The Defiance That Triggered CJ Maraga’s Advise Against Unconstitutional Parliament, Cabinet

Chief Justice David Maraga

What happens if Parliament is dissolved? Will the already discredited four-member (all male) Independent and Electoral Boundaries Commission (IEBC) be able to conduct elections?

Kenya’s Chief Justice David Maraga is no doubt a man of firsts and precedents in the constitutional and democratic progress on the African continent.

Hardly three years since CJ Maraga and three of his colleagues went down in the annals of history by annulling the August 2017 presidential election, the President of the Supreme Court of Kenya has advised President Uhuru Kenyatta to dissolve Parliament for failing to enact the two-thirds gender rule-following six petitions on the matter.

Despite the constitutional requirement to ensure gender balance in the National Assembly and the Senate, the number of women MPs remains low. Considering the advisory opinion of the Supreme Court, failure to achieve the required gender balance was no doubt loaded with the potential to lead to the dissolution of the National Assembly and the Senate

For constitutional pundits, Kenya’s parliament’s refusal to enact the Gender Bill was bound to have ramifications beyond the struggle for gender equality.

On April 28 and May 5, 2016, the Kenyan National Assembly rejected the Constitution Amendment Bill (No. 4) of 2015, which sought to ensure that the National Assembly and the Senate would comprise of a membership that is not more than two-thirds of either gender.

The 2010 Kenyan Constitution entrenches the principle of equality and requires the state to adopt affirmative action programmes and policies to “redress any disadvantages suffered by individuals or groups because of past discrimination.”

More specifically, it requires that elective and appointive bodies should be composed of “not more than two-thirds of either gender.” To give effect to this principle, the Constitution requires the provision of such number of special seats “necessary to ensure that not more than two-thirds of the membership of the (county) assembly are of the same gender.”

Supreme Court of Kenya Judges

In contrast, while the constitution does not exclude the applicability of the two-third-gender principle to the National Assembly and the Senate, the provisions regulating the membership of the two houses do not have provisions to operationalize the principle in these houses.

On February 27, Kenya’s National Assembly once again refused to enact the Constitution of Kenya (Amendment) Bill 2018, also known as the Gender Bill, which seeks to legislate on the constitutional requirement that neither gender should have more than two-thirds in elective positions.

The National Assembly did so by denying the bill the requisite quorum for a constitutional amendment, which requires two-thirds of the members of the house to be present. So, the MPs didn’t just fail to pass the bill, but they refused to show up to even allow for the possibility of its enactment.

The debate on the applicability of the two-third-gender principle to the two houses of Parliament began when the laws and regulations for guiding the first (2013) elections under the current constitution were being prepared.

In particular, it was not clear whether the gender principle was a minimum that must be applied immediately and that any public elective body that would not meet the minimum gender quota would be unconstitutional. There was argument that, since the provisions on the membership of the two houses do not specifically require the two-third rule, the principle need not be applied immediately.

The refusal by the National Assembly to enact the bill reflects an escalation in a constitutional conflict and has implications on the stability of the constitutional and democratic framework in Kenya.

The Constitution of Kenya 2010 in Article 27(8) of the Bill of Rights provides that: “The State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” This provision is also reiterated in Article 81(b) on the principles of the electoral system and is commonly referred to as “the gender principle.”

Since the promulgation of the current constitution in 2010, Kenya has been struggling to realise the above-mentioned provisions. The issue has been the subject of litigation for almost a decade, with the courts consistently holding that the parliament has an obligation to enact legislation to ensure that its gender composition in both elective and appointive bodies is in line with the requirements laid out in the constitution.

In 2012, the Supreme Court of Kenya gave Parliament until August 27, 2015, to enact legislation to implement the provisions of Articles 27(8) and 81(b). Despite this, Parliament has failed and/or refused to enact legislation. In March 2017, the High Court once again found that parliament had failed in their constitutional obligations to enact legislation on the gender principle, and gave them 60 days within which to do so.

The court further ordered that should parliament fail to enact the legislation during this period, the provision of Article 261 of the constitution applies and any person could petition the chief justice to advise the president to dissolve parliament. Despite all this, Parliament did not enact the legislation within the 60 days.

Article 261(7) provides that if parliament fails to enact any court-ordered legislation to implement the constitution, “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.” This is the sole constitutional remedy provided for the failure and/or refusal by Parliament to enact constitutionally required legislation. Perhaps because it is a last resort, the language in Article 261(7) is mandatory for both parties. Neither the Chief Justice nor the president is granted any discretion; nor incidentally, does it require the Chief Justice to be petitioned to act.

With the refusal of the National Assembly to enact the Gender Bill, the constitutional obligations of the Chief Justice and the President are unambiguous. Chief Justice David Maraga is required to advise President Uhuru Kenyatta to dissolve Parliament, and the president is obligated to do so.

In late 2017, Maraga received two petitions urging him to act pursuant to his constitutional obligations in Article 261(7) and advise the president to dissolve Parliament. Despite these petitions, and the explicit constitutional language obliging him to act, he was yet to advise President Kenyatta to dissolve Parliament.

Therefore, last month, when the National Assembly, a body that is itself unconstitutional according to the gender principle (as 78 per cent of the MPs are men, in excess of the constitutional maximum of two-thirds or 67 per cent), denied the Gender Bill the requisite quorum, it did so with full knowledge of the consequences.

This deliberate defiance to trigger a constitutional provision on the dissolution of Parliament is a decisive test of not only constitutional officeholders (the Chief Justice and the President) but also the supremacy of the constitution itself.

Since the decision, the silence from the government’s chief legal adviser – Attorney General Paul Kihara was not surprising given that the Attorney General is a part of an unconstitutional and illegal cabinet, which itself violates the gender principle just like parliament (men make up 75 per cent of the cabinet).

Before the current Attorney General’s nomination and appointment in 2018, the High Court had already ruled that the President and Parliament had acted in violation of the constitution in nominating and approving, respectively, a cabinet where men exceeded two-thirds of the total membership.

President Uhuru Kenyatta

The government’s chief legal adviser, therefore, holds office in violation of the constitution and a court order. On March 1, 2019, the President signalled his continued rejection of the limits of constitutional and judicial authority on his office by nominating Professor George Magoha, a man, for the role of education minister.

The systematic violation of the constitutional provisions on women’s inclusion extends well beyond parliament. The Gender Bill may merely be the means for elements within the government to upend the constitutional order in Kenya.

Whatever happens next, it now appears that Kenya is in the throes of a constitutional crisis. Will President Kenyatta act in defiance of the constitution of Kenya? No doubt will be continuing to be complicit in the constitutional violations and with his inaction deal the fatal blow to the constitution?

Finally, Chief Justice Maraga has albeit belated played his constitutional role. Will President Kenyatta, who has repeatedly violated the constitution and defied the judicial branch, finally abide by the law or will we witness this administration’s decisive break with the legal framework?

What happens if Parliament is dissolved? Will the already discredited four-member (all male) Independent and Electoral Boundaries Commission (IEBC) be able to conduct elections?

Women aren’t the only victims of the National Assembly’s refusal to enact the Gender Bill. The Gender Bill has simply provided a battleground, it is a convenient means, but not an end. The objective is to unencumber democratically elected leaders from the legal framework that facilitated their assumption of power.

The ramifications of CJ Maraga’s advice to dissolve parliament for refusal to enact the bill extend beyond the struggle for gender equality. They are a repudiation of the constitution and the principles of democracy. The actions of constitutional actors in the coming weeks will provide the clearest indication since 2010 of Kenya’s commitment to democracy, its constitution and the rule of law.

After Maraga’s advisory, asking the President to dissolve Parliament, the present Parliament can no longer transact any business without at the same time being contemptuous of our constitutional order. Dissolution of Parliament by the President is therefore mandatory.

CJ Maraga’s advice to the President to dissolve parliament is momentous. Probably the most significant and historic from a constitutional standpoint. How we apply foundational principles and values of the rule of law and constitutionalism is now the big test.

Principally Kenyans have been reminded by the Chief Justice that the provisions of the constitution are not a suggestion.  Many Kenyans who have been opposed to a referendum will have a very quick change of heart after reading Chief Justice Maraga’s advice to President Uhuru.

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