Party seeks orders forcing dissolution of parliament
lawyer Elias Mutuma who is representing Thirdway Alliance Party in the petition.
What you need to know:
- The petition further wants that, upon lapse of the 21 days, parliament should stand automatically dissolved.
- The party argues that Parliament is bound by the principle of perpetual succession.
- This means that the current House is liable to acts and omissions of the previous one.
The Thirdway Alliance Party has asked the court to declare that Chief Justice David Maraga’s advisory to President Uhuru Kenyatta to dissolve parliament was not a “mere a recommendation but a constitutional command”.
As such, the party wants a finding that Mr Kenyatta has no option but to send packing all the 349 members of the National Assembly. In a petition filed at the High Court in Milimani, Nairobi Tuesday, the party also wants the court to compel the President to dissolve Parliament within 21 days from the date of the advisory. This was the fourth petition to be filed in relation to Justice Maraga’s letter dated September 21.
“In light of the glaring loophole under article 261 (7), which does not stipulate the time-frame within which the President is bound to dissolve parliament, the circumstances justify the concept of a reasonable time which, in the circumstances, is a maximum of 21 days,” reads the petition.
The petition further wants that, upon lapse of the 21 days, parliament should stand automatically dissolved and any business conducted by the House after that becomes illegal.
Perpetual succession principle
Through lawyer Elias Mutuma, the party argues that Parliament is bound by the principle of perpetual succession, meaning that the current House is liable to acts and omissions of the previous one.
This is contrary to an argument made by the National Assembly and Senate in another petition seeking setting aside of the CJ’s advisory. In the case filed by Senior Counsel Ahmednasir Abdullahi, the lawmakers argued that they cannot be blamed or held liable for the failure of their predecessors to enact the two-third gender rule. Thirdway Alliance’s petition is also of the opinion that the advisory is not challenge-able in court because the CJ made the decision based on orders of the court.
“Courts have pronounced themselves on the matter authoritatively. It is not open for anyone to seem to challenge the Chief Justice’s advisory in court as the same constitutes res judicata and also known as claim preclusion,” said party chairman Miruru Waweru.
In addition, the party is seeking a finding that the Chief Justice advisory only affects the National Assembly and not the Senate.
“Senate participates in the lawmaking function of parliament by considering, debating and approving Bills concerning counties. Enactment of the two-thirds gender rule is squarely the legislative duty of the National Assembly,” said lawyer Mutuma.
His client wants the functions of the National Assembly be transferred to the Senate temporarily to avoid a vacuum in the legislative arm of government.
