Justice Mugambi forwards petition seeking to dissolve Parliament to CJ Koome
Justice Mugambi forwards petition seeking to dissolve Parliament to CJ Koome
Nairobi High Court has forwarded a petition that is seeking to compel President William Ruto to dissolve Parliament for failing to implement the two-thirds gender rule to Chief Justice Martha Koome.
In a ruling delivered by Justice Lawrence Mugambi, he referred the case filed by Margaret Toili, Eddah Marete and Agnes Ndonji to CJ Koome to empanel a bench to hear the matter after finding that the case raises serious constitutional issues that cannot be determined by one judge.
Notably, in his ruling, the judge stated that there was nothing that was preventing him from forwarding the matter to CJ Koome for empanelment of a bench to hear the petition, citing the importance of finding a lasting solution.
“Nothing prevents this Court from forwarding this matter to the Honourable the Chief Justice for empanelment of a Bench to hear and determine it pursuant to Article 165 (4) but with a very humble recommendation to the Honourable the Chief Justice to consider placing the instant petition before the same bench that is handling the other related consolidated petitions to consider this matter as well,” Mugambi ruled.
He states that the issue of the two-thirds gender rule will keep coming up in every Parliament, and it is prudent to resolve it.
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According to Justice Mugambi, there is an enduring legal question that characterises all these petitions, and this is the failure by Parliament to comply with the two-thirds gender rule.
“This question, unless resolved, will keep on recurring with every Parliament that comes up after every general election; hence, it cannot plausibly be argued that it is a matter limited to the present Parliament,” Justice Mugambi ruled.
The court also stated that it is an equally fundamental constitutional question that has occupied the public sphere for a long time now, and there is a need for an interpretive solution to be provided to guide the country.
Further, Justice Mugambi also noted that the issue cannot be argued that it lapsed when the last Parliament ended its term.
“It is an undeniable constitutional issue that not only needs to be resolved in relation to the present Parliament but every other Parliament to guide the nation and forestall all repeated litigation on the same constitutional question,” Justice Mugambi ruled.
The petitioners have sued the Speaker of the National Assembly, the Senate and the Attorney General for the failure to implement the two-thirds gender rule given the results of the August 2022 general elections; hence, they have violated Article 81(b) of the Constitution, and again, it is against the advisory opinion of the Supreme Court.
On September 21, 2020, Justice David Maraga (Rtd) sent an advisory opinion to the then President Uhuru Kenyatta, whom he advised to dissolve Parliament.
The advisory was due to Parliament’s failure to enact legislation on the two-thirds gender rule in line with Article 27(3) as read with Articles 81(b) and 100 of the Constitution, which led to the issuance of four court orders on the matter.
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