Parliament dissolution: Let’s find way out to avert anarchy

Friday, September 25th, 2020 00:00 |
President Uhuru Kenyatta talks to Chief Justice David Maraga during a past function at the Supreme Court of Kenya. Photo/PD/File

Musalia Mudavadi

Few countries - indeed any country - would want to find itself in the constitutional quagmire that we find ourselves in today. 

Chief Justice David Maraga has invoked powers bestowed on him under Article 261 of the Constitution and advised the President to dissolve Parliament for failure to actualise Article 27(6) and (8) of the Constitution. 

The Article requires the State to make 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.

In finally invoking that Article, the Maraga went to great lengths to provide an account of opportunities availed by the Judiciary to the Executive and Parliament, which the latter two did not make use of.  

In his lengthy submission justifying his ultimate action, Maraga suggests that at the heart of this crisis, is institutional paralysis instigated by wasteful competition and contempt for consultation and co-operation amongst arms of government.

Indeed, the Supreme Court in 2012 advised that the fulfilment of the two-thirds gender rule would be progressive and dependent on the State’s further action. 

The petitioners are therefore justified that no substantive action has been taken to give life to the requirements of Article 27(6) and (8) of the Constitution.

The truth is Parliament is in default for having failed to enact the enabling legislation in this regard, with the time prescribed having elapsed. 

Justified as he may be legally, the Maraga’s drastic action was extreme and portends disaster for a country ravaged by and struggling to contain coronavirus, whose economy is in tatters and without viable institutions to manage the aftermath of his action. 

Dissolution of Parliament is not an end in itself. Without mitigation, Kenya will be in free-fall with the very survival of the State in utter jeopardy.

We are in unchartered constitutional territory; I am advised that since Article 261 falls under Transitional and Consequential clauses, the spirit of the law rather than the letter should have been liberally applied to guard against social disorder.

In any case, no constitutional mechanism exists on how and what happens after Parliament is dissolved.

That the term of Parliament is fixed and when dissolved, it means the next Parliament shall overlap its term with that of the presidency and county governments. 

Indeed, there is no guarantee that the next Parliament will not carry the sins of its predecessor and suffer the same fate. 

There is no guarantee that an election will cure the mischief. Further, dissolution will mean there is no institution to authorise spending in an election or put in place a body to supervise election.

Even then, can an economically tattered country afford an election in the next 60 days? We are facing a terrible chaotic void. 

Is there, however, an escape window?:  1. Informed opinion is that the spirit of the law must at all times guide interpretation of the Constitution.

And since the Constitution (under Article 101) does not envisage ending of Parliament in the circumstances demanded by Article 261(7), the Supreme Court should of its own volition revisit Article 159 that sets the rules of interpreting the Constitution to abide by the principle that “it shall be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance.”

2.  We must coalesce as a country and find a less-disruptive solution. Since Article 261(7) is a guillotine provision without recourse, the President should acknowledge the merit of  the CJ’s advice and seek broader consultations to find a workable solution. 

With no immediate timeline for the President to dissolve Parliament, it should accord him time, prudence and in the interest of public good; to allow for serious institutional consultations to avoid a crash.

3.  Parliament carries greater responsibility to save the country. It is capable and should take advantage of the grace period to legislate to operationalise Article 27(6) and (8) of the Constitution.

Insinuations that Parliament should amend the Constitution to delete the Article is in bad taste.

The women of this country deserve better treatment from all arms of the government. - The writer is ANC Party Leader

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