Dissolve Parliament - Karua

 OBLIGATIONS OF CHIEF JUSTICE AND PRESIDENT UNDER ARTICLE 261(7): HON. KARUA’S STATEMENT ON PETITIONS TO DISSOLVE PARLIAMENT. MARTHA 

KARUA·FRIDAY, AUGUST 7, 2020·

A constitutional crisis, a decade in the making is finally here. On the 30th of July, 2020, the Chief Justice David Maraga met with the petitioners for the dissolution of Parliament, in line with the provisions of Article 261(7) the Constitution of Kenya. Parliament, for the last decade, has refused to obey the Constitution and numerous court order and by doing so has undermined the Kenyan Justice system. 

The Constitution framework provides a built-in survival mechanism to protect against the failure and outright refusal by parliament to fully implement it. Article 261(7) must be understood as an anti-terrorism measure, one of last resort. Coming from a history where politicians once in power terrorised Kenyans, acting without regard for the rule of law and the needs of Kenyans; the 2010 Constitution made sure that any future attempts by parliament to such effect, would lead to its dissolution. 

The only language that politicians understand is power and the consequences in the Constitution for the refusal to fully implement its provisions is the loss of said power. Article 261 (7) has been invoked because of parliament's failure to enact the legislation required by the Constitution and within the court mandated time frame, in this case, parliament has been on notice for a decade that legislation on the two-thirds gender rule was required. We wish to remind the Chief Justice, the President and Kenyans that Article 261(7) does not give the Chief Justice or the President any choice. 

The journey to this moment has been long. From the promulgation of the Constitution that enshrined women’s representation in its constitutional principles, to the 2012 Supreme Court Advisory Opinion which gave parliament until 27 August 2015 to enact legislation to implement the two-thirds gender rule, to the 2016 CREAW, CRAWN Trust and the Kenya National Human Rights Commission suit against the National Assembly and the Senate, to the 2017 online petition entitled Article 3 Petition: To Respect, Uphold and Defend the Constitution of Kenya and the 2019 Court of appeal holding in Speaker of the National Assembly v Centre for Rights Education & Awareness which upheld the previous High Court decision, parliament has been on notice. However despite all these efforts, year after year, parliament has refused to enact the requisite legislation. 

Politicians must remember that the Constitution, the back bone of Kenyan democracy, is a social contract, and is only as good as the commitments of citizens and office holders to accept and abide by it. Like all social contracts, it is not self-executing and demands compliance. The Article 261(7) petitions before the Chief Justice play an important part in reaffirming the importance of the social contract, ensuring that everyone plays their role. 

As Article 3 states “Every person has an obligation to respect, uphold and defend this Constitution”, including the President and Parliament. Finally it is paramount to remind the Chief Justice of his obligation, that without discretion or delay, the sovereignty of the Kenyan people must be upheld, parliament must be dissolved. Courtesy