Chief Justice David Maraga
ADVISORY: Chief Justice David Maraga
Image: FILE
By Reporter

State House on Monday asked Attorney General Kihara Kariuki to challenge an advisory by Chief Justice David Maraga asking the President to dissolve Parliament.

Maraga asked President Uhuru Kenyatta to dissolve Parliament — itself noncompliant with the two-thirds gender rule — for failure to enact the law which provides for gender balance.

Multiple source told the Star that the AG will go to court later in the week to seek an interpretation to Maraga’s advisory.


“The President may ignore the advice. However, the government has decided to seek an interpretation on the way forward from the courts,” a Cabinet Secretary who sought anonymity said.

The government suing would cause another showdown with the Judiciary, given the frosty relationship between the two arms of government.

The Executive has been at loggerheads with the Judiciary for disobeying court orders while the Legislature has also failed to comply with an order that gave it 60 days to enact the two-thirds gender rule.

It was on the basis of Parliament’s failure to adhere to the court orders that six petitions were placed before Maraga to advise the President to dissolve the House.

In the advisory, Maraga said Kenyans must be ready to suffer, if only to hold elected parliamentary representatives accountable.

“In this circumstance let us endure pain, if we must, if only to remind ourselves, as a country, that choices, particularly choices on constitutional obligations have consequences,” Maraga said.

The CJ insisted that the country “must say no to impunity and hold everyone accountable for their actions or omissions”.

The fate of the 416-member bicameral House now rests with the President, who according to the Constitution, is bound to dismiss Parliament “within reasonable time”.

Maraga’s historic move is yet another upset for the country’s political establishment that evokes memories of annulment of Uhuru’s presidential victory in the 2017 General Election.

The CJ was on the majority side when the bench invalidated Uhuru’s re-election and called for a repeat poll on October 26, which the Opposition boycotted and the Jubilee candidate won.

Meanwhile, Parliament’s leadership has protested against Maraga’s advisory.

National Assembly Speaker Justin Muturi termed the decision “unrealistic”.

Muturi said there is no express constitutional provision which obliges Parliament to pass legislation to ensure compliance with the two-thirds gender principle with respect to MPs.

“The only direct obligation on Parliament is passing a law that ensures that all these marginalised groups including women are represented in Parliament,” Muturi said.

He added, “In any case, the clamour for dissolution of the current Parliament on account of failure to enact the two-thirds gender legislation is at the very least, unrealistic.”

The Constitution gives the CJ powers to advise the President to dissolve Parliament if the House fails to enact the two-thirds gender rule as ordered by the courts.

The two-thirds gender principle was among legislation Parliament was expected to enact within five years after the promulgation of the Constitution in 2010.

However, as the country marked the 10th anniversary of the Constitution last month, Senate has not enacted the principle while four attempts by the National Assembly have flopped.

“If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament,” reads Article 261(7) of the Constitution.

It is this provision that could prematurely end the five-year-term of the current Parliament with 23 months remaining to the date for the next parliamentary elections.

The CJ’s move shocked the political class but appeared to strictly follow provisions of the law, with Maraga acting on six petitions before him.

Maraga had petitions from the Law Society of Kenya, former Marakwet West MP David Sudi, Margaret Toili, Fredrick Mbugua, Bernard Aoko and Stephen Owoko.

The CJ argued that he was obligated under the law to act on the petitions as an enforcement mechanism after Parliament failed to enact the law.

“The Constitution donates no discretion to the Chief Justice on the appropriate action to take in the event of non-compliance by Parliament,” he said.

According to Maraga, the CJ’s role was limited to ascertaining if Parliament had satisfied its obligation to enact legislation in accordance with a court order issued in March 2017.

The High Court had ordered Parliament to come up with the gender balance law within 60 days and report the progress to the CJ. The House’s appeal was dismissed, provoking the six petitions.

Maraga argued that while Muturi and Senate Speaker Kenneth Lusaka raised preliminary objections to the petition, they did not file written submissions although they were asked to do so.

The Attorney General, who is the government’s legal adviser, did not file any responses to the six petitions either.

“The Chief Justice has no appellate jurisdiction over the High Court decision arising from such petition. Any party aggrieved by the High Court decision on the matter may appeal to the Court of Appeal and if appropriate and authorised, prefer a further appeal to the Supreme Court,” Maraga argues.

He rejected claims by the two speakers that the order was not transmitted to either House, saying they are testimony to Parliament’s lackadaisical attitude and conduct.

“On the material placed before me, it is incontestable that Parliament has not complied with the High Court order… as such for over nine years, Parliament has not enacted the legislation required to implement the two-thirds gender rule…,” Maraga said.

The CJ appeared to recognise the fact that the dissolution of Parliament would cause inconvenience and even economic hardship in the face of the coronavirus pandemic.

“That is the 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 without pain,” he said.

He said Kenyans understood the possible cultural resistance to the transformative ideas on gender equality that the Constitution provides.

“However, through the carefully designed enforcement mechanism of dissolution of Parliament under article 261(7) irrespective of its consequences, is clearly the radical remedy Kenyans desired to incentivise the political elite to adhere to and fully operationalise the transformation agenda they bequeathed to themselves in 2010,” Maraga said.

Law Society of Kenya President Nelson Havi, told the Star that the President has no option but to dissolve Parliament.

“If he does not, then Parliament would be in office unconstitutionally,” Havi said.

Ex-chair of the constitutional Committee of Experts Nzamba Kitonga said while the CJ’s step has far-reaching political ramifications, the law would have to be followed.

“’Shall’ in legal parlance means mandatory. The President is bound to dissolve Parliament,” Kitonga said.

According to Kitonga, the President would have at most 14 days to act on Maraga’s recommendations as guided by the Supreme Court when it pronounced itself on ‘reasonable time.”

National Assembly Majority leader Amos Kimunya termed Maraga’s move as malicious and an attempt to burn the house to chase rats away.

“How do you hold elections in a Covid-19 environment, a right-thinking CJ would have considered all these,’ Kimunya said.

National Assembly Minority leader John Mbadi said Maraga has no basis to have Parliament dissolved.

“This is totally a waste of time. It is unclear how the two-thirds gender rule was to be implemented. There was no timeline on this, it was fixed by the courts. The advisory is populist,” he told the Star.

Parliament’s Constitution Implementation Oversight Committee chair Jeremiah Kioni said the CJ was acting in bad faith

“Maraga has completely exposed himself, dissolving Parliament is a political decision,” Kioni said.