The contestations against Chief Justice David Maraga’s advisory to President Uhuru Kenyatta to dissolve Parliament have been hugely personalised and off the mark. They have been plainly ad hominem and nihil ad rem, as scholars would say. The CJ’s personal integrity has been assaulted. An ill motive has been imputed in sundry places, including on the floor of Parliament itself.
I appreciate the human factors behind the furor, especially among the legislators. In tandem, therefore, I also appreciate the attendant absence of wisdom, poor focus and lack of logic in the unnecessary public outbursts against the CJ. In a country increasingly litigious, someone has rushed to court over the matter. We must, accordingly, tiptoe around the issue, lest we be cited for contempt of court.
Notwithstanding, we can still safely reflect on the management of the matter. Parliament went into an angry orgy of shock and panic, on account of human factors. MPs face a palpable sudden loss of income. They are staring at a possible election they have not prepared for – financially, emotionally and logistically. They could suddenly lose authority, power, influence and prestige. They are looking straight into the eye of possible personal ruin. Hence, their outbursts of petulance can be excused.
Not so easy to understand, however, is why the Executive seems stunned into inactivity. This thing was always coming. In a capsule, Parliament has repeatedly dodged legislating on the two-thirds gender rule and how it should work for elected leaders. It is by no means an easy task. But, the Constitution says Parliament should legislate, all the same. If it does not do so within the set timelines, it says, the CJ can advise the President to dissolve it. “And the President shall dissolve Parliament,” the Constitution says.
What it does not say is how the President should go about it, or within what timelines. Now this is where level-headed wisdom has failed the Executive. You would expect the paid-up wise counselors around the President to advise him about the gap in the premier law of the land. Legislation on how Parliament may be dissolved in such a case ought to have been provided for in the Fifth Schedule (Article 261(1)) of the Constitution of Kenya 2020. It was not. This is a glaring weakness in this law.
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The done thing then ought to be for the President to advise himself on the need to proceed with delicate caution. First, he must appreciate that he has been put on the weighing scales of the rule of law. If he “ignores” the CJ’s advisory, as some have urged him, he brands his legacy with a permanent stamp of impunity. If he recklessly dissolves Parliament he throws the country into chaos. For, he needs Parliament to approve the budget for the election that must follow. Parliament must also approve the composition of the Independent Electoral and Boundaries Commission (IEBC), among other concerns.
Yet, it is not such a huge crisis that is in the President’s lap. Wisdom would suggest that he ought to have been always on the qui vive. This advice was always coming. One arm of government publicly failed in its legislative duty. The matter passed on to the next arm, as by law required. And that arm has passed the ball on to the Executive, perfectly according to the law. In the absence of a specific law on how the President should dissolve Parliament, and in the absence of timelines, the actual process was left to his wise discretion. This does not, however, include discretion on whether to dissolve or not. On that one, he has no choice, except for the choice of impunity.
He has been slow and the matter is now in court. The wise choice would, otherwise, have been for the President to avert a crisis, by instantly issuing a notice of conditional dissolution of Parliament to the two Speakers of Senate and the National Assembly. He would, in that case, be brief and to the point.
In part, his Executive Order would say something like, “Further to the Chief Justice’s advice to me in line with Article 261(7) of the Constitution of Kenya (2010), I hereby direct that Parliament shall stand dissolved by the stroke of midnight on (give a future date) if the legislation to operationalise the relevant Articles of the Constitution will remain unaccomplished, by the given date.” Done.
The wise people around the President failed him. They slept on the job. It is the price the nation pays for a hapless centre constituted on the quicksand of dubious merits.
Our predicament is heightened by the reality that there exists a dishonest corner in the legal fraternity, ever so ready to mislead the Executive with obscure mumbo jumbo. Mercifully, the Law Society of Kenya has an honest president who tells the legal truth as it is. Forget, therefore, about the pharisaic obscurantism about stuff like, “Maraga should have considered what is good for the country.”
The law is not a chameleon that changes its complexion depending on the environment. What is good – indeed best – for any country at any one time, is the rule of law. We got here because of impunity. Impunity is a time bomb. Now we know, for example, that IEBC is a time bomb. We know the impunity around 41 judges of the High Court and Court of Appeal is another time bomb. Other time bombs reside in each court order the Executive has defied. Now the President and Parliament know better. We all know.
-The writer is a communications adviser