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Article 261 of the constitution which says what needs to happen if the high court orders parliament to pass the necessary laws( required by the 5th Schedule) and it doesn't: dissolution

Introduction

Article 261 of the Constitution of Kenya, 2010, is a critical provision that outlines the legislative responsibilities of Parliament in enacting laws required by the Constitution. This article is particularly significant because it includes mechanisms to ensure compliance, including the potential dissolution of Parliament if it fails to enact the necessary legislation within specified timelines. This provision underscores the importance of legislative accountability and the rule of law in Kenya's constitutional framework.

Table of Contents

  1. Overview of Article 261

  2. Legislative Responsibilities Under Article 261

  3. Consequences of Non-Compliance

  4. Role of the Chief Justice

  5. Case Laws and Legal Precedents

  6. Conclusion

  7. TLDR

1. Overview of Article 261

Article 261 of the Constitution of Kenya, 2010, is situated within Chapter Eighteen, which deals with transitional and consequential provisions. This article mandates Parliament to enact legislation required by the Constitution within the periods specified in the Fifth Schedule. The Fifth Schedule outlines various timelines for the enactment of specific laws, ranging from one year to five years from the effective date of the Constitution.

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  • Kenya Law Reform Commission

2. Legislative Responsibilities Under Article 261

Article 261(1) explicitly states that Parliament shall enact any legislation required by the Constitution to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date. This provision ensures that the legislative framework necessary for the full implementation of the Constitution is established within a reasonable timeframe.

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3. Consequences of Non-Compliance

Article 261(7) provides a stringent consequence for non-compliance. If Parliament fails to enact the required legislation within the specified period, any person may petition the High Court for a declaratory order. If the High Court issues an order directing Parliament and the Attorney-General to take steps to enact the legislation and they fail to comply within the specified period, the Chief Justice shall advise the President to dissolve Parliament.

This provision is designed to ensure that Parliament adheres to its constitutional obligations and that there are serious repercussions for failure to do so. The dissolution of Parliament is a significant measure that underscores the importance of legislative compliance with constitutional mandates.

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4. Role of the Chief Justice

The Chief Justice plays a pivotal role in the enforcement of Article 261. Upon receiving a petition and subsequent order from the High Court, the Chief Justice is mandated to advise the President to dissolve Parliament if it fails to enact the required legislation. This role places the Chief Justice at the center of ensuring legislative accountability and upholding the rule of law.

In 2020, Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve Parliament for failing to enact the two-thirds gender rule, as required by the Constitution. This advice was based on Article 261(7) and highlighted the Chief Justice's constitutional duty to uphold the law.

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5. Case Laws and Legal Precedents

5.1. High Court Orders Parliament to Enact Legislation

In 2017, the High Court ordered Parliament and the Attorney-General to take necessary steps to enact legislation for the implementation of the two-thirds gender rule within 60 days. The court warned that failure to comply would result in a petition for the dissolution of Parliament. This case underscored the judiciary's role in enforcing constitutional mandates and the potential consequences of non-compliance.

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5.2. Chief Justice's Advice to Dissolve Parliament

In 2020, Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve Parliament for failing to pass the two-thirds gender legislation. This advice was based on Article 261(7) and marked a significant moment in Kenya's constitutional history. The advice was met with mixed reactions, highlighting the tension between the judiciary and the legislature.

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5.3. Legal Precedents

The case of Centre for Rights Education and Awareness (CREAW) & 2 others v Attorney General & another [2015] eKLR is a notable precedent where the High Court directed Parliament to enact the necessary legislation to implement the two-thirds gender rule. The court emphasized the constitutional obligation of Parliament and the potential consequences of non-compliance.

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6. Conclusion

Article 261 of the Constitution of Kenya, 2010, is a crucial provision that ensures legislative accountability and the timely enactment of laws required by the Constitution. The potential dissolution of Parliament for non-compliance underscores the seriousness of this mandate. The role of the Chief Justice in advising the President to dissolve Parliament highlights the judiciary's critical function in upholding the rule of law and ensuring that constitutional obligations are met.

7. TLDR

Article 261 of the Constitution of Kenya mandates Parliament to enact required legislation within specified timelines. If Parliament fails to comply, the High Court can order it to do so, and if non-compliance persists, the Chief Justice must advise the President to dissolve Parliament.

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Answered by mwakili.com