The High Court has suspended a recommendation by Chief Justice David Maraga to dissolve Parliament.
Members of Parliament can now breathe a sigh of relief after Justice Weldon Korir ruled yesterday that it will be unfair to subject the country to an election without interrogating the legality of the recommendation.
“It is important to observe that it is in the public interest not to subject the country to parliamentary elections before exhaustively interrogating the constitutionality of CJ’s decision. Public interest, therefore, supports the issuance of an order suspending any decision to dissolve Parliament,” ruled Korir.
According to the judge, the Constitution does not provide a timeline for which the president can act on Justice Maraga’s advice.
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He said if the CJ’s action was not suspended, the president could take action which would be irreversible as the country will be plunged into another election cycle.
He ruled that the petition by two activists – Leina Konchellah and Mohsen Abdul – had raised weighty constitutional issues and directed that the file be sent to the CJ to appoint a bench of three judges to hear and determine it.
“I am satisfied that the petitioners will suffer irreversible prejudice, which means the implementation of the CJ’s advice to the president to dissolve Parliament stands suspended pending the hearing and determination of the application by a bench of not less than three judges,” ruled Korir.
He directed the activists to immediately serve the CJ, the Attorney General, Speaker of National Assembly and the Senate Speaker with the petition before the hearing on October 7.
Acted like a court
Justice Korir also directed the activists to serve and enjoin the Law Society of Kenya and six other individuals who had petitioned the CJ to dissolve Parliament for failing to enact the two-thirds gender rule.
Konchellah and Abdul, in their petition, argued that Justice Maraga illegally acted like a court and issued what reads like a court order when he has no such powers.
“It is clear from the wording of his advisory to the president that he was influenced by outside forces to make the decision. The CJ is therefore guilty of gross misconduct as he failed to act independently and in accordance with the Constitution,” they said through lawyer Muturi Mwangi.
According to the activists, Parliament as currently constituted is constitutional and there is nothing that should warrant its dissolution.
They argued that the two-thirds gender rule was not only about women since any move to create more positions for them will be discriminatory against other gender and special groups.
“Dissolving Parliament would do more harm to the two-thirds gender representation objective since there will be no guarantee that the fresh elections will have more women elected. It is likely to result in worse gender representation, which will lead to more crisis,” said the activists.
They added that dissolving Parliament would do more harm than good to the country, including crippling the economy and provision of essential services that require Parliament’s approval.
They were joined by lawyer Adrian Kamotho who filed a separate suit challenging the CJ’s recommendation on account that it was illegal, unconstitutional and will plunge the country into anarchy if implemented.
Kamotho submitted that dissolving Parliament was not as simple as the CJ thinks given the mandate the august House plays in the country’s governance, adding he should have accorded the 416 legislators a fair hearing before reaching the drastic action.
“The CJ’s advice to the president is tainted with illegality, irrationality and impropriety. Justice Maraga overreacted in his decision without according key stakeholders a chance to table their opinions regarding the two-thirds gender rule,” said Kamotho.
According to Kamotho, it will be practically impossible to have an election should the president heed Justice Maraga’s recommendations given the prevailing situation in the country.
He submitted that the Independent Electoral and Boundaries Commission, as currently constituted with less than four commissioners, had no capacity to carry a countrywide election and that the persistent Covid-19 will make it impossible to conduct the elections.