Purported Dissolution of Parliament Under Article 261(7) of the Constitution – Duale

From @HonAdenDuale

The Chief Justice has, pursuant to Art. 261(7) of the Constitution, advised the President to dissolve Parliament on the ground that Parliament has allegedly “blatantly failed, refused and/or neglected” to enact legislation required to implement the two-thirds gender rule. In my view, the dissolution would have the following implications on the Constitution:

1. Art. 1(3) of the Constitution delegates the sovereign power of the people to, among others, Parliament. Further, Art. 94(2) clearly indicates that Parliament represents the will of the people and exercises their sovereignty on their behalf. A dissolution contemplated in Art. 261(7) therefore would be a serious affront to the will and sovereignty of the people embodied exercised by Parliament on their behalf.
2. Art. 94(1) confers the legislative authority on Parliament. That authority is derived from the people. A dissolution contemplated under Art. 261(7) would negate this legislative authority conferred on Parliament by the people and would thus deny the people the opportunity to exercise that authority, thus defeating the very purpose why the people ordained the Constitution for themselves.
3. The effect of dissolution of Parliament contemplated in Art. 261(7) would be to prematurely cut short a term of Parliament and thereby precipitate a general election. Art 101(1) clearly indicates that a general election can only be held on the second Tuesday of August every five years. The Constitution does not contemplate any other situation when a general election can be held. Consequently, a dissolution of Parliament will lead to a constitutional crisis, as there does not exist a mechanism for conducting a general election other than what is contemplated in Art. 101(1).

Article 261(7) of the Constitution provides that the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. Whereas there are no timelines prescribed in the Constitution within which the President is required to act, the decision of Chief Justice has thrown in the follow weighty Constitutional Questions:

1. Does the Constitution envisage another form of election other than a general election held on the second Tuesday in August of every fifth year as envisaged under Article 101 of the Constitution?
2. Does Article 136 of the Constitution apply noting the election of the President shall be on the same day as a general election of Members of Parliament? Does the dissolution of Parliament therefore trigger the election of a President?
3. Does Article 177 of the Constitution apply noting the election of the Members of a County Assembly shall be on the same day as a general election of Members of Parliament? Does the dissolution of Parliament also therefore  trigger the election of Members of a County Assembly?
4. Does Article 180 of the Constitution apply noting the election of a County Governor shall be on the same day as a general election of Members of Parliament? Does the dissolution of Parliament therefore trigger the election of County Governors?
5. What happens to the revenue allocation process that is yet to be concluded by Parliament if it is dissolved?
6. Who would allocate funds to IEBC to conduct the elections following the dissolution of Parliament?
7. Can the will of the People to elect their representatives democratically under Article 1 of the Constitution be negated by a stroke of the pen of the CJ?
8. Who would pass any election related laws required to be put in place following the dissolution of Parliament?
9. Does the advice of the Chief Justice cast doubt on the validity of the decisions and proceedings of Parliament moving forward?

In view of the foregoing, it is clear there are issues ensuing from the advisory of the Chief Justice, any person may move to the High Court for interpretation, to avert a constitutional crisis.

The Hon. Aden B. Duale, EGH, MP.