Page 7 - THE RHINO Issue 002

FINDING MIDDLE GROUND: 06 IS THERE A CONSTITUTIONAL CRISIS?
BY FAITH NDINDIRI
OUR COLUMNIST
Faith s a Development Economist and Consultant, passionate about Political Economy. Engage with her on Twitter @FaithNdindiri or email her on fndindiri@ gmail.com
People generally use the term “constitution- al crisis” to describe periods when institu- tions of government are clearly in conflict. But the mere existence of conflict, even pr found conflict, cannot be the definition of crisis. Government institutions are always in conflict. There are always cases before the Supreme Court that can attest to this.
Kenya’s system of government was based on the premise that the different arms of government would offer some type of checks and balance mechanism for each other. As such conflict is inevitable, con- flict is an inherent feature of the system of government in Kenya. I argue that this cur-
In finding the middle-ground, we must first accept that this is not a constitutional crisis. Some may argue that the Kenyan constitution was born in crisis and is sub- sequently being tested in a crisis. However, the way I think about this constitutional crisis is - to think about whether or not the constitutional system as a whole is breaking down or whether or not important parts of it are breaking down and failing to operate. And in this case, the important parts are still operating.
Is the real crisis in our constitutional design? Given that conflict is inevitable, what we need is a design that accommodates this conflict within parameters/bound- aries. Even if people strongly disagree with each other— there is no crisis. On the other hand, when the system of constitutional design breaks down, either because peo- ple abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of “crisis.”
Will fidelity to the constitution lead to disaster? Could we entertain the idea that there are times such as this when constitutional instability is better than stabili- ty? A crisis may truly occur if within this constitutional framework we are unable to ever fully implement the 2/3 gender rule. After all, you can’t compel the people to vote in a particular direction. Perhaps the time has come to reconsider the 2/3 principle, is the problem legislation? Or that legislation will not FIX the problem. Perhaps it is time to do away with a mediocre law.
What will emerge in the next few weeks, is a dispute between constitutional actors about the nature of the emergency and the legitimate way to respond to it. But be warned! Politicians can be rather quick to want to declare constitutional crises, in part because they think that that kind of rhetoric will help empower them and give them additional leverage. So, will Uhuru Kenyatta behave as we expect him to? Will he dissolve parlia- ment and formalize Maraga’s advisory to launch a ref- erendum? Or will he do the unexpected and refuse to dissolve government? Either way, we must never forget that it is a constitution we are expounding, it is a con- stitution, intended to endure for ages to come, and con- sequently, to be adapted to the various crises of human affairs.
OCTOBER ‘04
rent conflict does not mean that there is now a constitutional crisis. This just a political crisis...for now.
We must not use the term constitutional crisis in such a relaxed manner. As I write this, the ball is still in the president’s court. Despite the stay on the advisory, the Chief Justice of Kenya Da- vid Maraga still advised and the President shall dissolve par- liament. Based on this, the President has not yet gone beyond the boundaries of the constitution, given that the timelines are not stated as to when he shall dissolve. There would only be a constitutional crisis should the president “disobey” this advice. I say “disobey” because Article 261 of Kenya’s constitution is a self-executing clause – it is not up for debate what the presi- dent must do after he receives the advice to dissolve.
In carrying out this decision, perhaps President Kenyatta can heed Niccolò Machiavelli’s advice, he tells us that “the usual in- stitutions in republics, are slow to move and, since time is wasted in coming to an agreement, the remedies for republics are very dangerous when they must find one for a problem that cannot wait. Republics must therefore have among their laws a procedure . . . [that] reserve[s] to a small number of citizens the authority to deliberate on matters of urgent need without consulting anyone else, if they are in complete agreement. When a republic lacks such a procedure, it must necessarily come to ruin by obeying its laws or break them in order to avoid its own ruin. But in a repub- lic, it is not good for anything to happen which requires governing by extraordinary measures”. Though President Kenyatta has the power to invoke extreme measures, and the Doctrine of Civil Necessity, perhaps he would do well to find the middle-ground on this issue.
ISSUE N. 002