Maraga advisory: MPs now rush to court in bid to save their jobs

MPs have moved to court to challenge the legality of Chief Justice David Maraga’s advisory to President Uhuru Kenyatta on the dissolution of Parliament over failure to enact the two-thirds gender rule.

Through Senior Counsel Ahmednasir Abdullahi, the legislators want the court to determine whether the CJ has powers to interfere with the legislative mandate of the 12th Parliament, which has two more years to conclude its term that runs from August 2017 to August 2022.

The lawyer is also seeking an order prohibiting the President from enforcing the advisory, adding that the CJ’s letter constitutes an infringement of Article 1 on the sovereign power of the people exercised through the legislative arm of the government.

The legislators also claim the order that informed the CJ’s advisory had been issued to the 11th Parliament and cannot be enforced against current MPs as the term of the previous House expired on August 8, 2017.

In the said order dated March 29, 2017, Justice John Mativo had directed Parliament and Attorney-General to take steps to ensure the required legislation is enacted within 60 days.

“It is the membership that creates a Parliament such that the mandate of each House lapses with the conclusion of its Constitutional term under Articles 102 (1) of the Constitution,” argues Mr Ahmednasir.

He adds that the existence of a Parliament is pegged on the election of members to both houses.

Gap

The lawyer says the term of each Parliament ends with a successive election and that all bills, order papers and such other functions that were to be discharged by the outgoing House lapse with that term.

Therefore, the order issued by Justice Mativo cannot be enforced against current MPs. An attempt to do so will impose on the House constitutional obligations that it has not had the opportunity to seek the authority of the people and adequately debate on the same, argues the lawyer.

“In addition, such imposition triggers a number of fundamental constitutional principles. The Chief Justice failed to take into account the numerous attempts by Parliament towards enacting the two-thirds principle,” he says.

The 24-page petition indicates that Parliament has debated 11 motions in the last nine years on the two-thirds principles and despite that, none of the proposed bills has passed.

While terming the advisory “a grave error”, the lawyer says the CJ’s decision has created a wave of anxiety and confusion on the future of government, and would imminently create “untold anarchy”.