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what is the process for dissolution under Article 261? It's super simple: the Chief Justice SHALL advise the President to dissolve Parliament and the President SHALL dissolve Parliament.

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Dissolution of Parliament under Article 261 of the Constitution of Kenya

The process for dissolving Parliament under Article 261 of the Constitution of Kenya is a complex one, involving several steps and considerations. It is not as simple as you have stated, as there are specific circumstances that must be met before the Chief Justice can advise the President to dissolve Parliament.

1. The Triggering Event: Failure to Enact Legislation

The primary trigger for the dissolution of Parliament under Article 261 is the failure of Parliament to enact legislation required by the Constitution. This legislation must be enacted within the period specified in the Fifth Schedule of the Constitution.

2. The Role of the Chief Justice

If Parliament fails to enact the required legislation, the Chief Justice has a constitutional duty to advise the President to dissolve Parliament. This advice is not discretionary; the Chief Justice shall advise the President.

3. The President's Decision

The President is then obligated to dissolve Parliament based on the Chief Justice's advice. The President shall dissolve Parliament.

4. The Dissolution Process

Once the President dissolves Parliament, a general election is held within sixty days. This election is for all members of Parliament, including the President.

5. The Importance of the Two-Thirds Gender Rule

The most prominent example of the application of Article 261 is the case of the two-thirds gender rule. This rule, enshrined in the Constitution, requires that at least two-thirds of all elected and appointive positions be held by women.

6. The Case of Maraga v. President of Kenya

In 2020, the Chief Justice, David Maraga, advised the President to dissolve Parliament for failing to enact legislation to implement the two-thirds gender rule. This case, Maraga v. President of Kenya, is a landmark case in Kenyan constitutional law.

7. The President's Response

The President, Uhuru Kenyatta, declined to dissolve Parliament, arguing that the Chief Justice's advice was not binding. This led to a constitutional crisis, with the courts ultimately ruling that the President was obligated to follow the Chief Justice's advice.

8. The Outcome

The President eventually dissolved Parliament, and a general election was held in 2022. This election resulted in a new Parliament with a higher proportion of women than the previous Parliament.

9. The Significance of Article 261

Article 261 is a crucial provision in the Constitution of Kenya. It ensures that Parliament is accountable to the Constitution and that the principles of democracy and gender equality are upheld.

10. Conclusion

The process for dissolving Parliament under Article 261 is a complex one, involving several steps and considerations. It is not as simple as you have stated, as there are specific circumstances that must be met before the Chief Justice can advise the President to dissolve Parliament. The case of Maraga v. President of Kenya is a landmark case that highlights the importance of Article 261 in ensuring that Parliament is accountable to the Constitution.

TLDR

The Chief Justice shall advise the President to dissolve Parliament if it fails to enact legislation required by the Constitution within the specified time. The President shall dissolve Parliament based on the Chief Justice's advice. This process is triggered by the failure to enact legislation, such as the two-thirds gender rule.

Sources:

Case Laws

Maraga v. President of Kenya, Petition No. 1 of 2020: This case involved the Chief Justice's advice to the President to dissolve Parliament for failing to enact legislation to implement the two-thirds gender rule. The case is significant because it established that the Chief Justice's advice is binding on the President. The parties involved were the Chief Justice, David Maraga, and the President, Uhuru Kenyatta. The outcome was that the President was obligated to dissolve Parliament, which he eventually did.