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WHY UHURU WILL DISSOLVE PARLIAMENT
THIS WEEK’S ISSUE PUBLISHER’S NOTE
Constitutions are only made in times of crisis. But if made in the absence of a crisis, they precipitate a crisis. And this is the constitutional moment we have today. We made a constitution in the absence of a crisis. We were afraid of the coming war because we had fought in 2007. Then we experimented with a playful Chief Justice who is too catholic with the law. Now we have a crisis in our hands. TheChief Justice has advised Uhuru Kenyatta to dissolve parliament.
But his advice is more of an order because of the way the constitution is worded. And if the order is tak- en to court for interpretation, Maraga will give it a catholic reading of the law. He will send Parliament, the president, governors and MCAs home. In fact, this is what will happen. Everyone is going home.
If the above is true, how should Uhuru Kenyatta navi- gate this storm? There are three options. One, he can decide to ignore the order. And in doing so, he can cite the Doctrine of Civil Necessity.
According to this doctrine, bad law should be bro- ken if it is in the interest of the public. In political science, this doctrine distinguishes between Rule by Law and Rule of Law. Rule by law is what the law currently is - good or bad. Rule of Law is what the law ought to be. If a law is therefore broken in the name of civil necessity, it means that it is bad. It needs changing. And Uhuru can make this argument regarding the Maraga order.
Two, Uhuru can decide to dissolve Parliment as so ordered by Maraga. If he does so, someone will go to court and argue that whenever there is a par- liamentary election, there must be a presidential election as well. And the courts will agree. Then the courts will be asked another question: does Uhuru qualify to run if a presidential election is held after the Maraga dissolution of parliament? The answer to this will be NO. And the argument will be that a full presidential term is anything above two-and-a-half years. Since Uhuru has served three years, he does not qualify to run.
Against all these possibilities, the question I pose is this: Can Uhuru still dissolve parliament and cut his term by half. And the answer is YES. He can do this, force a referendum that introduces a ceremonial president and an executive prime minister. Then he can come back as executive prime minister with all the powers he has. But this time, for an unlimited term and with Raila Odinga as ceremonial President. And when you think about it, Raila Odinga is already behaving like a ceremonial president.
Three, the Attorney General has already argued that a strict reading of the Maraga order extends the President’s term. If the election of the pres- ident must happen on the same day as that of parliament, and parliament is elected for a fresh five year term, then the term of the president is also extended to August 2025. If you were Uhuru Kenyatta and Maraga extents your term by three years unknowingly, what would you do? Would you dissolve parliament or would you dissolve par- liament?
This is a no brainer in my view!
Yours Truly, Mutahi
October 4th, 2020
THE RHINO
Speaking Facts to Stupidity