Panafrican News Agency

Kenyan Chief Justice's advisory to dissolve Parliament makes headlines

Nairobi, Kenya (PANA) - The decision to mandate the President to dissolve Parliament over failure to pass a law on the implementation of the constitutional requirement of the two-thirds gender has dominated the news headlines this week.

Chief Justice and President of the Supreme Court David Maraga, fresh on his 1 September 2017 ruling which knocked out President Uhuru Kenyatta's re-election, decided that Parliament should dissolve for failing to act.

The 2010 Kenyan constitution, which marked its first decade last month, has been impossible to amend, but it set a strict rule that if Parliament failed to act on a set of freedom laws, it should dissolve.

The two-thirds gender rule requires that no single gender should have more than two-thirds of all positions and appointments in the government positions.

In 2018, Parliament failed to get the required quorum to facilitate the passing of the Constitution of Kenya amendment Bill 2018, known simply as the Gender Bill.

After more than three failed attempts, including one in 2012, when Parliament again failed to pass the law, the Courts issued an order that the Supreme Court President should be petitioned  to dissolve Parliament.

The relevant constitutional section stipulates that if the Supreme Court President advises the President to dissolve Parliament, it shall dissolve the House.

The law requires that 67% of the Members of Parliament should be male but the House currently has about 78% male and 22% female members of Parliament.

As an option to avoid failing to act, Parliament approved the election of 47 members of Parliament, copying the Ugandan model of women representatives.

However, the 47 female members or Women Representatives, are already courting controversy, since some men have already gone to court, saying the 47 seats does not necessarily belong to women representatives alone.

"The advisory by the Chief Justice to the President to dissolve the Houses of Parliament has placed the country and the people of Kenya in a precarious constitutional and political situation that will require careful deliberation before any action is taken," opposition leader Raila Odinga said in a statement.

Odinga said the advisory had numerous ramifications to the country. Odinga said dissolving one of the arms of Government if not mitigated sufficiently could have adverse consequences in the life of the nation and its people.

"While we all have different opinions on the desirability or even wisdom of the action proposed,  we have all been ushered into circumstances that require a consensus on the way forward," said Odinga, seemingly guarded in his statement.

The national newspapers dwelt on the fallout even as lawyers fail to agree on the meaning of the word "shall" which means the President has an obligation to act.

"The country has been thrown into this situation because of failure by Parliament to enact the two-third gender rule as provided for in the Constitution. However, it remains unclear how the dissolution of Parliament would resolve the problem," Odinga said.

The Executive arm through the Attorney-General, Paul Kihara, has not issued a statement.

However, the Speaker of Parliament, Justin Muturi, has moved to Court, through the Parliamentary Service Commission, to challenge the advisory.

Odinga said in circumstances where institutions have failed as is the case with Parliament currently, the Constitution gives power to citizens to act directly and not through their elected representatives to have their aspirations realized.

The Chief Justice said in his advisory that all the issues, including causing a constitutional limbo, were baseless.

He said Parliament had failed to act for a good nine years, always failing to act on the legislation to require all state agencies to reflect the gender principle.

The other laws to have been required for legislation also included the law on the media freedom and the police law, which Parliament was required to pass to avoid dissolution.

-0- PANA AO/MA 26Sept2020