Kenya: High Court Puts Brakes on Maraga's Advisory to Dissolve Parliament

Chief Justice David Maraga (file photo).
24 September 2020

The High Court has suspended the implementation of Chief Justice David Maraga's advisory to President Uhuru Kenyatta to dissolve Parliament.

Justice Weldon Korir Thursday ordered for the preservation of the status quo pending the hearing and determination of a petition filed by two Kenyans from Nairobi and Mombasa challenging the advisory.

He said the petitioners, Mr Leina Konchellah from Nairobi and Mr Mohsen Abdul Munasah (Mombasa), have an arguable case in their quest to have Justice Maraga's advice quashed.

Upon perusal of the grounds of the petition, the judge noted that the case requires the court to interpret and harmonise Article 261 and the constitutional provision that establishes the term of Parliament.

He further said the CJ's advisory was expected to trigger action by the President without any further steps being taken.

"The President is not bound by timelines and he can even act on the advice of the Chief Justice today. Once the President acts, irreversible events follow which will render the petition moot. It is therefore clear that failure to issue orders will prejudice the petitioners," said Justice Korir.

Interrogate constitutionality of advice

According to the judge, it is in the public interest not to subject the country to parliamentary elections before exhaustively interrogating the constitutionality of the decision by the Chief Justice.

He also observed that since the petition has raised substantial questions of law, it should be heard by an uneven number of judges, being not less than three.

As such, he directed the Deputy Registrar of the Constitutional and Human Rights Division to, without delay, transmit the case file to the Chief Justice for purposes of constituting a panel of judges to hear the matter.

The judge also directed the petitioners to furnish respondents with court documents by close of business on Monday September 28, 2020 so that they can file their responses and prepare for the hearing.

The respondents are the Chief Justice and the Attorney-General while the Speakers of the National Assembly and Senate are interested parties.

The case will be mentioned on October 7, 2020 for further directions.

The petitioners, through lawyer Muturi Mwangi, challenged Justice Maraga's advisory on grounds that it was not judicial and that his action was beyond his authority.

While urging the court to suspend the advisory, lawyer Mwangi said the CJ's decision has caused significant public anxiety and its implementation is likely to have far reaching negative consequences to the country's governance and the operations of government.

The lawyer added that Mr Maraga's interpretation of Article 261 (7) (on advice to President to dissolve Parliament) would lead to 'unreasonable and absurd' constitutional outcomes as well as cause hardship to Kenyans.

Another petition

At the same time, Justice John Mativo certified as urgent another petition that was lodged by city lawyer Kamotho Njenga challenging Justice Maraga's decision.

In the case, Mr Njenga said unless the court intervenes and suspends the advisory, the President will inevitably proceed to implement it, thereby thrusting the country into a constitutional conundrum.

While accusing the Chief Justice of making an irregular and unlawful advice to the President, the lawyer said Parliament was not a party to any of the six court cases that led to the issuance of the advisory.

"The Chief Justice has admitted in his advice to the President that the High Court has never transmitted an order on the subject matter in question to Parliament as constitutionally required," said Mr Njenga.

He further argued that the advisory is procedurally flawed and unsustainable because Justice Maraga was overwhelmingly swayed by the six petitions.

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