No doubt the 10-page advice by CJ David Maraga to the President matters the dissolution of Parliament has drawn a big debate.
This is owing to the failure by the parliament to enact requisite legislation in advancement of gender equality (colloquially termed 2/3 gender laws) since the enactment of the 2010 Constitution despite a litany of court battles & orders to do so.
You will agree with me, that advice spurs constitutional crisis amid the strange political & economic times we are in as a country( BBI, Economic Crisis, Covid19 et al).
It is thus imperative to learn the meaning of dissolution of parliament, its historical background, purpose, & repercussions.
what is dissolution of parliament
This is the power to render the term of office of a parliament done, so as to require new elections in anticipation that a new parliament will reconvene later with possibly different members.
This happens in two scenarios; first, automatically when the end of a fixed or maximum term (say 5 years) leading to general election and secondly, (termed early dissolution) as may be dictated by the constitution & other written laws. CJ Maraga’s advice is based on the 2nd scenario invoking article 261(7) of the Constitution.
Dissolution power can be traced to the Medieval European parliaments who apart from making law, regularly advised & assist the monarch. Although they had their rights, it was usual for the monarch to dissolve it at his will.https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.idea.int/sites/default/files/publications/dissolution-of-parliament-primer.pdf&ved=2ahUKEwjir8Ldyv7rAhUIyxoKHcs6A3QQFjAAegQIARAB&usg=AOvVaw2zHOrLaewzlsvyZwC29a_5.
This power & law of dissolution of parliament flowed into many earliest parliaments to date with several amendments. It is mostly in the hands of the Head of State.
All this while, it was & is still to date perceived as a mode by which the other arms of government (and to a very wide extent the executive) checks against parliamentary power.
For instance, the judiciary is indirectly (via the executive- President) checking on the carelessly lazy Parliament ( the national assembly & the senate) for being unable to pass gender equality legislation as required by article 27(8) of the Constitution. CJ Maraga termed it their ‘lackadaisical attitude…’
Advantages, risks, & other repercussions
It being a powerful political tool, it does in fact affect the balance of power in the three arms of government depending on whom it is given. It as well encourages checks and balances in the parliament which results to stability, effective governance, deliberation, inclusivity, & accountability which are the pillars of rule of law and our constitution.
If the parliament is dissolved, our constitution requires that an election is held within 90 days.
Many will ask, whether there is a guarantee that a fresh election will see to it that more women get elected and the gender balance requirement met if the current one is dissolved and my answer has been;
The contention is not about the gender composition of our parliament but its failure to enact the legislation that would help in achieving that with ease going forward. To mean the dissolution call would still hold even if the current parliament was gender compliant. It is about the country, not the parliament alone.
The long story in its shortness, the directive by the CJ to President has plunged the country into a Constitutional crisis. A crisis that will demand forbearance with catious steps to arrive at an impeccable solution.
✍🏾Kerry Odhiambo Awino
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