Thirdway Alliance seeks court interpretation of CJ’s advisory

Tuesday, September 29th, 2020 23:53 |
Thirdway Alliance Secretary General Frederick Okango (right). Photo/PD/GERALD ITHANA

Thirdway Alliance party yesterday petitioned the High Court seeking its interpretation of the consequences of the advisory by the Chief Justice to the President to dissolve parliament.

Through lawyer Mutuma Gichuru, the party also seeks a determination on whether pursuant to the advisory opinion by the Chief Justice David Maraga, Parliament is now unlawfully constituted and any business conducted by both National Assembly and Senate is null and void with or without the dissolution by the President. 

“The petitioner seeks a determination that dissolution of the National Assembly under article 261(7) does not amount to dissolution of parliament as one of the organs of the State,” the court papers read. 

According to the petitioner, the constitution has not stipulated the timeline within which the president shall dissolve the National Assembly upon advisory of the Chief Justice.  

They also avers that the National Assembly has failed in its mandate to enact legislation within regard to the achievement of the two-thirds gender bill.  

 “Women and men have the right to equal treatment and equal treatment including the right to equal opportunity in political, economic, culture and social spheres.

The National Assembly is then mandated to enact such legislation that should ensure this provision is met,” says Mutuma.   

   The petitioner says that there shall be no vacuum upon dissolution of the National Assembly since its powers and functions can be transferred to the Senate for the period within which the National Assembly remains dissolved.  

 They says that under Article 81 provides that the electoral system shall comply that not more than two thirds of Members of elective public bodies shall be of the same gender.

“By failing to enact legislation that shall ensure this provision is achieved is a clear violation of the constitution and the rights of the people of Kenya,” says the party.  

The petitioner is also seeking a declaration that in light of the glaring loophole under Article 261(7) which does not stipulate the timeframe within which the President is bound to dissolve parliament, adding that the circumstances justify the concept of a reasonable time which in the circumstances is a maximum of 21 days from the date of issuance of the Chief Justice’s advisory.

 “A declaration be issued that Parliament automatically stands dissolved upon lapse of the ‘reasonable timeframe’, notwithstanding the President non-compliance with Article 261 of the constitution such that any business conducted by the said parliament after the expiry of the reasonable  time becomes illegal, enforceable null and void,” says the Thirdway Alliance party  

Further the party wants the court to declare that the dissolution of parliament will trigger by election as opposed to a general election.

 “A declaration that parliament is bound of perpetual succession such that the 12th parliament is liable and answerable for the acts and omissions of the 11th parliament in as far as compliance with article 261 is concerned,” says the party.  

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