Kenya: Lawmakers Fault CJ Maraga, Turn to High Court

28 September 2020

Parliament wants the High Court to halt its dissolution, arguing that Chief Justice David Maraga lacks authority to interfere with the law-making powers of the legislature.

The two chambers of the House further argue that Mr Maraga's advisory is an infringement of Article 1 on the sovereign power of the people exercised through the legislative arm of the government, adding that the CJ cannot unilaterally dissolve one arm of government without public participation.

These details are contained in a petition that Parliament is expected to file in the High Court on Monday morning as it fights dissolution over lawmakers' failure to enact laws related to gender rule.

In the petition, Parliament will be seeking orders to quash Justice Maraga's advisory on the account that it abrogates the political rights enshrined under Article 38 (2) (a) of the Constitution.

"The advisory is an affront to the democratic right and free-will that MPs exercise on behalf of their constituents. Parliament is endowed with certain powers, privileges and immunities in the exercise of its constitutional mandate," reads excerpts from the petition, which the Nation has seen.

Last Monday, the CJ issued an advisory recommending to President Kenyatta to dissolve the 12th Parliament, accusing MPs of having failed to enact legislation on the two-thirds gender rule.

Form of impunity

The president of the Supreme Court described the failure as a form of impunity that can only be cured by sending the MPs home.

But in the petition, Parliament dismissed the CJ's claims, saying it is unheard of to anticipate the outcome of a bill or compel members to vote in a certain way due to the fear of having the Houses dissolved.

"It is unyielding for the Chief Justice to suggest that the outcome of the debate and voting process on the bills should be predetermined instead of being a fair and independent representation of the democratic free-will," National Assembly Speaker Justin Muturi says in a supporting affidavit.

The Speaker says the CJ's advisory is a grave error.

The petition argues that Parliamentary lifespan under articles 101 and 102 is for a term of five years, and the term of 12th Parliament commenced in August 2017 and expires on August 2022.

Parliament further wants the court to declare that orders and findings of Justice John Mativo, which in 2017 found Parliament to have violated the Constitution and issued a 60-day ultimatum to enact the gender laws, only binds the 11th Parliament.

In the petition, the CJ is listed as the first respondent while the Attorney-General is the second.

Key issues

The constitutional issues that Parliament wants the court to determine include whether constitutional principles under the gender rule can be achieved without affecting the basic structure of the Constitution protected under article 255(1)(c) on sovereignty of the people.

Another is on whether the gender rule can be achieved without offending the ceilings of representation set out at Articles 97 and 98 of the Constitution.

Yet another issue is whether the Chief Justice misconstrued his role in transmittal of the advisory and ignored his dual functions as a judicial or an administrative function, and whether the advisory is justiciable and reviewable by the High Court under article 165(3) .

Parliament wants the court issue orders prohibiting the President from enforcing the advisory and declare that the gender rule cannot be achieved through legislation, without necessarily amending the Constitution to remove the ceiling set out under article 97 and 98.

MPs also want the court to declare that the gender rule can only be attained by way of an amendment to Articles 97 and 98 through a referendum.

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