• The duo wants the High Court to stay the advisory, arguing that it is subject to judicial review as an administrative act.
• They aver that the written advice to President Uhuru Kenyatta is not judicial.
Two petitioners have challenged Chief Justice David Maraga’s advisory to dissolve Parliament for failing to meet the thirds gender rule.
Leina Konchella and Abdul Munasar want the High Court to stay the advisory, saying it is subject to judicial review as an administrative act.
The petitioners, through lawyer Muturi Mwangi, aver that the written advice to President Uhuru Kenyatta is not judicial.
They further argue that there were no proceedings before the decision was reached.
“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,” according to the petitioners.
Leina and Abdul further reason that Maraga’s action is beyond his authority to the extent that it purports to be grounded on Parliament's failure to enact two-thirds gender law.
“No such timelines are specified under Article 261 of the Constitution. The argument here is that Article 100 which has timelines does not demand the two-thirds gender quota.”
The two want the court to issue a conservatory order pending the hearing and determination of their petition.
They also want a declaration that the CJ’s function in respect to the advisory is administrative in nature – being the head of the Judiciary.
Leina and Abdul further pray for a declaration that the advisory is impractical and that the same should be quashed.
They say the CJ’s action is unreasonable, irrational and irresponsible, having failed to issue the directions for over three years.
“He has chosen a moment when the country is in the worst financial and other difficulties to exacerbate the challenges Kenyans face.”
The duo says the two-thirds gender rule can only be implemented through extensive amendments to the Constitution.
Leina and Abdul also aver that the two-thirds gender rule is not about women only and as such construing the Constitution to create more seats for women is discriminatory, and absurd.
“Should the President dissolve Parliament as advised, the realisation of the two-thirds gender rule will be in jeopardy.”
The duo argues that the new Parliament would have two years from the first date of its term to enact a legislation to achieve the objective and “the likelihood of attainment of two thirds objective could very well become a mirage”.
Their conclusion is that it is impracticable to implement Article 261 (7) to the extent of requiring dissolution of Parliament.
“To implement the advisory would require innovation which, at best, would be legally tenuous, controversial, contested, and most unlikely to have any form of consensus.”
The petitioners also averred that the advisory, if implemented, would pose a constitutional and political crisis as it would result in the collapse of constitutional mechanisms.
“To hold new elections, the IEBC would need to be financed by monies provided by Parliament and only the one intended to be dissolved has mandate to provide money to hold elections to replace it.”
Maraga on Monday dropped a bombshell, saying Kenyans should endure the pain as a reminder that choices on constitutional obligations have consequences.
The Parliamentary Service Commission on Tuesday said it would pursue court action against the directive.
- mwaniki fm