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The High Court yesterday for the second time suspended Chief Justice (CJ) David Maraga’s advisory opinion to President Uhuru Kenyatta to dissolve Parliament. 

In the ruling issued by Justice James Makau, the court suspended implementation of CJs advisory to allow for the determination of its constitutional merit. 

This is after the National Assembly and Senate, on Monday filed a joint petition seeking orders to stop President Uhuru Kenyatta from dissolving both Houses. 

“That pending the inter-partes of the notice of motion dated September 28, a conservatory order is hereby issued ex-parte in the first instance staying and or suspending the implementation and or execution of the advice issued by the Chief Justice in the advisory to the President to dissolve the 12th Parliament,” Justice Makau ordered. 

He ordered the Deputy Registrar of the Constitution and Human Rights Division Court to forthwith, and without any delay, transmit the file to Chief Justice for purposes of constituting a panel of judges to hear the petition.

Makau also directed the National Assembly and the Senate to serve the pleadings to the CJ and Attorney General. 

The judge directed the case to be mentioned on October 7, before the panel of judges to be appointed by Maraga for issuance of directions on the hearing of the application and petition.

In court documents, both the Senate and National Assembly want the President to reject the advisory for contravening Article 131(2) as read together with Article 261(7) of the Constitution.  

The MPs and Senators are seeking orders to quash Maraga’s advisory for failure to come up with legislation to implement two-thirds gender rule. 

Maraga’s advisory was based on Parliament’s failure to pass legislation to implement the two-thirds gender rule.  

Lacks jurisdiction

Legislators further want the High Court to declare that the Orders and findings of Justice John Mativo, in Constitutional Petition No.371 of 2016, Centre for Rights and Awareness, and two Others vs Speaker of National Assembly and six others, only binds the 11th Parliament.  

Through lawyer Ahmednasir Abdullahi, the National Assembly and Senate want the court to declare that the advisory lacks jurisdiction under Article 261(5), (6) and (7) of the Constitution to interfere with the law-making powers of the House. 

Parliament is also seeking declaration that a parliamentary lifespan in Kenya under articles 101 and 102 is for a term of five years, and the term of 12th Parliament commenced in August 2017, and therefore expires in August 2022. 

They argue that Maraga’s advisory letter has created a wave of anxiety and confusion on the future of government, adding that if Parliament was to be dissolved, no current Bills generated by the Executive or through private member can pass and or be enacted into law.

Ahmednasir says the other arms of government (Executive and  Judiciary) cannot expand public monies drawn from the Consolidated Fund without the authority of Parliament as commanded by the Constitution under Article 206.

Public interest

Meanwhile Attorney General (AG) Kihara Kariuki has accused Maraga of not considering public interest when he issued the advisory.

In an affidavit sworn on his behalf by Solicitor General Kennedy Ogeto, Kihara accuses Maraga of disregarding critical public interest and the fact that there are no legal framework for the dissolution of Parliament.

“As a State officer who exercises delegated power, he was under an obligation to ensure that the process adopted in the lead up to his advice and the actual effect of his decision are in the public interest,” reads the court papers.  

Kihara also says that if the President proceeds to dissolve Parliament as advised by Maraga, there will be a constitutional crisis which requires a referendum.

“The Constitution sets out matters whose amendment requires a referendum like the term of the office of the President,” he adds.  

Kihara has sued Maraga for issuing the advisory.

The AG says the country has been battling Covid-19 pandemic since March and the pandemic has been utterly disruptive, including economically thus dissolving Parliament now is detrimental.