Does the President have to Dissolve the Parliament?

Kenyans have questions on whether the president is Compelled to dissolve the parliament after CJ’s advice. On 21st September, the Chief Justice David Maraga advised the President to dissolve the parliament. The Parliament has been unable to pass a bill on implementation of two thirds gender rule. Consequently, the CJ has advised the president to dissolve the parliament.  According to the constitution, the Chief Justice can advise the President to dissolve the parliament if it fails to implement such laws. Has CJ compelled the President to dissolve the parliament?

As Kenyans continue to debate about the gravity of such matters, this is what the constitution says on that matter. In article 261 of the constitution, the Chief Justice has the power to advice the president to dissolve the parliament. If the CJ does so, the president has to act accordingly. Note that the word used in the constitution is ‘shall’. Therefore, the CJ has put the President in a situation where he has to act.

“If Parliament fails to enact any particular legislation within the specified time, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”  (Id. § 261(7).

Expert Opinion

According to lawyer Ndegwa Njiru, CJ’s advice may be interpreted as an order. This means that the president cannot simply ignore this advice, even if he disagrees. If the president chooses not to honor the advice, he  would be failing to respect to the constitution. Therefore, disregarding this  advice is equivalent to starting anarchy in the country.

The implications of acting on this advice are as follows:

• The President will dissolve the parliament. This includes the national assembly and the senate.
• There will be national parliamentary elections in 60 days
• The newly elected parliament will serve for a term of five years
• From now henceforth, Kenyans shall hold Presidential elections and parliamentary elections in different timelines.

Due to the above implications, Kenya may be in a new phase of  constitution implementation. This advice might trigger a hot debate in the country. Kenyans have already shown diverse opinions by BBI implementation campaigns, as well as 2022 politics. Consequently, Kenyans need to be ready for more political drama in the near future.