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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

Article 261 of the Constitution of Kenya, 2010, outlines the procedures and consequences if Parliament fails to enact legislation required by the Fifth Schedule within the stipulated time. This article is crucial for ensuring that the legislative framework mandated by the Constitution is implemented in a timely manner. The Fifth Schedule lists the laws that need to be enacted and the timelines for their enactment. If Parliament fails to meet these deadlines, Article 261 provides a mechanism for judicial intervention and potential dissolution of Parliament.

Article 261 of the Constitution of Kenya
- 1.1 Overview
- 1.2 Key Provisions
Fifth Schedule of the Constitution of Kenya
- 2.1 Overview
- 2.2 Timelines for Enactment
Judicial Intervention
- 3.1 High Court Orders
- 3.2 Consequences of Non-Compliance
Dissolution of Parliament
- 4.1 Procedure
- 4.2 Implications
Conclusion

1. Article 261 of the Constitution of Kenya

1.1 Overview

Article 261 of the Constitution of Kenya, 2010, provides a framework for ensuring that Parliament enacts the legislation required by the Constitution within specified timelines. This article is essential for the implementation of the constitutional provisions and the establishment of a comprehensive legal framework.

1.2 Key Provisions

Article 261(1): This clause mandates Parliament to enact legislation required by the Constitution within the periods specified in the Fifth Schedule.
Article 261(2): If Parliament fails to enact the required legislation within the specified time, any person may petition the High Court on the matter.
Article 261(3): The High Court, upon hearing the petition, may issue a declaratory order directing Parliament and the Attorney-General to take steps to ensure the required legislation is enacted.
Article 261(4): If Parliament fails to enact the required legislation within the period specified in the declaratory order, the Chief Justice shall advise the President to dissolve Parliament.
Article 261(5): Upon receiving the advice of the Chief Justice, the President shall dissolve Parliament.

2. Fifth Schedule of the Constitution of Kenya

2.1 Overview

The Fifth Schedule of the Constitution of Kenya lists the specific laws that need to be enacted and the timelines for their enactment. This schedule is crucial for ensuring that the constitutional framework is fully operational.

2.2 Timelines for Enactment

The Fifth Schedule specifies different timelines for the enactment of various laws, ranging from one year to five years from the date of promulgation of the Constitution. These timelines are designed to ensure a phased and manageable implementation of the constitutional provisions.

3. Judicial Intervention

3.1 High Court Orders

If Parliament fails to enact the required legislation within the specified timelines, any person may petition the High Court. The High Court, upon hearing the petition, may issue a declaratory order directing Parliament and the Attorney-General to take steps to ensure the required legislation is enacted.

Article 261(2): Allows any person to petition the High Court if Parliament fails to enact the required legislation.
Article 261(3): Empowers the High Court to issue a declaratory order directing Parliament and the Attorney-General to take necessary steps.

3.2 Consequences of Non-Compliance

If Parliament fails to comply with the High Court's declaratory order within the specified period, the Chief Justice is required to advise the President to dissolve Parliament.

Article 261(4): Specifies that the Chief Justice shall advise the President to dissolve Parliament if it fails to enact the required legislation within the period specified in the declaratory order.

4. Dissolution of Parliament

4.1 Procedure

The procedure for the dissolution of Parliament is outlined in Article 261(5). Upon receiving the advice of the Chief Justice, the President is required to dissolve Parliament.

Article 261(5): Mandates the President to dissolve Parliament upon receiving the advice of the Chief Justice.

4.2 Implications

The dissolution of Parliament has significant implications, including:

Legislative Vacuum: The dissolution of Parliament may create a temporary legislative vacuum until a new Parliament is elected and sworn in.
Political Implications: The dissolution of Parliament can have substantial political implications, including potential shifts in political power and the need for fresh elections.
Administrative Continuity: Despite the dissolution of Parliament, the executive and judiciary continue to function, ensuring administrative continuity.

Conclusion

Article 261 of the Constitution of Kenya, 2010, provides a robust mechanism for ensuring that Parliament enacts the legislation required by the Constitution within the specified timelines. The Fifth Schedule outlines the specific laws and their timelines for enactment. If Parliament fails to meet these deadlines, any person may petition the High Court, which can issue a declaratory order directing Parliament and the Attorney-General to take necessary steps. If Parliament still fails to comply, the Chief Justice is required to advise the President to dissolve Parliament. This mechanism ensures accountability and timely implementation of the constitutional framework.

By providing a clear and enforceable process, Article 261 plays a crucial role in upholding the rule of law and ensuring that the legislative framework mandated by the Constitution is fully implemented.