UPDATE Thursday September 24: The High Court on Thursday, September 24 has halted Chief Justice David Maraga’s call to President Uhuru Kenyatta to dissolve Parliament.
The ruling intimated that the suspension would be in place pending the determination of a petition filed by two Kenyans.
They filed the petition calling for the head of state not to dissolve Parliament with the belief that the move would orchestrate catastrophic constitutional outcomes.
Maraga had on Monday September 21 advised President Uhuru Kenyatta to dissolve parliament for its failure to enact the two-thirds gender rule.
UPDATE 18:00: National Assembly Speaker Justin Muturi has revealed that the issue of two-thirds gender rule should be subjected to a referendum over the cost of implementing it.
Reacting to a letter by Chief Justice David Maraga advising President Uhuru Kenyatta to dissolve Parliament over its inability to pass the two-thirds gender rule, the Speaker noted various electoral laws may need to be amended.
“Given the current efforts and initiatives to amend the Constitution that are currently underway such as the Building Bridges Initiative (BBI), the issue on two-thirds gender rule can be subjected to a referendum in the event the same happens,” he disclosed.
“Owing to the cost implications of implementing the two-thirds gender rule through other mechanisms such as nomination and topping up, it is prudent if the matter were to be subjected to the people once more for a reevaluation or to propose ways of achieving two-thirds gender rule.” he added.
Chief Justice David Maraga on Monday September 21 advised President Uhuru Kenyatta to dissolve parliament for its failure to enact the two-thirds gender rule.
CJ Maraga, in his unprecedented move, stated Parliament’s refusal to comply with the High Court order to enact legislation required to implement the two-thirds gender rule for over nine years.
“It is incontestable that Parliament has not complied with the High Court order in Constitutional Petition No. 371 of 2016. As such, for over 9 years 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, is clear testimony of Parliament’s lackadaisical attitude and conduct this matter,” stated the President.
As a result, the Chief Justice revealed, in accordance with the Constitution that he has the powers to advise the President to dissolve Parliament.
“If Parliament fails to enact legislation in accordance with an order under clause (6)(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament,” he added.
“It is my constitutional duty to advise you, the President of the Republic of Kenya, which I hereby do, to dissolve Parliament.”
Such a move, with huge constitutional and political ramifications, could only rank second to the decision by a majority of the Supreme Court judges which nullified the August 2017 presidential election result. The CJ was on the majority side, which invalidated President Kenyatta’s re-election and called for a repeat poll on October 26 which the opposition boycotted and Jubilee candidate won.
The CJ has petitions from the Law Society of Kenya, former Marakwet West MP David Sudi, Margaret Toili, Fredrick Mbugua, Bernhard Aoko and Stephen Owoko. They all argue that parliament has deliberately refused to enact the law.