National Assembly Speaker Justice Muturi has lambasted Chief Justice David Maraga, accusing him of misadvising the president by urging the head of state to dissolve the parliament.
Speaking in Nairobi after a Parliamentary Service Commission (PSC) meeting on Tuesday morning, Muturi said Maraga’s counsel to President Uhuru Kenyatta was devoid of ‘wisdom and circumspection’ and could plunge the country into a constitutional crisis.
In what appears to be a brewing tug of war between two arms of government, the speaker selected hard-hitting words as he attacked Justice Maraga in the company of lawmakers.
“The Commission has taken the firm position that the act by the Chief Justice to advise the president as the a foresaid is ill-advised, premature and unconstitutional and is a recipe for plunging the country into a constitutional crises of monumental proportions,” Muturi said.
“The Chief Justice has ignored fundamental issues that go to the root of the fabric and structure of our constitution in advising the president to dissolve parliament, “he further stated.
Muturi said the PSC, under his instruction and support of the Senate Speaker Kenneth Lusaka had moved to court challenge Justice Maraga’s advise on failure to enact two-thirds gender rule law. But he was insistent that amicable solution was within reach.
He said: “PSC has resolved to engage counsels to proceed to the high court to challenge the unlawful and unconstitutional action taken by the Chief Justice. The PSC is convinced that the present matter shall be resolved lawfully and calls for calm and sobriety to avert national anxiety and despondency that the action by CJ could elicit.”
This after the Chief Justice wrote to President Uhuru on Monday evening, advising him to dissolve the two Houses for failure to enact a law enforcing the conformity to two-thirds gender rule.
The head of Judiciary cited Article 261 (7) of the Kenyan Constitution as the legal principle behind his action. Maraga termed this as an exercise of his constitutional duty geared towards upholding the rule of law.
“Let us endure pain, if we must, if only to remind ourselves that as a country and being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for the actions or omissions,” Maraga wrote in the statement.
“In the result, your Excellency, it is my constitutional duty to advise you, the President of the Republic of Kenya, which I hereby do, to dissolve Parliament in accordance with Article 261(7),” he added.
But Mr Muturi on his rejoinder watered down Maraga’s legal argument claiming directive is premature owing to the pending determinations of two petitions ripe next month.
“The Chief Justice glossed over the fact that there are two petitions at the High Court set for the hearing on October 7, 2020, to determine among other issues whether the order made by Justice Mativo on March 29, 2017, to during the tenure of 11th Parliament is applicable to the 12th Parliament,” Muturi argued.
The petitioners sought a determination on whether the current parliament could be affected by the same circumstances of failing to enact the gender rule bill.
The Chief Justice made the decision after six petitioners filed suits seeking to have him dissolve parliament for failing to meet legal threshold of membership. He went against his earlier decision in which he dismissed Margaret Toili’s petition on April 10, 2019, on account that there was a bill for deliberation in the parliament.
Legislators’ fate now hang on the decision by President Uhuru Kenyatta who now enjoys the attention of Kenyans who await his next move.
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