Chief Justice David Maraga's directive to President Uhuru Kenyatta has initiated a heated debate among lawyers and politicians. The CJ asked Kenyatta to dissolve the parliament for failing to enforce the two-thirds gender rule.
However, both ends agreed that the directive will dent the President's legacy as he pushes for the realisation of the Building Bridges Initiative and constitutional changes.
Sending MPs home would create another headache for Kenyatta as he requires the support of the house to push his agenda.
"Where does Maraga's advice leave the BBI, and can parliament take any step in light of today's events? Of course if Uhuru wrongly and regrettably dissolves the house, the BBI story will be over as we will go to elections," Senior Counsel Ahmednasir Abdullahi advised.
With a looming referendum even as ODM leader Raila Odinga continues to push the Independent and Elections Boundaries Commission to prepare, an election of 349 legislators at the same time will only jeopardise Kenyatta's plans.
"Does the Constitution envisage another form of election other than a general election held on the second Tuesday in August of every fifth year as envisaged under Article 101 of the Constitution?
"Does Article 136 of the Constitution apply noting that the election of the President shall be on the same day as a general election of Members of Parliament? Does the dissolution of Parliament, therefore, trigger the election of a President," Garissa Town MP Aden Duale wondered while arguing that the constitution does not provide Kenyatta with a deadline to dissolve the house.
He also pointed out that Kenyatta may lose his Presidency as he also may be forced to seek a re-run to complete his term.
Lawyer Charles Kanjama, in an interview on Citizen TV responded to Duale's questions. Kanjama stated that the elections of the MPs will be treated as a by-election and not a general election. The elected MPs will steer their constituencies until Kenyatta dissolves the house again for the 2022 General Elections.
Law Society of Kenya President Nelson Havi, a staunch supporter of Maraga, argued that Kenyatta had 21 days to make a decision as opposed to Duale's interpretation.
"President Uhuru Kenyatta must dissolve Parliament within 21 days. If he does not, all laws enacted and decisions made by Parliament thereafter will be of no effect. The people should reclaim sovereignty," Havi stated.
Siaya Senator James Orengo supported Maraga's call, adding that how Kenya applies foundational principles and values of the rule of law and constitutionalism has now become the biggest test. A section of women leaders led by Kirinyaga Governor Anne Waiguru also rallied behind Maraga as they push for 50-50 gender representation in public offices.
Thirdway Alliance Secretary General Fredrick Okango argued that CJ Maraga's advisory to dissolve parliament seemed to be a reaction from the failure by President to appoint the 41 judges recommended by Maraga.
"The timing of this advisory is suspect. It is coming a time when parliament is expected to legislate on measures that will cushion Kenyans from the negative effects of Covid-19 pandemic. Something that CJ Maraga acknowledges in his advisory opinion to the president. In my estimation and knowledge, this will not happen and must not be allowed to happen. Tactfully the president may decide to comply by the advisory to dissolve parliament just 3 months before August 2022. That means he shall have evaded it all together," Okang'o stated.
