Economy

MPs vow to fight Maraga dissolution advisory in High Court

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Chief Justice and President of the Supreme Court David Maraga. FILE PHOTO | NMG

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Summary

  • The Parliamentary Service Commission (PSC), which ensures smooth running of both the Senate and the National Assembly, claimed Tuesday that the Chief Justice jumped the gun by issuing the advisory despite two impending petitions before the High Court.
  • Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two thirds of public officers, whether elected or appointed.
  • Under the two-thirds gender rule, the dominant gender should only occupy 66.66 per cent of public offices. Currently, men dominate the National Assembly as only 59 out of 349 MPs are female.

The battle over Chief Justice David Maraga’s advisory recommending the dissolution of Parliament is set to move to the High Court after MPs announced they would challenge it.

Justice Maraga on Monday wrote to President Uhuru Kenyatta advising him to send the legislators home for non-compliance with a Supreme Court decision requiring Parliament to pass legislation enabling the implementation of the two-thirds gender rule in elective and appointive public offices.

The Parliamentary Service Commission (PSC), which ensures smooth running of both the Senate and the National Assembly, claimed Tuesday that the Chief Justice jumped the gun by issuing the advisory despite two impending petitions before the High Court.

The two petitions, set for hearing on October 7, 2020, have asked the court to determine, among other issues, whether an order on the two-thirds representation rule made by Justice Mativo on March 29, 2017 during the tenure of 11th Parliament was applicable to the 12th Parliament which was elected in August 2017.

"It is therefore premature for the Chief Justice to take this action while the High Court is yet to determine this matter," National Assembly Speaker Justin Muturi, also the PSC chairman, a said at Parliament buildings.

"We are not fighting the Judiciary but the two petitions in court is important. The term of both Houses of Parliament expires at election of another Parliament. Are order of March 29, 2017 applicable to the current Parliament? This is why we need an interpretation from the court."

When issuing the advisory on Monday, Justice Maraga cited Article 261 (1) and the Fifth Schedule of the Constitution, which provides that the enactment of the two-thirds gender principle was among the things Parliament was to do within five years after the promulgation of the Constitution in 2010. This has not happened 10 years later.

"There is no doubt the dissolution of Parliament will cause inconvenience and even economic hardship. The fact that Kenya is in the midst of the coronavirus pandemic only exacerbates the potential impact of the decision. Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary. We must never forget that more often than not, there is no gain without pain," Justice Maraga said in his advisory to the President.

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National Assembly Speaker Justin Muturi addressing the media at parliament buildings. NMG PHOTO

"Consequently, it is my constitutional duty to advise Your Excellence to dissolve Parliament under Article 261(7) of the constitution," he said.

The advisory followed six petitions by the Law Society of Kenya(LSK), former Marakwet West MP David Sudi and Law Society of Kenya (LSK) Ms Margaret Toili, Mr Fredrick Mbugua, Mr Bernhard Aoko and Mr Stephen Owoko, urging him to advise the Head of State to dissolve Parliament for failing to pass the affirmative action legislation in accordance with the Constitution.

Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two thirds of public officers, whether elected or appointed.

Under the two-thirds gender rule, the dominant gender should only occupy 66.66 per cent of public offices. Currently, men dominate the National Assembly as only 59 out of 349 MPs are female.