NAIROBI, Kenya, Sep 21 – Chief Justice David Maraga on Monday asked President Uhuru Kenyatta to dissolve Parliament over the continued violation of the two thirds gender representation rule.
Maraga said Parliament’s failure to enact a law to operationalize the constitutional provision amount to an act of impunity.
In his advice, Maraga said he is acting following six petitions filed in pursuant to Article 261 (7) of the Constitution.
“It is incontestable that Parliament has not complied with the High Court order, As such, for over 9 year now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, it is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution.”
The Chief Justice said he was in receipt of five petitions asking him to render the advice on dissolution of Parliament.
“There is no doubt that the dissolution of Parliament will cause inconvenience and even economic hardship. The fact that Kenya is in the midst of the Coronavirus pandemic only exacerbated the potential impact of the decision. Yet that is a clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary . We must never forget that more often than not, there is no gain with pain,” said the Chief Justice.
He said the petitions received between April 2019 and July 2020 had been consolidated into one.
The petitions are based on the failure by lawmakers to comply with four court orders compelling Parliament to enact the legislation despite a Supreme Court order issue in 2015.
The CJ said the Parliament has blatantly failed, refused or neglected to pass crucial law since August 2010 when the Constitution was promulgated.
Maraga said upon receiving the two petitions from Margret Toili and Fredrick Gichanga Mbugua’s on 26th June 2019, he wrote to both the Speakers of the National Assembly and the Senate who recounted the efforts Parliament has unsuccessfully made to comply with its obligation under Article 216 and the said Court Orders.
“They said they had at the time two other Bills- the Representation of Special Interest Groups Laws(Amendment) Bill 2019 and the Constitution of Kenya (Amendment) Bill 2019 – pending before Parliament and requested for time to enact them. They did not revert to me on the matter,” he said.
The Chief Justice further noted that Speaker of the National Assembly Justin Muturi and Senate Speaker Kenneth Lusaka had also filed preliminary objections to his summons following the receipt of the petitions.
The Attorney General did not file any response to the petitions.
“The Speakers contend that the six petitons are incompetent and bad in law for the reason that no court order was “transmitted” to either the Chief Justice or to Parliament as required by Article 261(6)(b) of the Constitution,” the CJ’s advisory read.
The House Speakers argued that Articles 97 and 98 have set a ceiling on the composition of the two Houses of Parliament, it is impossible to enact legislation to give effect to the two-thirds gender rule without violating the citizens political rights to vote for candidates of their own choice and/or vie for any elective position in any public body or office.
Muturi and Lusaka further stated that there is a budget to stage a by-election that will ensure the dissolution of Parliament.
“Given the crisis imposed upon the country by the Coronavirus pandemic, it will be against public interest if the Chief Justice’s advises the President to dissolve Parliament; and that the Chief Justice’s advice to the President will trigger a constitutional crisis as Parliament’s legislative, oversight, vetting of State Officers and other roles like passing of the budget roles will stall,” the House Speakers stated in a joint response.
Maraga however advised the two and any other aggrieved parties to seek redress on his advice at the High Court.
“The CJ is not required or authorised to hold another trial. A petition under Article 261(5), is to be heard and determined by the High Court. The Chief Justice has also no appellate jurisdiction over the High Court decision arising from such petition,” he said in his advice to the President.