Activist CJ blinded by his legacy

Last week, the Chief Justice made an unprecedented and momentous decision by sending a letter to the President for the dissolution of parliament. This came as a surprise to many Kenyans, especially given the many run-ins that the Judiciary has had with the Executive and Parliament.

It is an issue that has divided Kenyans of all walks of life, including lawyers and other legal scholars. Many hold that while the CJ relied on the text of the Constitution to make that decision, it was also an act of activism that fails to logically examine the consequences of such a declaration.

I am a proud Kenyan, I love my country and I advocate respect for the Constitution.

What I don’t support is an attack on the Executive and Parliament by an individual with a reputation for judicial activism in an attempt to build his legacy before retirement.

A nation cannot be run by shock and awe tactics because it is larger than the wishes of any single individual regardless of their status in society. During the last election, the Chief Justice almost tore the country apart by taking us to a repeat presidential election, which at the end was inconsequential.

The Chief Justice has publicly, more than once, attacked the Executive as well as Parliament, mostly in his individual capacity but saying it was the stand of the Judiciary.

On the current issue, while the Constitution has outlined the consequences of failure by Parliament to enact some specific laws relating to the 2010 Constitution transition, the move by the Chief Justice is shortsighted in nature.

First, it is not true that Parliament has done nothing to put in place a legal framework for the realisation of the two-thirds gender principle.

Parliament has failed its legislative attempts because of the complexity of the issue at hand. And even today, there is another ongoing attempt in the Senate where a Bill in the second reading is seeking to address the issue.

Secondly, the order which the Chief Justice is relying on was time-bound and related to the last Parliament and cannot logically and legally apply to this Parliament. There is therefore no live order on the current Parliament’s failure that the Chief Justice can rely on to take the steps he made.

Thirdly, there are several consequences that may arise from this particular move and which the Chief Justice should have been alive to. One of them is the complexity of our Constitution in relation to the conduct of elections. Dissolving Parliament could have a major spiral effect that would push the country into a constitutional crisis.

Dissolving Parliament would mean that there would be no Speaker to declare the seats vacant and since the Constitution indicates that the term of Parliament ends at the next election, dissolution would mean election of a new Parliament. The Constitution also says that election of MPs shall be held on the same day as those of president, MCAs and governors. Did the Chief Justice think of these consequences and what it means for the country?

The other consequence is that dissolving Parliament could result in a major crisis. Other than the oversight role, Parliament also holds the key to budgeting and appropriations.

A new election or even by-elections in all constituencies and counties would require budgets. Who will allocate these funds? Who will oversight the use of these funds?

Lastly, the Chief Justice seems to have forgotten that we are in a pandemic. He seems oblivious to the fact that we are currently rebuilding an economy that was heavily battered by Covid-19.

Honourable Chief Justice, is this really the time to put the country into a politically charged atmosphere? Is this the time to drive the country into a large election just before the next general election?

As the head of one of the three arms of government, the Chief Justice should think critically on the consequences of his actions before making certain declarations. The country needs judicial guidance and not judicial activism.