Justice Maraga’s advisory has all the makings of a poisoned chalice

Chief Justice David K. Maraga will be retiring in January 2021 when he turns 70. The question remains: how will historians judge Kenya’s second Chief Justice under the new constitution? His is a divided legacy.

Indisputably, his tenure has emboldened the judiciary. But a flurry of cavalier decisions, activism and populism from the highest office in the Judiciary have been a painful test to Kenya’s experiment with separation of powers and a real threat to democratic stability.

It is in this context that Maraga’s September 21, 2020 advisory to President Uhuru Kenyatta to dissolve Parliament over its failure to enact the legislation required to implement the two-thirds gender rule has created a perfect storm.

It is a poisoned chalice for the country’s nascent democracy. The advisory comes as a fitting show-stopper to an era that has witnessed intensified confrontation with other arms of Government and put the Judiciary at great odds with both Parliament and the Executive.

Strategic partnership

Maraga’s appointment as Chief Justice on October 19, 2016 dramatised the spirit of the new constitutional order that he now risks torpedoing.

To work, the new dispensation requires strategic partnership, a high degree of cooperation and wisdom.

Notably, he was nominated by the Judicial Service Commission, his name forwarded to the President who transmitted it to the National Assembly for vetting before his formal appointment!

Mr Maraga inherited an obviously imperfect judicial system that was expected to partner with the other branches of government in implementing one of Africa’s most ambitions liberal constitutions.

However, his latest advisory verges on sky-diving without safety nets. It is carries the same hue and risks of his earlier bold but incautious renditions of justice.

With three other judges, he made history but nearly pushed the country to the precipice by nullifying the August 8, 2017 presidential election on alleged illegalities and irregularities. Since June 2020, the CJ’s public altercations with the President over the appointment of 41 judges have badly ruptured ties with the Executive, which has accused him of seeking public sympathy to hide his failures and mismanagement of the Judiciary and to force the President to swear in judges with questionable integrity.

Separation of powers

Maraga’s advisory has put the judiciary on trial in regard to its ability to work with other arms of government while safeguarding and deepening its own independence.

In retrospect, Maraga’s advisory is a throwback to the Kanu-era governance. It is legally based on the now obsolete Section 59 of the old Constitution, which empowered the President to dissolve Parliament, thereby triggering a general election.

Yet, the architects of our new Constitution adopted the ‘tripartite system’ of governance, commonly ascribed to French philosopher Baron de Montesquieu, based on separation of powers to avoid the Kanu-era concetration of power in the executive.

More importantly, it was an answer to a popular quest for a predictable government with fixed entry and exit points protected in the Constitution. It outlawed dissolution of parliament by the executive as a ‘secret weapon’, where the President willy-nilly chose the day and the hour of dissolving the legislature and calling a fresh election.

Our law is clear: Parliament is elected by the people every second Tuesday of the eighth month every five years. Philosophically and practically, the new constitution has no room for dissolving the 12th Parliament before its term ends on August 9, 2022!

As such, Article 261 cannot be enforced without courting legal and political absurdities. The advisory will also remain a permanent ugly stain in the conscience and wisdom of Kenya’s legal profession.

If the President opts to comply with it, it would inevitably set off a constitutional crisis.

Constitutional crisis

Historians may harshly adjudge Mr Maraga’s advisory as a “Samsonian” strategy of bringing down the house with everyone inside.

On September 22, 2020, National Assembly Speaker Justin Muturi said the CJ was “willing, even 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”, four months to his impending exit.

Economist David Ndii aptly characterised Mr Maraga’s advisory as handing the President a grenade with the safety pin removed. Maraga’s recommendation amounts to an open invitation to the President to subvert the Constitution he swore to protect by annulling a parliament that has been duly elected by the people.

The 2010 Constitution is still a work in progress. The two-thirds gender principle is aspirational – to be achieved through a mix that should entail deepening democracy and enlightened ‘affirmative Action” while avoiding gender tokenism.

Again, Chief Justice Maraga’s advisory is a recommendation, not a court order. The President should treat it as such.