REPUBLIC OF KENYA

IN THE INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE RESOLUTION

COURT AT NAIROBI
IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTIONS 1, 1A, 3, 9,
15A, 23, 24, 30, 41, 41A, 41B, 46, 47, 47A, 59, 62, 75, 77, 78, 82, 108,
110, 123 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTIONS OF SECTIONS 3, 4, 6, 23,

24, 30, 32, 33 AND 34 OF THE CONSTITUTION OF KENYA REVIEW
COMMISSION ACT, 2008 (ACT NO. 9 OF 2008)

CONSTITUTIONAL PETITION NO. OF 2010

BETWEEN
ALICE WAITHERA MWAURA }
CONSOLATA WANJIRU MUCUKA }
PAULINA WAMBUI NJUGUNA }
MARGARET NJERI GAKIO }
BENINA KAWIRA NJERU }
BELTA KALONDU MUTUKU } PETITIONERS
PETER NDIRANGU KARIUKI }
JOHN MAINA }
STEPHEN OKINDA }
RONALD ONZERE }
JAMES KIIRU NDERITU }
JOHN MBURU KIARIE }
SUSAN NYAGULUI }

VERSUS

THE COMMITTEE OF EXPERTS 1ST

RESPONDENT
THE HON. ATTORNEY GENERAL 2ND RESPONDENT
THE INTERIM INDEPENDENT ELECTORAL COMMISSION 3RD
RESPONDENT

VERIFYING AFFIDAVIT

I, Alice Waithera Mwaura, a resident of Eastleigh and of Post office Box No.
20430-00200 Nairobi in the Republic of Kenya do hereby solemnly make oath
and state as follows.

1. THAT I am the first Petitioner herein and I have the authority and express
consent of my co-Petitioners to swear this affidavit on their behalf.

2. THAT I am also the Chairlady of KIB Women Group which has members and
leaders in all the divisions and locations of Nairobi. The second and third
petitioners herein are respectively the Secretary and Treasury of KIB Women
Group. The core activity of this self-help group is to engage in Social
Development Activities.
3. THAT the Petitioners are residents of various estates and informal
settlements in Nairobi where some of them work and they are directly or
indirectly associated with the work of KIB Women’s Group.

4. THAT on 18th January, 2007 my co-Petitioners and I filed a constitutional

application namely Nairobi High Court Petition No. 28 of 2007 Alice
Waithera Mwaura & Others vs. The Electoral Commission of Kenya &
Another seeking, inter-alia, orders to compel the ECK to carry-out the long
overdue constituency review exercise in the course of which the systematic
political marginalization of Nairobi voters would be redressed on the basis of
the objective criteria set out in Section 42 of the Constitution. Annexed
hereto marked “AWM1” is a true copy of the said Petition dated and filed on
13th January, 2007.

5. THAT in reply to the said Petition on 13th February, 2007 the Electoral
Commission (1st Respondent) filed a Replying Affidavit sworn by its Chairman
Mr. Samuel Mutua Kivuitu on the same day, a true copy of which is annexed
hereto and marked “AWM2”.

6. THAT on 23rd July, 2007 my co-petitioners and I filed an Amended Petition

dated 20th July, 2007 a true copy of which is annexed hereto and marked
“AWM3”.

7. THAT on 27th July, 2007 the Hon. Attorney General filed skeleton arguments
containing grounds of opposition to our constitutional application in Petition
No. 28 of 2007 a true copy of which is annexed hereto and marked
“AWM4”.

8. THAT on 27th July, 2007 the ECK filed a further affidavit sworn by Mr. Samuel
Kivuitu on the same day in opposition to our application a true copy of which
is annexed hereto and marked “AWM5”.

9. THAT whereas my co-Petitioners and I were eager to have the said Petition
determined prior to the 2007 general election, our wishes were apparently
scuppered by the exigencies of having the election held on the basis of the
law as it stood then as today. However in view of the post-election violence
in the aftermath of the 2007 general election my co-Petitioners and I
earnestly believe that had this case been determined in our favour some of
the electoral inequities in Kenya’s electoral system could have been averted.

10. THAT the said Petition came up for further hearing after the formation of the
Commission of Inquiry headed by Justice Johann Kriegler to inquire into the
2007 general elections. The final report of the Kriegler Commission
commendably underscored the fundamental deficiencies in Kenya electoral
system that contributed towards the tragic and undemocratic outcome of the
2007 general election.

11. THAT given that fact that the Kriegler Commission vindicated our case
substantially, we urged the Court to temporary stop further proceedings to
allow for its implementation and the Honourable Judges hearing the Petition
kindly agreed and directed that further hearing of the Petition should wait for
 the implementation of the Report of the Kriegler Commission that was to
take place through two interim commissions on elections and boundaries on
the one hand and through the constitutional review process on the other
hand. Towards this end in December, 2008 Parliament passed the
Constitution of Kenya (Amendment) Act 2008 which, inter-alia, provided for
establishment of the Interim Independent Electoral Commission (IIEC) and
Interim Independent Boundaries Review Commission (IIBRC) on the one hand
and a constitutional framework to facilitate replacement of the Constitution
including the establishment of the Interim Independent Constitutional
Dispute Resolution Court (IICDRC) on the other hand. Annexed hereto
marked “AWM6” is a true copy of the Constitution of Kenya (Amendment)
Act (No. 10) of 2008 published in a special issue of the Kenya Gazette
Supplement No. 93 (Act No. 10) dated 29th December, 2008.

12. THAT by 20th May, 2010 when the said Petition came up for hearing it was
obvious that after the publication of the Proposed Constitution of Kenya the
constitution review process has hitherto failed to redress the grievances that
precipitated the filing of Petition No. 28 of 2007. In the premises we
indicated to the Court that the hearing of the Petition would have to proceed
to the logical conclusion. However hearing of the said Petition could only
proceed now before this Honourable Court in view of the constitutional
amendment of December, 2009 aforementioned. Accordingly, we have filed
this Petition partly to comply with the circumstances and court directions
aforestated. Annexed hereto marked “AWM7” are part of the proceedings of
the Court in Petition No. 28 of 2007.

13. THAT my co-Petitioners and I having read and understood the proposed
Constitution of Kenya (PCK) and upon being advised by the Petitioners’
advocates Messrs Kinoti & Kibe Co. which advice I verily believe is sound, I
am convinced that some of the provisions of the Proposed Constitution of
Kenya hereinafter referred to as “the PCK” are either unconstitutional, illegal,
a threat to Kenya’s sovereignty or simply do not honestly reflect the views of
Kenyans as stipulated in the Constitution of Kenya Review Act, 2008. My co-
Petitioners and I believe that this Honourable Court is enjoined by Section
60A of the Constitution to redress the matters of content and procedural law
violations set out in the Petition herein. Annexed hereto marked “AWM8” is
a true copy of the Proposed Constitution of Kenya (PCK) published by the
Attorney General on 6th May, 2010.

14. THAT upon being advised by the Petitioners advocates aforementioned

which advice I verily believe is sound, I wish to state as follows in support and
verification of the petition herein.

15. THAT the major objective of the Constitution of Kenya Review Act, 2008
hereinafter referred to as “the CKRA, 2008” is to facilitate completion of the
review of the Constitution of Kenya and in doing so the organs of the review
process must, inter-alia, ensure that the outcome of the review process
faithfully reflects the wishes of the people of Kenya. It is the earnest opinion
of my co-Petitioners and I that the PCK does not faithfully reflect the wishes
of Kenyans including us in several but critical ways.
16. THAT in discharging its statutory mandate the Committee of Experts
hereinafter “the CoE” is mandated by the CKRA, 2008 to, inter-alia, identify
issues agreed upon and contentious issues in the existing draft constitutions,
articulate the respective merits and demerits of the proposed options for
resolving the contentious issues and prepare a harmonized draft Constitution
for presentation to the National Assembly. In this regard, the main draft
constitutions for consideration by the CoE are the summary of the views of
Kenyans collected and collated by the CKRC, Ghai (CKRC) draft of 2002, the
Bomas draft and the Proposed New Constitution, 2005, hereinafter referred
to as PNC, 2005.

17. THAT in or about June, 2009 the CoE identified the following three as
contentious issues:-

i. Systems of Government i.e. the nature of Executive and Legislature;

ii. Devolution: and
iii. Transitional Clauses or Bringing the New Constitution into Effect.

On 19th June, 2009, the CoE published adverts inviting the public to submit
memoranda on the said issues it had identified as contentious.

18. THAT my co-Petitioners and I are aware that although there was controversy
about how the CoE determined that only those three issues were
contentious, the CoE stood its ground and the process continued on that
basis. Specifically, my co-Petitioners and I were persuaded that some
matters concerning Land, Kadhis’ Courts and the Bill of Rights were
contentious.

19. THAT between June and July, 2009, the CoE solicited and received from the
public written memorandum and presentations on the contentious issues and
finally prepared a Harmonized Draft which it published on 17 th November,
2009. On the same day the CoE published a preliminary report on how it had
discharged its mandate thus far. Annexed hereto marked “AWM9” is a true
copy of the CoE Preliminary Report dated 17th November, 2009.

20. THAT the publication of the Harmonized Draft Constitution hereinafter

referred to as “the HDC” generated heated public debate revolving around
the traditional issues of contention such as land, devolution, abortion, Bill of
Rights and System of Government. Annexed hereto marked “AWM10” is a
true copy of the HDC published on 17th November, 2009.

21. THAT although the CoE solicited views on the contentious issues it identified
in June, 2009 my co-Petitioners and I are unaware of a comprehensive
summary of the views submitted by Kenyans for purposes of the publication
of the HDC. In the premises, the main Report published by the CKRC on 18th
September, 2002 remains the main summary of the views of Kenyans on a
new Constitution. Annexed hereto marked “AWM11” is a true copy of the
main Report published by CKRC on 18th September, 2002.

22. THAT on the eve of the National Constitutional Conference that convened at
Bomas of Kenya, Nairobi in April, 2003 the CKRC published a draft Bill to
 amend the Constitution which is hereinafter referred to as the Ghai or the
CKRC draft. The said draft was based on the views of Kenyans contained in
the main Report of the CKRC aforementioned. Annexed hereto marked
“AWM12” is a true copy of the CKRC draft published in April, 2003.

23. THAT following the deliberations of the National Constitutional Conference at

Bomas in March 2004 the CKRC published the Draft Constitution of Kenya,
2004 which was adopted by the National Constitutional Conference on 15th
March, 2004. The said draft Constitution is famously known as the Bomas
Draft a true copy of which is annexed hereto and marked “AWM13”.

24. THAT as a result of the decision of the High Court in the Njoya Case namely
Nairobi High Court Misc. Civil Application No. 82 of 2004 (OS) Rev.
Dr. Timothy M. Njoya & 7 Others vs. the Hon. Attorney General &
Another, the CKRC Act had to be amended to inter-alia provide for
ratification of a draft Constitution through a referendum. Thus the Bomas
draft was further debated in and outside Parliament culminating in the
publication of the Proposed New Constitution of Kenya which was published
through a special issue of the Kenya Gazette Supplement No. 63 dated 22nd
August, 2005 a true copy of which is annexed hereto and marked “AWM14”.

25. THAT it is the considered view of my co-Petitioners and I that the HDC draft
published by the CoE on 17th November, 2010 does not faithfully harmonize
the previous draft constitutions aforementioned or reflect the views of
Kenyans hence the current controversies that go beyond legitimate
disagreement over the content of the PNC based on subsequent
amendments of the HDC referred to herein below.

26. THAT pursuant to Section 32 of the CKRA, 2008 the Harmonized draft was
published by the CoE for a period of thirty (30) days and members of the
Public were invited to give their views for incorporation into the HDC that had
been published on 17th November, 2009. My co-Petitioners and I are aware
that many views including those that we share were submitted to the CoE as
a result of which the CoE published a reviewed HDC for presentation to the
Parliamentary Select Committee on Constitutional Review hereinafter
referred to as the PSC-CR on 8th January, 2010. Annexed hereto marked
“AWM15” is a true copy of the reviewed HDC presented to the PSC-CR on 8 th
January, 2010.

27. THAT the reviewed HDC was accompanied by a Report of the CoE pursuant
to Section 32(1)(c) of the CKRA, 2008. A true copy of the said Report issued
on the submission of the reviewed HDC to the PSC-CR on 8th January, 2010 is
annexed hereto and marked “AWM16”.

28. THAT the reviewed HDC does not reflect the views given and it contains
many provisions that could not be lawfully included in view of the previous
determination by the PSC on contentious issues. As a case in point the
provisions of the reviewed HDC on the transition in the Judiciary constitute a
gross negation of the universal standards of judicial independence which is
one of the issues that the CKRA, 2008 requires the CoE to enshrine in the
constitution. The Judiciary itself presented its response to the HDC to the
CoE which report details the salient issues. Annexed hereto marked
 “AWM17’ is a true copy of the said report by the Judiciary submitted to the
HDC published by the CoE on 17th November, 2010 which is entitled
“Response by the Judiciary to the Harmonized Draft Constitution, 2009”.

29. THAT pursuant to its mandate the PSC-CR considered the reviewed HDC of
8th January, 2010 and it made its recommendations that culminated in a
revised HDC which was presented to the CoE on 29th January, 2010. Annexed
hereto marked “AWM18” is a true copy of the revised HDC of 29th January,
2010.

30. THAT the Revised HDC of 29th January, 2010 was accompanied by a Report
of the PSC-CR dated 29th January, 2010 a true copy of which is annexed
hereto and marked “AWM19”.

31. THAT pursuant to Section 33(2) of the CKRC, 2008, on 23 rd February, 2010
the CoE published its version of the Proposed Constitution of Kenya taking
into account the consensus of the PSC-CR. On critical analysis my co-
Petitioners and I are convinced that the PSC version of the PCK does not
faithfully reflect the views of Kenyans or the consensus of the PSC. Annexed
hereto marked “AWM20” is a true copy of the CoE’s version of the PCK
published on 23rd February, 2010.

32. THAT on Thursday 1st April, 2010 the CoE version of the PCK came up for
debate and approval. Whereas MPs had given over 150 notices to move
motions to amend the Draft Constitution submitted in the CoE and laid on the
Table of the House on Tuesday 2nd March, 2010 none of those Motions were
passed by the requisite majority. Annexed hereto marked “AWM21” is a
true copy of the Order Paper for Thursday April 1, 2010.

33. THAT during the debate of the said Motions which was broadcasted live on
television the heated debate revolved around the issues of devolution and
representation that form the core of the grievances that precipitated our
constitutional application in the High Court back in January, 2007. Annexed
hereto marked “AWM22” is a true copy of the official Report (Hansard) of
the National Assembly of Thursday 1st April, 2010.

34. THAT in view of the foregoing my co-Petitioners and I insist that Parliament
has only played a nominal role in the review process through the PSC-CR that
as the House itself was a glorified spectator in the process because in the
end it merely rubber-stamped the CoE version of the PCK which on 6 th May,
2010 was republished by the Attorney General as the Proposed Constitution
of Kenya. Certainly the contradictions between the CKRA, 2008 and Section
47A of the Constitution played a big role in demobilizing Parliament as an
actor in the constitutional review process.

35. THAT in view of the foregoing my co-Petitioners and I believe that this
Honourable Court is enjoined to consider the legal issues raised in this
petition and redress them as provided for by law.

36. THAT I have sworn this affidavit in support of and in order to verify the
Petition herein.
37. THAT what is deponed to herein is true to the best of my knowledge save
what is deponed to on information and belief sources whereof have been
disclosed.