President Uhuru's limited moves in dealing with the Maraga advisory

President Uhuru Kenyatta when he gave a statement on the conclusion of mass registration for Huduma Namba at State House, Nairobi. [File, Standard]

Chief Justice David Maraga has made a name for himself as the man who breaks the record in making some law and constitutional decisions that shake the entire country.

The CJ’s first cannon was fired in 2017 when he annulled the elections ordering fresh polls within 60 days. The second, one that could change the face of the political fabric altogether came on September 21, 2020, when he gave President Kenyatta and advisory to dissolve Parliament.

Should the President fail to accept the advisory, then he will also find himself being accused of impunity and not obeying the constitution.

Even though the provision doesn’t say when the president should dissolve parliament, Kandara Member of Parliament, Alice Wahome says that guided by the interpretation of the law by courts a “reasonable time” is very clear.

“Reasonable time under all legal statutes is between seven and 21 days. You could push it to 14 to 21 days,” says the lawmaker on Spice Fm.

Wahome who supports the dissolution of Parliament argues that lawmakers shouldn’t play around with the implementation of the constitution.

However, the Kandara MP says there is a small window that can allow parliament to be saved without compromising the law and the two-thirds gender bill.

“If the president wants to save parliament he can ask the Attorney General to move quickly and make the presentation of the bill back to Parliament with an agreement with the house that there will be no turning back.”
Since the promulgation of the constitution, Kenya has struggled in passing certain laws and at the top of that list is the Gender Bill.

In 2012, the Supreme Court gave Parliament until August 27, 2015, to enact legislation to implement the provisions of Articles 27(8) and 81(b) which work to deal with gender imbalance issues in leadership.

Despite the directive, Parliament failed to enact legislation. In March 2017, the High Court once again recorded the fault of Parliament in meeting their constitutional obligation and gave them 60 days within which to do so. However, the new directive came with a condition that failure to enact the legislation during this period, anyone could petition the Chief Justice to advise the President to dissolve Parliament.  That was eight years ago.

The same year, the CJ had received two petitions asking him to dissolve Parliament.

It is the blatant defiance to provide the required quorum for the Gender Bill in early 2019 that became the straw the broke the camel’s back.

“I think they were hoping the Chief Justice will never have the guts. It’s always been a statement that no one would dissolve parliament. It’s not the Chief Justice dissolving parliament, it the people of Kenya using the constitutional provisions that they put in for themselves,” said Wahome.

Wahome argues there is a need for coming up with a framework to ensure that what is written within the constitution is actualized. The Kandara MP sees the constitution as something that women gained in the arrangement of rights.

“We are not saying you force people to elect women. We are saying, you guide Kenyans through a legislative framework on how to arrive at the principle they wrote in the constitution.  It’s about what Kenyans agreed and wrote. The constitution is not a negotiated document,” says Wahome.

If the dissolution is to go through, Kenyans will be expected to vote for new MPs who will serve for a full term of five years and thus fracture the normal structure that has voting of all electoral positions on the same day.