The Law Society of Kenya (LSK) led by its president Nelson Havi and other players are hell bent on pushing for dissolution of Parliament ostensibly over the august House’s failure to enact the two-thirds gender rule. Interestingly, the Constitution talks about dissolution of Parliament, not the National Assembly. So if push comes to shove, will the Chief Justice distinguish between the National Assembly and Senate? And if so, won’t that be violating the same Constitution that talks about dissolution of Parliament and not the National Assembly?
It is important to point out from the onset that the Constitution clearly provides that any Kenyan can petition the Chief Justice to advise the President to dissolve Parliament. And with Parliament having failed to enact the two-thirds gender rule, it is now upon the Chief Justice to decide whether or not to advise the President to dissolve the House.
But how did we get here? Who is to blame? What is likely to happen if the Chief Justice advises the President to dissolve Parliament? These are weighty questions with serious ramifications.
We got here because Parliament slept on the job. Period. We should blame parliamentarians for being narrow-minded in their interpretation of the Constitution; they interpreted the Constitution in a way its adversaries would have everybody interpret it. LSK and the civil society are interpreting the Constitution to mean that Parliament ought to have enacted a legislation that provided for a two-thirds gender-based House. The truth is, that is not the case. Simply put, Parliament need not have given this issue more than a passing consideration.
The Constitution did not contemplate an express two-thirds gender provision. Had that been the case, then the framers of our Constitution would have done exactly what they did with county assemblies. Article 177(b) is very clear on the two-thirds gender rule in county assemblies: “…the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.” Was this an oversight? Did the framers of our Constitution leave it out intentionally, perhaps knowing all too well that it was an elephant that nobody would carry?
If parliamentarians had not been narrow-minded, they would have realised that the provision in contention appears under “General Principles”, which means all that Parliament was required to do was give a roadmap. I say so because general principles are guidelines. They, therefore, do not force Parliament to enact an express provision. Even if Parliament would have enacted a law providing for the two-thirds gender rule by the year 2037, it would have done its work, especially if there were clear milestones in the lead-up to its implementation.
For example, Parliament could have given legislation that encourages political parties to nominate women, especially in their strongholds. Such legislation would have provided incentives like money from Political Parties Fund or an Affirmative Action Fund, which would then be used to help women participate in the electoral process through their respective parties. This provision would have been strengthened further by providing that there would be a certain amount of money from the Political Parties Fund given to political parties for every woman they brought to Parliament.
If, however, this soft option failed to produce the desired two-thirds gender balance by the year 2037 (four electoral cycles), then the county assemblies provision under Article 177(b) would apply to Parliament with immediate effect.
Alternatively, if parliamentarians found the above option challenging, then they would have kicked the can down the road and enacted a law that would have compelled the Independent Electoral and Boundaries Commission to create women-only constituencies in the next boundary review. This would have been followed by a constitutional amendment to Article 89 (on boundaries) to cater for the change.
But all this is now water under the bridge. Parliament not only slept on the job, but was also in slumber and snoring as the provisions of Article 261 played out. First, Parliament seemed oblivious of Article 261(5) that says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.
Parliamentarians were in slumber as Article 261(6) put a noose around their neck, loudly stating that the High Court, in determining a petition under Clause (5), may (a) make a declaratory order on the matter; and (b) transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted within the period specified in the order, and to report the progress to the Chief Justice.
And now, they are standing on the hangman’s trapdoor with the noose firmly around their neck as Nelson Havi urges the Chief Justice to invoke Article 261(7) that invites the Chief Justice to advise the President to dissolve Parliament.
LSK and the civil society are interpreting the Constitution to mean that Parliament ought to have enacted a legislation that provided for a two-thirds gender-based House. The truth is, that is not the case. Simply put, Parliament need not have given this issue more than a passing consideration.
The big question now is: Will the Chief Justice advise the President to dissolve Parliament? And if yes, will the President dissolve Parliament? This is tricky. The provision of the Constitution on this matter is even trickier because it is provided that the Chief Justice shall advise the President to dissolve Parliament, and the President shall dissolve Parliament.
In deciding whether or not to advise the President to dissolve Parliament, the Chief Justice should be guided by the following two considerations:
The first one is whether or not advising the President to dissolve Parliament borders on recklessness. And two is whether or not in advising the President to dissolve Parliament the Chief Justice might not be inviting the President, and by extension the Executive, to disobey him and thereby setting on fire the House in which democracy and the rule of law resides.
The decision by the Chief Justice would be reckless to the extent that by the very act of advising the President to dissolve Parliament, he would be surrendering his court to activists. I call them activists because of their myopia. Why are they only focusing on the enactment of the two-thirds gender rule? Why are they not seeing the other things listed under Article 81? Have they told us, for instance, how many youths and persons with disabilities are in Parliament? Have they told us if our electoral system has fully complied with the principle of free and fair elections? That they are only obsessed with this one thing means they are activists pushing the agenda of some members of the civil society and outside forces. Why then would the Chief Justice surrender his court to activists?
What’s more, the Chief Justice runs the danger of accelerating the disobedience of court orders by involving the presidency, the highest office on the land. My guess is that the President shall not dissolve Parliament under any circumstances. Not unless such a move serves his own interest such as occupancy of State House beyond 2022.
But the reason I am convinced the President would not dissolve Parliament midstream is that the action would have security implications. Equally, holding an election that would ensue would also have serious security implications. The coronavirus pandemic has complicated the situation even further. Why would the President take such a gamble? My considered opinion is he would not.
Secondly, the President will not call for an election for economic reasons. I don’t think we can afford an election right now. A referendum would be more attractive to the President than an election. What’s more, the President would have a ready reason, if not excuse, in the coronavirus pandemic.
But for the President, there is a simpler way out. In the event the Chief Justice still ignores all these concerns and goes ahead to advise the President to dissolve Parliament, then the President should find reprieve in the law. By reading the provisions of Article 261(7) in its plain meaning, the President would find an answer. The article says: “The Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve parliament.”
The article does not provide a specific timeframe. The President can choose to dissolve Parliament a day or two before the end of the term of the current Parliament, and he would be perfectly within the law. In operating within this understanding of the law, the President would be guided by the fact that whenever the Constitution desires that a constitutional act be done within a certain specific timeline, such timelines are clearly and expressly provided for.
The Attorney General, in his good English, would cite such examples of timelines as the time within which a presidential petition must be heard and determined; timelines in the presidential election up to his swearing-in; the six months within which election petitions must be finalised; the strict timelines to be observed by all parties in processing a referendum; timelines within which bills must be passed into law, etc.
If the Constitution can provide for strict timelines for all these, how would it fail to give timelines when it comes to such a grave matter? The answer is simple. The framers of the Constitution never intended a juvenile interpretation of the Constitution such as the one we are being treated to. If in doubt, refer to Article 177(b) and ask yourself what could have been easier for the framers of the Constitution than to give an equivalent provision in regard to Parliament if that had been their intention. Havi and his ilk are dead-wrong and their push for the dissolution of Parliament is a dream, a pipe-dream at best.
