Kenya: Constitutional crisis after calls to dissolve parliament

In a 10-page letter sent to President Uhuru Kenyatta on Monday 21 September, Chief Justice David Maraga wrote that Parliament had “blatantly failed, refused, and/or neglected to do [pass any laws on gender parity].”

The Chief Justice was responding to six petitions for him to institute a fail-safe mechanism in Kenya’s 2010 constitution, which requires him to recommend the President dissolve parliament, triggering new parliamentary elections.

1. CHIEF JUSTICE’S ADVICE TO THE PRESIDENT ON DISSOLUTION OF PARLIAMENT
Link – https://t.co/UMRDgizgAx pic.twitter.com/5TuhTIIgxi

— The Judiciary Kenya (@Kenyajudiciary) September 21, 2020

On Twitter and media interviews, Kenyan legislators and senior lawyers are arguing about the sequence of events that should follow, and on the meaning of the modal verb “shall” in the part of the law the Chief Justice relied on.

Mr. @HonAdenDuale: The word "SHALL" in any Constitution is COMPULSIVE. It COMMANDS whoever it is directed at "TO ACT IMMEDIATELY." Consequently, the TIMELINE in the Constitution for the DISSOLUTION of Permanent is IMMEDIATELY. Please don't argue with the Chief Justice. https://t.co/2070hfLwRi

— Dr. Miguna Miguna (@MigunaMiguna) September 21, 2020

But the decision itself is immense. As James Orengo, the Senator for Siaya County and the Senate Minority Leader wrote on twitter, the advice to the President to dissolve parliament is  “probably the most significant and historic from a constitutional standpoint.”.

No Pain No Gain

Colloquially known as the “two-thirds gender rule”, the gender equality clauses in the decade-old constitution require a minimum 33% gender balance for both elective and appointive positions. Kenya’s 12th Parliament, elected in 2017, has a 22% and 31% female representation in the lower and upper houses respectively.

• It is marginally better than its predecessor, which was in office from 2013 to 2017, and had a 19% and 27% female representation in the lower house and the Senate respectively.
• The gender parity issue has been subject to various court cases, and a related campaign called #WeAre52pc since 2015. The #WeAre52pc, a feminist collective, was among the first to file cases challenging the constitutionality of the Kenyan executive and legislature.

In his letter to the President, CJ Maraga wrote: “The dissolution of Parliament will cause inconvenience and even economic hardship” but added that “… more often than not, there is no gain without pain.”

In a statement, the Speaker of the National Assembly Justin Muturi said that the legislative body had been turned into “a punching bag” on the gender parity issue. He named other key government organs, such as the Cabinet and the Judiciary, as being non-compliant as well, and recommended that the rule be subjected to a referendum.

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“The obligation to take measures to ensure two-thirds principle in all elective and appointive positions as provided for under article 27 of the Constitution is on the State as a body rather than Parliament as a single institution,” the Speaker wrote in the statement.

While it is fairly easy to achieve the rule in appointive positions, elective ones provide a unique problem requiring a formula or corrective measures such as nominations of more women into the legislature.

Speaker Muturi has called such measures “disconcerting”, adding that other than cost, they would be “fundamentally skewing or altering the sovereign will of the people who go to the ballot to elect their representatives in a constitutional democracy.”

What Next?

Chief Justice David Maraga, who is nearing the end of his term as Kenya’s second chief justice under the new constitution, has had a tense and at times openly acrimonious relationship with President Kenyatta and Parliament. He has, for example, repeatedly parried attempts to slash the judiciary’s budget and is still engaged in a long-running dispute with the President on the appointment of tens of new judges.

On 1 September 2017, CJ Maraga famously led the Supreme Court’s majority decision to annul the presidential election results, triggering a second election.

READ MORE Kenya’s Supreme Court in crisis

His latest action, however, creates both opportunity and risk for Kenyatta and the ruling Jubilee coalition. Kenyatta could see fresh parliamentary elections as a means to create new coalitions and give him an upper hand in finishing his term and having a greater say in choosing his successor.

But such elections could also weaken him, especially if the electorate sides with his current opponents, who now include top-level supporters of Deputy President William Ruto.

READ MORE Fallout with Kenyatta: Door closed on succession for Ruto

In the broad outlines of support and opposition that followed the letter, both DP Ruto and opposition leader Raila Odinga’s most prominent lieutenants seemed to support fresh elections.

For example, former Senate Majority Leader Kipchumba Murkomen, a Ruto ally, tweeted his support of a dissolution.

Mr.President now therefore dissolve Parliament. Immediately!

— KIPCHUMBA MURKOMEN, E.G.H (@kipmurkomen) September 21, 2020

While Kenyatta’s State House has not commented on the letter yet, the president’s decision will likely carry broad legal and social implications. What’s obvious is the crisis will hasten the pace to a ballot activity of some sort, whether fresh parliamentary elections or a constitutional referendum in the near future.