10 petitions to disband parliament to be heard next month

At least 10 lawsuits seeking orders for the dissolution of the National Assembly have been lined up.

The cases to be heard on October 10, have been filed over failure to pass laws to implement the two-thirds gender rule.

The date was set Tuesday by a five-judge Bench, recently appointed by Chief Justice Martha Koome. The matter failed to proceed after several parties failed to appear for directions.

"Following the non-attendance of other parties we cannot give directions. The matter is stood over to October 30, 2024," the bench led by Justice Jairus Ngaah directed.

In the case, various parties, including the National Assembly and Senate, have sued the former Chief Justice David Maraga following his advisory to retired President Uhuru Kenyatta to send all MPs packing for failing to pass laws to implement the two-thirds gender rule.

The five High Court judges that could save or send the MPs packing are Judges Ngaah who is presiding the bench and Lawrence Mugambi.

Others are Patricia Nyaundi, Moses Otieno, and Tabitha Ouya Wanyama.

They are required to determine the issues raised which petitioners are urging the high court to dissolve the parliament for not enacting legislation to give effect to the principle in Article 81 (b).

They asked the court to dissolve parliament pursuant to Article 261 (7) as read with Articles 27 (3) and 100 of the constitution.

The new judge bench was constituted to hear and determine the petitions on a priority basis since the it has been pending in court since 2019.

This is after the first bench of judges led by Lydia  Achode, George Odunga, James Makau, Anthony Ndung’u, and Pauline Nyamweya failed to conclude the matter after some were elevated to the court of appeal.

On September 24, 2020, the then High Court judge Weldon Korir ordered the matter be referred to Chief Justice to empanel a bench after issuing an order suspending the implementation of Maraga's advice to the President to dissolve Parliament pending the hearing of the cases.

Former Chief Justice Maraga had on September 21, 2020, given an advisory to retired president Uhuru Kenyatta to dissolve parliament for failure to meet the principle of gender equality in representation.

Maraga, in the unprecedented move, said Parliament had refused to comply with the High Court order to enact legislation required to implement the two-thirds gender rule for over nine years.

But Maraga's advisory was challenged in the high court after 10 petitioners asked the court to stop implementation of the same.

Among the several petitions filed at the constitutional court challenging the decision by the head of the Judiciary are from the National Assembly, Senate, Attorney General, Third Alliance party, High court Lawyer Adrian Kamotho Njenga, and two citizens, Leinah Konchellah and Mohsen Munasar among others.

The petitioners want the court to stop the dissolution of Parliament in accordance with Maraga’s call until their petitions are heard and determined.

In a joint petition Senate and the National Assembly want the President to reject the advisory opinion dated September 21 to dissolve Parliament for contravening Article 131(2) as read together with Article 261(7) of the Constitution.

The MPs and Senators are seeking orders to quash Maraga’s advisory opinion advising the president to dissolve the Parliament for failure to come up with legislation to implement a two-thirds gender rule.

The legislators further want the high court to declare that the Orders and findings of then Justice John Mativo in Constitutional Petition No 371 of 2016, Centre for Rights and Awareness and 2 Others vs Speaker of National Assembly and six others, only binds the 11th Parliament.

Through lawyer Ahmednasir Abdullahi the National Assembly and Senate want the court to declare the CJ lacks jurisdiction under Articles 261(5), (6) and (7) of the Constitution to interfere with the law-making powers of the House.

They argue that Maraga's advisory letter has created a wave of anxiety and confusion on the future of the government of Kenya adding that if Parliament were to be dissolved, no current Bills generated by the executive from the State or through private member Bills can pass and or be enacted into law.

Ahmednasir argues that the remaining arms of government (the Executive & Judiciary) cannot be able to expand public monies drawn from the Consolidated Fund without the authority of Parliament as commanded by the constitution under Article 206 of the constitution.

Further, legislators argue that if Parliament is dissolved as per Maraga's advice, the country will be thrown into a constitutional crisis as the Independent Electoral and Boundaries Commission has no Commissioners under the Act and the national assembly will need to vet the candidates for the appointment to the commission.

"That the state of anarchy that would ensue would be unprecedented, as the other arms of government cannot operate constitutionally without funds and the Executive may operate without being held to account," says the petitioners.

On the other hand Third party alliance in their petition also seeks a determination on whether pursuant to the advisory opinion by the Maraga, Parliament is now unlawful and any business conducted by both National Assembly and Senate is null and void with or without the dissolution by the President.

The party argues that the constitution has not stipulated the timeline within which the president shall dissolve the National Assembly upon advisory of the Chief Justice.

Further, the third party says that there shall be no vacuum upon dissolution of the National Assembly since its powers and functions can be transferred to the Senate for the period within which the National Assembly remains dissolved.  

Lawyer Kamotho in his case claims that Article 261(6) of the constitution mandatorily requires the High Court to transmit an order directing Parliament and the Attorney General to take steps to ensure that the required legislation is enacted within the period specified in the order and to report the progress to the Chief Justice.  

He adds that Parliament was not a party to the proceedings to any of six petitions and appeals formerly filed in court fermenting the advice formulated by the Chief Justice to dissolve Parliament.

At the same time, the AG has accused the former Chief Justice of not considering the public interest when he issued the Advisory to the President.

The AG also says that if the president proceeds to dissolve parliament as advised by Maraga there will be a constitutional crisis that requires a referendum.

The state legal adviser further argues that there is no clarity as to whether or not such an election shall be a by-election or a general election.