NAIROBI, Kenya, Sep 23 – Chief Justice David Maraga on Monday asked President Uhuru Kenyatta to dissolve Parliament over the continued violation of the two thirds gender representation rule.
MPs want Maraga to take leave to pave the way for his succession, said he has gone astray and become an activist.
Many women leaders support CJ, saying it was time gender justice was respected and the two-thirds gender rule passed.
Maraga said Parliament’s failure to enact a law to operationalize the constitutional provision amount to an act of impunity.
In his advice, Maraga said he is acting following six petitions filed in pursuant to Article 261 (7) of the Constitution.
“It is incontestable that Parliament has not complied with the High Court order, As such, for over 9 year now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, it is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution.”
The Chief Justice said he was in receipt of five petitions asking him to render the advice on dissolution of Parliament.
“There is no doubt that the dissolution of Parliament will cause inconvenience and even economic hardship. The fact that Kenya is in the midst of the Coronavirus pandemic only exacerbated the potential impact of the decision. Yet that is a 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 with pain,” said the Chief Justice.
He said the petitions received between April 2019 and July 2020 had been consolidated into one.
The petitions are based on the failure by lawmakers to comply with four court orders compelling Parliament to enact the legislation despite a Supreme Court order issue in 2015.
The CJ said the Parliament has blatantly failed, refused or neglected to pass crucial law since August 2010 when the Constitution was promulgated.
Maraga said upon receiving the two petitions from Margret Toili and Fredrick Gichanga Mbugua’s on 26th June 2019, he wrote to both the Speakers of the National Assembly and the Senate who recounted the efforts Parliament has unsuccessfully made to comply with its obligation under Article 216 and the said Court Orders.
“They said they had at the time two other Bills- the Representation of Special Interest Groups Laws(Amendment) Bill 2019 and the Constitution of Kenya (Amendment) Bill 2019 – pending before Parliament and requested for time to enact them. They did not revert to me on the matter,” he said.
The Chief Justice further noted that Speaker of the National Assembly Justin Muturi and Senate Speaker Kenneth Lusaka had also filed preliminary objections to his summons following the receipt of the petitions.
The Attorney General did not file any response to the petitions.
“The Speakers contend that the six petitons are incompetent and bad in law for the reason that no court order was “transmitted” to either the Chief Justice or to Parliament as required by Article 261(6)(b) of the Constitution,” the CJ’s advisory read.
The House Speakers argued that Articles 97 and 98 have set a ceiling on the composition of the two Houses of Parliament, it is impossible to enact legislation to give effect to the two-thirds gender rule without violating the citizens political rights to vote for candidates of their own choice and/or vie for any elective position in any public body or office.
Muturi and Lusaka further stated that there is a budget to stage a by-election that will ensure the dissolution of Parliament.
“Given the crisis imposed upon the country by the Coronavirus pandemic, it will be against public interest if the Chief Justice’s advises the President to dissolve Parliament; and that the Chief Justice’s advice to the President will trigger a constitutional crisis as Parliament’s legislative, oversight, vetting of State Officers and other roles like passing of the budget roles will stall,” the House Speakers stated in a joint response.
MPs have turned the heat on Chief Justice David Maraga following his advisory to President Uhuru Kenyatta to dissolve Parliament for failing to pass the Gender Bill.
However, a section of female leaders defended the CJ.
The lawmakers publicly bashed the president of the Supreme Court and asked him to retire as the Parliamentary Service Commission announced it would move to court to challenge Maraga's call for the dissolution of Parliament.
On Monday 21, September, Senate minority Hon. James Orengo tweeted a meesage that seemed to agree with the president of the Supremem Court CJ David maraga.
In response His Eminent majesty Don Santo tweeted,
Hon. Abdikadir Mohamed tweedted
PSC chair Justin Muturi, who is also the Speaker of the National Assembly, termed the advisory over failure of Parliament to effect the two-thirds gender rule “ill-advised, premature and unconstitutional.
"The commission regrets that the Chief Justice appears to be willing, even eager, to plunge the country into a constitutional crisis without exercising the wisdom and circumspection that is expected of the high office he holds," he said.
On the floor of Parliament, MPs said they are going nowhere as the gender imbalance is also prevalent in the Executive and the Judiciary, right to the Supreme Court where Maraga presides.
Ironically, even Raila’s team that widely celebrated Maraga when he nullified Uhuru’s 2017 presidential election, accused the CJ of turning into an activist.
In 2017, the Nasa team heaped praises on Maraga as a faithful defender of the 2010 Constitution whose decisions will forever be remembered in Africa.
On Tuesday, Minority Whip Junet Mohamed opened the debate with a clarion call for Maraga to follow in his predecessor Willy Mutunga’s footsteps and proceed on leave, pending his retirement.
“The precedent was set by Willy Mutunga when he left office six months before the expiry of his term for good governance purposes,” Junet said.
“I was shocked when the CJ told the Justice and Legal Affairs committee that he’d leave office on January 12, 2021, the same date when his term is ending,” Junet said.
He claimed Maraga has never gone on leave for four months and his exit from the helm of the Judiciary should have started in August.
“He has four months of leave which should have started in August. How can someone take his advisory seriously? Parliament is going nowhere. We have a term ending August 2022. Which election is Maraga asking for now? Which election is this?” Junet thundered.
Leader of Minority John Mbadi asked why the CJ has been allowed to make such a major decision in his last days in office.
“The CJ did something that now appears to be a desire to be trending in social media and the news,” Migori Senator Ochilo Ayacko said.
Busia Senator Amos Wako, the attorney general who held office for a record 20 years, took a swipe at the CJ for making the decision despite what he called the glaring contradictions in the Constitution.
He argued that while the Constitution stipulates a fixed term for Parliament, it does give the give the President the powers to prorogue or dissolve Parliament.
“It almost appears that he has become an activist, where he should be a president and at the same time being a judge of the supreme Court,” Makueni Senator Mutula Kilonzo Jnr said.
Bungoma Senator Moses Wetang'ula urged President Kenyatta to seek the highest level of legal advice from other quarters before acting on the CJ’s advisory.
“The CJ has acted in a way, in a manner that is not treasonable. Parliament has a fixed term. Nobody can interfere with it. Those days when the President could dissolve Parliament any time, are gone. Parliament determines its calendar,” he said.
On Tuesday, Majority leader Amos Kimunya said the grand question is "Where is the public interest in this?"
Rarieda's Otiende Amolo said the President should not adopt the advisory, adding that there is no timeline for dissolution.
He argued that attempts to dissolve Parliament would affect all the elective posts – including the President - as the elections are held together on the same day.
“The President, who is serving his second term, and governors in the same category will be barred from running.”
Otiende added that the Independent Electoral and Boundaries Commission is equally not constituted as the Bill setting the framework for filling the vacant posts is still being discussed.
“Which IEBC will conduct the elections? What was to be solved will be a smaller issue compared with the problem we are creating,” the Rarieda MP said.
He urged amendments to Article 262 to “simply move from six years to 10 years, the period required for Parliament to pass the said law.
"These are the kind of issues that are ideal to consider when amending the Constitution.”
Constitution Implementation Oversight Committee chairman Jeremiah Kioni said they will invite the CJ to also explain why the Judiciary is yet to adhere to the gender rule.
Minority leader John Mbadi said the gender rule has been failing owing to the attitude of women MPs.
Garissa Township MP Aden Duale said the CJ has no right to declare any MP seat vacant by the stroke of a pen.
“The CJ, by a stroke of a pen, cannot declare my seat vacant. It was not the CJ who voted for me. The legislative authority of Parliament is derived from the people,” the former Leader of Majority said.
“We cannot dish seats out to a particular gender for free. Unless we adopt party lists, there is nothing for free,” Duale said.
Women leaders, however, supported the CJ’s call for dissolution of Parliament that repeatedly has refused to accept more women. At times, male MPs have stayed away so there is no quorum for business and a vote.
Suba North MP Millie Odhiambo said, “Parliament has expressed itself on this matter of gender and said no. The matter moves to a different authority. The CJ has also made his decision based on 261 (7). It is not personal.”
Parliament has made four unsuccessful and half-hearted attempts to pass enabling legislation to implement the two-thirds gender rule enshrined in the Constitution.
Uasin Gishu Women Representative Gladys Boss Shollei and constitutional lawyer Abdikadir Mohammed said the President should indeed dissolve Parliament.
“There is no room for anyone to go to court to challenge the advisory by the Chief Justice for Parliament to be dissolved. This matter was already in court six times over the last 10 years,” Shollei said.
She added that the Constitution is the supreme law and leaders must do what it says.