DCJ Mwilu forms five-judge bench to hear Maraga’s Parliament dissolution advice

Deputy Chief Justice Philomena Mwilu address congregants during the 10th Commemoration Anniversary of the current Constitution. [Wilberforce Okwiri, Standard]

The Deputy Chief Justice Philomena Mwilu has a five-judge bench to hear and determine the constitutional merit of Chief Justice David Maraga’s advisory to dissolve Parliament.

A circular issued by the Judiciary on Wednesday evening revealed the move stating that the constitution barred CJ Maraga from constituting the bench, given that he is already a respondent in the matter.

“Deputy Chief Justice Philomena Mwilu has appointed a bench of five judges to hear the cases relating to the CJ’s advisory to President Kenyatta to dissolve Parliament,” read part of the circular.

The bench will be chaired by Lady Justice Lydia Achode. Other members are Lady Justice Pauline Nyamweya, Justice George Odunga, Justice James Makau and Justice Anthony Ndung’u.

The decision was triggered by September 24, 2020, ruling by High Court Judge Weldon Korir after two petitioners  challenged the advisory.

Leinah Konchellah and Mohsen Munasar, through their lawyer Muturi Mwangi, challenged the September 21 advisory by the CJ on grounds that Article 261 (7) of the Constitution, upon which the decision was made had not been clarified or determined.

Konchellah and Munasar further argued that the CJ acted with powers not bestowed on him as he issued his orders, which appeared akin to court orders.

“It is clear from the wording of his advisory to the president that he was influenced by outside forces to make the decision. The CJ is therefore guilty of gross misconduct as he failed to act independently and in accordance with the Constitution,” they said through lawyer Muturi Mwangi.

Petitioners in court

The duo would then argue that the two Houses as constituted are constitutional and do not warrant dissolution. According to them, dissolving Parliament to include an increase in the number of one gender would only be discriminatory to the opposing one.

“Dissolving Parliament would do more harm to the two-thirds gender representation objective since there will be no guarantee that the fresh elections will have more women elected. It is likely to result in worse gender representation, which will lead to more crisis,” they argued.

And when issuing the orders, Judge Korir ruled that it was unfair for the country to be subjected to the electioneering period and extra burden that comes with it. Hence, he recommended that the advisory required further interrogation.

“It is important to observe that it is in the public interest not to subject the country to parliamentary elections before exhaustively interrogating the constitutionality of CJ’s decision. Public interest, therefore, supports the issuance of an order suspending any decision to dissolve Parliament,” he ruled.

The court then acknowledged the grave concerns that were raised by the petitioners. It is on this premise that the judge directed that a team of judges not less than three be constituted to hear and determine the legality and merit of the advisory.

“I am satisfied that the petitioners will suffer irreversible prejudice, which means the implementation of the CJ’s advice to the president to dissolve Parliament stands suspended pending the hearing and determination of the application by a bench of not less than three judges,” ruled Korir.

Uhuru speaks

The judge then directed the petitioners to serve the CJ, the Attorney General, Speaker of National Assembly and the Senate Speaker with the petition before the hearing on October 7.

The advisory has attracted mixed views. The Law Society of Kenya had called for a protest at the Parliament buildings to force the president to dissolve parliament as had been directed. LSK President Nelson Havi argued that the law contemplated that the legislators ceased occupying their positions legally on Monday, October 12, after the grace period of the advisory.

But on the other hand, two Houses had moved to court to file a petition to stop the implementation of the orders terming it premature. In a recent trip to France, President Uhuru told the French press that he would not dissolve Parliament as had been directed.