The 12th Parliament is faced with uncertain times after Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve the August House for failing to enact the 2/3rd gender rule.
In a letter to the President, Maraga says legislators have failed to enact the legislation required to implement the two-thirds gender rule.
“For over 9 years now, Parliament has not enacted the legislation required to pass the two-thirds gender rule which, as the Court of Appeal in its judgement, is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it’s my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261(7) of the constitution.” Maraga states.
The Article states, “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.”
The CJ says he is in possession of 6 petitions from Kenyans as well as from the Law Society of Kenya which he has consolidated, urging him to advise the President to dissolve Parliament.
The petitions are based on the grounds that despite four court orders, compelling Parliament to enact the legislation required to implement the two-third gender rule, MPs have failed to honour the directions of the courts.
Maraga says besides the Supreme Court’s advisory opinion no. 2 of 2012, the High Court order issued on issued on 26th June 2016, Justice John Mativo made an order in the constitutional petition no. 371 of 2016 directing Parliament and the Attorney General to take steps to ensure that the required legislation is enacted within 60 days, and to report to the Chief Justice on the same.
An appeal against the decision was dismissed by the Court of Appeal in April 2019.
Maraga says his role in the matter is not to conduct an inquiry but to ascertain if Parliament has satisfied its obligation in view of the existence of a valid Court order, and to ascertain whether or not the Court order has been complied with.
The CJ has also dismissed as baseless a contention by the Speaker of the National Assembly Justin Muturi and his Senate counterpart Ken Lusaka that the orders were not transmitted to Parliament. Maraga says the orders were made in the presence of lawyers representing Parliament and the six petitioners and transmitted to the Chief Justice.
He further says the argument that the orders were directed to the 11th Parliament lacks basis saying the obligation under Article 261(5) to enact requisite legislation was directed at Parliament as an institution.
The Speakers have contested the dissolution saying it would trigger a constitutional crisis but Maraga argues that the institution must be held accountable.
He says there is no doubt that dissolution of Parliament will cause inconvenience and economic hardship but the petitioners are within their rights in pointing out Parliament’s failures.
“In the circumstances, let’s endure pain, if we must, if only to remind ourselves as a Country, that choices, and especially choices on constitutional obligations, have consequences.” He said.
“Let’s endure pain, if only to remind ourselves that as a Country, being a democracy that has chosen to be governed by the rule of Law, we must say no to impunity and hold everyone accountable for their actions or omissions,” The Chief Justices concluded.