Are MPs free to defect or shift allegiance from one coalition to another soon after being elected?
This is the question the High Court will be grappling with in a case filed by 12 petitioners, who argue that MPs are violating the Constitution by defecting from Azimio to Kenya Kwanza.
The government's charm offensive to woo opposition lawmakers in order to amass majority rule might eventually be a poisoned chalice if the court agrees with the 12 petitioners that MPs cannot defect after elections.
The petitioners are Lempaa Suyianka, Kenneth Njagi, Meshack Suba, Teddy Muturi, Amos Wanjala, Stephen Kihonge, Sophie Dola, Winnie Thuo, Victor Ng'ang'a, Smon Lkoma, Caroline Mogaka and Francis Kenya.
They argue that the current arrangement in Parliament is illegal and not a reflection of the 2022 General Election.
Their lawyer Kibe Mungai argues that Azimio should be the majority while Kenya Kwanza the minority.
While taking a stab at the coalition agreements between President William Ruto and MPs elected on independent tickets and those from small parties, Kibe argues that the Constitution does not envisage an authoritarian rule, where the Head of State has control of Parliament.
He argues that National Assembly Speaker Moses Wetang'ula's ruling that Kenya Kwanza is the majority in the august House has created a constitutional crisis as the president's party has taken up the House leadership despite having garnered less legislators than Azimio.
According to the petitioners, Azimio had 171 lawmakers compared to Kenya Kwanza's 165 MPs. Meanwhile, they claim that from the political deal brokered between UDM, MDG, MCCO and PAA, 14 MPs crossed from Azimio to Kenya Kwanza.
They assert that Wetang'ula has no powers to determine who is majority and who should occupy the minority side. Instead, the petitioners are of the view that the numbers garnered during the election seal the fate of parties and cannot be altered before the House.
"The immediate consequence of Speaker Wetang'ula's ruling is that the National Government of the Republic of Kenya has not been established in accordance with the Constitution and the results of the General Election held on August 9, 2022," Mungai argues.
The petitioners are targeting Kenya Kwanza, National Assembly, Wetang'ula, Registrar of Political Parties Ann Nderitu, Leader of Majority Kimani Ichung'wa, Deputy Leader of Majority Owen Baya, Majority Whip Sylvanus Osoro, Deputy Majority Whip Naomi Jillo and nominated MP Sabina Chege.
Others are Independent Electoral and Boundaries Commission (IEBC) and Azimio, Jubilee Party, Law Society of Kenya (LSK) and Leader of Minority Opiyo Wandai, MPs Robert Mbui and Junet Mohamed.
"The first respondent (Kenya Kwanza) policy and scheme to 'poach' elected leaders, coax, coerce and brainwash them to undermine their political parties allied to the Azimio coalition amount to subversion of multi-party democracy in Kenya in violation of Article 4 of the Constitution," they argue.
Also at the heart of the case is whether Wetang'ula ought to have contested for the speaker's position.
The petitioners assert that the speaker has to date not relinquished his position as the Ford Kenya Party leader and remains as part of the Kenya Kwanza principals.
Their court papers state that the Speaker cannot be objective as he is advancing the Kenya Kwanza's agenda before the August House. They are of the view that a Speaker cannot be an active member of any political party.
In addition, they claim that the speaker has continued to take part in Kenya Kwanza's meetings thus blurring the line that the National Assembly head should not take sides.
"On account of multiple roles of Hon. Wetang'ula, member of Kenya Kwanza Coalition Party Leaders Forum and member of its coalition Parliament Group, the fourth respondent occupation of the office of the Speaker of the National Assembly is inconsistent with and contravenes legal provisions of constitutional norms," the petitioners claim.
They trace Azimio MPs' rebellion on failure to uphold a strict requirement that a law maker cannot move from one party to another.
According to the petitioners, Jubilee Party wrangles are a classical example of how National Assembly has become a sale market for law makers willing to switch camps.
"The immediate effect of the fourth respondent ruling aforementioned had been a trigger to general indiscipline and rebellion in political parties particularly those in Azimio Coalition in addition to converting the National Assembly into a political bazaar in which disgruntled members of Azimio Coalition sell their souls and interests of their electors to the government of the day in the name of seeking development for their people," reads the court papers.
