Constitutional law often presents complex issues that judges have to make decisions about. This is mostly because, unlike most other areas of law, many constitutional cases involve matters of public interest and often tend to have significant implications beyond the parties bringing a constitutional case to court.
One of the greatest challenges in determining constitutional matters is that a constitution is often worded in broad terms or principles. The practice of framing the constitution inflexible language is largely inspired by the fact that constitutions are intended to be near eternal documents and hence there is a need to make sure they are adaptable over time. Adaptability is key because, unlike statutes, changing or amending a constitution is mostly an onerous and complex task.
There is another reason why constitutions may contain imprecise language. Constitutions address many subject matter areas that it is often impossible to be either too detailed or too precise on a specific subject. Instead, a constitution anticipates and often requires law-making organs to provide more details on each of its subject matter through the passage of implementing or enabling statutes.
This may be in two forms; through express constitutional directives to enact a particular piece of legislation, or through general or subject matter legislative powers granted to legislatures to enact laws. In Kenya, this legislative power is shared by Parliament and county assemblies.
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To ensure legislative bodies do not overstep or misuse the legislative mandate granted by the constitution, courts are given the authority to assess whether laws passed by legislatures are constitutional. Courts are also given other broader powers to adjudicate on whether any actions undertaken by public bodies, including the legislatures, are in conformity with the constitution.
In undertaking this task, courts often draw upon the legal experiences of judges and the rules – often set out in the constitution – on how to decide constitutional matters even where the constitution or the law may offer imprecise guidance on an issue.
But on some issues, constitutions are detailed and precise. This is often because the matter is highly consequential or the constitution anticipates a greater possibility of mischief from the persons or bodies entrusted to deal with the issue. It is this precision that we see in our constitutional framework relating to why Parliament can be dissolved for failing to enact legislation specifically required by the 2010 Constitution.
Towards the tail end of the text of the 2010 Constitution is the Fifth Schedule. That schedule specifically indicates a list of laws Parliament was required to enact to helpfully elaborate on different aspects covered by the constitution. This ranges from laws on culture in Chapter 2 of the Constitution to laws on National Security in Chapter 14. Beyond listing the necessary laws, the schedule also sets out a timeline by when Parliament had to pass the different laws – with the only exception that Parliament could request for an extension that did not exceed one year.
The drafters of the Constitution must have known that Parliament may not be too enthusiastic to pass certain laws – so they provided for consequences for such failure which was the dissolution of Parliament. But running through the entire body of the Constitution is the value of fairness, and hence, before the dissolution could be ordered, courts were required and empowered to provide Parliament with a warning and set time to pass the necessary legislation failing which the Chief Justice is alerted of Parliament’s delinquency and required to let the President know of the failure and the President must dissolve Parliament. In fact, the Committee of Experts report is emphatic that advisory on the dissolution of Parliament must result in just that – dissolution.
For a judge, the case relating to when to order Parliament to enact a law it has failed to pass under the Fifth Schedule failing which it would be dissolved is a simple one to decide. This is because the Constitution is quite detailed on the procedure that leads up to the orders and advisory on dissolution.
Simply, the comprehensive list of questions that a judge asks are: Does the Constitution require passage of the law? How much time was Parliament given to pass the law? Has the time period lapsed (including any one-year extension)? Did Parliament pass the law? If the law has not been passed, the court gives Parliament one last chance and a set time to pass it failing which the actions leading to the Chief Justice instructing the President to dissolve Parliament ensues.
There are those who have argued that the courts were either too harsh or acontextual in ordering Parliament to pass the two-thirds gender law. It has also been argued that the High Court and the Chief Justice should have considered the consequences of the dissolution of Parliament before making the orders on dissolution or sending the advisory to the President. Most times the law usually is not clear – but on the procedure and reasons leading up to the requirement that the Chief Justice advises the President to dissolve Parliament, the law could never have been clearer.
Those who blame the Judiciary and the Chief Justice on dissolution are being disingenuous. The High Court and the Chief Justice had no option. On this, the law did not provide them with any room to be creative or to be contextual. It was about straight and hard facts; the rest was a narrow but clear path to the advisory. If they had done otherwise, they would have subverted the Constitution that they are charged with protecting and enforcing.
True, there are more fundamental questions about the consequences of the dissolution of Parliament. In fact, the constitution does not offer full clarity on all the relevant issues that arise from dissolution. But those were not questions for the High Court and the Chief Justice when they were deciding whether Parliament was in default and should be dissolved. Instead, they are questions for another day and perhaps another case.
In the end, Parliament is being dissolved because of its arrogance which makes it decide when to follow the Constitution and when not to. It is being dissolved because most parliamentarians are consciously or subconsciously steeped in patriarchy that they believe they can wrestle with constitutional values of rule of law and directives on inclusion and non-discrimination. We have a constitution that is not averse to controversy if only to insist on its authority. Our constitution seems to subscribe to the belief that the storm doesn’t diminish a rainbow’s beauty, it enhances it.
- Mr Waikwa Wanyoike is a constitutional lawyer. @waikwawanyoike