Kenya: Thirdway Parliament Dissolution Petition Referred to CJ for Bench Constitution

30 September 2020

Nairobi — High Court Judge Justice James Makau on Wednesday referred Thirdway Alliance Party's petition in support of Parliament dissolution to Chief Justice Maraga for the constitution of a bench to hear the matter.

Justice Makau directed the Deputy Registrar of the Constitutional and Human Rights Division to schedule the matter for mention on Wednesday, October 7, before a panel of judges to be appointed by the Chief Justice for issuance of directions on the hearing.

Thirdway Alliance Party had filed a petition at the Constitutional Division of the High Court seeking a court decree compelling President Uhuru Kenyatta to act on Chief Justice David Maraga's Parliament dissolution advice within 21 days.

The party, in an urgent petition filed by its chief counsel Elias Mutuma, argued that the advice render by CJ Maraga was mandatory and required to be enforced within a reasonable timeframe which could not exceed 21 days.

The party argued that in the absence of an express timeline provision in the Constitution (2010) within which the President would dissolve Parliament, a reasonable timeline would be presumed.

The petitioner also sought an interpretation on the kind of an election which would ensue following the dissolution of Parliament.

According to the petitioner, the dissolution of Parliament would only trigger a by-election to complete the five-year term of the twelfth Parliament and not a General Election for a fresh five-year term.

The petitioner also held the view that the dissolution would only affect the National Assembly and not the Senate, hence the Upper House will under the circumstance continue to discharge its functions.

Maraga wrote to the Head of State on September 21 rendering the said advice citing six petitions filed in pursuant to Article 261 (7) of the Constitution.

"It is incontestable that Parliament has not complied with the High Court order, As such, for over 9 year now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, it is clear testimony of Parliament's lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution."

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