, NAIROBI, Kenya, Nov 30 – Two businessmen have moved to court seeking the dissolution of Parliament within 15 days, unless lawmakers approve the nominees to the Commission on the Implementation of the Constitution and that on Revenue allocation.
David Gitonga and Franklin Kamau want the Chief Justice Evan Gicheru to advise the President to dissolve the National Assembly if the Speaker of the National Assembly and Attorney General fail to ensure that the two commissions are in place.
They have sued Amos Wako (AG) and Kenneth Marende (Speaker of the National Assembly) for failing to take necessary steps to ensure that Parliament approved the nominees to the two commissions.
"Failure by the respondents to take necessary steps to ensure that the National Assembly approves the names of the Commissions on Implementation of the Constitution and Commission on Revenue Allocation and reports to the Chief Justice within 15 days or any other period specified by the court, then the Chief Justice shall advise the President to dissolve Parliament," they said in the petition.
They added: "Failure by the respondents to ensure approval of those commissions on November 27 infringes and threatens to violate the mandatory implementation process of the Constitution of Kenya."
"The failure also violates Section 2(1) of Chapter 1 of the Constitution that binds all persons and State organs. It also violates Section 25(1) of the Sixth Schedule."
The case has been referred to Chief justice for directions.
MPs declined to approve the nominees to the two crucial commissions citing regional imbalances and queries surrounding qualifications of some of the applicants.
"We are apprehensive that the acts and omissions of the respondents to constitute and establish those commissions will affect the constitution making process and thus rendering it useless," they said. "We are seeking the court\’s intervention to ensure that provisions and the spirit of the Constitution are upheld."
This failure by Parliament to beat a constitutional deadline triggered summary conclusions that the House had violated the Constitution and thrown the country into a monumental crisis.
Parliament has two options as provided in Article 261 that would address any delays in enacting the raft of implementation legislation in Schedule Five. This article offers a two-pronged option.
One, hands Parliament the mandate to extend, in “exceptional circumstances certified by the Speaker”, the specified legislative deadlines by no more than 12 months through a two-thirds majority resolution.
Two, it permits members of the public to seek judicial intervention requiring Parliament to act, failure to which the Chief Justice may advice the President to dissolve Parliament.
The country was last Thursday plunged into a constitutional crisis after Parliament rejected a list of nominees to two key commissions on the implementation of the new Constitution.
The move by the MPs saw the Government miss Friday\’s deadline for gazetting the names, throwing the implementation of the new laws into a crisis.
MPs said the list for the implementation committee lacked regional balance and said it should be returned to the principals.
The formation of one of the first commissions under the new Constitution could be delayed further after a parliamentary committee rejected a nominee of the Party of National Unity.
The Finance, Trade and Planning Committee rejected Amina Ahmed, who had been nominated to the Commission on Revenue Allocation, in a report tabled in Parliament hours before debate on the list began.
The committee found that Mrs Ahmed “lacked the level of knowledge and expertise required for the position” and should therefore be replaced.
The team asked PNU, which nominated her, to appoint somebody else to replace the banker, who is currently working as a consultant for an audit and management firm.
Ms Ahmed holds a bachelor’s degree in economics and French and has 22 years’ working experience in banking.
The committee approved the rest: Micah Cheserem as chairman and Prof Raphael Munavu, Prof J.H. Kimura, Prof Wafula Masai, Mr Meshack Onyango, Mrs Rose Bosibori Osoro and Ms Fatuma Abdulkadir as members.