President Uhuru Kenyatta was Tuesday faced with four options on the petition by Chief Justice David Maraga to dissolve Parliament over its failure to pass laws to activate the two-thirds gender rule for all elected and appointive positions.
With Parliament Tuesday announcing its plan to seek the High Court's interpretation of Justice Maraga's advisory note, which they described as "ill advised, premature and unconstitutional", Mr Kenyatta has the first option of buying time by letting the House fight for its life as he cites "an ongoing court process".
Alternatively, and secondly, legal experts told the Nation, the Head of State can join the court process by directing Attorney-General Kihara Kariuki to seek High Court interpretation of the import of Chief Justice Maraga's advice.
The court will explain what the petition means and answer questions on the constitutional crisis that will be precipitated by the dissolution of Parliament.
Seek stay order
"At this point, the President's option is to go to the High Court to seek a stay order of the Chief Justice's advice as they seek an interpretation of the advice," Senior Counsel Nzamba Kitonga said, adding: "In the absence of that, the President's hands are tied to dissolve Parliament as advised by the CJ, and as dictated by the Constitution."
Dr Wamuti Ndegwa, a law scholar at the University of Nairobi, said Mr Kenyatta can also exploit Article 216 (7) which does not bind him to a particular timeline within which to act, and Article 10 which requires public participation. Article 165 (3) (i) gives the High Court exclusive powers to determine all constitutional issues. According to Dr Ndegwa, in issuing the advisory, Justice Maraga did not act as a High Court but executed an administrative function bestowed on his office by the constitution.
"Mr Maraga did not issue the advisory acting as a High Court but as the Chief Justice of the Republic of Kenya. He was merely executing an administrative function hoisted on his office by virtue of being the head of judiciary," Dr Ndegwa said, adding that under the article, the CJ's role is that of transmitting the order to the President. The scholar said Article 261 (7) gives the President some latitude as it doesn't provide for a specific time frame.
While Law Society of Kenya (LSK) President Nelson Havi argues that the Head of State has 21 days to act on CJ Maraga's advice, picking from rulings in the past on the reasonable time clause in the constitution, Dr Ndegwa says that without an express provision on the period, there is just no telling what his decision will be, and when it will be taken.
"Reasonable time depends on the circumstances of each and every issue. It could boil down to political mood prevailing in the country, the Covid-19 pandemic etc," Dr Ndegwa said.
Article 10 on national values and principles of governance provides that State organs, state officers and public officers applying or interpreting the law are supposed to ensure public participation when executing such mandates. Dr Ndegwa argues that, when transmitting the advisory to the President, the CJ was executing administrative function that is subject to public participation.
Uasin Gishu Woman Rep Gladys Boss Shollei, who has advocated for the dissolution of Parliament over the gender rule in the past, Tuesday said the matter was as good as closed and Kenyans should prepare for a mini General Election.
"The law says that if Parliament shall not enact the law, any Kenyan can go to the High Court to seek an order compelling them to do so within 60 days. This case has been in court six times over the last 10 years. At this point, there is no room for anyone to go to court to challenge the advisory," Ms Shollei said yesterday.
Amani National Congress (ANC) leader Musalia Mudavadi asked the President to consult broadly for a workable solution.
"With no immediate timeline for the President to dissolve Parliament, it should accord him time, prudence and in the interest of public good; to allow for serious institutional consultations to avoid crashing the country," Mr Mudavadi said.
Rarieda MP Otiende Amollo, vice-chairman of the Justice and Legal Affairs Committee, argued that because there was no specific timeline on when the President should act, Parliament can take advantage of the ensuing window.
He said that, since all the elections are lumped together on the same day, dissolution of Parliament would also mean fresh polls for the other posts elected on the same day as MPs, including the President and governors.