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Petition for Suspension of the Government of Makueni County

REPUBLIC OF KENYA

IN THE MATTER OF A PETITION BY CITIZENS AND RESIDENTS OF THE COUNTY

GOVERNMENT OF MAKUENI FOR THE SUSPENSION OF THE GOVERNMENT OF MAKUENI

COUNTY

IN THE MATTER OF ARTICLES 1(1), 2(2), 3(1), 10, 183, 185, 192(1)(b) AND CHAPTER SIX OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND ALL OTHER ENABLING POWERS AND PROVISIONS OF THE LAW

AND

IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT, CAP 19 LAWS OF KENYA

AND

IN THE MATTER OF THE COUNTY GOVERNMENTS ACT, 2012 SECTION 123(1) & (2)

BETWEEN

PHILLIP MUNYW’OKI KILONZO………………………….. 1ST PETITIONER

FRANCIS MAILU MULANDI………………………………… 2ND PETITIONER

DOROTHY NTHENYA NYAMAI…………………………… 3RD PETITIONER

JOSEPHKYALO KANGWANA……………………………….. 4TH PETITIONER

SHEILA MUNENE………………………………………………… 5TH PETITIONER

JOYCE MULU………………………………………………………. 6TH PETITIONER

STANLEY MWOLOLO………………………………………….. 7TH PETITIONER

MUNYWOKI NDOLO……………………………………………. 8TH PETITIONER

ASllA MAWEU…………………………………………………….. 9TH PETITIONER

-VERSUS-

THE COUNTY GOVERNMENT OF MAKUENI …………..RESPONDENT

PETITION

TO:

H.E UHURU MUIGAI KENYATTA

THE PRESIDENT OF THE REPUBLIC OF KENYA AND

COMMANDER IN CHIEF OF THE DEFENCE FORCES

HARAMBEE HOUSE

NAIROBI

The Humble Petition of PEOPLE OF MAKUENI COUNTY; the Petitioners herein and whose address for purposes of this Petition shall be c/o Makonani Primary School, P.0 Box 3 Ngomita within the Republic of Kenya RESPECTFULLY showeth THAT:-

1) The Petitioners are citizens and residents of Makueni County. They are adults of sound mind and registered as voters in Makueni County.

2) The respondent is the County Government of Makueni established under Article 6 and the first schedule of the Constitution to discharge the functions in Schedule 4 and other provisions of the Constitution and other laws.

FACTS GIVING RISE TO THE PETITION

The Makueni County Executive and the Makueni County Assembly are operating at extremes and are clearly at loggerheads. The Makueni County Government has irretrievably broken down and is completely dysfunctional. Instead of the two entities; the County Executive and the County Assembly working together as one government, in Makueni we have two governments operating parallel to each other; one under the Governor Prof. Kivutha Kibwana and another one under the County Assembly Speaker Stephen Ngelu. This in turn has led to a situation where the County Government cannot discharge its constitutional mandate as follows:

3) The County Executive Committee is unable to implement County legislation in violation of Article 183(1) (a) of the Constitution because some of the laws passed by the assembly are unconstitutional.

4) The County Executive Committee has failed to effectively manage its departments as provided by Article 183(1) (c) of the Constitution in order to ensure timely implementation of projects.

5) The County Assembly initiated and passed the Makueni County Wards Development Fund Act aforementioned in which they require the Executive to give them 1.275 Billion out of the annual development budget of Kshs. 1,836,154,630.40 for the first year 2013/2014 and for the subsequent years the leader of majority will determine the amount to be allocated for the ward development. This is contrary to the County budgeting processing as provided by section 125 of the Public Finance Management Act. This is both untenable and illegal. The Governor has communicated this illegality to the Speaker and requested for both entities to work together and come up with a Ward Development Fund Bill which is in conformity with existing law to no avail.

The Assembly went ahead to publish the Act and have even recently written to the Executive asking for a report on the implementation of the Act. We the people of Makueni find this as a tactic for more delay in development in the County, We further submit respectfully that the Leader of Majority is not a competent person to, on his own, decide on the amount to be set aside for development within the wards. This role given to the Leader of Majority is ultra vires his powers and cannot hol. Further development is a function of the Executive and hence we are left wondering how the Assembly will take part in development and still conduct oversight.

6) The stalemate between the County Assembly and the County .Executive Committee has resulted in the objects of devolution not being met and achieved as is foreseen under Article 174 of the Constitution. If the objects of devolution are not being achieved in the County Government of Makueni, the people respectfully submit that the said County ought to be dissolved at the earliest opportunity.

7) Members of the County Assembly have publicly declared that the Executive are their enemies (MCA Sammy Maseka during hearing of the Governor’s impeachment motion) and hence it ‘s clear that both entities are operating parallel and are not working towards meeting the needs of the people of Makueni.

8) The people submit that for the success of a County government, both the Executive and the County Assembly must be able to conduct their functions under the law and work together effectively through cooperation and consultation failure to which the continued existence of the County government is of no use to the people and becomes a liability and hindrance to development.

9) The attempted assassination of the Governor at the Assembly offices on 23/9/14 in full view of the entire nation is clearly an indication that the government does not have the capability to cohere and work effectively together. The Speaker and the Governor are sworn enemies and with each controlling an arm of Government, the people are apprehensive that nothing good will come out of it. Each entity is working very hard to portray the other in the negative and in this war of words the Makueni citizens stand to suffer and lose out of the fruits of devolution. This standoff is also against the interests of the citizens of Makueni County as provided in section 123(1) of the County Governments Act.

10) The County Government lost five (5) months of development negotiating the 2013/14 budget: from 1st July to 17thNov 2013. The stalemate was because the County Assembly wanted Kshs 1 Billion. As a result, projects have not been completed because planning and implementation started late. The Members of the County Assembly are well aware of this fact and yet instead of working with the Executive to avert a similar crisis in 2014/2015 financial year, they are misrepresenting the facts to the people and trying to lead a coup against the Executive. The main objective for devolution is to bring leadership to the grassroots in order to enhance effectiveness; this is not the case in Makueni county where the members of the County Assembly waste a lot of time trying to craft the system to work for their benefit and not for the benefit of the people of Makueni. The time wasted during the 2013/2014 budgeting process was not because the Members of the County Assembly wanted more money allocated for development or the inclusion of some key projects but because they wanted more money for recurrent expenditure in their budget to fund their tips abroad and allowances.

11) This year, 2014/2015 we do not have an approved budget as yet (5 months later). This means that we the people of Makueni have lost a further four months and counting for development. We further do not know when the budget stalemate between the Executive and the Assembly will end hence are pensive of the amount of development to be realised this year.

12) A law passed by the Senate, supported by the National Assembly and assented to by H.E. Uhuru Muigai Kenyatta, the President of Kenya, on County budget allocations, supported the recommendations that had been made by the Commission on Revenue Allocation which gave the Makueni County Assembly Kshs. 356,182,593.00 for salaries, travel and allowances. The Assembly insists that it has passed a budget allocating itself Kshs 913,737,902. We the people of Makueni believe that the law speaks for itself. The Assembly in purporting to pass legislation contrary to a national legislation on the same is clearly in violation of the principles and values of leadership set out in Article 10 of the constitution particularly adherence to the principle of rule of law.

13) Both the County Assembly and the Executive have not fast-tracked the formulation of legislation and policies to facilitate the implementation of the County government functions under Schedule 4 of the Constitution. The County Assembly has unnecessarily delayed the passing of Bills to facilitate the provision of services to the people of Makueni County. The County Support and Empowerment Regulations have not been passed since they were submitted to the Assembly in June 2014. This means that more than 100M cannot be advanced to youth and women for their empowerment.

This is money that if properly utilized could result in youth and women empowerment within the County and which initiative was used by most of these politicians as one of their main campaign agendas. The people of Makueni translate this as a deliberate attempt by the Assembly, whether knowingly or not, to beat the provisions of Article 55, 56 and 57 of the constitution. Articles 55 and 56 obligate the state to take measures to ensure that the youth and minorities and marginalised groups respectively, have various protections and considerations.

14) The Sand Conservation and Utilization Bill and the Control of Alcoholic Drinks Bill, have been pending since April 2014. We the people of Makueni only know too well the problems that have been brought about by unsustainable harvesting of sand and hence it would be in our best interest that laws regulating the process are urgently put in place. There has been a sand harvesting ban since June 2013 and we were hoping that the Makueni County Government would have acted in haste to rehabilitate our rivers and regulate the process of sand harvesting because we are also aware that if well conducted the sale of sand for commercial purposes could bring a lot of income for the people of Makueni and revenue for the County Government. We fail to understand why the County Assembly, which is composed of our elected representatives, would take so long in passing a law that is aimed at benefiting us. Only faulty Finance Bills, faulty Appropriation Acts, an unconstitutional County Administration Act and an unconstitutional Ward Development Fund Act have been passed. All these are drafted and developed to make sure that the Assembly has an upper-hand in the control of finances and County Executive staff and to ensure that everything is done according to their wishes and not the wishes of the people of Makueni. The Assembly has not passed any of the crucial Bills forwarded to them by the Executive.

15) Dismissal of Members of the County Executive Committee – the Makueni County Assembly has so far instituted five (5) motions of removal of County Executives Committee Members for Finance and Planning, Water, Irrigation Services and Environmental Management, Lands and Urban Planning, Agriculture and Food, Security and Gender and Social Services – two of which have been finalised. This is being done without due regard to Section 40 (4) of the County Governments Act that gives the Executive Committee Member the right to appear and be represented before the investigating committee. There is therefore utter disrespect of the rule of law by the County Assembly. We the people of Makueni are good law abiding citizens and hence are appalled by the ease with which our elected representatives go against the law. We also find these dismissals suspect because we don’t understand how suddenly Executive Committee Members are not doing their work at the same time coinciding with the budget stalemate while some of the things they are accused to have done are stated to have taken place months ago. We state that the dismissals are not in good faith and only go to show further that the two arms of the Makueni County Government cannot work together and thus something must be done.

16) The County Assembly took long to vet and approve names of members to constitute the County Public Service Board (CPSB), the County Executive Committee and the County Lands Management Board occasioning a delay in service delivery. Further, in total disregard of the welfare of the people of Makueni County’s Agricultural and Infrastructural needs (which in our opinion are paramount), the Government is yet to have Chief Officers for the Department of Agriculture and Food Security and the Department of Roads & Infrastructure. Agriculture is the backbone of our County and hence we believe that our elected leaders should work tirelessly to promote this cause.

17) There is inherently a conflict of roles. The County Executive and the County Assembly seem to compete on who implements projects. The County Assembly seems to be unaware of the constitutional provision for implementation as provided in Article 183 of the Constitution of Kenya and Section 9 (2) of the County Governments Act which provide that a member of the County Assembly shall not be directly or indirectly involved in executive functions of the County government and its administration or delivery of services as if the member were an officer or an employee of the County government. We the people of Makueni expect the two entities of government to do their duties while respecting the principle of separation of powers to facilitate development. The Assembly for their oen selfish purposes want to take part in implementation of projects and hence bringing conflict in the development projects within the County.

18) The oversight being conducted by the Assembly is also a way to micro manage the Executive and not to ensure that sustainable development is realised within Makueni County. This very much hinders the efforts by the Executive. In the name of oversight, County Executive Committee members are constantly summoned to the Assembly to give reports and when they request for meetings to be rescheduled they are threatened with impeachment. Furthermore, there are certain instances where a County executive committee member is invited to attend two committee meetings at the same time making it impossible to comply.

19). The Government has been opaque. The budget of the Assembly arm of the Government has never been discussed with the people of Makueni contrary to the provisions of the law and the principles of citizen participation (Section 87 of the County Governments Act). Some of the Members of the County Assembly have also not seen their budget and only believe and follow what the Speaker tells them about it. Further, the County Assembly has refused to subject its accounts to the Executive Committee Member for Finance and Planning as provided for by sections 104 and 105 of the Public Finance Management Act. We the people of Makueni have been enlightened through the civic education conducted by the Executive (whose funds have now been removed from the 2014/2015 budget by the Assembly because they are afraid we will be educated and read through their lies) that the ECM Finance is the Head of County Treasury and hence has the right to go through the accounts of the County Assembly to ensure that they are in conformity with current financial laws, we are perplexed as to what the Assembly is trying to hide yet it is a public entity .

20) The speaker of the Makueni County Assembly is holding the whole assembly and hence the whole county at ransom. He has expressly forbidden the Members of the County Assembly from working with the Executive and uses incentives such as membership to County Assembly Sectoral Committees and foreign trips to foster compliance. Any member of the County Assembly who in any way disobeys the Speaker is removed from the committees and does not take part in foreign trips while the obedient members are in as many as five committees and are always going for foreign trips. Currently some of the Members of County Assembly who have been excluded from Committees have a case in court challenging such behavior by the Speaker. The Speaker, who is supposed to be a leader, even went to the extent of brandishing his gun on national television stating that he could also use it on the same day that there was an attempted assassination on the Governor. The County Assembly premises are run as private grounds where admittance is reserved for those who are in the Speaker’s good books. Members of the public are restricted from the gallery which should be open to the public and hence we are of the opinion that the Makueni County Assembly is trying to hide things from us.

21) On or about the 4th of October, 2014 the petitioners herein who are registered voters within the County Government of Makueni and opinion leaders launched a campaign to collect signatures from registered voters from Makueni County for the dissolution of the Makueni County Government.

22) The petitioners had for a long time tried to engage the County Government of Makueni in a bid to mediate and settle the problems between the Executive and the Assembly arms of the County Government of Makueni but both arms have been unwilling, uncooperative and disinterested in working together and in solving their differences thus resulting in stalemates and deadlock in all business.

23) As a result of the said stalemate, the people of Makueni County suffer and continue to suffer immeasurable damage in the form of violation of their rights as elucidated in this petition.

24) The petitioners believe that there are exceptional circumstances within Makueni County in terms of governance which would support the dissolution of t he County Government. These exceptional circumstances are also elucidated in this petition.

25) The petitioners have been able to collect a total of 50,826 signatures within a period of one month in support of this petition.

26) This petition is supported by 249 booklets attached herewith ,containing the signatures of 50,826 registered voters of Makueni.

The Constitutional Foundational of the Petition

27) The Premble to the Constitution of Kenya recognizes the aspirations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law and the exercise by the people of Ken ya of our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution.

28) Article 1 (1) of the Constitution provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

29) Article 2(1) of the Constitution of Ken ya pronounces the supremacy of the Constitution and provides that the Constitution binds “all persons and all State Organs at both levels of government ”.

30) Article 2(4) of the Constitution provides among other things that any act or omission in contravention of the Constitution is invalid.

31) Article 3 of the Constitution of the Republic of Kenya obligates every person to respect, uphold and defend the Constitution.

32) Article 10 of the Constitution of the Republic of Kenya sets out the National Values and Principles of governance that bind all state officers, state organs, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, make or implement public policy decisions. The national values and principles of governance include among others the rule of law, good governance, transparency and accountability.

33) Under Article 19 (2) of the Constitution, the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and realization of the potential of all human beings.

34) Under article 20(1) The Bill of Rights applies to all law and binds all State organs and all persons. Further, under sub subsection (2) every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

35) Under article 37 every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

36) Article 29 provides for freedom and security of the person which includes the right not to be subjected to any form of violence from either public or private sources.

37) Article 43 (1)(d) provides that every person has the right to clean and safe water in adequate quantities.

38) Article 73(1) of the Constitution sets out the responsibilities of leadership and provides that the authority assigned to a state officer is a public trust to be exercised in a manner that

(i) is consistent with the purposes and objects of this Constitution

(ii) demonstrates respect for the people

(iii) brings honour to the nation and dignity to the office; and

(iv) promotes public confidence in the integrity of the office

39) Article 73(2) of the Constitution provides that the guiding principles of leadership and integrity include-

(b) objectivity and impartiality in decision making and in ensuring that decisions are not influenced by nepotism, favoritism, other improper motives or corrupt practice

(c) selfless service based solely on the public interest demonstrated by – (i) honesty in the execution of public duties; and

(e) discipline and commitment in service to the people.

40) Under Article 174 (g) The objects of devolution of government include to ensure equitable sharing of national and local resources throughout Kenya.

b. Article l92(1)(b) of the Constitution stipulates that the president may suspend a County government in exceptional circumstances.

Other Legal Foundations of the Petition

41) Section 123(1) of the County Governments Act provide that subject to subsection 2 any person may petition the president to suspend a County government in accordance with Article 192(1)(b) of the Constitution if the County government engages in actions that are deemed to be against the common needs and interests of the citizens of a County.

42) Section 123(2) of the County Governments Act provides that a petition under Section 123(1) of the County Governments Act shall be supported by not less than ten percent of the registered voters in the County.

43) Sectio3 (1) of the Leadership and Integrity Act provides that the primary purpose of the Act is to ensure that State officers respect the values, principles and requirements of the Constitution.

(2) A State officer shall respect the values, principles and the requirements of the Constitution, including-

(a) the national values and principles provided for under Article 10 of the Constitution;

(c) the responsibilities of leadership provided for under Article 73 of the Constitution;

(e) the educational, ethical and moral requirements in accordance with Article 99 ( 1) (b) of the Constitution

44) Section 8 of the Leadership and Integrity Act provides t hat a State office is a position of public trust and the authority and responsibility vested in a State officer shall be exercised by the State officer in the best interest of the people of Kenya.

45) Section 52(1) of the Leadership and Integrity Act provides that Pursuant to Article 80(c) of the Constitution, the provisions of Chapter Six of the Constitution and Part II of the Act except section 18 shall apply to all public officers as if they were State officers.

46) The Public Finance Management Act in Section 104 and 105 provides that the Executive Committee Member in charge of Finance shall be the head of the County treasury and shall ensure that all County government entities follow standard financial measures.

Reasons Wherefore Your Humble Petitioners Pray That H.E The President of Th e Republic of Kenya:-

  1. Finds that the grounds in this petition are exceptional circumstances within the meaning of Article 192(1)(b) of the Constitution to warrant suspension of the County government of Makueni.

DATED at MAKUENI this 21st day of November 2014

NAMES OF PETITIONERS

  1. PHILLIP MUNYW’OKI KILONZO
  2. FRANCIS MAILU MULANDI
  3. DOROTHY NTHENYA NYAMAI
  4. JOSEPHKYALO KANGWANA
  5. SHEILA MUNENE
  6. JOYCE MULU
  7. STANLEY MWOLOLO
  8. MUNYWOKI NDOLO
  9. ASllA MAWEU

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