JURISPRUDENCE 101

Chief Justice David Maraga, once again, has got Kenyan tongues wagging. Following six petitions concerning parliament’s and government’s non-adherence to the “two-thirds gender rule” the Chief Justice has finally crossed a constitutional rubicon. In his written verdict, the Chief Justice advised the President to dissolve parliament. In a pithy but stern paragraph, on page 7 of his writ, the CJ made his decision known by citing article 261 clause 7 of the constitution. Which states, “If parliament fails to enact legislation in accordance with an order under clause (6) (b), the chief Justice shall advise the President to dissolve parliament and the President shall dissolve parliament.”  Mind you under clause (6) (b), the High Court had already transmitted an order to the Attorney General and Parliament directing them to ensure necessary legislation is enacted, within the period specified in the order (60 days), and to report the progress to the Chief Justice. Both the Attorney General and Parliament failed to do so prompting the Chief Justice’s decision.

Why would a simple constitutional resolution by the Chief Justice elicit nationwide uproar? Why would it cause tectonic disturbances in the Executive and Legislative branches? Well the precipitating reactions can be attributed to a motley of reasons.

Semantics. As it is in every law class or court case, the meanings of words tend to change depending on who is in the dock. The word in contention is “shall”. Legal minds are jostling with its interpretation. Even after it has been used twice for veritable reasons in article 261 clause (6) (b). Some have argued that it does not put the President under an order of mandamus to dissolve parliament. That, shall, is used as a suggestion and the President is not under obligation to follow Maraga’s advice.

Timelines. There is no stipulated time frame within which the President is supposed to dissolve parliament in response to the Chief Justice’s written verdict. Indeed, this is true. However, it is misunderstood that the President is at liberty to use this matter as bait and act on it when he so wishes. Despite the omission of timelines in the verdict, there is no lacuna whatsoever that releases the President from the Chief Justice’s leash.

Article 259 clause (8) is lucidly clear on court decisions that are not time bound. It states, “If a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises.”

Feasibility and subsequent repercussions of the dissolution of parliament. It is the consideration of this aspect or the absence of it, that has gotten the Chief Justice slighted by his now numerous critics. Many are of the persuasion that in spite of the legality of Maraga’s declaration, the Chief Justice acted on the assumption of ceteris paribus. Instead of mutatis mutandis.In other words, his decision was made out of context. And by context referring to Kenya’s current socio-economic/political status.

Most imperative to political elites of the day; is that they were gearing up to amend the constitution. What the President noted in his Madaraka day celebrations speech, as having, “discerned a constitutional moment.” Political elites and their acolytes had two options to amend the constitution. Either via a popular initiative or a parliamentary initiative. This is well espoused in articles 255, 256 and 257 of the constitution.

But the Chief Justice’s decision almost renders parliament defunct by placing question marks on its legitimacy. Hence, any further reconfiguration of the Kenyan constitution by parliament would certainly raise eyebrows. In essence, this leaves the political class with no route to change the constitution. Unless they elect to ignore the Chief Justice’s decision and choose to modify the constitution through a legally bankrupt legislature. Going forward, it will also be interesting to observe how Maraga’s fiat, influences inclinations of politicians on matters changing the constitution.

The prospect of by-elections and interpretations of how long the 13^th parliament would serve are also grey areas. The preparedness of IEBC as the bona fide institution mandated with conducting elections poses a challenge. By-elections would translate to a new parliament for the remaining one and a half years of Jubilee’s final term.

How also will the executive and judicial branches of government function until another parliament is elected? Who will oversight, represent and legislate on behalf of the sovereign during that hiatus? Then general elections will again be held in 2022. Can the exchequer foot those bills? With a ballooning debt, revenue collection deficit, a ravaging pandemic and entrenched graft in state corridors. The National Treasury is in a pickle.

One must also bring to bear the ambiguity that may arise if at all those by-elections are held and parliament still fails to meet the 2/3s threshold. Furthermore, in the wording of article 81 (b) of the constitution – it categorically states that, “the electoral system shall comply with the following principles; not more than two-thirds of the members of elective bodies shall be of the same gender.” Key words, ‘the electoral system shall comply’.

Decoding that, the constitution is primarily saying that voters, the political class and the electoral body are obliged to ensure that fair representation is implemented in state formation. However, we cannot turn a blind eye to the Kenyan electorate’s voting patterns in elective posts. In reality, Kenyan voters have a penchant for obsequiously voting in male aspirants. It is also true in Chapter 1 of the constitution that all sovereign power belongs to the people. And thereby, it is their volition to vote in whomever they wish gender notwithstanding. With those two scenarios from article 81 and Chapter 1 of the constitution. It is hard not to think that the law is either contradicting itself or is to some extent attempting to arm twist the will of the people.

Chief Justice David Maraga, the man who has stirred up this conundrum. Must also be recognized. His recognition taking the shape of his judicial record and his relationship with the current dispensation. Since his appointment in 2016, the man has been nothing short of a maverick in exercising his duty. He made history by nullifying the first presidential elections of 2017.

Unfortunately, it marked the beginning of a condescending relationship of the executive towards him. It has so happened that since 2017, the judiciary has sequentially been defunded, court orders are not followed and frequently he has endured public acerbic attacks from the President meant to denigrate him. In addition, the judiciary in many instances has been used as a scapegoat for multiple failures at the executive level of government.

True to his brazen form. Maraga has time and again vowed not to cower dealing the other branches of government, though under hefty blows every now and then. Cognizant of the fact that he will be going on terminal leave this December. In some quarters it is construed that his overture to dissolve parliament, perhaps, is a display of muscle to the ever belligerent Kenyan political class. As well as a legacy epitaph of a man who stuck to his guns and fought for the respect of the rule of law at all costs.

He draws the line in the sand on the final page of his written verdict. When he says, “there is no gain without pain. Let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences.”

It is for these factors, we ought to interrogate the intersection of law and politics. And if push comes to shove which of the two may end up taking the day. In Kenya, for years on end the two disciplines have traded punches and one of them has oft carried the day.

Law Professor Makau Mutua earlier this year wrote in one of the dailies. With regards to Jubilee’s purge in the senate eliminating out of favor politicians. Who then went to court to challenge the unceremonious revocation of their slots as Majority Leader and Majority Whip respectively. Borrowing from the annals of that column. Professor Makau Mutua critically observes that, “Laws are end products of political processes. Laws are a class imposition by political elites. Law is based on a society’s norms which are drawn from its dominant civilization. Law is indeed a servant of politics.”

Laws are based on dominant civilizations. The dominant civilization in this country is whoever is on the ‘correct’ side of the politics of the day is the law. And one’s lawfulness only alters depending on how committed they are to political ‘correctness’. Woefully, Maraga’s indiscriminate efforts in applying the law will have to confront this fact of life in Kenya. Gazing through my crystal ball, perhaps, Chief Justice David Maraga’s advice to the President, will serve another boilerplate illustration of how the law is subservient to politics.

In a country where respect for institutionalism is fractional. Who is to be considered; the appointee Chief Justice or the electee President? Who is to win this duel; the law or the lawmakers? This is Kenyan Jurisprudence 101.