From: KCA President

To All

We are seeking the direction of the court to dismiss the application by Omtatah et al and allow the referendum to go on. A new constitution will ensure equitable distribution of resources, respect for the rule of law, probity and accountability in government. We are praying to the court to side with the people of Kenya as we undertake this most solemn of duties.

Please sign the Petition – – go to

http://www.petitiononline.com/kca_9710/petition.html .

Further information

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From the attached document you will note that the application by Andrew

Omtatah Okoiti and others is seeking to stop the August 4th referendum for a new constitution. In their petition No. 3 of 2010 which is before the Interim Independent Constitutional Dispute Resolution Court of Kenya ( IICDR ) ,

they are seeking the Court`s direction , among other things, to :

1. Stop the referendum because of alleged contravention of Sections 1, 1A, 3, 41A,47A & 60A of the Constitution of Kenya

2. Direct the Interim Independent Electoral Commission of Kenya to register Kenyans abroad as voters

—
Dr. Ogendi Menge
for KCA Executive Committee

Website: http://www.kenyansabroad.org

– – – – – – – – – – –

Attachment(s) from KCA President

Amended_NM_Constn_Okoiti_v_AG.pdf

REPUBLIC OF KENYA

IN THE INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE RESOLUTION
COURT AT NAIROBI (K.I.C.C.)
IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTIONS 1, 1A, 3,
41A, 47A & 60A OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA REVIEW ACT (NO. 9 OF
2008) [INCLUDING THE ALLEGED CONTRAVENTION OF
SECTIONS 4, 6, 10, 23, 26, 27, 30, 32, 33, 34, 35 & 42
THEREOF INSOFAR AS THE PETITIONERS’ CONSTITUTIONAL
RIGHTS WERE INFRINGED]

AND

IN THE MATTER OF: THE NATIONAL ASSEMBLY AND PRESIDENTIAL
ELECTIONS ACT (CAP 7), THE PUBLIC OFFICER
ETHICS ACT (NO. 4 OF 2003) AND THE PUBLIC
PROCUREMENT AND DISPOSAL ACT (NO. 3 OF 2005)
CONSTITUTIONAL PETITION NO. 3 OF 2010

BETWEEN

ANDREW OMTATAH OKOITI 1ST PETITIONER/APPLICANT
MAXIMILIA MUNINZWA 2ND PETITIONER/APPLICANT
OUMA ODERA 3RD PETITIONER/APPLICANT
FREDERICK ODHIAMBO AWUOR NYATADO 4TH PETITIONER/APPLICANT
SARAH NYOKABI 5TH PETITIONER/APPLICANT
PROF BARRACK OTIENO ABONYO 6TH PETITIONER/APPLICANT

AND

THE ATTORNEY GENERAL 1ST RESPONDENT
THE COMMITTEE OF EXPERTS 2ND RESPONDENT
THE INTERIM INDEPENDENT ELECTORAL COMMISSION 3RD RESPONDENT

AMENDED NOTICE OF MOTION
(Under sections 47A & 60A of the Constitution of Kenya; rules 32 & 34 of the Interim
Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules,
2010; the Inherent Jurisdiction of the Court and all other enabling provisions of Law)
TAKE NOTICE that Counsel for the Petitioners/Applicants herein, Andrew Omtatah
Okoiti and 5 others, shall on the day of 2010 at 9.00 o’clock
in the forenoon or soon thereafter move this Honourable Court for ORDERS:-

1. THAT the application be certified as urgent and heard exparte in the first
instance and for purposes of prayer 2 of this application.

2. THAT an interim conservatory order be issued to restrain the 1st Respondent
(and all state officers he is answerable for) and the 2nd Respondent, whether
by themselves or their servants or agents or advocates or otherwise
howsoever, from doing the following acts or any of them, that is to say from
engaging in any partisan civic education or political campaign, or utilising any
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public funds and/or resources in partisan civic education or political campaign,
pending the hearing and determination of this application interpartes.

3. THAT the 1st, 2nd and 3rd Respondents be hereby ordered to provide a full
account of all public funds and resources utilised to date in the constitution
review and referendum process and a justification for the same.

4. THAT the 2nd Respondent be hereby ordered to immediately make accessible
to the Petitioners all verbatim recordings of its meetings, including particularly
the meetings conducted after receipt of the Parliamentary Select Committee
draft to date.

4a. THAT the 3rd Respondent be hereby ordered to make reasonable provision
for the immediate registration of Kenyans in the diaspora in Kenyan diplomatic
missions, embassies and consular offices abroad, as well as a reasonable
provision for possible electronic registration, and an equivalent provision for
casting of votes by Kenyans in the diaspora in the national referendum
scheduled pursuant to the constitution review process.

5. THAT an interim conservatory order be issued to restrain the 1st Respondent
(and all state officers he is answerable for) and the 2nd Respondent, whether
by themselves or their servants or agents or advocates or otherwise
howsoever, from doing the following acts or any of them, that is to say from
engaging in any or any partisan civic education or political campaign, or
utilising any public funds and/or resources in partisan civic education or
political campaign, pending the hearing and determination of this Petition.

6. THAT a conservatory order be issued to restrain the 1st, 2nd and 3rd
Respondents, whether by themselves or their servants or agents or otherwise
howsoever from continuing with the planning, and/or organisation and/or
holding of the referendum scheduled for 4th August 2010 or on any other date
and/or any further constitution review pending the hearing and
determination of this Petition.

7. THAT IN THE ALTERNATIVE a conservatory order be issued to restrain the
1st, 2nd and 3rd Respondents, whether by themselves or through other state
officers, or their servants or agents or otherwise howsoever from doing any of
the following acts prior to the scheduled referendum, namely:

(a) Utilising civic education resources without following open competitive
procurement procedure.

(b) Continuing to conduct civic education beyond the 30-day statutory
period using public funds or resources.

(c) Conducting public campaigns in support of the proposed constitution
using public funds or resources, or during public or state functions
financed with public resources.

(d) Compelling, urging or advising public or state officers to take any
partisan position in support of the proposed constitution.

(e) Facilitating or funding any further civic education or political campaign of
any party whatsoever.

8. THAT IN THE ALTERNATIVE a conservatory order be issued to compel the
1st, 2nd and 3rd Respondents, whether by themselves or through other state
officers, or their servants or agents or otherwise howsoever, to permit the
Petitioners/Applicants to frame an Addendum of Proposed Resolution of
Contentious Issues to be submitted to the national referendum scheduled for
4th August 2010, with the requirement that if the said Addendum is approved
3
in a multiple-style referendum, then it shall form part of the proposed
constitution thereafter.

9. THAT the Petitioners’ costs be provided for.
WHICH APPLICATION supported by the annexed affidavits of ANDREW OMTATAH
OKOITI and PROF BARRACK OBONYO and is founded on the following grounds and
provisions of law:-

(a) THAT the constitutional and legal rights of the Petitioners to participate fully
in the constitution review process as part of the sovereign power they
collectively hold with all other Kenyans has been gravely compromised
through systematic illegal and unconstitutional acts of the 1st, 2nd and 3rd
Respondents.

(b) THAT the Petitioners have a right of access to the verbatim record of the
proceedings and meetings of the 2nd Respondent, and need immediate
access to these records in order to facilitate presentation of their Petition.

(c) THAT the 1st and 2nd Respondents by themselves or their responsible
officers or servants or agents have continued to engage in partisan civic
education and political campaign to the prejudice of the Petitioners’ rights to
a fully free and fair national referendum.

(d) THAT the integrity of the constitutional review process has been gravely
violated and severely compromised by systematic illegal and unconstitutional
acts of the 1st, 2nd and 3rd Respondents, and the affirmation of the
Petitioners rights including the right of access to this Honourable Court and to
the supervisory jurisdiction and powers of this Court requires the
postponement or variation of the process undertaken leading up to the
national referendum currently scheduled for 4th August 2010 until the hearing
and final determination of this Petition.

(e) THAT this Honourable Court has unfettered powers and jurisdiction to make
the orders sought.

(f) THAT it is meet and just, for the purposes of justice and equity and the
overarching purpose of constitutional integrity, to make the orders sought.

(g) THAT the facts stated establish a sufficient case with possibility of success in
respect to the Petitioner’s claim, and that further there is an overarching
requirement of justice that the constitution review process does not proceed
further if tainted by constitutional impropriety or illegality.

(h) THAT the Petitioners and all other Kenyans will suffer irreparable and
irremediable injury should the scheduled referendum proceed and the
Proposed Constitution of Kenya come into force with the attendant
irreversible repeal of this Constitution and the Petitioners’ constitutional rights
contained therein.

(i) THAT the balance of convenience favours caution and legitimacy in the
review process and not a divisive referendum tainted with illegitimacy and
illegality.

DATED at Nairobi this 22nd day of June 2010.
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AMENDED at Nairobi this 24th day of June 2010.
MUMA & KANJAMA
ADVOCATES FOR THE PETITIONERS

Drawn and Filed by:
Muma & Kanjama Advocates
Maendeleo House, 3rd Floor
Monrovia Street
P.O. Box 528–00100
NAIROBI Ref: 2/102/001

To Be Served Upon:

The Attorney General
Attorney General’s Chambers
Sheria House
Harambee Avenue
P.O. Box 40112
NAIROBI

The Committee of Experts
Delta House
Chiromo Road, Westlands
P.O. Box 8703–00200
NAIROBI

Interim Independent Electoral Commission
Anniversary Towers, 5th Floor
Monrovia Street
P.O. Box 45371–00100
NAIROBI

NOTE: “If any party served does not appear at the time and place abovementioned,
such order will be made and proceedings taken as the court
may think just and expedient.”