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.


its history


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.

Purpose


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.
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.theafricareport.com/42693/kenya-constitutional-crisis-after-calls-to-dissolve-parliament/amp/&ved=2ahUKEwjE1aiy1P7rAhX5A2MBHRa3DlgQFjAEegQIAhAB&usg=AOvVaw0gGjfNMINQkAOER2pkoqN1&ampcf=1

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✍🏾Kerry Odhiambo Awino

TO SEND US NEWS TIPS KINDLY EMAIL US ON victorokech05@gmail.com Or whatsapp 0703629303 immediate feedback .Thank you

4 thoughts on “Dissolution Of Parliament; The Kenyan Context”
  1. Counsel this is a great opinion from you.But then digging this from the rock when the two thirds gender bill was being tabled it was agreed that the realisation of the same was to be a progressive process and not an instant one, this bearing to the fact that even before the transition to the new constitution gender equality in matters political representation had never been realised and the margin was in fact too big as compared to what we are having right now.So the directive is being given just after the second general election under the new constitution.So do you feel this is enough time already for the law to have been perfectly implemented by now.Mark you for the realization of this rule there were even elective posts created for the female gender for a balance to be met.So are we really ready for this or should we go back to the drawing board and see ifi we can decide for the citizens on who should represent them?

    1. Goretty, the problem is not being gender rule compliant. If it were the case, then all the arms of government & all other offices/ organizations would be in trouble right now. THE contention is the failure or unreasonable delay of parliament to pass just a single piece of gender rule legislation. It is this legislation that will guide us while giving mechanisms on how to achieve & maintain gender parity. IF it is our progress towards gender equality, then its evident the parliament is standing on our way.

  2. Nice report. So my question is this to Kerry Nyabola, what if the President disobeys the orders issued by Chief Justice in dissolving parliamen?

    1. Thank you Samson Billy.
      It is important to first note that it was an advice, and not an order.
      Secondly, there are a lot of constitutional questions that arise from the Advisory (for example whether the president has the option to forgo the advice, whether this kind of dissolution of parliament results to a general election for all elective seats or a by election specifically for parliamentarians, election timelines among others) which may be presented to the High Court for guidance. The situation is murky; it’s hard to tell.

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