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The party, in an urgent petition filed its chief counsel Elias Mutuma, argued that the advice render by CJ Maraga was mandatory and required to be enforced within a reasonable time-frame which could not exceed 21 days/FILE

Kenya

Thirdway seeks decree requiring Parliament dissolution within 21 days

NAIROBI, Kenya, Sep 29 – Thirdway Alliance Party filed a petition at the Constitutional Division of the High Court on Tuesday seeking a court decree compelling President Uhuru Kenyatta to act on Chief Justice David Maraga’s Parliament dissolution advice within 21 days.

The party, in an urgent petition filed its chief counsel Elias Mutuma, argued that the advice render by CJ Maraga was mandatory and required to be enforced within a reasonable timeframe which could not exceed 21 days.

The party argued that in the absence of an express timeline provision in the Constitution (2010) within which the President would dissolve Parliament, a reasonable timeline would be presumed.

The petitioner also sought an interpretation on the kind of an election which would ensue following the dissolution of Parliament.

According to the petitioner, the dissolution of Parliament would only trigger a by-election to complete the five-year term of the twelfth Parliament and not a General Election for a fresh five-year term.

The petitioner also held the view that the dissolution would only affect the National Assembly and not the Senate, hence the Upper House will under the circumstance continue to discharge its functions.

Maraga wrote to the Head of State on September 21 rendering the said advice citing 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.”

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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 issued in 2015.

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