CJ Maraga Disrupts Parliament – Advices President to Send MP’s Home
In what could be called the most shocking ruling from Kenyan courts, Chief Justice David Maraga has opined that the President must dissolve parliament.
This is after parliament has failed through it’s 7 year term to enact the 2/3rds gender rule in the Kenyan 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.” Capital FM
High Court Finds Parliament is Unconstitutional
On March 30th 2017, Kenya’s High Court found that the country’s Parliament had violated women’s right to equality, and freedom from discrimination.
It had done this by refusing to enact legislation to enforce the principle that requires not more than two thirds of its members be of the same gender.
The court had directed Parliament to ensure that the legislation was enacted within 60 days. The 60 days have lapsed and there has been no word from the House. The consequence is that Parliament now stands on the verge of dissolution for failing to meet the constitutional gender threshold.
The Chief Justice said he was in receipt of five petitions asking him to render the advice on dissolution of Parliament. This would include the petition from
“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.
What’s Next for President Uhuru Kenyatta
With the refusal of the National Assembly to enact the Gender Bill, the constitutional obligations of the chief justice and the president are unambiguous. Chief Justice David Maraga is required to advise President Uhuru Kenyatta to dissolve parliament, and the president is obligated to do so.
One can only hold their breath that President Uhuru would dissolve parliament. He is remembered for the infamous “we shall revisit” statement with the Judiciary. Maraga’s term is also coming to an end in November. Some suggest that his decision is statement is based on the fact that he’s leaving his legacy.
CJ MARAGA ACTING IN GOOD FAITH-Before recommending that Parliament be dissolved as he is legally bound the CJ in good faith engaged the speakers of the two houses and the AG in JUNE 2019 despite the fact that the constitution does not provide for this.The AG did not respond
— Gladys Boss Shollei CBS MP (@GladysShollei) September 21, 2020
Other’s suggest that though he had a right to offer his opinion, he went about it illegally.
1. First to appreciate the tenor & meaning of the 10 pages advice by CJ Maraga to H.E UHURU, we have to decipher into Maraga's judicial philosophy or lack of it as a judge since he joined the judiciary in 2003. We have to appreciate that CJ Maraga has no KNOWN judicial philosophy
— Ahmednasir Abdullahi SC (@ahmednasirlaw) September 21, 2020
While others believe that this is his most significant ruling
CJ Maraga’s advice to the President to dissolve parliament is momentous. Probably the most significant and historic from a constitutional standpoint. How we apply foundational principles and values of the rule of law and constitutionalism is now the big test.
— James Orengo (@orengo_james) September 21, 2020
What is not in doubt is that CJ Maraga’s ruling will be the talk of the political class for the coming weeks.
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