State House asked Attorney General Kihara Kariuki to challenge the advisory issued by Chief Justice David Maraga asking the President to dissolve parliament.
On Monday Maraga asked President Kenyatta to dissolve the Parliament for failing to implement the two-thirds gender rule.
Sources say the Attorney General will move to court in the week to seek an interpretation of the advisory.
“The President may ignore the advice. However, the government has decided to seek an interpretation on the way forward from the courts,” a Cabinet Secretary who sought anonymity told the Star.
The government moving to the court would cause another showdown with the Judiciary, given the frosty relationship between the two arms of government.
The executive has locked horns with the Judiciary for disobeying court orders while parliamentarians have also failed to comply with another order that was issued to it to implement the two-thirds gender rule.
It is the failure by the parliament to enact the two-third gender rule that led to the six petitions being put before the Chief Justice to advise the President to dissolve the House.
Maraga through the advisory said Kenya must be ready to suffer if only to hold elected parliamentary representatives accountable.
“In this circumstance let us endure pain, if we must if only to remind ourselves, as a country, that choices, particularly choices on constitutional obligations have consequences,” Maraga said.
Maraga said Kenya “must say no to impunity and hold everyone accountable for their actions or omissions”.
The fate of the Parliament now rests in the hands of the President – who is bound to dismiss the Parliament “within a reasonable time”.
Maraga’s historic rule is another set another upset to the country’s political class that evoked the memories of the annulment of President Uhuru’s presidential victory in the 2017 General Election.
Maraga was on the majority side when the bench invalidated Uhuru’s re-election and called for repeat election within 60 days.
Parliament’s leadership has on the other side protested against Maraga’s advisory.
According to National Assembly Speaker Justin Muturi, Maraga’s decision was “unrealistic”.
Muturi argued that there is no express constitutional provision that requires the Parliament to pass legislation to ensure compliance with the two-thirds gender law with respect to the MPs.
“The only direct obligation on Parliament is passing a law that ensures that all these marginalized groups including women are represented in Parliament,” Muturi said.
“In any case, the clamor for dissolution of the current Parliament on account of failure to enact the two-thirds gender legislation is at the very least, unrealistic.”
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In his ruling, Maraga argued that even though Muturi and Senate Speaker Kenneth Lusaka raised preliminary objections to the petition, they did not file written submissions although they were asked to do so.
“The Chief Justice has no appellate jurisdiction over the High Court decision arising from such petition. Any party aggrieved by the High Court decision on the matter may appeal to the Court of Appeal and if appropriate and authorized, prefer a further appeal to the Supreme Court,” Maraga said.
Maraga dismissed claims by the two House speakers that the order was not transmitted to Parliament, stating that their testimony to Parliament’s lackadaisical attitude and conduct.
“On the material placed before me, it is incontestable that Parliament has not complied with the High Court order… as such for over nine years, Parliament has not enacted the legislation required to implement the two-thirds gender rule…,” Maraga said.
