Alagi Yorro Jallow
Fatoumatta: The BEDROCK of Kenya’s governance is the CONSTITUTION – the SUPREME LAW of the land. It’s the light whose bulb is the rule of law, to illuminate the darkness of risks of authoritarian rule in a democracy. There is a plan to overthrow the Constitution. People must protect it. The political hurdles intertwined with the legal challenge in the face of Chief Justice David Maraga’s advice to the President for the dissolution of Parliament make things even more intriguing.
Secondly, if the President violates the Constitution further by ignoring the Chief Justice Maraga advice and continues with his politic and his “Tanga Tanga” (stupid), MPs may pull a surprise through a motion of impeachment of the President for violation of the Constitution, tying it to the failure to appoint 41 judges and the constant ignoring of court orders. If that challenge comes, the President will dissolve Parliament when the impeachment motion is on the floor of the House. That would raise legitimacy issues with his stay in the office at that moment.
Is Parliament derelict in its constitutional obligation to develop a formula on the gender rule, 10 years after the promulgation of the new Constitution? Have the MPs failed in their commitment to respect, uphold, and defend the Constitution? What consequences does the Constitution provide for such dereliction? Why are we then trying to intellectualize and problematize the word “SHALL” when all along we have been agreed on what it means.
Fatoumatta: For a couple of days, I read an article by Justice Aharon Barak entitled “The Judge on Judging.” Aharon Barak is a retired Chief Justice of Israel Supreme court and an Israeli Professor of Law. He has served as a judge from 1978 to 2006. Now Justice Barak is an Emeritus Professor of Law teaching in a well-known Universities of the world like Yale, Harvard, Georgetown University Law, Central European University, Cambridge, Hebrew universities, and the University of Jerusalem. He is an eminent scholar on Constitutional Human Rights Law. He has also coined terms like the ‘Constitutional Revolution’ and developed a legal philosophy called “Law covers all the world” for his allegation of interference in the Executive and Legislative Act. He has developed his version of “Rule of Law” different from Salmond and “Separation of Power” different from Montesquieu. He has written a book entitled “The Role of The Judge in a Democracy” and “Purposive interpretation of Law,” etc. While I was reading his articles, I was thinking of our judges and wishing to see a single decision that sets a precedent for Rule of Law. We hope to have or expect justices like Aharon Barak in Africa and our justice system, even in the world, in the short term, emulating his legacy. Now we are not supposed to go to the Middle East to get a lesson. Instead, we can get a study from the African continent, Kenya, East Africa, and another Aharon Barak in the Kenyan Chief Justice David Maraga.
Honestly, we need to take lessons from Justices like Aharon Barack and the Kenyan historic Chief Justice David Maraga. No court in the world has ever invalidated the re-election of an incumbent in 2017. On that basis and standard, Chief Justice David Maraga has set a jurisprudential standard for Africa and the whole world. The Supreme Court of Kenya (minus the two corruptible dissenting Justices) ruled in the Opposition Coalition NASA Vs. IEBC/Uhuru Petition has set such a high jurisprudential standard that the whole world, especially Africa, has to play catch up. The Justice Maraga ruling has proved that African Judicial systems do not have to fear the power of incumbent dictatorships to intimidate courts of law to make judgments favorable to corrupt and impunitous presidents. They (mis)use public resources and state instruments of terror to subvert the Sovereign Authority of the people.
In the fullness of time, the whole world, and African Judicial systems, in particular, will forever be grateful to Kenya’s Supreme Court and Chief Justice Maraga for having the courage to challenge the powers of incumbency and corrupt dictatorships.
However, the Supreme court’s courageous ruling will forever be a standard that the world will emulate, and students of law will study for ages to come. Chief Justice Maraga, for choosing to uphold the rule of law and constitutionalism. God will forever bless him for teaching the world that it’s possible to stand for justice against the lords of impunity and corruption.
In September 2020, Kenya’s Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve Parliament to enact legislation on gender quotas. Chief Justice Maraga’s guidance did not impose a deadline, enabling the President to wait until his government’s mandate expires in 2022 to heed the advice. Under a new constitution adopted in 2010, Kenya had five years to enact legislation, ensuring that no more than two-thirds of members of elective public bodies be of the same gender. Parliament “failed to enact the requisite legislation,” Maraga said in a statement on Monday from the capital, Nairobi. “It is my constitutional duty to advise you, the president of the Republic of Kenya, which I, at this moment, do, to dissolve parliament.” Kenya’s Parliament currently consists of the National Assembly and the Senate. The former has 349 members, of which 47 are guaranteed for women elected by the nation’s counties. The latter has 67 senators, of whom 16 are women nominated by political parties according to their proportion of elected senators.
Justice Barak Aharon was indeed a super Justice who had successfully built the twenty-one jurisprudences. I have read his articles and other publications about his legacy (Legacy of Justice Aharon Barak) on Harvard Law Review. However, there are sharp criticisms of his judgment on the Occupied Palestinian Territory(OPT). He left a legacy for judges around the world.
However, Kenya’s Chief Justice David Maraga, and three of his colleagues, have created history by annulling the August 2017 presidential election. It is unprecedented in Africa for an opposition court challenge against a presidential election to succeed. This week Chief Justice Maraga advises the President to dissolve Parliament for failing to adhere to and to promote a foundational value and principal of the Kenyan constitutional democracy.
Alagi Yorro Jallow