Maraga letter key to gender law

This might be the classic example of going out with a bang. As he prepares to take his final bow, Chief Justice David Maraga threw the cat amongst the pigeons with the missive asking President Uhuru Kenyatta to dissolve Parliament over its failure to enact legislation on gender balance.

It was an audacious, bold and unprecedented finding from Justice Maraga that had politicians across the divide running around like headless chicken. Yet anyone taken by surprise has only himself to blame. Various court cases demanding dissolution of Parliament for failure, or refusal, to pass laws guaranteeing that no more than two-thirds of the elected MPs were of the same gender had been winding through the labyrinths of justice. They were overdue for closure.

The time bomb inserted into the 2010 Constitution to ensure that Parliament does not unduly delay passage of the statutes intended to breathe life into the supreme law was not put there as an empty threat.

It is apparent the MPs never considered, in their wildest nightmares, that the cautious and soft-spoken Seventh Day Adventist Church elder would dare hit the nuclear button. Neither did Senate and National Assembly Speakers Ken Lusaka and Justin Muturi, President Kenyatta, ‘Co-President’ Raila Odinga or ‘Opposition Leader’ and Deputy President William Ruto.

What they all forgot is that Justice Maraga’s mild and conservative demeanour conceals a steely determination and a penchant for the daring and radical.

The CJ had already cemented his legacy by presiding over the Supreme Court bench that made the historic decision nullifying President Kenyatta’s election victory in 2017.

The advisory on dissolution of Parliament adds another feather to Justice Maraga’s cap, though it does not come with the finality of the presidential election petition. Since the letter to the President was transmitted, there has been a bewildering array of legal opinions on its import.

Eminent legal minds in Parliament have given their two-cents worth. They include Senate Majority Leader Irungu Kang’ata and his predecessor, Kipchumba Murkomen, as well as Minority Leader James Orengo and his predecessor Moses Wetang’ula. So has the Wiper party leader, former Vice-President and 2013 and 2017 candidate for Deputy President, Kalonzo Musyoka, and Narc-Kenya leader, former Justice Minister and 2013 presidential candidate Martha Karua. Both are declared 2022 presidential candidates.

Differing interpretations

The Law Society of Kenya, led by Nelson Havi, various civil society groups and outspoken twitterati lawyers such as Ahmednasir Abdullahi and Donald Kipkorir have also weighed in.

Nearly all those cited above are lawyers. Their interventions invariably come with the tired cliché that ‘the law is clear’, but the wildly differing interpretations only establish the more grounded dictum that the law is an ass.

The only thing once can discern so far is that politicians, lawyers and civil society activists are commenting more on political leanings and self-preservation.

While Speakers Muturi and Lusaka have instigated a court case challenging the Maraga letter, it is instructive that the argument in their press statement was more political than legal.

Indeed, the majority of those opposing dissolution of Parliament are mostly citing prohibitive cost of a mass by-election, injustice in kicking out elected representatives, and even opposition to the two-thirds principle.

While Parliamentarians have interest in protecting their seats, it is still notable that even in the absence of declared party positions, backers of the Uhuru-Raila axis oppose largely oppose dissolution; while those often seem as Ruto mouthpieces support the Maraga edict.

Otherwise, there has been no open direction from above. President Kenyatta has kept a notable silence, as has his estranged DP Ruto, who leads the opposition from within. Opposition leader Raila Odinga, now a key supporter of President Kenyatta’s, released a thoughtful and carefully worded statement urging caution but was, ultimately, an ambivalent position.

Deeply divided

I thus must wade in on where the big guns fail to seize the moment: Kenya is deeply divided over the Uhuru-Raila Building Bridges Initiative (BBI) and impending constitutional amendments.

The Maraga advisory offers a way out for protagonists to ensure that the gender equity puzzle and other unresolved issues are negotiated afresh and inserted into the BBI recommendations.

All President Kenyatta has to do is pledge to abide by the Maraga advisory to dissolve Parliament. But he can buy time till he receives the BBI report, then hand it over to Parliament to ensure that the two-thirds rule is included among other legislative proposals.

If Parliament remains stubborn, he can send the whole lot and caboodle home.

[email protected] www.gaitho.co.ke @MachariaGaitho