Parliamentarians can heave a sigh of relief following a court order suspending the advisory by CJ David Maraga asking President Uhuru Kenyatta to dissolve the House.
On Thursday evening, High Court judge Weldon Korir issued conservatory orders suspending the advisory issued over failure by legislators to pass a law on the two-thirds gender rule.
In the case, Leina Konchellah and Mohsen Munasar on Wednesday challenged the advisory on the grounds that it was causing public anxiety. They told the court that Maraga’s advice would occasion far-reaching repercussions to the governance and operations of government.
The case will be mentioned on October 7.
On Thursday, Judge Korir said, “In the circumstances of this case, I, therefore, find the petitioners’ notice of motion dated September 23 merited.”
The suspension will be in force, pending the hearing and determination of the petition or issuance of other orders by the court.
The judge also said it is important, in the public interest, not to subject the country to parliamentary elections before the constitutionality of Maraga’s decision is exhaustively interrogated.
“The public interest, therefore, supports the issuance of the conservatory orders sought,” Korir said.
The court noted that a reading of the Constitution shows that the decision of the CJ is expected to trigger action by the President without any further steps being taken.
“The President is not bound by timelines and he can even act on the advice of the CJ today, once the President acts, irreversible events may follow which will render the petition moot. It is, therefore, clear that failure to issue orders will highly prejudice the petitioners.”
Korir further said the petition raises substantial questions of law under Article 165 (3) of the Constitution and should be heard by an uneven number of judges, not less than three, assigned by the CJ.
“As such, I direct the Deputy Registrar of the decision to forthwith and without delay transmit this file to the Chief Justice for purposes of constituting a panel of judges to hear the petition,” he said.
Interestingly, Maraga, who is supposed to empanel the bench, is the first respondent in the matter and he will have to defend himself before the bench he assigns the case.
Lawyer Shadrack Wambui, however, says the office and the officeholder, who is the person, have to be distinguished “even though in reality there is no distinction”.
“The constitutional reality is that it is his office that is empowered to empanel a bench to hear this unique point of law, so ultimately it’s not him who is making the decision,” he said.