Case Filed to Compel Sifuna Account for Linda Mwananchi Contributions

A constitutional petition has been filed seeking to have Nairobi Senator Edwin Sifuna account for money contributed by members of the public to the Linda Mwananchi political project.

In a petition filed at the High Court in Nairobi, Alan Masakhalia, a Kenyan voter, wants Sifuna compelled to account for funds raised from the public through Paybill number 3033049, which he argues was publicly used to solicit contributions towards the political project.

Masakhalia claims he contributed Sh55 through the Paybill after following Sifuna’s political activities and public mobilisation around Linda Mwananchi.

In his verifying affidavit, Masakhalia states that he made the contribution because he understood the project to be associated with Sifuna’s presidential ambitions.

“My contribution was clearly towards Sifuna’s Presidential Campaign kitty,” he states in the affidavit.

He says the money was not intended as a personal gift to Sifuna but was contributed in response to a public fundraising appeal connected to the political project.

The petitioner argues that people who voluntarily contributed to the project are entitled to know how their money was handled, whether it was used for the purpose for which it was solicited and what should happen to the funds if the project is abandoned or substantially changed.

At the centre of the case is whether representations made by Sifuna while soliciting contributions created legal obligations after members of the public relied on those representations and contributed their money.

The petitioner wants the court to determine whether contributors acquired enforceable constitutional and statutory interests in the lawful use of their contributions, proper accounting, disclosure of the funds and compliance with campaign financing laws.

A key question before the court is what should happen to the money if Sifuna decides not to pursue the presidential project.

The petitioner names former Interior Cabinet Secretary Fred Matiang’i, former Deputy President Rigathi Gachagua and Wiper leader Kalonzo Musyoka among those he says Sifuna has indicated he could support.

“I am concerned that if the political project is abandoned, transferred or materially altered, the funds contributed by citizens could potentially be transferred, diverted or applied to another political purpose,” Masakhalia says.

The petitioner acknowledges that Article 38 of the Constitution protects every individual's right to make political choices, but argues that the case is not about forcing Sifuna to contest for the presidency or dictating his political beliefs.

“The court is not being asked to compel Sifuna to hold a particular political belief, support a particular candidate or contest the presidency against his wishes,” the petitioner argues.

Instead, the petition asks whether a political leader who voluntarily solicited and received citizens' money for a publicly represented political project can later abandon that project and divert the funds, political infrastructure or other citizen-funded resources to another political purpose without first accounting for the money and complying with the law.

The petitioner argues that political freedom should not be used as a shield against lawful financial accountability.

“Political freedom should not operate as a shield against lawful accountability arising from the receipt and use of citizens' money,” the petition states.

The petition further asks the High Court to determine whether funds solicited for a stated political purpose can be transferred, diverted or repurposed for a materially different political purpose without appropriate legal authority, disclosure and accountability.

Among the orders being sought is an order compelling the first and second respondents to provide a full and verified account of all money received for the Linda Mwananchi project, including contributions made through Paybill No. 3033049 and any other fundraising channels.

The petitioner is also seeking disclosure of expenditure incurred from the funds, including receipts, invoices, payment records and other supporting documents.

The court is further being asked to compel disclosure of the identities of individuals and entities who have had custody, control or signatory authority over the funds, as well as the current status and balance of the money.

The petitioner wants the respondents restrained from transferring, diverting or applying the funds for purposes inconsistent with the representations under which the money was solicited.

The petition also seeks preservation of the project's political and financial records pending determination of the case and protection against the disposal or dissipation of disputed citizen-contributed funds.

According to the petitioner, there is a risk that the funds could continue to be received, spent, transferred or otherwise dealt with before the substantive issues are determined, potentially defeating the case.

He also wants financial, M-Pesa, Paybill, accounting, expenditure and communication records relating to the fundraising preserved pending determination of the case.

The petition invokes Articles 10, 22, 23, 38, 81, 88 and 259 of the Constitution, together with the Election Campaign Financing Act, and asks the court to establish legal principles governing citizen-funded political projects.

It also asks the court to determine whether public representations about the purpose and intended use of political contributions can create legitimate constitutional or statutory expectations concerning the use, accounting, disclosure and eventual treatment of those funds.

The petitioner further wants the court to determine whether relevant electoral and political party regulatory bodies have a legal duty to investigate complaints concerning campaign financing and the operation of political parties or proposed political parties within their respective mandates.

The petitioner says any orders issued by the court should respect Sifuna's constitutional freedom to make political choices while ensuring that citizens' contributions are not unlawfully dissipated, diverted or concealed.

The petition does not ask the court to determine who should be nominated or elected president.

Instead, it asks the court to determine whether the representations made to contributors created enforceable legal obligations and, if so, what remedies should follow.