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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

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Introduction

This response will address the question of what happens when the High Court orders Parliament to pass necessary laws as required by the Fifth Schedule of the Constitution, and Parliament fails to comply. Specifically, it will examine the implications of Article 261 of the Constitution, which deals with the dissolution of Parliament in such a scenario.

Sources
Article 261 of the Constitution
The Fifth Schedule
Consequences of Parliament's Failure to Comply
Conclusion

Sources

Constitution of Kenya, 2010
Article 261
Fifth Schedule

1. Article 261 of the Constitution

Article 261 of the Constitution of Kenya, 2010, outlines the process for dissolving Parliament in certain circumstances. It states:

"If the High Court, on the application of the Attorney-General, declares that Parliament has failed to comply with a resolution of the National Assembly or the Senate, or with a decision of the High Court, to enact legislation within a specified period, the President may, by proclamation, dissolve Parliament."

This article essentially provides the President with the power to dissolve Parliament if it fails to comply with a court order or a resolution of the National Assembly or the Senate to enact legislation within a specified timeframe.

2. The Fifth Schedule

The Fifth Schedule of the Constitution outlines the specific laws that Parliament is required to enact. These laws are considered essential for the proper functioning of the Kenyan government and the protection of fundamental rights. The Fifth Schedule includes provisions relating to:

The Judiciary: This includes provisions for the establishment and operation of the Judiciary, the appointment of judges, and the independence of the Judiciary.
The Independent Electoral and Boundaries Commission (IEBC): This includes provisions for the establishment and operation of the IEBC, the conduct of elections, and the determination of electoral boundaries.
The Public Service: This includes provisions for the establishment and operation of the Public Service, the appointment of public officers, and the principles of public service ethics.
The National Security: This includes provisions for the establishment and operation of the security forces, the protection of national security, and the prevention of terrorism.
The Human Rights: This includes provisions for the protection of human rights, the establishment of the Commission on Administrative Justice, and the promotion of equality and non-discrimination.

3. Consequences of Parliament's Failure to Comply

If Parliament fails to comply with a High Court order to enact legislation as required by the Fifth Schedule, the following consequences may arise:

Dissolution of Parliament: As per Article 261, the President may dissolve Parliament. This would lead to a general election, where the people of Kenya would elect new members of Parliament.
Judicial Scrutiny: The High Court's decision to order Parliament to enact legislation is subject to judicial review. This means that the decision can be challenged in a higher court, such as the Court of Appeal or the Supreme Court.
Public Pressure: The failure of Parliament to comply with a court order could lead to public pressure and criticism. This could result in calls for accountability and reform.
Constitutional Crisis: The failure of Parliament to comply with a court order could create a constitutional crisis, as it would undermine the rule of law and the separation of powers.

4. The Role of the Attorney-General

The Attorney-General plays a crucial role in this process. It is the Attorney-General who applies to the High Court for a declaration that Parliament has failed to comply with a court order or a resolution of the National Assembly or the Senate. The Attorney-General is also responsible for representing the government in any subsequent legal proceedings.

5. Conclusion

Article 261 of the Constitution provides a mechanism for addressing the situation where Parliament fails to comply with a court order to enact legislation as required by the Fifth Schedule. The President has the power to dissolve Parliament in such a scenario, which would lead to a general election. However, the process is subject to judicial scrutiny, and the Attorney-General plays a crucial role in initiating and overseeing the legal proceedings. The failure of Parliament to comply with a court order could have serious consequences, including a constitutional crisis. It is therefore essential that Parliament complies with its constitutional obligations and enacts the necessary legislation to ensure the proper functioning of the Kenyan government and the protection of fundamental rights.