Justice Weldon Korir this week closed the “does Shall mean Must” debate in which every Kenyan had become an expert on constitutional and statutory interpretation; with obviously predetermined views. As a friend once told me, we Kenyans do not see things as they are, we see things as we are. It all started when the Chief Justice, threw the country a curve ball; advising the President to dissolve Parliament.
The confusion that emerged on the matter arose from a multiplicity of circumstances, the most obvious being that we have been conflating three considerations in reaching our conclusions.
The first is the technical legal argument. Was the Chief Justice technically right? While the courts will ultimately determine this question, as a friend of Constitution, I would say the unequivocal answer is yes. Article 261 clearly requires the Chief Justice to advise the President to dissolve Parliament if the Houses fail to pass any of the implementation Laws set out in the 5th Schedule.
Everyone accepts that Parliament has not passed the 2/3rds gender law, an explicit requirement in that Schedule.
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No one doubts that the courts have on at least two occasions issued orders requiring Parliament to pass the necessary legislation within set timelines all of which have been ignored.
Once these circumstances obtain, the Chief Justice had little room for maneuver.
He was required to advise the President to dissolve Parliament. His only wiggle room was time, which the Constitution had not prescribed but whose boundaries must have been defined by the CJ’s impending retirement. Once advised, the President was, barring any court injunction, expected to dissolve Parliament.
It is impossible to imagine that the elaborate mechanisms in Article 261 which precede the advice would have been placed there with the intention that it could be ignored willy-nilly by the President.
And by the way, the people who argue that dissolving the House would not have guaranteed the meeting of the 2/3rds gender threshold in Parliament, miss the point. If the current House had been dissolved, the next one would have passed the necessary gender laws in its first week. Unfortunately, and this my Bar President needs to recognise, governing and running countries is not like running the LSK, where one only needs to take into account legal technical questions.
Which brings me to the two other considerations that the President would have had to take into account before acceding to Justice Maraga’s advice.
The President as a prudent leader needed to consider the political and economic implications of the required action. Politically, what impact would a dissolution have on his several agendas as he heads to his lala salama season?
Foremost is the BBI which he has promised he will use to leave a legacy of a united Kenya. A dissolved Parliament would stop reggae. It would also destabilise the political environment too close to a general election and even that election would have been in the air!
All of the President’s flagships would have been paused as we headed to the campaign trail. And then there is IEBC whose status is at best abysmal. Would anyone risk an election with Chebukati’s team at the helm?
On the economic side, this country is on its knees. Even before Covid, our economy was wobbling along under the weight of huge debts and a stagnated business environment. Covid has placed a further burden on an almost comatose economy. We hardly have money for medicine, leave alone an election. Who in their right mind would subject the country to such an expense unless a crisis demanded it? Granted, the failure to resolve the gender equity issue is erroneous and unforgivable, but is it sufficient to be the reason we jump off the cliff?
The President, and I believe even the Chief Justice, must be glad that Justice Korir has postponed the catastrophe. How I pray that this pause period would be used by Parliament to sort out this gender equity issue once and for all. It is solvable if there is a will. This is the missing element, the rest are just convenient excuses. Over to the Honourables!
-The writer is an advocate of the High Court of Kenya