THE DILEMMA

Will Uhuru turn to Scylla or Charybdis?

The President is caught between two horrible alternatives, whether or not he dissolves Parliament

In Summary
  • If dissolves Parliament, this will necessitate by-elections for the House and Senate. It will have dire economic and political ramifications. 
  • If he ignores the advice, some lawyers argue, all acts of Parliament will be null and void, the country will be beset by litigation and Uhuru's is legacy may be defiance of the law and Kenya's loss of standing.
President Uhuru Kenyatta and Chief Justice David Maraga
President Uhuru Kenyatta and Chief Justice David Maraga
It is impossible to make a man understand something, when his salary depends on him not understanding it
Upton Sinclair

Odysseus was a Greek mythology hero who was a highly skilled warrior. One day he was sailing home from the Trojan War. To get home, he had to sail through the Strait of Messina. The width of this Strait was a distance measured at less than the flight of an arrow. On the opposite sides of this strait were two horrible sea monsters who devoured any sailor who dared to cross the Strait.

The two monsters were Scylla and Charybdis. Scylla was a supernatural female creature, with 12 feet and six heads on long snaky necks, each head having a triple row of shark-like teeth, while her loins were girded by the heads of baying dogs. On the other side of the Strait lay Charybdis who drank down and belched forth the waters thrice a day, creating a terrifying whirlpool.

None of the vessels sailed through this Strait unscathed, because if they avoided Charybdis, they would have to sail close to Scylla who devoured whoever ventured within her reach; and if they avoided Scylla, they were sucked down by the whirlpool of Charybdis.

 

Odysseus had to make a choice. He could either sail his ship on the side of Scylla where he would undoubtedly lose his men to each of Scylla’s terrifying heads, or sail close to Charybdis, and lose the entire ship and crew into her abyss. He chose to sacrifice his men.

He sailed close to Scylla and lost his best warriors and sailors. While trying to save himself from Scylla’s grasp, he had no choice but to sail close to Charybdis where his ship was sucked into the whirlpool. He however, managed to survive by clinging onto the branch of a fig tree that grew out of a rock.

From that time, it has been said that to be caught between Scylla and Charybdis is to be caught between a rock and a hard place. It means that you find yourself caught between two equally unpleasant alternatives, difficult choices or circumstances. In such a situation, there are no good options available to you, and there is no easy way to get out of the dilemma.

This week, President Uhuru found himself sailing between Scylla and Charybdis. He arrived at this position after Chief Justice David Maraga advised him to dissolve Parliament for its failure to enact legislation required to implement the two-thirds gender rule. In his advisory, Maraga said he was undertaking his constitutional duty following six petitions to his office owing to the failure of Parliament to enact the gender law within five years of the promulgation of the Constitution.

As a result, Uhuru is caught between two odious choices. On one hand, if he chooses to dissolve Parliament as advised, this will necessitate an election for all members of Parliament and the Senate. This course of action has dire economic and political ramifications from which it  may take the country a long time to recover.

On the other hand, if he chooses to ignore the advice, it has been argued by some lawyers that any business conducted by the Parliament forthwith is of no effect, and any laws passed by Parliament will be unconstitutional.

Oftentimes, lawyers tell us that the law is very clear, but going by their dissimilar interpretations of the Chief Justice’s advisory, and on the course of action the President should take, or even on the meaning of the word SHALL, we the non-lawyers can only conclude that yes, it is true, the law is as clear as mud.

There comes a time when one must take a position that is neither safe, nor politic, nor popular, but one must take it, because one’s conscience tells them that it is right. Because facts don’t care about your feelings.

Begs the question, will Uhuru choose Scylla or Charybdis? Will he choose to heed the Chief Justice’s advice and sacrifice a few of his men by dissolving Parliament, or will he choose to ignore the advisory, and sink his whole ship, by inviting litigation after litigation on the constitutionality of any business undertaken by Parliament?

Or worse still, the probability of being considered a pariah state by the international community for not adhering to our Constitution? Which is the lesser evil that President Kenyatta will choose?

Those caught in the cross-hairs, aka MPs and senators, have in unison passionately proffered various arguments as to why the Chief Justice is in error. Not being a lawyer, I cannot argue for or against their propositions. However, as a pedestrian observer, the lamest of all was that there is no budgetary provision to hold elections at this time.

Yet similar admissions have not been so vehemently advanced, regarding funding the proposed BBI referendum that has been projected by the IEBC to cost upwards of Sh10 billion. So which position are we expected to believe? Have these lawmakers become the masters of cherry-picking the law?

I submit that the only two choices that are offered to mankind are advance or decline. The effect of the choice Uhuru makes will be felt for many years to come. Hypothetically, if he heeds the advisory, he will have redeemed himself from the label he has notoriously earned of ignoring the rule of law, he will lose political capital, and the country will suffer the opportunity cost of time, money and focus that will go towards an unforeseen election.

If he ignores the advisory, the country may be potentially paralysed by all manner of injunctions filed in the courts of law, and with paralysis comes atrophy and eventually deterioration. There is also the prospect of the country losing standing in the international arena. Because make no mistake, the world is watching.

Finally, my unsolicited advice to President Uhuru: "Cowardice asks, ‘Is it safe?’; Expediency asks, ‘Is it politic?’; Vanity asks, ‘Is it popular?’, but Conscience asks, ‘Is it right?’

There comes a time when one must take a position that is neither safe, nor politic, nor popular, but one must take it, because one’s conscience tells them that it is right. Because facts don’t care about your feelings.

It is impossible to make a man understand something, when his salary depends on him not understanding it – Upton Sinclair