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Shall We, or Must We? What of Our Constitution?

By Corrine Kihara | September 29th 2020 at 20:30:00 GMT +0300

The past week has proven quite eventful for Kenya in regard to her Constitution. The actions of the Hon. Chief Justice, David Maraga, in advising the President to dissolve Parliament, has sparked a conversation that has torn the law fraternity down a perturbing middle.

On top of the actual weight of the results (the actual dissolution of Parliament in its entirety) is the fact that we have such different perspectives on what this Article, and maybe what our Constitution means, or should mean.

From Raila Odinga, to digitally active lawyers in the city, everyone has tried to weigh in on what the most ‘fruitful’ way forward would be in this situation. It can easily be said that it has been a confusing time for Kenyans, sifting through what should have been done, why and most importantly, what next.

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It has revealed political machinations, ignorance of the Constitution many of us voted for, and a seeming lack of will to truly work down to the spirit and letter of what values our nation should espouse. But what is the actual cost of the current ‘constitutional crisis’ that is hovering over us?

Indeed, no one can deny what the costs of implementing Chief Justice Maraga’s notice to the President would be to the country. The mere thought of the entire process is enough to cause migraines. From the by-elections that would have to be carried out, to the blow suffered in development's sake, and most importantly, the political machination that would ravage the country – leave alone the money that it would cost the taxpayer.

Whether there are political, or even tribal calculations at play, is one of those issues that should gravely bring all our leaders, and indeed, our nation to the table to question what integrity and accountability should look like in Kenya.

The question being asked, however, is what are the incentives driving the conversations on the matter? I ask this question because some of the most important actors in this situation have made some surprising statements.

First and foremost, the Constitution is quite clear on the gender parity rule. This has been clear since its promulgation. In this regard, the matter of amendments being brought up by legislators at this time is superfluous and moot.

In fact, the Speaker of the National Assembly’s statement on the issue at large brings to the fore some of the factors that have caused angst in the country. Hon. Justin Muturi stated in his ‘SNA Opinion Piece on the 2/3 Gender Rule’, that “… the clamour for dissolution of the current Parliament on account of failure to enact the two-third gender legislation is at the very least, unrealistic. There is nowhere in the current Constitution that the onus is placed on Parliament as an institution to ensure there is gender parity in State organs.”

This is just not so.

Article 261 (7) of the Constitution expressly states that if Parliament fails to enact an order passed on by the Chief Justice under Clause (6), the Chief Justice shall advise the President to dissolve Parliament, and the President shall dissolve parliament. It is important to note that the entirety of Article 261 speaks to the Honourable Speaker of the National Assembly’s sentiments.

Under this Article, there is precedent set for an aspect of the Constitution that is not implemented within due course. Firstly, there can be an extension of the period provided for in the Fifth Schedule, not exceeding one year. In this instance, the Attorney General would liaise with the Commission on the Implementation of the Constitution to provide all necessary Bills to Parliament that would enable the prompt and effective implementation of said delayed legislation (the Gender Parity Two-Thirds Majority Rule in this case).

If Parliament fails on its end, any individual may petition the High Court (Under Article 258, and in part Article 259, of the Constitution) on the matter. On this, the High Court would determine the matter, either through a declaratory order on the issue and instruct the Attorney General and the Legislature to take steps to enact the legislation in question as soon as practically possible.

Failure to do the above, would result in the Chief Justice’s advisory to the President to dissolve Parliament. Indeed, “The Chief Justice shall advise the President to dissolve Parliament and the President dissolve Parliament” (Article 261 (7)).

Article 261 (7) has come under intense scrutiny from members of the legal fraternity especially, as well as politicians. Many have stated that “shall” does not equate “must”. They have further stated that the actions taken by the Chief Justice do not present anything other than chaos for the country.

It is important to remember what Article 259 states on the interpretation of the entirety of the document.

It states in Clause (1) that the Constitution “shall be interpreted in a manner that” among others, “(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights” and “(c) permits the development of the law: and (d) contributes to good governance.”

As stated above, the Legislature has defended its current position by stating, that other than that what the President was advised to do was not a must, it also has a number of amendments on the floor of the House to bring equitable balance to the issue.

All these sound like excuses.

The Honourable Chief Justice in his advisory to the President stated, ““Let us endure pain, if we must, if only to remind ourselves that as a country and being a democracy that has chosen to be governed by the rule of law, we must say no to impunity and hold everyone accountable for their actions or omissions,”

This is a very difficult pill to swallow, no one can deny that. However, the Chief Justice’s comments are at the very core of what this conversation is really about.

What does our Constitution actually mean to us (and our leaders)?

Yes, there are aspects of our Constitution that do not quite meld with the people we are, as Kenya, right now. And yes, one of those aspects is the gender parity rule that would dictate the composition of Parliament. It is indeed impossible to have a scenario where elected members of parliament are of equal gender measure.

However, it is our leaders’ duty to do all they must to ensure that our Constitution comes to fruition in the most principled way possible. Whereas our leaders speak of the inconvenient and unrealistic nature of the Chief Justice’s advice, it is more important to ask, why is it that we ended up in this position in the first place?

It has been ten years, since we were to enact this part of the law, and this is the situation we are faced with now. It is not bad luck that we find ourselves here, but an indicator of grave issues that continue to berate this country. It is an indicator that all has not been done to ensure that good governance has been fulfilled to the benefit of every Kenyan, and this can be seen in all arms of government.

When Chief Justice Maraga first passed his advice to the President in 2020, the State moved to challenge the order proffered by Maraga, stating that it would seek interpretation on the matter from the High Court.  It is important to note that at the point the Chief Justice decided to advise the President, he had received several petitions on the unconstitutionality of Parliament’s existence.

The petitions found their way into the Office of the Attorney General. However, no single response was filed in regard to any of these petitions.

History further evidences the lack of commitment shown by the Office of the Attorney General. It was only in 2014, a year before the deadline ordered by the Constitution as the deadline for enactment, that the Attorney General moved to form a committee that would create a blueprint proposing amendments to various legislations, all in an effort to enact the implementation of the gender principle.

These included amendments to the Political Parties Act, Elections Act, Independent Electoral and Boundaries Commission Act, the National Gender and Equality Commission Act, and the County Governments Act.

It is worth noting that whilst the High Court did dismiss the advisory proffered by the President, it did move to constitute a panel that would hear the petition. This could be seen as a mitigating act to ensure that the issue is dealt with in the most delicate, effective way possible.

Our leaders have been the most disappointing of them all. Upon promulgation of the Constitution in 2010, the highest law in the land gave the Lower House a deadline of August 27, 2015 to enact all necessary laws that would satisfactorily implement the Gender Parity Law. However, this would not be.

There have been to date, a total of five attempts to tackle the gender issue in Parliament. In all these, the 10th Parliament that expired in 2012, the 11th Parliament that expired in 2017, and the current 12th Parliament, there has been no Amendment Bill or other legislation that made it to the Floor of Parliament for debate/and or voting.

Members of the House such as former Majority leader Aden Duale, former Chairman of the Justice and Legal Affairs Committee, Samuel Chepkonga, as well nominated Senator, Judy Sijeny, attempted to present Bills to the House that would pass this vital law. In all their attempts, they failed to achieve quorum.

The legislature itself ignored the order given to it to adhere to the gender parity two-thirds majority rule, in 160days, as of the date of promulgation. Due to this failure, 6 petitions were presented to the Chief Justice to enact the rule of the highest law in the land.

Most disturbing in all this, is the attitude taken by some well known (and respected) members of the Legislature regarding the spirit of this law. For instance, Suba MP, John Mbadi has made statements that have downplayed the importance of having women in key leadership positions. Further, the reasons behind why women across the country have found themselves deprived of some very important roles in our country. He stated during one of the debates on the matter in Parliament that,” If this parliament is dissolved the next election will bring more men.”

He then went on to state alongside Kiminini MP, Chrisantus Wamalwa, that the two-thirds gender rule failed because some of the female legislators were not present in Parliament.

He is one of many of our leaders that has failed to tackle the issue at its core.

Many of our leaders see this issue as a matter of sweet life or political death; they would be unable to run for another term as they still have debts to clear.

Member of Parliament for South Mugirango, Silvanus Osoro, admitted that Members of Parliament would be especially hard hit should one look at it politically. “MPs are challenged if you look at it politically. From the psychological trauma of preparing for another election, some have not paid party dues so they cannot be cleared to vie for the seat again,”

Whereas the matter at hand is one that truly does boggle a mind, it does make one thing clear. What Kenya suffers from is not an impending constitutional crisis that warrants an initiative that does little for the people - but a governance crisis that has precipitated a plethora of woes that Kenyans must now swallow on a daily basis.

To quote Member of Parliament for Kimilili, Didimus Barasa, “There are many Kenyans who lost their businesses because of Covid-19 and they haven’t died. MPs will look for another way to mitigate. We cannot worry about protecting the interests of the MPs or about losing houses and cars,” he said. “We swore to protect the Constitution.”

It is indeed a matter of our leaders truly getting away with impunity on every front they can fathom, and this crisis is only but an example. It is as if they need not honour our laws, that we must honour, but that they must be allowed to get away with it, because the consequences are too expensive.

But in the long term… for whom?

It is easy to dismiss the Chief Justice’s actions as populist, or political, but in truth, what our leaders are really saying is that one, our Constitution may actually be a matter of convenience for them, in the manner that graft has been a matter of proven convenience, in the manner that a growing debt burden is a matter of convenience; that our governance is not a matter to be taken seriously.

Our constitution need not be respected and honoured by those who took oaths, before man and God, when they said they would, because it would be too expensive. It is thus for us to ponder; are we being taken for a ride? Political interests and machinations continue to draw us away from the Kenya that was promised in August 2010. We continue to watch our leaders flout the law in spirit and in truth, whilst we watch in anger and confusion.

-Kihara is a Political Scientist


Dissolve Parliament CJ David Maraga
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