The country’s top political leaders united in silence in the wake of an advisory by Chief Justice David Maraga that President Uhuru Kenyatta dissolves Parliament following its failure to enact the two-thirds gender rule.
Despite the CJ’s monumental advice and what it portends for the country, the president, his Deputy William Ruto and ODM leader Raila Odinga maintained an uncharacteristic silence on whether Parliament should be dissolved.
The three leaders are key players in the country’s political, social and economic spheres based on the significant support they hold in the National Assembly and the Senate. But unlike in other momentous legal or political decisions made by the courts, they ducked yesterday, leaving MPs to fry in their own fat.
When Maraga nullified the 2017 presidential election, a furious Kenyatta took to a busy city market to dismiss the Supreme Court’s decision and threatened the Judiciary. On the other hand, Raila hailed the decision as historic.
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In 2013, while Uhuru celebrated the Supreme Court decision that upheld his victory, Raila openly complained.
And yesterday, Uhuru was in Mombasa where he unveiled measures to boost the fisheries sectors while the DP was meeting leaders of people living with disabilities.
MPs David ole Sankok (nominated), Janet Teiyaa (Woman Rep, Kajiado), Janet Nangabo (Woman Rep, Trans Nzoia), Faith Gitau (Woman Rep, Nyandarua), John Kiarie (Dagoretti South), Kimani Ngunjiri (Bahati), Wangui Ngirici (Woman Rep, Kirinyaga) and Rindikiri Mugambi (Buuri) attended Ruto’s event even as dissolution hanged around their necks.
But as Uhuru, Ruto and Raila ducked, the Parliamentary Service Commission (PSC), which employs legislators, stepped in, dismissing Maraga’s order as “ill-advised, premature and unconstitutional”.
With the Constitution silent on the timelines within which the president should act on the advice of the CJ on possible dissolution of Parliament, some say Uhuru must gauge the decision bearing in mind the time within which it would take to hold fresh elections in the 290 constituencies, and 47 counties for positions of senators and women representatives, not forgetting the financial implications.
Though other top politicians were silent, ANC’s Musalia Mudavadi cautioned about Maraga’s advisory, saying that though legally right, it had the potential of jeopardising the survival of the State.
Mudavadi termed Maraga’s action as extreme, the same stand taken by the PSC.
“Justified as he may be legally, the CJ’s drastic action was extreme and portends disaster for a country ravaged by and struggling to contain coronavirus, whose economy is in tatters and without viable institutions to manage the aftermath of his action,” said Mudavadi.
“Dissolution of Parliament is not an end in itself. Without mitigation, Kenya will be in freefall with the very survival of the State in utter jeopardy,” said Mudavadi.
Yesterday, the PSC convened an emergency meeting to discuss the matter, resolving to challenge the CJ’s decision in court. It accused Maraga of failing to employ wisdom in his advisory to the president.
In a statement read by the commission’s chairman and National Assembly Speaker Justin Muturi, the body castigated Maraga, claiming his language in the advisory betrayed him as a person who was too willing and even eager to plunge the country into a constitutional crisis.
“The commission regrets that the Chief Justice did this without exercising the wisdom and circumspection that is expected of the high office he holds,” said Muturi.
“The PSC has taken the firm position that the action is ill-advised, pre-mature and unconstitutional. It is a recipe for plunging the country into a constitutional crisis of monumental proportions,” said the PSC.
The commission further wondered why Maraga acted even before the determination, pending in court on whether the order made by Justice John Mativo on March 2017, during the tenure of the 11th Parliament is applicable to the 12th Parliament.
Mativo had given the 11th Parliament 60 days to enact the gender rule law.
“It is therefore premature for the Chief Justice to take this action while the High Court is yet to determine this matter,” said the commission.
Law Society of Kenya President Nelson Havi was categorical that unless he wants to act with impunity, Uhuru has no option but to dissolve Parliament “within reasonable time”, which he argues must be within 21 days from the day Maraga gave the advice.
“In the past, the courts have held that reasonable time is anything between 14 and 21 days. Though not stipulated by the Constitution, this is the time within which the president must act, and the action is nothing less than dissolving Parliament as advised,” said Havi, adding that within 90 days of dissolution of the House, fresh elections must be held.
But another lawyer, Charles Kanjama argued that Parliament has the option of moving to the High Court to challenge the decision, though the process would not necessarily hold the president’s decision if he is convinced by the CJ’s position.
Women legislators, through the Kenya Women Parliamentarians Association (Kewopa), welcomed Maraga’s advice arguing Parliament should suffer the consequences of failing to heed the warnings from the courts to enact the required legislation to ensure the two-thirds gender rule.
“We have met all the political leaders over this matter. We have been promised support over the matter by all of them from the president, former premier Raila and recently Kanu chairman Gideon Moi. We are convinced that there has been no political goodwill to pass this law, and the least that should happen is to dissolve Parliament for failing to do its work,” said Kewopa chairperson Gathoni Wamuchomba.
She wondered why there has not been similar zeal on passing the gender law from the president and other leaders, as has been the case when they want other decisions passed in the House.