AG Kihara accuses Maraga of ignoring public interest in advisory

 Attorney-General Kihara Kariuki has lashed out at Chief Justice David Maraga for not considering the public interest in the advisory to the President to dissolve Parliament.

In an application filed in court, Kihara says Maraga exercises delegated powers like other state organs and is "constitutionally obligated to act in the public interest”.

The AG says Article 1(3) of the Constitution delegates the sovereign power to state organs, which include the Executive, Parliament and the Judiciary.

Maraga said when issuing the advisory that it was his constitutional duty to advise the President to dissolve Parliament in accordance with Article 261(7) after MPs failed to pass a law enforcing the two-thirds gender rule.

But in an affidavit sworn on his behalf by Solicitor General Kennedy Ogeto, Kihara accuses Maraga of disregarding critical public interest and the fact that there is no legal framework for the dissolution of Parliament.

“As a state officer who exercises delegated power, he was under obligation to ensure that the process adopted in the lead-up to his advice and the actual effect of his decision are in the public interest,” the affidavit reads

Kihara says the country has been battling Covid-19 since March 2020 and the virus has been utterly disruptive, including economically, thus dissolving Parliament now is detrimental.

“Dissolving Parliament at this point as the CJ himself notes in his advice to the President will only exacerbate the situation,” he adds.

Kihara points out that if the President proceeds to dissolve Parliament, there will be a constitutional crisis, which requires a referendum.

“The Constitution sets out matters whose amendment requires a referendum like the term of the Office of the President.”

He says there is the question of whether the House constituted following the dissolution shall serve only for the remainder of the term of the current Parliament or shall commence a fresh five-year term.

“Yet, if a new parliament commences a fresh term, which falls out of the constitutional date for a general election, the same will have the effect of altering the term of Office of the President as ordinarily a presidential election may be held only on the same date as the general election for members of Parliament,” Kihara says.

In Kenya, an election of the President is held on the same day as the general election of MPs on the second Tuesday of August in every fifth year.

“A consequential question that arises concerns the date of the next presidential, gubernatorial and MCA elections because Article 136(2) pegs the date of the presidential election on the general election of MPs,” he says.

Kihara further argues that there is no clarity as to whether or not such an election shall be a by-election or a general election. He notes that before Parliament is dissolved, the President must be satisfied that it had indeed not enacted the required legislation.

He adds that there is no legal framework for the discharge of the parliamentary functions if it’s dissolved as advised by Maraga.

Meanwhile, Parliament has secured orders suspending the implementation of the advice. Judge James Makau on Tuesday issued the orders and further directed the file be forwarded immediately to the CJ so he can constitute a panel of judges to hear the petition and if possible same bench be given the other two petitions.

In the case filed by the National Assembly and the Senate, they argue that the decision by Maraga is a grave error and a misapprehension of the provisions of the law.

They argue that if Parliament was to be dissolved now, then no current bills generated by the Executive or through private members can pass and or be enacted.

Parliament further says the IEBC currently has only three commissioners against a quorum of five prescribed in law.

“This would mean that, if Parliament is dissolved as per Maraga’s advice, the country cannot conduct lawful elections as it is Parliament that vets the candidates for appointment to the commission,” it says.

MPs add that if Parliament is dissolved, the state of anarchy that would ensue would be unprecedented, as the other arms of government cannot operate constitutionally without funds and the Executive may operate without being held to account.