Page 4 - THE RHINO Issue 002

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Last week, Chief Jus- tice David Maraga advised the Presi- dent to dissolve Par- liament for failing to pass legislation to implement the two- thirds gender rule.
The origin of this advisory is a consti- tutional requirement that date back to
Article 261 of the Constitution issued Parliament with a coercive threat. The drafters of the Constitution want- ed to compel Parliament to pass the required laws by threatening dissolution if the laws are not passed.
In my view, though I may be wrong, the drafters of the Constitution assumed that the threat of dissolution was sufficient to compel Parliament to pass the re- quired laws. They did not foresee a situation where the context they created failed to work. Chief Justice Mar- aga on his part, did not recognize that he was being shepherded into a decision.
This act of being shepherded into a decision is called nudging. And any good choice architect knows that nudging is most appropriate when the choices and their consequences are separated in time. Theseare choices where the immediate effect of the decision is negative and there is a delayed benefit or where the immediate effect is positive and negative consequenc- es are suffered later. In short, these are decisions where the decision makers have a hard time predicting how their choices will end up affecting their lives.
n the view of the Chief Justice, it is necessary for the country to endure pain, implying that there will be something gained from the dissolution. In my view, the Chief Justice did not appreciate the unintended con- sequences of his decision whether political, economic or otherwise. I will limit myself to the likely political outcomes based on a legal interpretation of the Chief Justice’s advisory. Two outcomes are probable.
In the first outcome, Parliament is dissolved and the President continues to hold office until the term of the ‘new’ Parliament expires. In this outcome, the President holds office beyond 2022. In the second outcome, an election of MPs also triggers an election of the Pres- ident, Governors and MCAs. This outcome ends the President’s second term prematurely. Both of these out- comes are likely to attract violent opposition.
These outcomes also beg some questions: If the draft- ers of our Constitution were the ultimate choice ar- chitects, had they anticipated these outcomes? And if these outcomes were anticipated, were they intention- al? Were the drafters thinking for themselves in precip- itating these outcomes? Or was there an invisible hand manipulating the outcome? And what is the end game?
I do not know the answers to these questions, I’m just asking for a friend.
BY JEAN MBUTHIA OUR COLUMNIST
Jean Mbuthia is a Lawyer and the self appointed advocate for thinking people.
2010, when we passed our Constitution. The Fifth Schedule of the Constitution outlined 48 pieces of legislation that Par- liament needed to pass to operationalize it. Each of these laws had a specified time- line for enactment.
The drafters of our Constitution, know- ing that Parliament was only human and would procrastinate, put in place a mech- anism to force Parliament to pass the 48 laws. That mechanism is contained in Ar- ticle 261 of the Constitution.
47 of the legislative pieces were passed on time, but the legislation on the two-third gender rule was the last piece with the longest timeline for enactment – five years. This law should therefore have been in place by August 2015. It
is yet to be passed.
Because Parliament failed to pass the gender bill within the anticipated timeline, Article 261 of the Constitution kicked in. Under this Article, a petition was made to the High Court, and an order was issued to Parliament instructing it to pass the law. Parliament still did not pass it.
Article 261 then issues a mandatory requirement. If Parliament fails to enact the legislation in accordance with the court order, the Chief Justice shall advise the President to dissolve Parlia- ment and the President shall dissolve Parliament.
I am sure the Chief Justice thinks that his advisory and the de- cision to dissolve Parliament was autonomously his. It was not. The Chief Justice was a victim of choice architects.
A choice architect is the person or persons who create the con- text in which a decision is made. And how a choice is framed influences the choosers’ behavior and the ultimate choice he or she makes.
In making this decision, the Chief Justice was placed within a choice architecture that included constitutional, procedural and analytical requirements, and a coercive threat.
THE RHINO
Speaking Facts to Stupidity
OF CHOICE ARCHITECTS
AND THE MARAGA NAIVETÉ