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Reprieve for MPs as court suspends Maraga advisory

By Nancy Gitonga
Friday, September 25th, 2020
High Court judge Weldon Korir.
In summary
    • Korir directed the matter to be heard by an uneven number of judges, not less than three, appointed by the Chief Justice as the matter raises weighty constitutional issues.
    • The High Court pronounced itself on the controversial advisory moments after the Law Society of Kenya issued a statement demanding that all the country’s 416 MPs vacate office.

Members of Parliament (MPs) got a major reprieve yesterday after the High Court suspended Chief Justice David Maraga’s advisory to President Uhuru Kenyatta to dissolve the current composition of the Legislature over the two thirds gender rule.  

High Court judge Weldon Korir temporarily suspended the advisory pending the hearing and determination of a petition filed by two citizens, Leina Konchellah and Mohsen Abdul Munasar.   

“I, therefore, find that the petitioners’ Notice of Motion merited and l allow it so that a conservatory order is issued for the preservation of the status quo on the advice by the Chief Justice to the President pending inter-parties hearing of the petitioners’ application,” ordered Justice Korir.

The judge warned that Maraga’s advisory, if acted upon by the President, could trigger events that may not be able to be reversed, hence his order to suspend it.

“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 may follow,” the judge observed.  

 The suspension came four days after the Maraga wrote to President Kenyatta, asking him to dissolve both Houses of Parliament for failing to enact legislation on the two-thirds gender rule as demanded by the Constitution.

It also came a day after Attorney- General Kihara Kariuki indicated he would move to court to challenge Maraga’s advisory. Yesterday, Korir directed the matter to be heard by an uneven number of judges, not less than three, appointed by the Chief Justice as the matter raises weighty constitutional issues.

“I direct the Deputy Registrar of the High Court’s Constitutional and Human Rights Division to forthwith and without delay transmit this file to the Chief Justice for purposes of constituting a panel of judges to hear the petition,” ordered Korir.

The High Court pronounced itself on the controversial advisory moments after the Law Society of Kenya issued a statement demanding that all the country’s 416 MPs vacate office by October 12, failing which lawyers would occupy both Houses to block lawmakers from discharging their mandate.

President’s term

LSK President Nelson Havi maintained that following the advisory to the President Parliament’s term will end on October 12, 2020, and any other business after that will be in contravention of the Constitution.

“Any legislative authority exercised by Parliament after the expiry date will be without the authority of Kenyans,” Havi said.

“Following the advice by the CJ, the President is duty bound to dissolve Parliament.”

Making the orders setting aside the advisory, Justice Korir directed that the CJ will have to appoint a panel even though he is the first respondent in the matter.  

He directed the petitioners to serve their pleadings upon the CJ, Parliament, Attorney General and the Speakers of the Senate and the National Assembly before close of business on September 28. 

 The orders came after Konchellah and Munasar sought temporary orders suspending Maraga’s advice to Uhuru to dissolve Parliament, arguing that implementation of the advisory would lead to “unreasonable and absurd constitutional outcomes”.

Justice Korir said it was important to note that it was in the public interest not to subject the country to parliamentary elections before exhaustively interrogating the constitutionality of the CJ’s action.  

He said that Maraga’s advisory purported to treat the two thirds gender rule as a matter for implementation of the Constitution through legislation.  

The petitioners argue “that should the President dissolve Parliament as advised by the CJ then realisation of the two thirds gender rule will be in jeopardy because the new Parliament would have five years beginning from the date of commencement of its term to enact legislation to achieve the objective”. 

Two-thirds gender rule

The stated that the two thirds gender rule is not about women only and construing the Constitution as requiring creation of more seats in Parliament for women is discriminatory, absurd and a violation of the principles of the Constitution.

“The advisory of the CJ, if implemented, would create a constitutional and political crisis that would result in a collapse of constitutional mechanisms thus crippling  the governance of the country since to hold new elections the IEBC would need to be financed by money to be provided by Parliament,” argue the petitioners.

Nairobi lawyer Adrian Kamotho filed a similar petition, arguing that Justice Maraga had acted without powers in his advisory.

In his application under a certificate of urgency, Kamotho wants the advisory quashed on grounds that the Chief Justice irregularly and unlawfully advised the President to dissolve Parliament, adding that the advice is profoundly tainted with illegal, irrational and procedural impropriety. 

He also argues that the advice is contrary to straightforward provisions of Article 261(6) of the Constitution, which specifically outline procedures and steps prior to dissolution of Parliament.  

  Kamotho says that Article 261(6) of the Constitution mandatorily requires the High Court to transmit an order directing Parliament and the Attorney General to take steps to ensure required legislation is enacted within the period specified in the order and to report the progress to the CJ. 

He adds that Parliament is not a party to the proceedings to any of six petitions and appeals formerly filed in court fermenting the advice formulated by the CJ to dissolve Parliament.

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