AG Kihara and SG Ogeto are misadvising the President

A good lawyer, in addition to a doctor and an accountant, are said to be important to any successful person. President Uhuru Kenyatta’s legal advisers, Attorney General Kihara Kariuki and Solicitor General Kennedy Ogeto may go down in history as the reason for the President’s failure to adhere to the law and fidelity to the Constitution.

How else can one explain the duo’s counsel to the President that the advice by the Chief Justice on the dissolution of Parliament entitles the President to another five years in office? Can the President refuse to dissolve Parliament on the order of the court, advice of the CJ and go to the same court to legitimise the refusal?

Kihara and Ogeto exemplify Plato’s assertion that “good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.”

The two advised the President not to swear-in 41 judges appointed by the JSC. When the CJ lamented refusal despite a compulsive March, 2020 court order, the AG retorted: “His Excellency the President cannot be…pressured to appoint to office individuals against whom competent State organs have provided adverse reports and information that question their suitability to hold judicial office.”

When the Law Society of Kenya, of which Kihara and Ogeto are members, sought to expel them for misadvising the President on the swearing-in of judges, the two ran to court for respite.

In December, 2016 at the request of Marilyn Muthoni Kamaru, Justice Mativo declared that President Uhuru Kenyatta’s Cabinet did not meet the two-thirds gender requirement and that the President and the National Assembly had violated the Constitution. The two were given eight months to regularise the failure but have not.

The CJ has advised the President to dissolve Parliament. On September 28, the AG sued the CJ, challenging the advice. Speakers of National Assembly and the Senate are named as interested parties. On the same day, the National Assembly and the Senate sued the CJ and the AG. These petitions are novel; never filed before in the history of Kenya. The government, through the AG, is suing the government through the CJ and the same government through Parliament is suing the CJ and the AG. It is a chaotic and apocalyptic government legal affray.

Four complaints are made against the CJ in the two cases. One, he is assailed for disregarding public interest. Two, a question is raised on whether the Justice Mativo March 2017 order requiring Parliament to enact two-thirds gender laws in 60 days applies to the current Parliament. Three, it is claimed that the order was not transmitted to Parliament. Four, the AG wonders what will be the term of the Parliament elected after dissolution. Five, it is asserted that the dissolution will affect the term of the President, governors and Members of County Assembly. Five, it is said that there is no clarity of who will play the role of Parliament upon dissolution.

These orders are sought: a declaration that the CJ acted unconstitutionally by disregarding public good; a declaration that the CJ’s advice is incapable of execution for want of transitional and facilitative legal framework; a declaration that the President has discretion on whether or not to dissolve Parliament; a declaration that the CJ’s advice violates Article 261 of the Constitution; a declaration that the Justice Mativo order is not applicable to the Twelfth Parliament; and a declaration that the President is required to afford Parliament fair administrative action before dissolving it.

LSK will not participate in this case and any other filed on the CJ’s advice. Several reasons underlie this decision.

First, these cases are incestuously filed against the CJ and Speakers of the National Assembly and the Senate on one hand by Parliament against the CJ and the AG on the other hand. They intentionally exclude all six petitioners on whose behest the CJ acted. Second, the President has disobeyed a court order declaring that he has violated the Constitution by refusing to swear-in judges.

Why should the President benefit from the same court or require others to obey orders in his favour? Third, in July, 2020, the President prohibited State organs from suing each other. What is the propriety of the President suing the CJ, who cannot defend the claim, if not to secure a compromise of the case?

I can now freely review the case by the AG against the CJ now that LSK will not be involved in the case. The case should fail on all grounds upon which it is made and further, on two preliminary issues which the court should consider even if the case is not responded to by the CJ as legitimately expected.

First, the right to enforce the Bill of Rights or enforce the Constitution is given to a person. A person is defined to include “a company, association or other body of persons whether incorporated or unincorporated.” The AG or the President do not fall in this category. A challenge on behalf of the President against the CJ’s advice is unsustainable.

Two, Article 2 (3) of the Constitution protects it from the challenge: “The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.” The AG cannot challenge the constitutionality of Articles 27, 81 and 261 of the Constitution on two-thirds gender principle and the CJ’s power to advise the dissolution of Parliament for noncompliance.

Three, public interest is best served by upholding the law. The CJ had no discretion on what to do, having ascertained on Parliament’s own admission that the two Bills on two-thirds gender principle were lost on the floor of the National Assembly. Parliament and the AG refused to tender their legal arguments before the CJ despite having been directed to do so on September 1.

Four, Justice Mativo’s order requiring Parliament to enact two-thirds gender laws in 60 days applies to Parliament as an entity. The acronyms 11th and 12th Parliament are unknown to the Constitution. In the CJ’s words, “The obligation under Article 261 (5) to enact the requisite legislation and order in that petition were directed to Parliament as an institution and not the 11th Parliament.”

Fifth, Justice Mativo’s order was transmitted to Parliament. The National Assembly and the Senate were parties to the case in which the order was made. They appealed the order to the Court of Appeal and lost in April, 2019. The CJ wrote to the Speakers on March 26, 2019, asking them to comply with the order. They responded on July 16 and 17, 2019, indicating failure of compliance.

Sixth, the term of the Parliament elected after dissolution is clear from Articles 101 to 103 of the Constitution. The seats of all parliamentarians are declared vacant upon dissolution. A by-election is held within 90 days of dissolution. Parliamentarians elected subsequent to dissolution serve until the next general election.

Six, dissolution of Parliament does not affect the term of the President, governors and Members of County Assembly. Parliament is simply that, Parliament: constituted of the National Assembly and the Senate. It is legally unsound to suggest that the advice by the CJ would give President Uhuru Kenyatta another five years in office if implemented.

Seventh, there is no credence in the claim that there is uncertainty on how the role of Parliament will be played upon dissolution. Dissolution lasts 90 days at the end of which a by-election should have been held. Parliaments are prorogued and dissolved as a facet of an electoral cycle in all constitutional democracies.

The dissolution for failure to enact the two-thirds gender principle laws was intended to punitively disrupt the five year electoral cycle. It cannot be cozy and comfy. The President should, for once, listen to the people through the Constitution and not his lawyers.

-Mr Havi is LSK president