Best Opinion on the Advice by Chief Justice to Uhuru Kenyatta to Dissolve Parliament – Opinion by Lawyer Ken Ogutu

This article first appeared on Ken Ogutu’s Facebook Timeline.

1. Article 261 of the 2010 Constitution requires Parliament to enact laws that would be required to give full effect to the ‘new’ Constitution. Remember a Constitution creates the broad structure of governance then the statutes enacted by Parliament provide the meat. Without these statutes, the Constitution will not mean much.

2. The laws to be enacted by Parliament are listed in the Fifth Schedule to the Constitution. The Fifth Schedule states which law is to be passed (by reference to the anchor provision in the Constitution) and the timelines within which Parliament must pass the law. E.g. a law to implement issue A as provided for under Article XYZ of this Constitution must be enacted within 2 years.

3. Article 261 also states that if Parliament fails to enact any of the listed laws within the stipulated timelines, anyone can go to the High Court to ask for a declaration that Parliament has failed in this mandate. The High Court can then make a declaration that Parliament has failed to enact the law within the required time, and issue an order requiring Parliament to pass that law within additional time that will be specified in the Court order. E.g. if the fifth schedule requires Parliament to pass a law on a particular issue within 1 year and a year lapses before the law is passed, the High Court will issue a declaration that indeed Parliament failed to pass the law within the one year that was stipulated, then proceed to give them an order to pass the law within, say, an additional 6 months.

4. If the High Court issues such an order and Parliament still fails to pass the law within the additional time specified in the Court order, the person can then go to the Chief Justice to request the CJ to advise the President to dissolve Parliament.

5. Once Parliament is dissolved and a new one is elected, the new Parliament is given the same time that the original parliament had to act. E.g. if the fifth schedule required a particular law to be passed within 1 year, the newly-elected parliament is given 1 year to enact the same law. If it fails…the cycle is repeated.

6. Think of it as a construction project where the main contractor (the Bomas Conference, Committee of Experts & Kenyans) did the main structure – foundation, the pillars, the walls and the roof – of the new house, and a subcontractor (Parliament) is then left to do the finishing – plastering, paintwork, doors, windows, plumbing, wiring, tiles, etc to ensure the house is done to the required standards. The main contractor gives the subcontractor a schedule of the finishings he must do and by when, and if the subcontractor fails to complete these tasks within the specified timelines, he is to be fired and a new one hired (new Parliament) to do the work.

7. This threat of dissolution/firing is a safeguard measure that was supposed to force Parliament to enact all the laws required to give full effect to the 2010 Constitution, within the timelines that the laws were to be enacted. In other words, it is a threat to dismiss the sub-contractor and hire a new one unless he finishes the house to the required standard within specific timelines.

8. One of the laws listed for enactment in the Fifth Schedule is based on Article 100 of the Constitution which states that “Parliament shall enact legislation that will promote the representation in Parliament of – (a) women; (b) persons with disabilities; (c) youth; (d) ethnic and other minorities; and (e) marginalized communities.”

9. Under the Fifth Schedule, this law was supposed to be enacted within 5 years of promulgation, i.e. 5 years from August 2010…which lapsed in August 2015.

10. When Parliament failed to enact this law by 2015, a number of cases were filed asking the High Court to issue the declaration that Parliament had failed in its obligation to enact the required law within the 5 years. The High Court gave the declaration. The Court also gave additional time within which Parliament was to pass the law but the additional time also lapsed. Multiple extensions were given but these lapsed too.

11. It is on the basis of the failure by Parliament to pass the law within the initial 5 years and the additional period granted in the many orders and extensions by the High Court that Maraga was approached to advise the president to dissolve Parliament.

12. In advising the President to dissolve Parliament, the CJ’s role is not to reopen the issue but merely to satisfy himself that (a) the High issued a declaration that Parliament failed to enact the required legislation within the originally stipulated time, and (b) Parliament failed to enact the legislation within the additional time granted by the High Court.

13. Having been advised by the CJ to dissolve Parliament, the Constitution states that the President SHALL dissolve Parliament. There are arguments over whether the President MUST act on the CJ’s ADVICE given the use the word “SHALL.” More importantly, there are no specific timelines for him to act. This means we revert to the default timelines under the Constitution which says that where no specific timelines are provided, action must be taken “within a reasonable time.” What is reasonable is varied, depends on the issue at hand.

14. It gets more complicated: the Speaker of the National Assembly has stated that there is nothing in the Constitution that requires Parliament to enact a law WITHIN A SPECIFIC TIME to ensure that not more than 2/3 of the MPs are of the same gender. If you refer to point 8 above, you will notice that Article 100 which is listed in the Fifth Schedule does not say anything about the 2/3 gender rule. It only talks about legislation to PROMOTE THE REPRESENTATION in Parliament of women, youth, PWDs and other minorities.

15. The 2/3 gender rule is mentioned in Article 27(8) which states that “the STATE shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” It is also mentioned in Article 81(b) which states that “the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender.”

16. Please note (i) that Article 27(8) places an obligation on the STATE and not specifically on Parliament, and (ii) that neither Article 27(8) nor Article 81(b) are listed in the schedule of laws that must be passed by Parliament within specific timelines. However, whereas the Fifth Schedule lists the required laws with specific reference on the anchor provision in the Constitution, it has a general provision which gives a 5 year period for Parliament to pass “Any other legislation required by this Constitution.”

17. Proponents of dissolution argue that the Constitution must be read as a whole and no one provision should be read separate and distinct from the others. They argue that Article 100 which requires legislation to promote representation of women and other marginalized groups in Parliament must be read jointly with (1) Article 27(8) which requires the state to take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender, (2) Article 81(b) which states that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender, and with the general provision in the Fifth Schedule which gives Parliament 5 years (effective 2010) to pass “Any other legislation required by this Constitution.” In other words, by August 2015, Parliament should have passed any and all laws that were required by the Constitution, whether specifically mentioned in the Fifth Schedule or in the body of the Constitution (such as in Article 27(8).

18. The Supreme Court adopted this same reading when it stated in its Advisory Opinion in 2012 that Parliament had until 2015 (5 years from 2010) to enact legislation that would ensure that not more than 2/3 of the members of Parliament are of the same gender.

19. My own view is that these provisions (Art 100 and the Fifth Schedule on the one hand, and Art 27(8) and 81(b) on the other) must be read separately. This is because, after a protracted Constitution review process, the Kenyan people consciously reserved for women a minimum of 47 out of 349 seats in the National Assembly, and a minimum of 18 out of 67 seats in the Senate and the legislation that is required to be enacted under Article 100 is not one that will guarantee women more seats to satisfy the 2/3 gender rule, but legislation that will enhance the participation of women, youth, PwDs, and other marginalized groups in the electoral process generally with a view to promoting their representation in Parliament by increasing their chances of winning – in an equal contest with other candidates – as many of the 290 open constituency seats in the National Assembly, and as many of the 47 open Senate seats as possible. Rwanda is celebrated globally for having women occupy more than 50% of its Parliament yet the Constitution reserves for them only 30%. The task that our Parliament was given was to pass legislation that would help women and other marginalized groups compete fairly for and win more of the open elective posts rather than some formula that would guarantee a minimum of 1/3 of the seats in Parliament no matter the outcome of the ballot.

20. This is the reason Parliament also argues that the only way to guarantee women a minimum of 1/3 of the seats in Parliament is to amend the Constitution yet its task under the Fifth Schedule was not to amend the Constitution within 5 years, but simply to enact legislation to promote the representation in Parliament of women and other marginalized groups.