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Case challenging Maraga advisory moved to May 2

By Christopher Owuor
Tuesday, April 20th, 2021
Outgoing Chief Justice David Maraga in his office. Photo/PD/SAMUEL KARIUKI
In summary
    • On September 21, 2020, the Chief Justice wrote to the President advising him to dissolve Parliament for failing to implement the two-thirds gender rule.
    • On September 24, 2020, Justice Weldon Korir suspended the implementation of Maraga advisory to the President.

A case challenging former Chief Justice David Maraga’s advisory to the President to dissolve Parliament will be heard on May 2.

A five-judge bench led by Justice Lydia Achode issued the directive after Maraga, acting Deputy Chief Justice Philomena Mwilu and Attorney General Kihara Kariuki sought more time to file their responses in the matter.

The former Chief Justice, who has been named as a respondent, sought to have the case adjourned saying he was yet to file pleadings and sought seven days to do so.

“We are not interested in delaying this matter. We are just seeking more time to put our position before the court,” said Maraga’s lawyer George Ouma.

But the National Gender Commission, through lawyer Martha Karua, protested the decision to have the case adjourned wondering why Maraga, Mwilu and Kariuki had failed to file their responses since November 23, 2020.

Two-thirds rule

“This matter was filed under a certificate of urgency and it is now six months on,” said Karua.

The five-judge bench is expected to consolidate several issues raised in over eight petitions challenging the advisory.

Among the petitioners are the National Assembly and the Senate, Thirdway Alliance, Lawyer Adrian Kamotho and Leina Konchellah.

On September 24, 2020, Justice Weldon Korir suspended the implementation of Maraga’s advice to the President pending the hearing of the cases.

On September 21, 2020, Maraga wrote to President Uhuru Kenyatta advising him to dissolve Parliament over its inability to implement the two-thirds gender rule of the Constitution.

Maraga (pictured) said Parliament had refused to comply with the High Court order to enact legislation required to implement the two-thirds gender rule.

The petitioners want the court to stop the dissolution of Parliament until their petitions are heard and determined.

In a joint petition, the Senate and the National Assembly want Uhuru to reject the advisory to dissolve Parliament for contravening Article 131(2) as read together with Article 261(7) of the Constitution.

Through lawyer Ahmednasir Abdulahi, the National Assembly and Senate want the court to declare that the Chief Justice lacks jurisdiction under Article 261(5), (6) and (7) of the Constitution to interfere with the law-making powers of the House.

Further, the lawmakers argue that if Parliament is dissolved, the country cannot conduct elections as the Independent Electoral and Boundaries Commission has only three Commissioners against the quorum of five prescribed under the Act and the National Assembly will need to vet the candidates for appointment to the commission.