BY SAM ALFAN.
A human rights activist has moved to court challenging the nomination and eventual appointment of Deputy President Kithure Kindiki.
For that matter, Joseph Aura said that having not being constitutionally nominated or lawfully appointed as the DP, Prof Kindiki should be stopped from exercising any of powers of a lawful elected or nominated.
Through lawyer Harrison Kinyanjui, Aura argues that the entire purported “swearing in ceremony” of Prof Kindiki as Deputy President on November 1, 2024 under the watch of the President and Chief Justice Martha Koome was null and void ab initio.
“By her purported implicit declaration of 1 November 2024 to be a public holiday in Kenya, vide Gazette Notice 14100 (VoL. CXXVI- No.183) Mercy Njau was, and is unconstitutionally and unlawfully arrogating to herself the powers conferred on. and delegated by law to the Cabinet Secretary of Interior, Prof. Abraham Kithure Kindiki to declare holidays in Kenya under Section 3 of the Public Holidays Act, when she has no such powers,” says Aura through lawyer Kinyanjui.
He adds that having been declared a public holiday, the assumption of office cannot be made prior to the Gazettement of the declaration of the date as a public holiday.
“In a frenzied attempt on the night of 31 October, 2024 at providing legal cover to the stated illegalities, surreptitiously executed under opaque and unknown hush-hush circumstances negating the Principle of transparency espoused in Article 10(2) (c) of the Constitution, DP Kindiki herein President of the Republic of Kenya purported to appoint (via a purported Executive Order NO. 5 of 2024) in an acting capacity Prime CS Musalia Mudavadi as the Cabinet Secretary for the Ministry of Interior, vide an equally surreptitiously published Gazette Notice 14099 (Vol. CXXVI- No.182),” says Aura.
Aura said he has a legitimate expectation of lawfulness of any process of purported impeachment within the prescription of the relevant provisions of the applicable law, Standing Orders of the National Assembly, of The Senate, and of the Constitution.
He further adds that DP Kindiki says the appointment of Kindiki as DP was a sham as he was still holding the position of Cabinet Secretary Ministry of Interior and National Administration.
“Besides, there has no form of public participation that has been engaged on the issue of the nomination of the Deputy President of the Republic of Kenya, granted the circumstances explicated above in the “Facts” part of this Petition listing the relevant history thereon,” he adds.
He adds that by not engaging in any meaningful public participation before any vetting of a Deputy President, the move does not meet the legitimate expectation of sufficient notice to involve the public and the same is and would be a sham.
“The Petitioner has a legitimate expectation that the provisions of the Public Appointments (Parliamentary Approval) Act Cap. 7F of the Laws of Kenya, will he followed to the letter by the National Assembly of Kenya and the Senate of Kenya which he is breaching,” he adds.
Kinyanjui said as a consequence of the illegal and sham actions of the National Assembly sought to reverse the illegalities now being executed against the citizenry unless the sham impeachment of former Deputy President Rigathi Gachagua.
He adds that following Gachagua’s sham and unconstitutional impeachment proceedings against him a by way of a Motion dated 26th September 2024 as the duly elected Deputy President of the Republic of Kenya before the National Assembly of Kenya the purported Resolution thereon dated 8th October 2024 and the Senate’s Resolution thereon dated 17th October 2024 were both ultra vires the respective Standing Orders of the National Assembly and the Senate of Kenya, and they violated various Constitutional provisions, hence provoking the Aura’s challenge of the same herein.
He contends that the imminent intention of the National Assembly, Speaker of National Assembly, Attorney General and Chief Justice Martha Koome to appoint the Kindiki as the Deputy President of Republic of Kenya is null and void ab initio, and there is no basis in law to so act or move, as the nomination fails the Constitutional and IEBC’s legal threshold for acceptance.
In the petition, he wants the court to declare that since the declaration of the Presidential elections in Kenya on 15th August 2022 by the Chairman of the IEBC declaring William Ruto as the President and Rigathi Gachagua as the Deputy President, the position of the DP has not thereafter been declared vacant by the IEBC by reason of which no other person is eligible to assume the position of the Deputy of President of Kenya during the incumbency of Gachagua unless declared otherwise.
“A declaration do issue that neither the Speaker nor the National Assembly of Kenya has no power to declare the position of the Deputy President of the Republic of Kenya as purported by the Speaker of National Assembly’s Gazette Notice dated 18th October 2024 as contained in Kenya Gazette Notice No. 13401 Vol. CXXVI- No. 171, save the Independent Electoral and Boundaries Commission of Kenya, IEBC,” seeks Aura.
Further, he wants the court to declare that the process leading to the purported nomination, vetting, and approval of Prof. Kindiki for appointment as the Deputy President of the Republic of Kenya by the President of the Republic of Kenya vide the letter dated 18th October 2024 and the members of the Nation by their decision dated 18th October 2024 to approve the appointment 92/211 Prof. Kindiki as Kenya’s Deputy President was unconstitutional, illegal, and procedurally flawed ab initio.
