DAISY AMDANY: Dissolve Parliament, it is Kenya's betrayal machine

When the 2010 constitution was promulgated on August 27, 2010, for many, it seemed the dawn of a new Kenya and an opportunity to reorganise and reset the country to reflect the true nature of a republic.

There was expectation, excitement and hope that the new constitutional order signalled the commencement of a journey towards fixing the country’s real structural failures and entrenching equity, inclusion, responsible use of public resources and, most importantly, real sovereignty for the people.

But almost 15 years later, Kenya has not just stagnated but in many ways, it has backslidden to a darker place where unchecked power operates with the same impunity as in the pre- 2010 era and Kenyans are not just disillusioned, they are angry at the failure of the promise of reengineering the nation to animate the aspirations captured in the new constitution; and they are right to be.

At the heart of this failure is Parliament, the very institution entrusted with representing the people, which has now become the single biggest obstacle to realising the promise of the 2010 constitution. It has not merely fallen short but has actively betrayed the public trust and sabotaged the emergence of the true republic.

Parliament has been given immense power to legislate for the benefit of the people, to check the executive, to safeguard the public purse as its custodians and, above all, to ensure the constitution is brought to life. Instead, it has turned into a betrayal machine, undermining everything the constitution stands for and betraying the aspirations of the people.

It happened rather quickly, almost two years post promulgation, in December 2012. The three arms of government acting in concert, Parliament and the Executive, supported by a majority advisory opinion of the Supreme Court, stalled on enacting laws required to implement key parts of the constitution, specifically dealing with inclusion; Articles 81(b), (c), and 100 were left hanging.

These provisions are not just suggestions, but core guarantees to ensure women, marginalised groups and persons with disabilities have fair representation and participation in leadership and governance as captured in Article 27(6) and (8) and within the timelines under the Fifth Schedule.

The thing is, if the political elite and those who exercise the sovereign’s delegated authority were able to exclude close to three-quarters of the population from meaningful representation and engagement as constitutionally envisaged, then everything else is fair game.

This was the first constitutional breach, and the public did not push back because, for many, it was assumed that it was just a “women’s issue” or something abstract. But here is what gets overlooked: Parliament’s failure to implement inclusion laws opened the floodgates and became the signal that constitutional obligations could be ignored when they are deemed politically inconvenient. That is how the slide began.

From there, it was freefall. Parliament abandoned its duty and responsibility as the guardian of the public purse, as it disregarded the principles laid out in Chapter 12 on Public Finance Management. It disregarded its responsibility in the management of public finances, resulting in Kenya being saddled with unsustainable [and very likely odious] debt, broken public service, crippled education, healthcare, struggling devolution and non-existent social protections, among other ills; all because the legislature failed to do its job.

Through it all, Parliament, at the behest of the executive and on occasion for its own selfish ends, has repeatedly sought to chip away at the constitution by weakening the checks on power to evade public accountability. It has proposed all manner of legislation, few to implement the constitution but more to, among other thing,s amend it to escape accountability and consolidate power to themselves.

Kenya’s post-independence experience showed how dangerous unchecked power is, which is why the Committee of Experts deliberately made certain amendments subject to referenda. Any change that fundamentally alters the character of the constitution and the roles of the arms of government must go back to the people.

Parliament knows this, but instead of upholding that principle, it has been trying, in various ways, to claw back at the safeguards meant to keep Kenya a republic in the true sense. While they have not succeeded in changing the supreme law, they have severely violated it in practice.

Parliament has failed to live up to its constitutional role as the body exercising the sovereign’s delegated authority. At a time when Kenyans are seeking a way out of the mess the country and people find themselves in, this is the time to remind ourselves that there is a remedy.

Article 261 exists precisely for a situation such as this. It is not a dead letter but both an accountability and enforcement mechanism, providing the people with a way to impose serious political consequences on a Parliament and political elite that refuses to do its duty. Dissolution of Parliament is not symbolic, it is constitutional. It is the reset button meant to protect the republic when its institutions fail.

In September 2020, the then Chief Justice David Maraga issued a formal advisory recommending Parliament’s dissolution under Article 261. Not as a political stunt but because Parliament’s failure to enact the laws required under Articles 81(b), (c) and 100, as read with Article 27(6) and (8) had met the legal threshold for that extreme but necessary step. Justice Mativo’s judgment in Petition 371 of 2016 made that obligation crystal clear, and Parliament ignored it. Their dereliction met the legal threshold for that extreme step.