Emeka-Mayaka Gekara

MPs were last evening coming to terms with the possibility of losing their seats, after Chief Justice (CJ) David Maraga advised the President to dissolve Parliament, over its failure to enact the two-thirds gender rule.

Constitutional experts warned that the President had no option, but to dissolve Parliament as advised by the CJ even as a number of legislators cried foul.

Describing the decision by Maraga as “historic and momentous,” top lawyers who spoke to the People Daily, were quick to point out that the Constitution does not spell out the time within which the President shall dissolve Parliament.

“The decision to dissolve Parliament is mandatory.  Article 261 of the Constitution is clear that he has no options,” said Senior Counsel Nzamba Kitonga, who chaired the Committee of Experts that put together the 2010 Constitution.

“But a citizen can go to court to dispute the decision only to delay the implementation but not to overturn the CJ’s advisory,” said Kitonga.

According to lawyer Abdikadir Mohammed, the President might exploit a window in the relevant law, saying the Constitution does not spell sanctions if he failed to dissolve Parliament. 

Male chauvinism

“Maraga’s advisory is historic. But the Constitution does not set time frame and sanctions. 

The law said that the implementation of the gender rule should be mandatory but male chauvinism stood on its way in Parliament,” said Mohammed, who chaired the House committee that shepherded the 2010 Constitution.

“I suspect that the gender matter might find its way into the Building Bridges Initiative (BBI) that is currently being canvased. It could take a very dramatic political angle,” he said.

In his advisory, Maraga recommended the dissolution of both the National Assembly and the Senate, for failing to pass legislation to implement the gender rule within a specific period, as required under Article 261 of the Constitution.

 Article 261(7) says: “If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the CJ shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”

Parliament was to enact the gender law within five years after the promulgation of the Constitution in 2010 but this has not happened 10 years later.

In his advice to the President, the CJ said the mechanism for the dissolution of Parliament, irrespective of the consequences, is the radical remedy that Kenyans desired, in order to incentivise the political elite to adhere to and fully operationalise the transformational agenda of the Constitution.

“Let us endure pain if only to remind the electorate to hold their parliamentary representatives accountable,” Mr Maraga said.

“There is no doubt the dissolution of Parliament will cause inconvenience and even economic hardship.

The fact that Kenya is in the midst of the coronavirus pandemic only exacerbates the potential impact of the decision.

Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary.

We must never forget that more often than not, there is no gain without pain,” said the CJ.

Maraga, who is set to retire in January, is not new to making controversial and dramatic decisions. 

The CJ in led a Supreme Court majority that nullified the 2017 presidential election.

Courage and independence

Law of Society of Kenya (LSK) President Nelson Havi yesterday told the People Daily that the Constitution does not give the President any options.

“It was an act of bad governance and recklessness by a Parliament that sat comfortable thinking that the CJ will not have courage to dissolve it.

If the President doesn’t dissolve Parliament, all the laws passed by the House henceforth will be unconstitutional,” said Havi.

The LSK was one of the petitioners in the matter.

Reacting to the decision, Senate Minority Leader James Orengo predicted challenging times ahead.

“CJ Maraga’s advice to the President to dissolve Parliament is momentous. Probably the most significant and historic from a constitutional standpoint.

How we apply foundational principles and values of the rule of law and constitutionalism is now the big test.”

Majority Whip Irungu Kang’ata, however, faulted the CJ for “wrongly punishing” the Senate, saying it had complied with the gender rule.

According to Kang’ata, the CJ should have given senators an opportunity to make their case on the matter.

“Maraga’s advice to the President on dissolving Parliament may illustrate courage and independence, to some.

However, it may foster unhealthy relationships amongst all arms of government and ruin legacies,” he warned.

He added: “CJ should have afforded Parliament an opportunity to be heard, before him, prior to issuing the advisory.

We would have brought to his attention a Bill that’s before Senate’s Justice Committee on the matter.

Also, Senate has adhered to two-third gender rule. Hence, why punish Senate?

Since the Constitution has no time-frame, the President would still have complied with the advisory if  he dissolves Parliament in June 2022.”

Elgeyo Marakwet Senator Kipchumba Murkomen hinted at possible court action to challenge Maraga’s decision, even as other commentators pointed out that it would be challenging for a lower judge to overturn the decision of a CJ who is also the President of the Supreme Court.

 “Nothing stops a citizen from going to the High Court to challenge the advice of the CJ. But as it stands the President has no choice even though he is not time bound,” said Murkomen.

Makueni Senator Mutula Kilonzo Jnr, however, described Maraga’s decision as unprocedural.

Without success

“The message by the CJ for dissolution is premature. Article 216(6) requires an order to be issued before the clause(7) is invoked.

Senator Farhiya and & yours truly have a constitutional amendment Bill on two thirds gender rule at second reading. The President should RTS (Return To Sender) the advisory.”

 Last month, National Assembly Speaker Justin Muturi warned MPs that they might go for early elections should Maraga advise the President to dissolve Parliament for failing to enact the gender legislation.

Muturi said the possibility of the CJ advising the President to dissolve Parliament was “real and near”.

“We have as Parliament done what is humanly possible to implement the rule without success,” Muturi told members of House leadership attending a workshop at a city hotel.