By Kibe Mungai
The recommendation by Chief Justice David Maraga to President Uhuru Kenyatta to dissolve Parliament on account of its alleged failure to enact legislation to implement the two-thirds gender rule is traceable to Section 59 of the former Constitution, which empowered the President to dissolve Parliament thereby triggering a general election. Under this provision, Article 261(8) of the 2010 Constitution was enacted to provide for the dissolution of Parliament in the event of its failure to pass the legislation required to implement the new Constitution.
Under Article 27(9) “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of the elective or appointive bodies shall be of the same gender”. Thus the Constitution imposes this duty on the State as opposed to Parliament. Unfortunately, the CJ’s recommendation is based on court decisions that equate the State to Parliament which is why I believe a constitutional crisis will be unavoidable if the President opts to comply with it.
From the outset, it bears emphasis that the CJ’s Advisory is a recommendation rather than a court order and so President Uhuru, in his capacity as head of state and government, must determine whether abiding by it will protect Kenya’s constitutional order, public interest and the best interests of the Kenyan State and nation. Taking all these matters into account, I am persuaded that the President should disregard the CJ’s recommendation on five major grounds.
The first is that there is no constitutional basis to invoke Article 261 of the Constitution as the mischief that it was originally supposed to serve is no longer there. Let me explain. Article 261 – which the CJ in his Advisory rightly states provides for an unusual procedure of enforcing compliance with the duty to implement the Constitution – deserves to be understood with greater political wisdom.
During the constitution-making process, some stakeholders were apprehensive of the danger of implementation of the new constitution being subverted through delay or refusal by the State to pass the legislation necessary to enforce it. This is the reason the Sixth Schedule provided for the formation of the Parliamentary Select Committee and Commission for the Implementation of the Constitution (CIC) to shepherd the constitutional implementation process alongside Parliament. Viewed in this context, Article 261 was included to provide for dire consequences if Parliament refused, delayed, or failed to take the appropriate steps to implement the Constitution.
It is critical to mention that in 2010 when the Constitution was promulgated, Parliament meant the President and the National Assembly, so that if Parliament failed to discharge its duty it would be dissolved as provided for under Article 261 and a general election would ensue. Thus Article 261(8) provides as follows: If Parliament has been dissolved under Clause (7), the new Parliament shall enact the required legislation within the periods specified in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament.
By and large, the 10th Parliament carried out its implementation duty and so in March 2013 the first general election under the new Constitution was held thereby bringing to an end the provisions of the former Constitution that were still in force. After the 2013 general election, Parliament was separated from the President and the President could no longer dissolve it. On this ground alone, Article 261 could no longer be enforced without leading to the legal and political absurdities engendered by the CJ’s recommendation. The legal profession should be indicted for failure to take this factor into account in the decisions upon which the CJ’s recommendation is based.
Secondly, Uhuru’s compliance with Maraga’s recommendation would cause irreparable harm to the Kenyan State and our constitutional order in terms of stability and efficacy. In many ways, the CJ’s recommendation amounts to an open invitation to President Uhuru to subvert the Constitution through the abrogation of a Parliament that has been duly elected by the people. The technical name for such action is coup d’état under the law: this is exactly how Adolf Hitler rose to power in Germany in 1933. It is not possible to tell how such a coup will end particularly because the notion that the dissolution of Parliament will trigger by-elections rather than a general election is based on a misunderstanding of both Article 261 and the Sixth Schedule of the Constitution.
Thirdly, we need to understand that the Constitution applies the two-thirds gender principle to the electoral system rather than the composition of Parliament. Thus whereas Article 81(c) of the Constitution provides that the electoral system shall comply with the principle that no more than two-thirds of the members of elective public bodies shall be of the same gender, Articles 27(8) provides that “the State shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender”. In Advisory Opinion No. 2 of 2012, a majority of the Supreme Court held that the gender principle set out in Articles 27(8) and 81(b) of the Constitution is not an enforceable right capable of immediate enforcement. Accordingly, the Court majority ordered that legislative measures for giving effect to the two-thirds gender principle should be taken by 27th August 2015.
Moreover, the Supreme Court majority ruled that the two-thirds gender principle should be achieved through a progressive realization. What this meant is that even if the State were to take all legislative and other measures and they failed to result in a one-third representation of women in Parliament that fact would not render the composition of Parliament unlawful. It is important to underscore that the Constitution has created 53 special member seats for women in the National Assembly and 18 in the Senate. This is because even as the Constitution acknowledges Kenya is a democratic Republic, Article 94(2) provides that Parliament should manifest “the diversity of the nation, represents the will of the people and exercises their sovereignty”.
Understanding these first principles, it should be easy to appreciate why Parliament cannot have too many special seats and nominated members without subverting and making a mockery of democracy. Ultimately, these special representatives and nominated members derive their true mandate from political parties and their owners as opposed to the people. In fact, except in Third World countries, it is not a constitutional practice in mature democracies for nominated persons to be members of legislative bodies since democracy requires that law-making is a function of elected representatives of the peoples. Indeed, this is precisely why Article 38(1) of the German Constitution provides that “members of the Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions and responsible only to their conscience.”
The fourth issue that the President should consider before acting on the CJ’s recommendation is whether the composition of the 12th Parliament is unlawful on account of alleged non-compliance with the two-thirds gender principle. As adverted to above, the composition of the National Assembly and the Senate as set out in Articles 97 and 98 does not support the popular notion that Parliament would be unlawfully constituted unless the membership of the National Assembly consists of 117 women and the Senate has 23 women members. In truth, the composition of Parliament is valid if we have 54 women and the Senate has 18 women members. To say this is by no means a denial that the two-thirds gender principle is an ideal worth pursuing. The point here is that there is a difference between a right and a principle. In real terms, women have a right to 54 seats in the National Assembly but not a minimum of 117 seats in the ideal situation envisaged by the gender principle. In my view unless and until the President is satisfied that Parliament is unlawfully constituted, he cannot exercise the powers to dissolve that Article 261 presumes he has. The last President who had this power was Mwai Kibaki.
Finally, as Head of State, the President is the ultimate guardian of the Constitution and it is therefore incumbent upon him that before he takes the drastic step recommended by the CJ he must do a cost-benefit analysis. In this regard dissolving Parliament will certainly punish the members of the 12th Parliament but it will not deliver the two-thirds gender principle to Kenyans. In short, why should Kenyans suffer the political inconvenience and massive expense of an election to achieve nothing of substance besides proving a self-serving fidelity to political principles that are inherently undemocratic?
As one of the few genuine democratic states in Africa, Kenyans should try to be wiser in constitutional matters. Whilst the CJ may be justified in recommending to the President to dissolve Parliament – since he claims he had no other option – it is clear that his drastic decision betrays the mind-set of a narrow constitutional fetishism under which the two-thirds gender principle in Parliament has been simultaneously elevated above fundamental principles of constitutional democracy and readout of the context of the substantive provisions of the law on the composition of Parliament.
It ought to be common sense that the provision that Kenya should have an electoral system that complies with the two-thirds gender principle is not the same thing as saying that a Parliament without a third of men or women is unlawful. In other words, there is no legal basis for the President to comply with the CJ’s recommendation.
— The writer is a constitutional lawyer (firstname.lastname@example.org).