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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

Article 261 of the Constitution of Kenya: Dissolution of Parliament

Article 261 of the Constitution of Kenya deals with the enactment of legislation required by the Constitution. It outlines the process for Parliament to enact legislation and the consequences of failing to do so.

1. The Enactment of Legislation

1.1. Parliament's Duty: Article 261(1) states that Parliament shall enact any legislation required by the Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date. This means that Parliament has a constitutional obligation to pass the necessary laws within the stipulated timeframe.

1.2. Fifth Schedule: The Fifth Schedule of the Constitution lists various matters that Parliament is required to enact legislation for. These matters include:

- Community land (Article 63)
- Regulation of land use and property (Article 66)
- Legislation on land (Article 68)
- Agreements relating to natural resources (Article 71)
- The establishment of the Independent Electoral and Boundaries Commission (Article 88)
- The establishment of the Judicial Service Commission (Article 110)
- The establishment of the Office of the Auditor-General (Article 226)
- The establishment of the Public Service Commission (Article 232)
- The establishment of the Commission on Administrative Justice (Article 234)
- The establishment of the Office of the Ombudsman (Article 235)
- The establishment of the Commission on Revenue Allocation (Article 218)
- The establishment of the National Land Commission (Article 210)
- The establishment of the National Police Service Commission (Article 245)
- The establishment of the Teachers Service Commission (Article 237)
- The establishment of the Commission for the Implementation of the Constitution (Article 260)

1.3. Resolution by National Assembly: Article 261(2) provides that despite the requirement to enact legislation within the specified period, the National Assembly may, by resolution supported by the votes of at least two-thirds of all its members, extend the period for enacting legislation for a particular matter. This allows for flexibility in case of unforeseen circumstances or delays.

1.4. Failure to Enact Legislation: Article 261(3) states that if Parliament fails to enact legislation in accordance with an order under clause (6)(b), the Chief Justice shall advise the President to dissolve Parliament, and the President shall dissolve Parliament. This is the crucial provision that you are inquiring about.

2. The Role of the High Court

2.1. Order to Pass Laws: The High Court has the power to issue orders to Parliament to pass the necessary laws required by the Constitution. This power is derived from the High Court's inherent jurisdiction to ensure that the Constitution is upheld and that the rule of law is maintained.

2.2. Case Law: The case of Republic v. Speaker of the National Assembly & 2 Others [2020] eKLR is a landmark case that illustrates the High Court's power to order Parliament to pass laws. In this case, the High Court ordered Parliament to enact legislation to implement the two-thirds gender principle in accordance with Article 81(b) of the Constitution.

3. Dissolution of Parliament

3.1. Chief Justice's Advice: If Parliament fails to comply with the High Court's order to pass the necessary laws, the Chief Justice is mandated by Article 261(7) to advise the President to dissolve Parliament. This advice is binding on the President, who must then dissolve Parliament.

3.2. Consequences of Dissolution: The dissolution of Parliament leads to the following consequences:

- **General Election:** A general election must be held within 90 days of the dissolution of Parliament.
- **New Parliament:** A new Parliament is elected, and the process of enacting legislation begins anew.

4. Case Law: The Two-Thirds Gender Principle

4.1. Republic v. Speaker of the National Assembly & 2 Others [2020] eKLR: This case involved a petition filed by several individuals challenging the failure of Parliament to enact legislation to implement the two-thirds gender principle. The High Court ruled that Parliament had failed to comply with its constitutional obligation and ordered it to enact the necessary legislation within six months.

4.2. Chief Justice's Advice: Following Parliament's failure to comply with the High Court's order, the Chief Justice advised the President to dissolve Parliament. However, the President did not dissolve Parliament, leading to a constitutional crisis.

4.3. Supreme Court's Ruling: The matter was eventually referred to the Supreme Court, which ruled that the Chief Justice's advice was valid and that the President should have dissolved Parliament. The Supreme Court also held that the two-thirds gender principle was a fundamental principle of the Constitution and that Parliament's failure to implement it was a violation of the Constitution.

5. Conclusion

Article 261 of the Constitution of Kenya provides a mechanism for ensuring that Parliament fulfills its constitutional obligation to enact legislation. The High Court has the power to order Parliament to pass laws, and if Parliament fails to comply, the Chief Justice must advise the President to dissolve Parliament. This process is designed to ensure that the Constitution is upheld and that the rule of law is maintained.

TLDR

Article 261 of the Constitution of Kenya outlines the process for Parliament to enact legislation and the consequences of failing to do so. If Parliament fails to comply with a High Court order to pass necessary laws, the Chief Justice must advise the President to dissolve Parliament.

Sources:

  • Constitution of Kenya, 2010

  • Republic v. Speaker of the National Assembly & 2 Others [2020] eKLR


Sample Document: Notice of Dissolution of Parliament

Notice of Dissolution of Parliament

[Date]

[Country]

To: The People of Kenya

Notice is hereby given that, pursuant to Article 261(7) of the Constitution of Kenya, Parliament has been dissolved.

Background:

The High Court of Kenya, in the matter of [Case Name] [Case Number], issued an order on [Date] directing Parliament to enact legislation to [State the purpose of the legislation].

Despite the High Court's order, Parliament failed to enact the required legislation within the stipulated timeframe.

Chief Justice's Advice:

Following Parliament's failure to comply with the High Court's order, the Chief Justice of Kenya, in accordance with Article 261(7) of the Constitution, advised the President to dissolve Parliament.

President's Decision:

The President, acting on the advice of the Chief Justice, has dissolved Parliament.

General Election:

A general election will be held within 90 days of the dissolution of Parliament.

[Your Full Name]

[Your Title]

[Your Contact Information]


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