Crossing the Rubicon: “alea iacta est”

Photo credit: File | Nation Media Group

What you need to know:

  • There is an institutional virus which is highly infectious and lethal.
  • The doctors are the judges, and the hospital is the court.

When Chief Justice David Maraga advised the President to dissolve the country’s male dominated Parliament for failure to honour the two-thirds gender rule, many an observer deemed it an event of seismic political and legal proportions – and it was.

Article 81 of the Constitution provides that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies will be of the same gender. This article is read together with article 100 which further instructs Parliament to enact legislation to promote the representation in Parliament of women among other marginalised groups.

In a prudent fashion, the drafters of the Constitution foresaw the possibility that Parliament may delay enacting what they termed “consequential legislation” and specified time limits. For the legislation required under article 100, the Constitution gave Parliament a time limit of five years.

Article 261 does allow Parliament, through the National Assembly, to extend the five-year period for a year but provides that the extension can only be granted once for any particular law and only in matters the Speaker of the National Assembly deems exceptional.

However, if Parliament fails to enact any particular legislation within the specified time, including that legislation that article 100 requires, the Constitution provides that any person may petition the High Court on the matter, following which the High Court may make a declaratory order on the matter and direct Parliament and the Attorney General (AG) to enact the legislation within a period specified in that order.

In an even more prescient fashion, the drafters of the Constitution continued: If Parliament fails to enact legislation in accordance with the order of the High Court and within the time period stipulated in the order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. Behold! Maraga’s Rubicon!

Preceding events in the proper constitutional context

There has been much said in this matter but terribly little understanding of what developments forced the Chief Justice’s (CJ) hand. The former AG, apprehensive that the 10th Parliament would fail to honour the dictates of the Constitution and enact legislation to promote the representation in Parliament of women – in short to give effect to the two-thirds gender rule–, sought an advisory opinion from the Supreme Court.

The Supreme Court’s majority, with the former CJ Willy Mutunga dissenting, held that the Constitution envisioned a progressive realisation of the two-thirds gender rule and directed Parliament to enact the requisite legislation by 27th August 2015.

Parliament failed to enact the necessary legislation. Instead, it evoked its power to extend the period prescribed by a year but failed to enact it even then. The Centre for Rights Education and Awareness (CREAW) and two others filed a constitutional petition before the High Court against the AG and others. The High Court issued an order mandating Parliament to prepare the relevant Bills within forty (40) days from 26th June 2015.

Despite being presented with the Bills in question, Parliament did not enact the required legislation prompting CREAW to file yet another petition against the Speaker of the National Assembly and others.

The High Court directed Parliament and the AG to take steps to ensure that the required legislation was enacted within a period of 60 days from the date of [that] order and to report the progress to the CJ. Parliament’s appeal against this decision at the Court of Appeal was dismissed in 2019.

Following Parliament’s refusal and failure to enact the required legislation within the time stipulated under the Constitution and the period the courts dictated, the next inevitable step, as provided for under the Constitution, was for the CJ to advise the President to dissolve Parliament and for the President to dissolve Parliament. That was what the CJ did on 21September, 2020.

Thou “shall” debate

Immediately the CJ announced that he had given the President advice to dissolve Parliament, both traditional and social media were flooded with opinions from all and sundry. Constitutional experts and commentators multiplied faster than Covid. People were splitting hairs over the language of the text in the Constitution. “Is the President obligated to heed the CJ’s advice? Is that how we interpret the “shall” in that text?” “Why would the President be limited by “advice?”

To understand what the provision means and in which context the text is to be interpreted, we turn to Professor Jill Cottrell Ghai’s analysis. The Committee of Experts (CoE) drafting the Constitution adamantly designed into it, this dissolution mechanism that set off the moment that Parliament failed to enact legislation within the timeframe stipulated in article 261(6)(b)’s court order.

What does this mean? While many are haggling over the import of the CJ’s advice to the President; whether the “shall” imposes a mandatory obligation on the President to dissolve Parliament, few have noticed the same “shall” ordering the CJ’s steps in the preceding unconditional clause. “If Parliament fails to enact legislation in accordance with an order, the CJ shall advise the President to dissolve Parliament”.

Ordinarily, “shall” communicates an imperative. It excludes discretion, and has the significance of imposing a duty. Some commentators are now insisting that “shall” as used in that provision does not signify obligation because the Supreme Court has interpreted it as “may” before. But this questionable.

The “may” brigade relies on the Advisory Opinion that the AG solicited in 2015. But the question before the Supreme Court was not whether article 81 (“the electoral system shall comply with the principles enumerated in paragraphs (a) – (e) of the Article) meant that Parliament exercised any discretion on whether or not to enact legislation to bring into effect the rule. That was settled. The Constitution unequivocally imposed upon Parliament the duty to bring its composition into conformity with the Constitution. The question was ‘when’. Was Parliament obligated to do so immediately or was it obligated to meet the Constitutional requirements over time?

The Court decided on the latter, in light of the principle of progressive realisation. At no point did the Court rule that “shall” as used in article 81 allowed for discretion. In fact, it found that Parliament was obligated to take “certain specified measures” leading the Court to dictate that by 2015, legislators were to have passed a law guaranteeing the gender quota. The meaning of “shall” did not morph.

There is therefore nothing to suggest that the provision in article 261 allows for discretion in either the CJ’s or the President’s part. The Constitution forces the CJ’s hand as it does the President’s hand. Regarding when the CJ is to give his advice or by when the President should heed it, the Constitution is silent. But give the advice the CJ must. And heed it, the President must too.

In fact, according to Professor Cottrell, parliamentarians, understanding the import of the provision, were not keen on it at the drafting stage. When the Select Committee on the Constitution saw the draft in 2010, it wanted the provision changed so that complaints about Parliament’s failure to enact laws went to the Speaker of the National Assembly – not the High Court. The Speaker would then direct the relevant parliamentary committee to take steps to publish and table a Bill. Nothing else. The Committee of Experts dug in its heels and kept its provision in the Bomas Draft, where our 2010 Constitution inherited from.

Dissolving parliaments

The International IDEA Constitution-Building Primer’s chapter on dissolution of parliament finds that in many parliamentary democracies, the constitution formally vests the dissolution power in the hands of the head of state but with the clear intention that this power should normally be exercised only in accordance with the binding advice of the prime minister.

The requirement to act on advice, in such constitutions, is a constitutional term of art. It should normally be understood as being binding, meaning that: (a) the head of state cannot normally dissolve parliament except on the basis of a request by the prime minister; and (b) the head of state must normally grant a dissolution on the basis of such request.

Ours is not a parliamentary democracy. What we have instead, is a presidential system in a constitutional democracy. The Constitution, and not parliament, is supreme and it provides us the only mechanism under article 261, through which parliament can be dissolved prematurely, setting off a fresh election.

But the language of our immediate past as a parliamentary democracy finds its way into the new dispensation through the use of the term “advice”. The binding advice of the prime minister in a parliamentary democracy transforms into the CJ’s binding advice under article 261.

Courts crossing the Rubicon – Egypt’s SCC

It is easy to get preoccupied with Maraga’s advice. Yet the problem is vast –– the lack of constitutionalism that we have previously discussed in this column. Drafting a constitution for a society that lacks constitutionalism necessitated the almost obsessive foresightedness and closed loop design the CoE adopted. As seen through the interconnectedness of articles 27, 81, 100 and 261, the drafters left nothing to chance.

In Kenya, while the spirit of the law should inform all facets of government, the Court, as the sole arbiter of what the law is, bears a disproportionate share of this responsibility and it has appeared to cross the perceived limits of its power frequently. This is however, not unique to Kenya.

The Egyptian Supreme Constitutional Court (SCC) has forced the dissolution Parliament thrice: In 1987, 1990, and in 2012. The issue in each of the cases was election laws and practice that contravened the principle of equal opportunity and the right to equality under article 8 and 40 of the 1971 Constitution.

The June 14, 2012 ruling is momentous to say the least. It came on the heels of Egypt’s revolution in 2011. Courts are not normally active actors in revolutionary times but the SCC pronounced itself assertively when the parliamentary election law, negotiated in the fall of 2011 by leading political forces and then promulgated by decree of the Supreme Council of the Armed Forces (SCAF) found its way to Court.

The reason the decision is so audacious is because after the revolution, the SCAF had suspended the 1971 Constitution and effectively assumed full authority in Egypt. From that point until August 12, 2012, the SCAF continued to assert an oversight role, essentially insisting that while the country’s constitution was being written, Egypt’s governing constitutional framework was what SCAF said it was.

The SCC nevertheless found the electoral system in the law constitutionally flawed, arguing that it allowed independents only access to some seats but allowed party members to compete on either ballot, therefore discriminating against the former. In a party system, preferential party treatment is not rare. But the SCC was adamant that precedent set in 1987, protecting the right to equality and equal opportunity stood.

Some speculate that the Court’s decision was designed to block the rise to power of the Muslim Brotherhood. It might be so, but there is something to be said about a court, precariously perched atop a moment of constitutional rupture, sinewing the new era with a constitutional spirit decanted from the old.

There is an institutional virus which is highly infectious and lethal. It looks like a simple cold, but it kills. It is our constitutional Covid, a politically manufactured virus that is quickly infecting our democratic institutions and our minds. We may ignore it and take it lightly. The doctors are the judges, and the hospital is the court.

A court’s priority, at moments of rupture, is to insist on honouring the spirit of the law. At times, this insistence leads it across the Rubicon, effectively waging war against a recalcitrant parliament or executive. But cross the river it must for alea iacta est – the die has been cast.


This article is part of a long series of articles on the rule of law in the context of politics and ethics. The series is researched and co-authored by: Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates;

Kasyoka Salim, Research Associate at ALN Anjarwalla & Khanna, Advocates;

Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates; and

Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London