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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.
Introduction
The dissolution of Parliament in Kenya is a significant constitutional process that is governed by Article 261 of the Constitution of Kenya, 2010. This article outlines the steps and conditions under which the Chief Justice is mandated to advise the President to dissolve Parliament. The process is designed to ensure that Parliament adheres to its legislative duties, particularly in enacting laws required by the Constitution within specified timelines. This mechanism serves as a check on the legislative arm of the government, ensuring accountability and adherence to constitutional mandates.
Table of Contents
Overview of Article 261
Conditions for Dissolution
Role of the Chief Justice
Role of the President
Historical Context and Precedents
Relevant Case Laws
Conclusion
TLDR
1. Overview of Article 261
Article 261 of the Constitution of Kenya, 2010, falls under Chapter Eighteen, which deals with transitional and consequential provisions. This article is crucial as it mandates the enactment of specific legislation required by the Constitution within a stipulated period. The Fifth Schedule of the Constitution specifies the timelines for enacting these laws.
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2. Conditions for Dissolution
The process for the dissolution of Parliament under Article 261 is triggered by the failure of Parliament to enact legislation as required by the Constitution within the specified period. The specific conditions include:
Failure to Enact Legislation: If Parliament fails to enact the required legislation within the period specified in the Fifth Schedule.
Court Order: If there is a court order directing Parliament to enact the legislation and Parliament fails to comply with this order.
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3. Role of the Chief Justice
The Chief Justice plays a pivotal role in the dissolution process. According to Article 261(7):
Advisory Role: The Chief Justice is mandated to advise the President to dissolve Parliament if it fails to enact the required legislation.
Mandatory Action: This advisory role is not discretionary; the Chief Justice "shall" advise the President, making it a mandatory action upon the failure of Parliament to meet its legislative obligations.
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4. Role of the President
Upon receiving the advice from the Chief Justice, the President is required to take the following actions:
Dissolution of Parliament: The President "shall" dissolve Parliament upon receiving the advice from the Chief Justice. This action is also mandatory and not subject to the President's discretion.
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5. Historical Context and Precedents
The most notable instance of the invocation of Article 261(7) occurred in September 2020 when Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve Parliament. This advice was based on Parliament's failure to enact legislation on the two-thirds gender rule, a constitutional requirement aimed at ensuring gender equality in legislative representation.
Chief Justice David Maraga's Advisory: On September 21, 2020, Chief Justice Maraga advised President Kenyatta to dissolve Parliament due to its failure to enact the two-thirds gender rule legislation.
Public and Political Reaction: The advisory led to significant public and political debate, with various stakeholders expressing differing opinions on the necessity and implications of dissolving Parliament.
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6. Relevant Case Laws
Several case laws and legal precedents have shaped the understanding and application of Article 261(7):
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR: This case highlighted the constitutional requirement for gender representation and the legislative duty to enact laws to achieve this principle.
Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2015] eKLR: The court emphasized the mandatory nature of the two-thirds gender rule and the legislative duty to enact the necessary laws.
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Conclusion
The process for the dissolution of Parliament under Article 261 of the Constitution of Kenya is a critical mechanism to ensure legislative accountability and adherence to constitutional mandates. The roles of the Chief Justice and the President are clearly defined, with mandatory actions required upon the failure of Parliament to enact necessary legislation. Historical instances and legal precedents underscore the importance of this constitutional provision in maintaining the integrity of Kenya's legislative process.
TLDR
The dissolution of Parliament under Article 261 involves the Chief Justice advising the President to dissolve Parliament if it fails to enact required legislation within specified timelines. The President is then mandated to dissolve Parliament. This process ensures legislative accountability and adherence to constitutional mandates.
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Answered by mwakili.com