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Kenya High Court Stops Implementation Of Chief Justice Maraga’s Advisory On Dissolution Of Parliament


KENYA :The High Court of Kenya has temporarily stopped the implementation of Chief Justice David Maraga’s advisory to President Uhuru Kenyatta on dissolution of Parliament.

Justice Weldon Korir issued the orders on Thursday following a petition filed to challenge the advisory to dissolve Parliament over failure to implement the two-thirds gender rule.

This is after two petitioners on Wednesday challenged Maraga’s advisory to dissolve Parliament for failing to meet the thirds gender rule.

“In the circumstances of this case, I, therefore, find the petitioners’ notice of motion dated September 23 merited. I allow it in terms of prayer so that a conservatory order issued for the preservation of the status quo of the Advice of the Chief Justice dated September 21 to the president pending inter parties hearing and determination of the petition,” Korir ruled on Thursday.

In the petition, which was filed on Wednesday, Leina Konchella and Abdul Munasar through their lawyer Muturi Mwangi, wanted the High Court to stop the advisory, saying it is subject to judicial review as an administrative act.

They further argued that there were no proceedings before the decision was reached.

The petitioners argue that the written advice to the Head of State is not judicial.

“The Chief Justice has mischievously attempted to shield his act by fashioning the advisory as a judicial decision while no such proceedings can competently exist in the Kenyan court system,” the petition states.

According to the two petitioners, Maraga’s action was irrational and unreasonable.

“He has chosen a moment when the country is in the worst financial and other difficulties to exacerbate the challenges Kenyans face, ” the petition reiterated further.

In the letter, Justice Weston Korir also requested the Chief Justice to set up an uneven number of judges,not less than three, appointed by CJ to hear the petition.

Maraga’s Monday advisory has elicited mixed reactions among Kenyans with some supporting and others opposing the advisory to send lawmakers home.

Leina and Abdul also aver that the two-thirds gender rule is not about women only and as such construing the Constitution to create more seats for women is discriminatory, and absurd.

“Should the President dissolve Parliament as advised, the realisation of the two-thirds gender rule will be in jeopardy.”

National Assembly Speaker Justin Muturi on Tuesday said the Parliamentary Service Commission will move to court to challenge the advisory.

The Law Society of Kenya (LSK) issued a statement on Thursday demanding the dissolution of the August House Parliament in 21 days.

They said President Uhuru Kenyatta has until October to dissolve Parliament over the two-thirds gender rule. It wants MPs’ salaries stopped, security withdrawn and parliamentary precincts and constituency offices closed on October 12.

LSK also said there is no lacuna in law on what happens going forward: IEBC should conduct a mass by-election within 90 days and those elected are supposed to serve for the remainder of the term.

According to LSK, the President’s term, as well as those of governors and MCAs, are not affected by the dissolution.
“The President will be in violation of the Constitution should he fail to dissolve Parliament on or before October 12, 2020. Regardless of the President’s action or inaction, Parliament will be unlawful effective October 12, 2020,” LSK President Nelson Havi said.

“Any legislative authority exercised by Parliament will be without the authority of the people of Kenya. This is the anathema that those we elected want to subject us to. It is incumbent upon the people to refuse to be taken through this path.”

LSK said the Chief Justice acted on behalf of the people of Kenya in making the advisory to the President to dissolve Parliament.

“The exercise of this power cannot be challenged in court or anywhere else because the supremacy of the Constitution of Kenya is beyond the pale of such a judicial challenge,” said Mr Havi.

Mr. Havi said he had written to the ministries of Interior and the National Treasury as well as the Parliamentary Service Commission to effect their demand that salaries be stopped, and police and security attached to MPs be withdrawn by October 12.