Peter Odhiambo Agoro, a concerned citizen, has filed an urgent petition at the Milimani High Court challenging the constitutionality of the National Assembly.
In the petition dated July 10, Agoro argues that the legislative body is unlawfully constituted due to the lack of representation from the Banisa constituency in Mandera County.
“In the absence of a Member of Parliament for Banissa Constituency, then the National Assembly cannot transact business as its unconstitutionally constituted,” reads the petition.
The vacancy in the Banisa constituency seat arose in March 2023 following the death of Member of Parliament (MP) Kulow Hassan, who was struck by a motorbike in Nairobi.
According to the petition, the Independent Electoral and Boundaries Commission (IEBC) has failed to conduct a by-election within the 90-day timeline as mandated by the constitution.
Petitioner Faults the IEBC for Failing to Fulfil Its Mandate
In his petition, Agoro emphasizes the importance of upholding the democratic rights of all Kenyan citizens.
He argues that by failing to conduct the by-election, IEBC was therefore depriving the constituents of Banisa of representation in the National Assembly.
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“The people of Banissa Constituency have been deprived of a person of their choice to represent their interests in the national assembly in line with Articles 94 and 95 of the Constitution.”
He also notes that IEBC’s failure to hold the election reflects a lack of accountability and transparency which are the guiding principles of good governance.
Petitioner Highlights National Assembly Violations
Furthermore, Agoro highlights the National Assembly’s violation of the two-thirds gender rule, which aims to promote gender equality in leadership positions.
Articles 27(8) and 81(b) of the constitution stipulate that no more than two-thirds of the members in any elective or appointive positions shall be of the same gender.
However, the National Assembly, in its current state, fails to adhere to this constitutional provision.
Agoro’s petition comes after National Assembly Speaker Moses Wetang’ula declared a vacancy in the Banisa constituency seat on April 21st, 2024.
Demands Issued to the Court
In his urgent application, Agoro seeks relief from the court to address these issues and prevent further violations of the fundamental rights of Kenyan citizens.
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The prayers sought from the court include:
- A declaration that the National Assembly is unconstitutionally constituted due to the lack of representation from the Banisa constituency and the violation of the two-thirds gender rule.
- An order directing the IEBC to conduct a by-election in the Banisa constituency within a specified timeline.
- A conservatory order restraining the National Assembly from undertaking any further constitutionally mandated activities pending the hearing and final determination of the matter.
- Any other relief the court deems fit to address the issues and violations raised in the petition.
Also, he emphasized the need for prompt determination of the petition to uphold the principles of fair administration of justice, legitimate expectations, and the rule of law.
“It is no doubt in the interests of fair administration of justice, legitimate expectations and the rule of law that the application filed herewith is admitted urgently for the urgent reliefs thereof to prevent the otherwise devastating violation of fundamental rights of Kenyan citizens guaranteed by the Constitution of Kenya 2010.”
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