Dissolution of parliament to void laws – Otiende Amollo

Wednesday, September 23rd, 2020 00:00 |
Rarieda MP Otiende Amollo. Photo/PD/FILE

Is Chief Justice David Maraga’s advisory that the President dissolves parliament going to affect the previous Parliament which had the onus of passing the gender bill?

Lawyers are divided on this. 

On the one hand, Fred Okang’o, Thirdway Alliance Secretary and lawyer, says the order will void legislation passed in the 11th parliament.

On the other hand, Constitutional lawyer Kibe Mungai says those pushing that argument are behaving like a scarecrow. “It cannot affect the previous one. Those are scarecrows,” he said.

Either way by a stroke of the pen, President Uhuru Kenyatta will, by dissolving the Parliament, declare hundreds of bills, passed into law, by the National Assembly and the Senate null and void.

This in itself may cause a major constitutional crisis considering that some of the enacted laws have since been implemented and operationalised.

Again, all the appointments of state officers and commissions cleared by the National Assembly will also be declared unlawful.

Interestingly, should the order backdate to the 11th parliament, Chief Justice David Maraga appointment would be in jeopardy. He was vetted and cleared for appointment by the 11th Parliament.

“May be this is the reason the CJ has decided to issue the advisory to dissolve Parliament at the tail end of his term which comes in two months’ time,” said Minority Leader John Mbadi.

According to Rarieda MP Otiende Amollo, besides sending all MPs and senators packing, Maraga’s decision, if implemented by the President, would throw the country into a major constitutional crisis as all the laws enacted by the current Parliament so far would become null and void.

“All the work done by the two parliaments will be a nullity and one can successfully challenge in court their constitutionality if the lawmakers who passed them were not legally in office,” Amollo said.

Another debatable area is the tax laws passed during the period the two parliaments have been in existence.

According to Makueni MP Dan Maanzo, there is a likelihood of the courts overturning the tax laws should it be petitioned to do so by a citizen.

“This would cause a serious constitution discourse over what would be done to the taxes that are already in operation,” noted the MP.

The devolved units will also be under a serious danger since the laws allowing expenditure and allocation of revenue will be declared a nullity.

The Senate passes annually the Division of Revenue Allocation (DORA) and the County Revenue Allocation, two legislation key to giving revenue to counties.

Another thorny area will be the operations of the National Government Constituency Development Fund (NGCDF), which means if the law that formed it in 2014 is annulled means that all the funds spent during the period will be refunded and projects stopped.

Makueni Senator Mutula Kilonzo Jnr, who is also the Senate Minority whip said he was not persuaded that the President has no quasi-judicial powers to dismiss the CJ’s advisory.

“The CJ has acted prematurely, in a hurry and without certain minimal things were done.

It almost appears that he has become an activist, where he should be a President of the Supreme Court and at the same time a judge,” said Mutula adding that Maraga should have exercised extreme caution on the matter.

Busia Senator Amos Wako who served as the country’s attorney General between 1992 and 2010 said the Senate was dealing with a matter that is raising very fundamental, complex constitutional matters, the structure of the constitution is that we removed from President the powers to prorogue and dissolve parliament.

“It has not been provided whether an election to be conducted is a general election or not. Has our term expires?

What will happen to the laws passed by this House. There is a very fundamental contradiction that the president cannot just act on it before the loophole that has been identified on this matter is rectified,” said Wako.

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