Ask a lawyer:
Can the president dissolve parliament?

mwakili.com

Introduction

The question of whether the President of Kenya has the authority to dissolve Parliament is a significant one, touching on the balance of power between the executive and legislative branches of government. This issue is governed by the Constitution of Kenya, 2010, and other relevant statutes. In this response, I will explore the constitutional provisions and legal frameworks that address the dissolution of Parliament by the President.

Constitutional Provisions
- 1.1 Article 261 and the Fifth Schedule
- 1.2 Article 102: Term of Parliament
- 1.3 Article 136: Election of the President
- 1.4 Article 255: Amendment of the Constitution
Historical Context
- 2.1 Pre-2010 Constitution
- 2.2 Post-2010 Constitution
Judicial Interpretations
- 3.1 Advisory Opinions
- 3.2 Relevant Case Law
Comparative Analysis
- 4.1 Other Jurisdictions
Conclusion

1. Constitutional Provisions

1.1 Article 261 and the Fifth Schedule

Article 261 of the Constitution of Kenya, 2010, provides for the implementation of the Constitution. It mandates Parliament to enact legislation required by the Constitution within the periods specified in the Fifth Schedule.
The Fifth Schedule outlines the timelines within which various pieces of legislation must be enacted. Failure to comply with these timelines can lead to the dissolution of Parliament, but this is not at the discretion of the President. Instead, it involves a judicial process.

1.2 Article 102: Term of Parliament

Article 102 of the Constitution specifies the term of Parliament. It states that the term of each House of Parliament expires on the date of the next general election.
The President does not have the authority to dissolve Parliament at will. The dissolution of Parliament is tied to the electoral cycle and the term limits set by the Constitution.

1.3 Article 136: Election of the President

Article 136 outlines the procedure for the election of the President. It is relevant to the discussion because the timing of presidential elections is synchronized with the general elections for Parliament.
This synchronization ensures that the dissolution of Parliament is a function of the electoral process rather than an executive decision.

1.4 Article 255: Amendment of the Constitution

Article 255 provides the framework for amending the Constitution. Any attempt to alter the provisions related to the dissolution of Parliament would require a constitutional amendment, which involves a referendum.
This underscores the rigidity of the constitutional provisions regarding the dissolution of Parliament, making it clear that the President cannot unilaterally dissolve Parliament.

2. Historical Context

2.1 Pre-2010 Constitution

Under the previous constitution, the President had the power to dissolve Parliament. This was a significant aspect of the executive's control over the legislature.
The 2010 Constitution was designed to curtail such powers and promote a more balanced separation of powers.

2.2 Post-2010 Constitution

The 2010 Constitution introduced significant changes to the governance structure, including the removal of the President's power to dissolve Parliament.
The focus shifted to ensuring that the dissolution of Parliament is a function of the electoral process and judicial oversight rather than executive discretion.

3. Judicial Interpretations

3.1 Advisory Opinions

The Supreme Court of Kenya has the authority to issue advisory opinions on matters concerning the interpretation of the Constitution.
In various advisory opinions, the Court has emphasized the importance of adhering to the constitutional provisions regarding the dissolution of Parliament.

3.2 Relevant Case Law

Council of Governors v. Senate & Another [2015] eKLR: This case highlighted the importance of the separation of powers and the need for each branch of government to operate within its constitutional mandate.
Katiba Institute & Another v. Attorney General & Another [2020] eKLR: This case reaffirmed that the dissolution of Parliament is not within the President's discretion but is governed by constitutional provisions and judicial oversight.

4. Comparative Analysis

4.1 Other Jurisdictions

In many other jurisdictions, the power to dissolve Parliament is either vested in the head of state (e.g., the UK) or is a function of the electoral process (e.g., the US).
The Kenyan model, post-2010, aligns more closely with systems where the dissolution of Parliament is tied to fixed electoral cycles and judicial oversight.

Conclusion

In conclusion, the President of Kenya does not have the authority to dissolve Parliament at will. The dissolution of Parliament is governed by the Constitution of Kenya, 2010, which ties it to the electoral cycle and judicial processes. This framework ensures a balanced separation of powers and prevents the executive from exercising undue control over the legislature. The relevant constitutional provisions, historical context, judicial interpretations, and comparative analysis all support this conclusion.