City advocate Adrian Kamotho has challenged the advisory issued by Chief Justice David Maraga to President Uhuru Kenyatta to dissolve Parliament.
Kamotho wants the court to quash the CJ’s advisory, arguing that is tainted with illegality, irrationality and procedural impropriety.
"The matter of dissolution of Parliament should be approached cautiously like hot ugali and in strict adherence to the law,” Kamotho says in his petition.
He argues that the Chief Justice failed to disclose the next course of action or events that should follow upon dissolution of Parliament, thus occasioning profound anxiety to the public.
Kamotho says the intention to dissolve Parliament was never disclosed, published or publicised contrary to the dictates of Article 35 (3) of the Constitution.
He says Parliament has many roles and an enormous legal mandate, the absence of which could grind the country to a halt.
“Unless this honourable court intervenes, the President will inevitably proceed to implement the defective advice conveyed by the Chief Justice, thereby thrusting the country into a constitutional conundrum,” he says.
Further, he argues that Article 261 of the Constitution does not envisage any scenario whatsoever.
“Therefore, having proceeded from the faulty premise of petitions unknown to law, the advice by Maraga is procedurally maimed and unsustainable," the petition reads.
The Chief Justice had said that there are six petitions before him seeking to have the Parliament dissolved.
However, Kamotho argues that Parliament was not a party to the proceedings of the petitions or even the appeal fomenting the advice formulated by the Chief Justice.
Kamotho has named Parliament, the Parliamentary Service Commission, speakers of the National Assembly and the Senate as interested parties in the case.
“The advice conveyed to the President by Maraga has not been published in the Kenya Gazette or any other media. This failure is contrary to the national values and principles of good governance and transparency as enshrined in Article 10 (2) c, as well as Article 35 (3) of the Constitution requiring the state to publish and publicise any important information affecting the state,” Kamotho says.
According to court papers, Article 261 (6) of the Constitution requires the High Court to transmit an order directing Parliament and the Attorney General to take steps to ensure that the required legislation is enacted, within the period specified in the order and to report the progress to the Chief Justice.
Edited by Henry Makori
