On September 21, 2020, the Kenya Chief Justice David Maraga advised president Uhuru Kenyatta to dissolve the parliament of Kenya as it has failed to enact the two thirds gender rule. The Chief Justice’s move shocked a lot of people because of the implications his letter to the president have not only for the MPs but also to the upcoming general elections in 2022. People are still waiting to see what Uhuru Kenyatta will do.
Article 261(7) says: “If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”
But most people are wondering what to expect if president Uhuru Kenyatta accepts to dissolve parliament. What happens to undecided parliamentary bills that are yet to be debated? What happens to Building Bridges Initiative? What about the referendum to change the very constitution that in the first place necessitated the advice of the Chief Justice to the president to dissolve the parliament of Kenya?
It is worth noting that Parliament of Kenya is one of the three arms of government. The other two are of course the Judiciary and the Executive. The Judiciary is headed by the Chief Justice David Maraga, the Executive is led by president Uhuru Kenyatta while the Legislator (Parliament) is headed by the Speaker of National Assembly Justin Muturi.
All the three arms of government are expected to work together hands-in-glove for proper and efficient functioning of the overall Government Of Kenya. The roles each arm plays is specified in the Constitution of Kenya 2010.
But Kenyans know that has not been the case. For example David Maraga (Judiciary) has had some rifts with president Uhuru Kenyatta (Executive) for a very long time since the former was appointed to head the Judiciary after the retirement of his predecessor Chief Justice Willy Mutunga in the latter part of 2016.
The climax of the squabble between the Judiciary and the Executive reached its peak in July 2017 when Chief Justice David Maraga annulled President Uhuru Kenyatta’s re-election for his second term in the 2017 presidential elections. Justice Maraga cited irregularities in regards to proper procedure not being followed during the polls. But Mr. Kenyatta accused Mr. Maraga’s decision as being politically motivated.
The same narrative still applies to Mr. Maraga’s advice to the president to dissolve the Parliament of Kenya. The president received the Chief Justice’s letter on September 21, 2020. Since Mr. Kenyatta is required to the parliament of Kenya within 21 days of received Mr. Maraga’s advice letter, that time elapsed yesterday on October 12, 2020.
So if president Uhuru was planning on obeying Mr. Maraga’s advice, then the head of state can be expected to dissolve the parliament of Kenya within 24 hours from today.
This is because legally speaking, any decision made by parliament starting today will not have the legal basis to be enforced as such legislation could have been made when-from a legal standpoint- the MPs have already ceased to be the representative of the people that elected them.
On the flipside, one may ask about the ramifications of the president following the Chief Justice’s recommendations to dissolve the Kenyan Parliament. What exact is likely to happen?
What to Expect If Uhuru Kenyatta Dissolves The Parliament Of Kenya
If president Uhuru Kenyatta dissolves the Kenyan Parliament, a new election (called a by-election) will be held to elect new MPs for all constituencies in the country. The current MPs will cease to be MPs immediately as their seats in the National Assembly will be declared “vacant”.
When Parliament is dissolved, every seat in the National Assembly becomes vacant. This means there are no longer any MPs. Those who were MPs before dissolution cease to represent their constituents and lose access to parliamentary facilities and resources. They no longer refer to themselves as Members of Parliament.
The speaker of the National Assembly (Justin Muturi)’s seat will also become vacant as he/she must also stand for re-election as an MP.
If the Parliament of Kenya is dissolved, all unfinished parliamentary business falls – including any bills that have not received the Presidential Assent. Bills cannot be carried over from one Parliament to another, reflecting the convention that no Parliament can bind its successors. The newly elected MPs after the by-election will start on a clean slate.
A dissolution of the Kenyan Parliament will not affect the operations of the Government of Kenya. Cabinet Secretaries will remain in their posts and will continue to run their ministries when if Parliament is dissolved. They are only replaced when a new government is formed following a general election.
Why Uhuru Kenyatta Is Hesitant To Dissolve Parliament
President Uhuru Kenyatta has his own political reasons why he prefers not to dissolve the parliament of Kenya. The main reasons are that dissolving parliament will trigger a by-election less than 18 months before the general elections are held in 2022.
A by-election at this juncture will ensure that most efforts will be channeled towards the election of MPs which will take at least two months. The by-election exercise will take away resources that Mr. Kenyatta earmarked to use to conduct his Building Bridges Initiative campaigns as well as holding a referendum to change the Kenyan Constitution.
It is widely believed that if Uhuru Kenyatta dissolves parliament, it will make it impossible for the country to hold a referendum because there won’t be enough time left to campaign for the referendum as well as getting well prepared for the 2022 general election campaigns.