Maraga advice tells us to rethink the Constitution

What you need to know:

  • He is constitutionally bound to make a declaration on such matters and, equally, the President is obligated to act without equivocation.
  • So, it is sheer imprudence for some MPs to attack the CJ at personal level instead of addressing the fundamental issues at hand.
  • Even if Parliament is dissolved, there is no guarantee that the right gender balance will be attained.

The uproar from MPs over Chief Justice David Maraga’s advisory on dissolution of Parliament was not unexpected. Its implications are far-reaching and have the potential of vanquishing careers. Not surprisingly, the Justice and Legal Affairs Committee of the National Assembly has been quick to indicate it will summon the CJ to explain the reasoning behind the advisory and, perhaps, challenge him on its practicality.

Parliament has powers to summon the CJ over this matter because it’s an advice and not a court ruling; but that does not strike at the heart of the issue. What we have is a constitutional question and should be dealt with as such. The country created for itself a high threshold through the Constitution, prioritising gender equality, as it did with other civil rights.

Justice Maraga interpreted the law and cannot be faulted for that. He is constitutionally bound to make a declaration on such matters and, equally, the President is obligated to act without equivocation.

The Constitution, through the now widely cited Article 261 (7), expressly states what the Chief Justice must do in case Parliament fails to enact any requisite legislation to give force to the various provisions of the law. And the timeline for legislating those laws is aptly contained in the Fifth Schedule; hence, Parliament has no reason for wavering.

So, it is sheer imprudence for some MPs to attack the CJ at personal level instead of addressing the fundamental issues at hand. What the advisory has demonstrated is that some provisions of the Constitution were never thought through. The country tied its hands through some of these stipulations, which subject we should now debate with sobriety. For there is no clarity on how the two-thirds gender rule can be attained in a context where socioeconomic and political dynamics disadvantage one group.

Even if Parliament is dissolved, there is no guarantee that the right gender balance will be attained in the governance positions. We have to take a second look at these provisions.