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WEIGHTY ISSUE

Dissolving Parliament is just not an option

The decision dropped a hot potato on Uhuru’s hands when he is already too busy scratching his head figuring what to do with his deputy and BBI.

In Summary
  • The bottom line is the president has and will exercise discretion in accordance with the Constitution. Meaning, the president will do as he pleases ... because he does have the legal discretion.
  • Wiser counsel is for the president not to do anything because (a) Covid-19 is still here and (b) 2022 is just around the corner.
President Uhuru Kenyatta gives the fifth Presidential address on the Coronavirus pandemic at State House, Nairobi, Saturday, April 25, 2020.
President Uhuru Kenyatta gives the fifth Presidential address on the Coronavirus pandemic at State House, Nairobi, Saturday, April 25, 2020.
Image: PSCU

Former Chief Justice William Mutunga holds and will forever hold the dubious distinction of having presided over and handed down the Supreme Court’s worst decision for centuries to come that dismissed Raila’s petition in 2013.

Chief Justice David Maraga comes second in his decision advising the president to dissolve Parliament — and we are here talking about decisions since the judiciary was cleaned up after promulgation of the Constitution in 2010.

Decisions handed down before then were not really decisions but merely rubber-stamping whatever the president wanted and therefore they do not even rise to a level to be legally analysed for soundness.

 
 

Iother words, these decisions prior to 2010 were all rotten and part of the son the country clamored for change and reformation of the judiciary specifically to remove the rot.

That was accomplished by establishing the Supreme Court and removing most of the corrupt and bad judges from the judiciary.

One of the most sought after change in the judiciary prior to 2010 was finally having a court system that adhered to the principles of rule of law as embodied in the new Constitution. Judicial independence was another crucial piece of reforming the judiciary that initially bore fruit, but there is more to it than meets the eye.

While there has been marked improvement overall in the quality and delivery of legal and judicial services across the country, and while the court has had some greater flexibility and independence than ever before, a lot remains to be desired.

For example, in his decision, the Chief Justice noted that he was taking this extraordinary step because Parliament had given him no choice. More specifically, the Chief Justice cited numerous court orders and public interest petitions imploring Parliament to enact the two-thirds gender equality law but all to no avail.

The decision dropped a hot potato on Uhuru’s hands when he is already too busy scratching his head figuring what to do with his deputy and BBI.

There are other legal arguments that are dispositive [and] I am sure will be pursued but bottom line is the President does have and will exercise his discretion in accordance with the Constitution. Meaning, the president will do as he pleases, not exactly with a “mtadu” attitude, but because he does have the legal discretion as analysed above and elsewhere.

The decision also sent the political talking class, including lawyers, into overdrive trying to analyse and over analyse the Chief Justice’s bombshell decision, with even one lawyer seriously arguing that “shall” does not mean what “shall” means.

 

A senior counsel, no less, but that is more about the comedy that is often Kenyan politics; it reminds one of former US President Bill Clinton during the skirt-gate scandal arguing a certain statement he made could not be perjury because it depended on what the meaning of "is" is.

The only difference is though hyper technical, Clinton was right, but the senior counsel is way off; it is just not a plausible legal or factual argument to make here at all.

If one were to seek a hyper technical basis to scuttle the Chief Justice’s advice, then look no further than Article 261, Clause 7, which the Chief Justice grounded decision.

That article provides that “[if] Parliament fails to enact legislation in accordance with an order under Clause (6)(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”

The dispositive interpretation here is the Chief Justice is to suggest, not order, or mandate or otherwise compel the president to do something that he has no discretion [to do].

This is why the drafters used the adjective “advise” instead of the mandatory adjectives which would have left the president no room to wiggle once issued.

They did not, and likely because they knew doing so would violate separation of powers doctrine.

This being a suggestion, the President is free to do as he wishes; but, if he accepts the advice, then he must dissolve Parliament.

There are other legal arguments that are dispositive [and] I am sure will be pursued but bottom line is the President does have and will exercise his discretion in accordance with the Constitution.

Meaning, the president will do as he pleases, not exactly with a “mtadu” attitude, but because he does have the legal discretion as analysed above and elsewhere.

Wiser counsel is for the president not to do anything because (a) Covid-19 is still here and (b) 2022 is just around the corner.