Hard queries as CJ advisory splits Kenya

Speakers Justin Muturi (National Assembly) and  Kenneth Lusaka (Senate) with Chief Justice David Maraga at Parliament Buildings on April 4 last year.

Photo credit: File | Nation Media Group

What you need to know:

  • The National Civil Society Congress on Saturday said Mr Maraga’s advisory is a wake-up call to Kenyans.
  • University of Nairobi law lecturer Wamuti Ndegwa says the advisory is wrong as it is premised on the idea that Parliament failed to enact legislations to implement the two thirds gender rule.

The country is divided over Chief Justice David Maraga’s advisory for the dissolution of the 12th Parliament.

While lawmakers and some legal minds opposed the advisory submitted to President Uhuru Kenyatta, women lobbies and the civil society have welcomed it, saying it is a blow to impunity.

The National Civil Society Congress (NCSC) on Saturday said Mr Maraga’s advisory is a wake-up call to Kenyans.

It said ordinary people and leaders should stop treating the Constitution as an intrusion in the country’s governance.

“The Chief Justice is reminding Kenya the vital principles of governance that have been ignored and that may in fullness of time plunge the country into chaos. The rule of law is an important governance principle embedded in article 10 of the Constitution,” NCSC President Morris Odhiambo told reporters in Nairobi.

National discourse

Just like the case in September 2017 when he led the Supreme Court in nullifying the outcome of the August 8 presidential election, the latest decision by Mr Maraga has triggered a national discourse.

Read: Uhuru faces limited options on Maraga call to dissolve Parliament

The advice to the President to dissolve the National Assembly and Senate has also raised a number of concerns.

Is it realistic and sound in law? Does Mr Maraga’s advisory offer solutions to the complex problem of gender equality in Kenya?

University of Nairobi law lecturer Wamuti Ndegwa says the advisory is wrong as it is premised on the idea that Parliament failed to enact legislations to implement the two thirds gender rule.

“The basis of the advisory is wrong and that makes its substance legally wanting,” Dr Ndegwa told the Sunday Nation, arguing that Chief Justice Maraga’s legal philosophy is “formalist and mechanical”.

“The Chief Justice interprets the letter of the law blindly. He restricts his interpretations on the letter of the law and is more interested in form rather than substance,” Dr Ndegwa said.

“The problem is not that Parliament has refused to enact the law. This is a requirement that is incapable of being implemented. It is mission impossible. Even if the CJ were a one-man parliament, he would not pass such a law.”

Those opposed to the advisory posed several questions.

Read: Muturi fights back after CJ tells Uhuru to dissolve Parliament

At what level did Mr Maraga satisfy himself that Parliament had violated the Constitution? In triggering Article 261 (7), was the Chief Justice acting as an administrator or a constitutional court?

After he established that there was violation, who was liable, and what sort of sanctions and relief would suffice?

Enacting laws

Most of the laws meant to implement the Constitution were to be enacted by the National Assembly and not the Senate.

Article 261 (2) gives the National Assembly the power to extend the timeframe for enacting some laws. Should the Senate be punished in the event the National Assembly fails to enact or extend the period required to pass a particular law?

Article 259 as seen by the Supreme Court requires that the Constitution be interpreted in a manner that gives effect to its purposes, values and principles. Was Mr Maraga satisfied that all conditions contemplated while interpreting the constitution were met?

Assuming the President heeds to the advisory and dissolves Parliament, would the resultant process be a “general” , a “mini” or “by”-election”? The constitution does not define any of these processes.

Further, Article 101 (1) states that a General Election of MPs shall be held on the second Tuesday of August every fifth year.

Experts say there is a contradiction between the provision of Article 101(1) and 102(1) – which provides that the term of each House expires on the date of the next General Election – and the powers being exercised by the President under Article 261(7).

Six elections

Similarly, the six elections – presidential, constituency, senatorial, woman representative, ward representative and gubernatorial – are to be held on the same day. Does it mean that once Parliament is dissolved, the President, governors and ward representatives also go home?

Do these clauses suggest contradiction in the Constitution? What happens if Parliament is dissolved? If elections are conducted, would the new MPs serve for the balance of the terms? And what is the definition of “New” Parliament contemplated in 261 (8)?

Article 100 mandates MPs to enact laws that promote representation in Parliament of women, the disabled, youth, ethnic and other minorities.

Can such legislation be enacted without amending the ceiling on the number of MPs as provided in law? Is it possible the composition of Parliament and the way it operates can be done without a referendum?

Article 27(3) outlaws discrimination. Kenyans should exercise their right to make political choices. Everyone has a right to make political choice and contest an elective seat.

Will it amount to discrimination if certain constituencies are set aside for a particular gender? Can one be forced to vote in certain way to realise the gender rule?

The Fifth Schedule is silent on Article 27 (8) and 81 (b)which mandates the State to take legislative and other measures to implement the principle that not more than two-thirds of elective or appointive agencies shall have members of the same gender.

Critics of Maraga’s advisory argue that there is no timeline given for the enactment of such laws. Does the gender law on the Fifth Schedule stipulate that it should be passed in five years?

There were not less than 10 attempts to ensure the provision of Articles 27 (8), 81(b) and (c) and Article 100 come into effect.

Can the decision by Parliament to reject a bill be interpreted to mean refusal? Once elected, MPs cannot be conditioned to vote in a particular manner.

MPs vote according to their conscience and according to the issues before Parliament.

Does the CJ’s advisory mean that MPs should have acted in a particular manner? Was the CJ’s supervision of parliament to enact the gender laws provided for under Article 261 (6) a violation of the doctrine of separation of powers? Was the court right to give Parliament a 60-day ultimatum to enact the laws?