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Case challenging Chief Justice advisory set for November 23

By Nancy Gitonga
Thursday, October 22nd, 2020
National Assembly Speaker Justin Muturi, Senate Speaker Ken Lusaka and Chief Justice David Maraga at a past function. Photo/PD/File
In summary

A five-judge Bench constituted to hear the case challenging Chief Justice David Maraga’s advisory to disband Parliament will start its sitting on November 23.

When the matter came up for mention yesterday, Justice James Makau told the litigants that he and his colleagues; Lydia Achode, George Odunga, Anthony Ndungu and Pauline Nyamweya, had settled on the date and directed any other party seeking to be enjoined in the case to file their applications before then.

CJ Maraga, who has been named as respondent, has appointed city lawyer James Oduor to defend him in all eight matters challenging his advisory to President Uhuru Kenyatta to dissolve Parliament for failing to enact the two-thirds gender rule.

Lawyer Oduor, through Marysheila Onyango Oduor, sought 14 days to file his comprehensive responses.

The bench, led by Justice Achode, is expected to hear several applications including whether to consolidate the cases that touch on the same issue or not.

The bench is also expected to hear an application by the National Assembly, Senate, lawyer Adrian Kamotho and two citizens challenging its constitutionality on grounds that the Deputy CJ has no powers to constitute it.

Appearing before Justice Makau, senior lawyer Ahmednassir Abdullahi told the court he has also filed an application challenging the bench, saying the current one is unconstitutional.  He wants a new bench constituted. 

“I direct the application dated October 16 by the National Assembly and Senate challenging the constitutionality of the bench to be served to all parties within two working days.

I also direct the Deputy Registrar of the High Court to extract the order for constitution of the five-judge bench and be served to all parties.

The parties to file their response in the application within seven days,” ruled Justice Makau.

The petitioners want the court to stop the dissolution of Parliament as advised by Maraga.

Court’s protection

Meanwhile, two women’s lobby groups have gone to court seeking a declaration that Parliament as currently constituted is unconstitutional and cannot, therefore, seek the court’s protection.

 In the petition, the two organisations are questioning whether Parliament can move to court and challenge the legality of the actions of a different constitutional office.

Justice Makau certified as urgent the case by the Centre for Rights Education and Awareness (CREAW) and Community Advocacy and Awareness Trust (CRAWN Trust).

Further, the organisations want the court to declare that the President must dissolve Parliament within 21 days, after receiving the advisory opinion from the Chief Justice.

The two lobby groups moved to court questioning the legality of Parliament, as currently constituted, to challenge Justice Maraga’s advisory. 

They said by the time the Chief Justice issued the advisory, Parliament was illegally constituted.

“A declaration that because of its unconstitutionality and illegality, the 12th Parliament has no legal authority to exercise powers provided for in the Constitution and may not seek protection of this court under Articles 22, 165(3) or 258 of the Constitution,” reads the petition by lawyer Lempaa Suyianka. The case will be mentioned on November 4 for directions.