The High Court has dismissed a petition challenging the constitutionality of the National Dialogue Committee (NADCO), affirming that the committee’s formation was lawful and well within Parliament’s constitutional rights.
The decision allows the 13-member committee, co-chaired by Wiper leader Kalonzo Musyoka and Majority leader Kimani Ichung’wah, to continue with its mandate to seek public input on national concerns, including potential amendments to the Constitution.
The petitioners, led by Issa Elanyi Chamao, Patrick Karani, and Paul Ngeywo, had contested that the establishment of NADCO violated key constitutional principles, particularly those regarding public participation and the proper process for constitutional amendments.
They raised concerns that NADCO could potentially pave the way for significant constitutional changes without adhering to the constitutional framework for amending the Constitution.
However, Justice Lawrence Mugambi, who delivered the judgment, emphasized that the court could not intervene in a matter that had not yet reached a stage where a concrete dispute existed.
He ruled that the petition lacked jurisdiction, noting that the issues raised were premature and speculative.
“The doctrine of ripeness applies in this case,” Justice Mugambi stated, explaining that the court could not adjudicate a matter that had not yet fully developed.
Justice Mugambi further clarified that Parliament’s authority to form committees, including those tasked with exploring potential amendments to the Constitution, is enshrined in the Constitution.
He referenced Article 256, which grants Parliament the power to initiate constitutional amendments, and Article 124(2), which empowers Parliament to establish committees to support its functions.
“From the outset, there is nothing unlawful about Parliament taking steps that may lead to making amendments to the Constitution,” the judge remarked.
The petitioners had argued that NADCO’s role in the constitutional amendment process lacked proper legislative guidance and violated the principles of public participation.
They contended that the committee’s formation was not in line with the constitutional procedures for amending the Constitution and that Parliament had failed to enact necessary legislation to guide the amendment process, as required by Article 94(1).
Despite these concerns, Justice Mugambi rejected the petitioners’ claims, stressing that the purpose of NADCO was to engage the public in a broad consultation process, which was not necessarily focused on amending the Constitution.
He emphasized that the committee’s current activities were aimed at gathering public views on national issues, and it was premature to assume that the process would inevitably lead to constitutional amendments.
“This process is only aimed at gathering views generally, and may not necessarily be confined to the amendment of the Constitution,” he explained.
In his ruling, Justice Mugambi also upheld Parliament’s constitutional role in initiating amendments to the Constitution.
He affirmed that the court could not intervene at this stage, as the matter was still in its infancy.
“This Court’s jurisdiction under Article 165 (3)(d) cannot be invoked to stop Parliament from establishing its own Committee to assist it in executing a constitutional mandate,” the judge concluded.
