED UPON: 1. KILIFI COUNTY GOVERNMENT COUNTY SECRETARY P.O BOX 519-80108 KILIFI 2. THE SPEAKER COUNTY ASSEMBLY OF KILIFI P.O. Box 519 – 80108 KILIFI 3. H.E. JEFFAH AMASON KINGI GOVERNOR COUNTY GOVERNMENT OF KILIFI P.O. BOX 519 – 80108 KILIFI