Attorney-General Kihara Kariuki is in the eye of a storm after suggesting dissolving parliament would alter President Uhuru Kenyatta's term of office by handing him a fresh mandate.
Chief Justice David Maraga wrote to President Kenyatta urging him to dissolve parliament and consequently send MPs home after they failed to pass a law on two-thirds gender rule.
On Wednesday, Mr Kariuki, in his court papers in a suit he is challenging Maraga's landmark decision, said the MPs' term is tied, by law, to that of the president. This, he said, means that MPs who will be re-elected after the possible dissolution of parliament would get the fresh mandate of five years, and so will President Kenyatta.
And yesterday, lawyers weighed in on the matter that has attracted great public interest, since the president, through the stroke of a pen, could easily send Members of Parliament packing and trigger an election.
Former presidential adviser on constitutional affairs Abdikadir Mohammed accused the AG of playing politics with the matter yet he is expected to give flawless advice to the president.
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“Even a first-year law student knows what the AG has said is not in the law. The AG is playing politics when we expect him to give the correct legal advice to the president. When the Supreme Court nullified the presidential election, was the term of members of the national assembly and the senators affected? It is a very cheap argument by the AG,” said Mr Abdikadir.
Former member of the Committee of Experts on constitutional review Atsango Chesoni termed the AG's position 'a legal absurdity' that does not serve any public interest.
The lawyer argued that it makes no sense to link Justice Maraga's advisory to the term of the president yet the Executive is exercising its oversight mandate over another arm of government.
“Parliament and the presidency were separated under the new Constitution. The article the CJ relied on to give his advisory is part of the system of checks and balances in the Constitution. The president also exercised his oversight mandate," Ms Chesoni said.
She added: "If what the AG is saying is true, then the dissolution should also affect the term of governors and Members of County Assemblies. Those in leadership have a tendency to find grey areas in the Constitution even when there are none for their own interests."
Lawyer Tom Ojienda said the AG's position is not supported in law.
“The president serves under a mandate of five years given to him by the people. The Constitution does not contemplate the position being advanced by the AG. His argument is not supported by the Constitution,” said Mr Ojienda, who however noted that the CJ's advisory brings confusion in the process.
"Article 261 did not contemplate non-compliance by parliament in passing the law on two-thirds gender rule. Dissolving parliament would therefore confuse the constitutional architecture in terms of preparations for such an election," he said.
Lawyer Ndegwa Njiru accused the AG of 'misleading' the country. “The president is not affected by the consequences that will arise out of the failure by parliament to enact the necessary legislation on the two-thirds gender principle because the obligation to dissolve parliament falls on the presidency. He would have been affected in a parliamentary system where he is also a member of parliament. The AG is therefore wrong. He is deliberately misleading the nation to save an assembly that has failed the country."
He added: “The AG is applying the rule of interpretation of harmonization which is not correct. Article 261 is a special article that stands on its own…if the president is going to dissolve parliament, what will ensue there is an election to fill the office of parliament.”
Lawyer Kibe Mungai argued that the whole debate on dissolving parliament is based on ignorance of the law.
“The views of the AG, the Chief Justice and all those advancing arguments of dissolving parliament are misinterpreting the law," Mungai said.
“In 2010, the concept of dissolution had a meaning based on the former constitution. From 2013 when Kibaki left office, however, this concept ceased to exist. In came a new parliament that could not be dissolved by the Executive. The AG's position and all those talking about dissolution are arguing from a point of ignorance. It is a big shame that people are arguing over a simple issue," said Mr Mungai.
The AG in his application is seeking to have the advisory declared unconstitutional and incapable of being implemented.
“If parliament commences a fresh term that falls out of the constitutional date for a General Election, the same will have the effect of altering the term of office of the president as, ordinarily, a presidential election may be held only on the same date as the general election for MPs," the AG argued.
“Such a term may run out of the constitutional date for the conduct of the General Election of MPs which is held on the second Tuesday of August in every fifth year.”
He accused the CJ of reaching a decision that would be harmful to the country, adding that the Constitution is unclear on whether there should be a by-election or general election if parliament is dissolved.
MPs have also expressed fury over Maraga's advice. CJ's position was also supported by various groups, including women leaders.
Those opposed to the CJ's position say the president should ignore it because it is a mere advisory or recommendation, not a court order.
They argue that President Kenyatta, in his capacity as head of State and Government, must therefore determine whether abiding by Maraga's advisory will protect Kenya’s constitutional order, public interest and the best interests of the country.