PARLIAMENT DISSOLUTION

Maraga not to blame for political and legal crisis, but framing of the Constitution

Even then the legality of parliamentary transactions without staying Maraga’s advise is a matter of great conflicted legal and political opinion.

In Summary

• Chief Justice David Maraga would be damned if he didn't act and damned if he did.

•  But the truth is that Justice Maraga had no option in view of the provision of the Constitution under Article 261(7).

Chief Justice nominee Justice David Maraga when he appeared before the National Assembly Justice Legal Affairs committee. /HEZRON NJOROGE
Chief Justice nominee Justice David Maraga when he appeared before the National Assembly Justice Legal Affairs committee. /HEZRON NJOROGE

Instead of dealing with the grey areas in the Constitution, we have resorted to stick and dagger political theatrics in the nagging issue of the gender rule.

Chief Justice David Maraga would be damned if he didn't act and damned if he did. But the truth is that Justice Maraga had no option in view of the provision of the Constitution under Article 261(7).

The argument that he acted in a rush is fallacious as there is no time frame to do so once clause (6)(b) was exhausted. Only the President may want to exploit a legal loophole arising from the fact that the Constitution has not provided for specific timeline in effecting the  CJ's advise.

 

Even then the legality of parliamentary transactions without staying Maraga’s advise is a matter of  great conflicted legal and political opinion. The main issue at hand is that the Constitution is largely untested and a thorough audit is needed to see what changes are needed — not a succession driven process like we see in BBI.

The other truth is that implementing Maraga's advisory takes the country to a general election unless the President invokes the emergency clause, which is exceptional and temporary in nature. Under the ordinary circumstances, the national and county governments would not function without Parliament. And because there are no express provisions for the continued governments' operations in light of such action, the Constitution remains a work-in-progress that needs sobriety and deft actions.

The country needs to thoroughly discuss the ramifications, both cost wise and sustainability of the various provisions that Parliament has or has not enacted.

When we spend too much money and time on an exclusive process of redrafting the grand laws, then history will judge us as a people, who at the altar of great constitutional moment, decided to follow selfish political path to precipice. 

Political commentator