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Maraga advisory a wake up call, though not realistic

By Hesbon Owilla
Friday, September 25th, 2020
David Maraga
Chief Justice David Maraga. PHOTO | COURTESY
In summary

The relationship between the Judiciary and the executive has been fairly frosty and what is happening between the two will always be interpreted through tinted spectacles that have shades of the annulment of the August 2017 elections. 

CJ Maraga has been praised and vilified in equal measure on advisory to the president to dissolve parliament.

And it is not so much for the advisory, but for the timing and the consequences this advisory portend.

Article 27 (8) of the Constitution seems to be omitted from the fifth schedule of the Constitution of Kenya which gives timelines on enactment of enabling legislation and it does appear that the omission was by design. 

In fact, Article 27 (8) states 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 is therefore a state wide issue and probably needed more time than could be prescribed in the Fifth Schedule. 

The Fifth Schedule gives a timeline on legislation to be enacted by Parliament and it is important to note that Parliament rose to the occasion and legislated on critical articles like Citizenship in Chapter Three of the constitution and freedom of the media in article 34 of the Bill of Rights.

That list has close to 60 articles with timelines on enactment of legislations. The drafters of the Constitution must have been alive to the dialectics of legislating on the rights of the people to choose their leaders through universal suffrage to enforce a timeline the two-thirds gender rule. 

It is not like parliament has not tried. In fact, there is a Bill in the Senate as we speak and the difficulty here is the balancing act of getting it right, given our political culture.

The urgent issue now is the advisory and what it means. Lawyers have given differing opinion and some have even argued that the law is very clear to all lawyers, but they go ahead and interpret it differently depending on who is paying for their interpretation of the same law. 

That brings us to the basic reality and common sense. In the few instances I have been a law student, I have been made to understand that legal judgements and interpretations of the law are based on adduced evidence, prevailing circumstances, legal philosophy and public interest.

Students of utilitarianism understand public interest as the greater good for a greater majority. The attainment of this greater good should by all means minimise harm. 

Putting all these considerations together, the conclusion on the CJ Maraga’s advisory points to an action that though within the law, serves no good, is not in touch with the reality of prevailing circumstances and at best speaks of an executor who is likely, either by design or default, leave office with the country in a state of disarray.

Some lawyers have termed his actions in very unsavoury terms while the LSK President has already sounded professionals to line up and contest for parliamentary positions. 

Interestingly, supporters of dissolution advisory share a common thread of thought and sometimes agitation voices with civil society voices that have consistently made it their business to frustrate every effort to unite Kenyan through BBI. 

Granted, BBI is a political process and therefore anyone with a divergent view has a right to canvas it the way they want, but it is unfortunate that the narrative is crystallising to a ferment crisis after crisis orchestrated to frustrate the delivery of service to the people.

Suffice to say, dissolving parliament does not come anywhere close to a solution on the two thirds gender rule and it would only ferment a precedence of disbanding assemblies going forward. [email protected]

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