Opinion: Kenyatta’s constitutional curveball

Right before retirement, Court Justice David Maraga have given some critical advice to President Uhuru Kenyatta. This is happening years after the last Parliament election and only a few by-elections since then. So, this could have been picked up before, but as the CJ Maraga is soon a pensioner. He could speak his peace and expel the importance certain articles of the Constitution.

The Constitution states in article 81(b) no electoral bodies have more than 2/3 members in a elective bodies of the same gender. Also, in the article 261(7) which states this: “the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament”.

These parts of the Constitution sets a standard and recognize what the President needs to do after the advice of the Court Justice. However, in the middle of term, why didn’t the CJ do this sooner?

Most of the MPs was elected in 2017 and we are now in 2020. There been changes in the nominated senators, but then the President and the Team around him should have warned him. If not given a heads-up to ensure this wasn’t an issue. That the Parliament had the right balance of the genders and ensured the Constitution was followed. This could be easily done in the Senate. As the nominees can make a balance directly, if the parties and if the government wants it to be so.

This here will show, if the President has the interest of the Constitution or not. If he will abide to the recommendation or not. The Building Bridges Initiative (BBI) has a constitutional referendum in mind and this sort of letter might amplify that wish. While, the President either has to choose that path or dissolve the Parliament. Then his calling for an election and risks the total control of Parliament in his final term as President.

President Kenyatta have very few to go. There is little wiggle room and is an impasse on the President. He either has to do one thing or another. If he shuns it, then people know he doesn’t care about the Constitution. If he does that, then people know that he doesn’t value rule of law and equal justice for all. If he does dissolve the Parliament. Then he starts a process and preparing for another election. To ensure he has enough allies and continues to have control of both houses in the Parliament.

We can wonder what he will do, if he wants to reign with a unconstitutional parliament or if he wants to follow it?

We can also in the same manner, also question why Maraga did this now? As the amounts of MPs and Senators was mostly put in place over a long while. Not like it was a swift change. This could have been advised on a earlier stage. Because of the last election was in 2017. That should say enough really…

So, what will Kenyatta do? He got issues, a pickle and a conundrum. What he chooses to do, will seal his legacy on his constitutional behaviour and if wants some sort of justification for his control of the Parliament. Unless, he wants to rule with an unconstitutional electoral body…

That is his choice… and he knows it. If not he was reminded now and he got articles to follow. Peace.

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