Maraga sting: Why Uhuru is in dilemma

President Uhuru Kenyatta is caught between the rock and a hard place - he either upholds the law and dissolves Parliament or sacrifices constitutionalism at the altar of political expediency.

Damned if you do, damned if you don't.

Either way, the President's final decision on whether or not to dismiss the 12th Parliament - as advised by Chief Justice David Maraga - will have far-reaching constitutional, economic and political ramifications.

Citing the law, Maraga advised the President on Monday to dissolve Parliament that for years has not passed the Gender Bill to enable implementation of the two-thirds gender rule enshrined in the Constitution.

The country is reeling from the economic effects of the Covid-19 pandemic that have drained public coffers, forcing the government to borrow heavily. Before the pandemic, the debt was onerous.

Given its tattered economy, Kenya can hardly afford another costly by-election in the 290 constituencies within 90 days of the dissolution of Parliament.

This will not be tenable without borrowing and increasing the country's debt burden, which is already beyond manageable levels at Sh6.1 trillion.

The Jubilee administration is already projected to borrow an average of Sh2.5 billion daily before the end of President Uhuru’s final term in August 2022.

In a draft Budget Review and Outlook Paper, Treasury chiefs project new loans of Sh1.87 trillion in the two years to June 2022, pushing Kenya’s debt to Sh8.06 trillion.

There is also the issue of whether the Independent Boundaries and Electoral Commission would be able to get financing for the by-elections and then carry out the 2022 General Elections, barely two years away.

Major funding would also be required for the IEBC to conduct the boundaries review exercise, which is due by 2022.

As elections are known to cost taxpayers an arm and a leg, economic experts warn that Kenya cannot afford massive by-elections, a boundaries review and a general election in a span of two years. And what if the Building Bridges Initiative requires a referendum, as it almost certainly will? 

ANC leader Musalia Mudavadi warned that Kenya is bleeding and cannot afford the cost of by-elections.

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

The President faces another massive dilemma that could threaten his political fortunes given his frosty relationship with Deputy President William Ruto.

While the President could exploit the by-elections to vanquish restless MPs critical of his administration, particularly those from his backyard, it would also be a double-edged sword.

Uhuru could use the by-elections to annihilate the rebellion in his backyard triggered by the Tangatanga faction of Jubilee Party MPs and consolidate his backyard.

However, his allies would protest at the dissolution of Parliament as a punitive measure despite their loyalty to him, but the DP might flex his muscles in a bid to turn the tables against his boss.

Without a guaranteed parliamentary elections outcome that could boost his legislative and economic agenda in Parliament, Uhuru might shoot himself in the foot with a single stroke of a pen.

With just two years to the 2022 General Election, the majority of MPs are reluctant to face by-elections, fearing they could lose to their competitors and upset the current political alignments.

But former constitutional adviser to the President Abdikadir Mohammed has asked the President to respect the Constitution and disband Parliament.

“The President must obey court orders to dissolve Parliament. Parliament had the opportunity to correct this gender issue. Ten years down the line, the Chief Justice in his wisdom thinks time is up and something should happen,” he said.

The President also faces another political conundrum involving his push for constitutional review through the Building Bridges Initiative.

Law Society of Kenya president Nelson Havi declared the BBI process dead following Maraga's advisory to dissolve Parliament.

"The BBI has suffered a premature death," Havi said adding that going forward Parliament would be operating in contravention of the Constitution.

“Effective Monday, any laws passed by the National Assembly and the Senate are of no effect, they are null and void,” Havi said.

He went on, “Any oversight role, which is ordinarily undertaken by Parliament towards vetting of state appointees, towards giving reports on state agencies, would be of no effect.”

Consequently, Havi said, the Treasury should not release salaries and allowances to MPs.

If the President chooses to ignore Maraga's advice, then he could erode his legitimacy to spearhead the push to amend the 2010 Constitution and damage his legacy.

This poses another difficult scenario given his limited options. Analysts warn the President defying the CJ would be construed to mean an act of impunity and blatant disregard for the Constitution.

The President has personally pitched for the overhaul of the document, saying the country is faced with a constitutional moment to cure cyclical challenges that threaten Kenya's future.

"Ten years later, the moment to improve on it is now. We must treat a constitution as a living document that must constantly adjust to emerging realities," Uhuru said on August 26.

With the support of Opposition leader Raila Odinga through the handshake, the President rolled out the Building Bridges Initiative whose final report is expected to herald radical constitutional changes.

Both Uhuru and Raila have indicated that some of the BBI proposals that do not require a referendum would be taken through Parliament, making the house a key player in the process.

However, the BBI process through Parliament would hit a roadblock, given the warnings that Parliament's verdicts would be null and void henceforth, following the Maraga advisory.

The litany of the issues puts the President in a tight corner as pressure mounts on him to dissolve the 'August' House to pave the way for by-elections in the 290 constituencies.

On Tuesday, the Centre for Multi-Party Democracy urged the President to heed the advice of the Chief Justice.

“The law does not give the Chief Justice or the President the leeway on when and how to implement the constitutional provision on the two-thirds gender principle,”  CMD executive director Franklin Mukwanja said.

Institute for Social Accountability director Wanjiru Gikonyo said those demanding implementation of the two-thirds gender rule are not asking for a favour.

“Why do we want to dilly-dally at the expense of implementing the Constitution?” she asked.

Gikonyo added, “Political impunity and lack of respect for the Constitution are what ails the country under the Jubilee administration.”

But the Parliamentary Service Commission chaired by National Assembly Speaker Justin Muturi on Tuesday said the advisory is ill-advised, premature and unconstitutional.

"The commission regrets that the Chief Justice appears to be willing, even eager, to plunge the country into a constitutional crisis without exercising the wisdom and circumspection that is expected of the high office he holds," he said.

The President has previously emphasised the need to uphold the Constitution but the Maraga bombshell presents him with a political and economic conundrum.

On Monday, Siaya Senator James Orengo, a renowned constitutional lawyer, gave the clearest indication yet that Maraga's verdict touches on the principle of constitutionalism that must be examined.

"Constitutional moments present opportunities to resolve political questions. Maraga's advice may deal with the simple question of gender equality but in effect deal with an underlying basis of our legal system. What is the grundnorm [basic norm]? Let's confront the national question," Orengo tweeted.

(Edited by V. Graham)