Tough balancing act for Uhuru as CJ directive sinks

President Uhuru Kenyatta is walking a tight rope on the way forward following Chief Justice David Maraga’s advisory for him to dissolve Parliament for failing to enact the two-thirds gender rule.

And as the President remained tight-lipped on the CJ’s recommendation, Maraga’s predecessor, Dr Willy Mutunga, weighed in with a warning that “more focus should be placed on the political consequences of the advisory”.

Mutunga said that while some lawyers and politicians may expect the President to disobey Maraga’s opinion, he may surprise them by dissolving Parliament due to the political benefits in saving money, leading without MPs and implementing the Building Bridges Initiative (BBI) report.

“The most tragic political outcome of all this is that there is no opposition or alternative political leadership to take advantage of the political and constitutional crisis. Kenyans must tread carefully,” Mutunga warned.

Though opinion was sharply divided among legal experts, there was one consensus that President Kenyatta must act, one way or the other.

On Monday, Maraga wrote to President Kenyatta advising him to dissolve Parliament for failing to enact a law providing that no elected or appointed position should have more than two thirds representation from one gender.

Consequences of acting

Yesterday, legal experts and political analysts warned that the consequences of dissolving Parliament to pave way for an election involving all MPs were too much for a country and economy smarting from effects of a seven-month lockdown forced by the coronavirus pandemic.

With the country’s economy badly damaged, a polarised political climate, high ethnic tensions due to political incitement, a dysfunctional Independent Electoral and Boundaries Commission (IEBC), lack of legislation and budget, time may not be right to take Kenyans through an election of at least 300 MPs.

Amani National Congress (ANC) leader Musalia Mudavadi called for unity of purpose among Kenyans as they seek for a less disruptive solution to Maraga’s advisory.

“With no immediate timeline for the President to dissolve Parliament, it should accord him time, prudence and in the interest of public good; to allow for serious institutional consultations to avoid crashing the country,” Mudavadi advised.

Furthermore, Mudavadi offered that the matter be taken to the Supreme Court for constitutional interpretation in a manner that promotes purposes of the recommendation, its values and principles and contributions to good governance.

Options on table

Whereas a section of lawyers felt that President Kenyatta has no option but to act on Maraga’s recommendations, others suggested the President had at least two options that he could fall back on.

According to Senior Counsel Nzamba Kitonga, who chaired the Committee of Experts that midwifed the 2010 Constitution and Philip Murgor, a former Director of Public Prosecutions, the President can either use the legal route to challenge the advisory or take advantage of the lacuna in the laws that fails to define the stipulated timeframe for him to act.

But whichever option he chooses, the President must remain alive to the prevailing political, economic and legal challenges in the country.

“In legal parlance, CJ Maraga’s recommendation requires the President to undertake what we call mandatory balance.

Though he must act, there are several considerations that he must take before. It is a tight situation that he must act on,” said Kitonga. 

Both Kitonga and Murgor are of the opinion that the President should consider the first option of letting the legal process to take its course, by either allowing Attorney General Kihara Kariuki or any other entity to move to court to challenge the advisory or seek a constitutional interpretation.

Even if he dissolved Parliament, is the country ready for an election with a dysfunctional Independent Electoral and Boundaries Commission (IEBC) and weak economy?

My honest opinion is No, and that is why I am of the view that somebody should move to court,” said Kitonga.

According to Murgor, though the two thirds gender rule has been a hot potato, with immediate past and present Houses having failed to enact a law, it remains a legal issue that should not be politicised.

Proceed to court

“Dissolution of Parliament should only come as a last resort. He should consider the prevailing political and economic situation in the country before acting.

In that case, the most viable mechanism is to use the legal process to stop the recommendation,” said Murgor, adding that Maraga had no option but issue the advisory.

Another Senior Counsel, Ahmednassir Abdullahi, while describing Maraga’s advisory as a “judicial anarchist without a philosophical standing” urged MPs to move to court to stop the President from implementing it.

“Uhuru can be stopped by the High Court, Parliament must make an election and sue the President alone, stopping him from acting on the contaminated advice by the CJ,” said Ahmednasir.

Already, National Assembly Speaker Justin Muturi, who chairs the Parliamentary Service Commission (PSC), disclosed yesterday that the commission had resolved to engage a lawyer to immediately proceed to the High Court to challenge the CJ’s decision.

“The commission regrets that the Chief Justice appears to be willing, ever eager, to plunge the country into a constitutional crisis without exercising the wisdom and circumspection that is expected of the high office that he holds,” Muturi said.

By calling for the dissolution of Parliament, Muturi said Maraga was also putting into question his own appointment which was done by the 11th Parliament since his advisory renders any legislation done by the members a nullity.

The CJ, Muturi said, should have considered the state of the economy, the coronavirus pandemic and the cost of holding elections for all the positions involved before taking the drastic action.

Other than moving to court, senior lawyers Mutunga, Murgor, Otiende Amollo and Tom Ojienda said the President could also take advantage of the “silence” by the Constitution on the timeframe by which he is supposed to have acted.

“Reasonable timeframe depends on various prevailing circumstances. In any case, a pronouncement by a Court of Appeal on a particular matter is not necessarily applicable to all matters that arise. They must be applied separately,” said Murgor.

In this case, Murgor, Amollo, Mutunga and Ojienda say the President can take advantage of the omission to buy time and put in place measures necessary before acting.

Murgor cautioned some young lawyers, whom he said had taken the current debate as a game in which they could throw words and sarcasm at each other.

“We can’t afford to have a constitutional crisis when the economy is at its weakest point, people on their knees due to Covid-19.

Let this matter be handled with a lot of maturity and sobriety,” cautioned Murgor.