By Samuel Ouma
The High Court has temporarily halted Chief Justice David Maraga’s advisory to President Uhuru Kenyatta on the dissolution of parliament.
Two petitioners, Leina Konchella and Abdul Munasar went to court on Wednesday seeking an order to stop the implementation of the advisory to dissolve the parliament for failing to pass the two-third 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 inters parties hearing and determination of the petition,” ruled Justice Weldon Korir on Thursday.
The petitioners argued that written advice was not judicial and there were no proceedings followed before the decision was made.
“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,” noted the petitioners.
They called Maraga’s action irrational and unreasonable saying he acted beyond his authority.
The two described the two-thirds gender rule as discriminatory noting it will create more seats for women adding that it can only be implemented through extensive amendments to the Constitution.
On Monday, September 21, Maraga wrote to the Head of State advising his to dissolve the parliament over its failure to implement the said gender rule.
“It is incontestable that Parliament has not complied with the High Court order, 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 judgment, it is a 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,” noted Maraga.
According to the President of the Supreme Court, several petitions had been raised challenging Parliament to enact the law.
The move came three years after Maraga led the Supreme Court in annulling the 2017 presidential election.