Did Maraga hand Uhuru BBI sword?

The advisory by Chief Justice David Maraga that parliament should be for failing to pass the two-thirds gender law may have given a fresh impetus to Opposition leader Raila Odinga's Building Bridges Initiative (BBI) pet project.

And Raila himself let the cat out of the bag yesterday evening when he waded into the debate, asking President Uhuru Kenyatta to consult widely before taking action but also underlining that Parliament had failed in its obligations.

But the upshot of Raila's opinion - it took a day - was his advocacy for popular will of the people, inevitably through a referendum.

"In the circumstances where institutions have failed as is the case with Parliament currently, the Constitution gives power to citizens to act directly and not through their elected representatives to have their aspirations realised," he said.

From the framing of his statement, Raila was doubtful that dissolution of the House would help. He also vouched for the need to build consensus, creating a window where MPs now have to negotiate with the President on their future.

He was categorical that it was all Parliament's undoing; that MPs invited it on themselves.

"We have all been ushered into circumstances that require a consensus on the way forward, failing which we may throw away the baby with the bathwater," he said.

Raila and some MPs had on Tuesday set the stage for BBI's centrality in the debate. In a furious parliamentary session in which they criticised the decision, many of the MPs ended up making reference to BBI as the panacea to the whole crisis.

They claimed the decision by Mr Maraga was enough a justification that the Constitution needed to be revisited, with former Majority Leader Adan Duale saying they would delete the whole gender clause altogether.

"Why should we bother with the extension of time to pass the legislation? We will delete the entire section. We cannot have a Constitution that gives free seats to one gender," said Duale.

Rarieda MP Otiende Amollo, who sat in the Committee of Experts that drafted the Constitution, said Maraga should open discussion on the debts that the law had.

“These are the kind of issues that are ideal to be considered in a referendum when you are amending the constitution and especially that the BBI report is about to be released,” Mr Amollo said.

Some of the contradictions that MPs raised were that Article 267 that gives the CJ the authority to advise the dissolution of Parliament contradicts with Article 38(2) that guarantees free, fair and regular elections based on universal suffrage.

On the floor of the House on Tuesday, Duale echoed Economist David Ndii's sentiments. Dr Ndii viewed Maraga's decision as being similar to giving the President a grenade with the safety pin removed.

An MP who is an ally of Deputy President William Ruto, but who requested anonymity in order to speak freely, imagined that Parliament now had a sword hanging over its head.

"Now we will be told to do whatever the Executive wants or the House will be dissolved," the MP said.

The refrain in Parliament when National Assembly Minority Whip Junet Mohamed kicked off the discussion of the gender rule was Parliament would need to be united. Majority Leader Amos Kimunya said pulling together would mean revisiting the BBI initiative with an open mind.

"Perhaps we need to revisit the BBI initiative and pull together, not just thinking of BBI as a political thing but as a vehicle towards changing the laws of this country to actualise the desires of the people," said Mr Kimunya.

Suba South MP John Mbadi said he was happy that the CJ had invoked Article 261 that called for the dissolution of Parliament. His excitement was, however, not because Parliament would finally be driven to enact the Gender Bill.

"It is time that the country should witness the inconsistencies and contradictions in the 2010 Constitution," Mr Mbadi said.   

"We agreed when the Constitution was being passed that 20 per cent of the document was wrong. The question was on what exactly was wrong. Now you can see the 20 per cent that was wrong," said the MP.

That is already a point of divergence between Mbadi and ODM members such as Mbita's Millie Odhiambo, who wants the law passed.

Mbadi explained that while he was not saying the two-thirds gender rule should be changed, if the issues in the Constitution were not addressed, this would just be the first time that an advisory to dissolve Parliament would be being given.

“You will dissolve this Parliament 1,000 times if you don’t address this issue through a referendum. The only route to solving this issue is BBI. We will talk all the languages we know, but we will have to go back to the people of Kenya," said Mbadi.

Some of the inconsistencies that Mbadi said existed in the Constitution were to do with the power and influence that the Executive had over the Legislature.

"The people of Kenya wanted to take away the power to dissolve Parliament from the President, then we create in the same Constitution a provision that gives him the power; these are contradictions that have to be addressed," he said.

Kisumu West MP Olago Aluoch described the position that Parliament was in as a silver lining.

“The silver lining on this cloud is that now members of this House have a chance to look at the various contradictions that we have in our Constitution and see how we can resolve them. The only way that we have to do that is through the BBI process," said Mr Aluoch. 

Mvita MP Abdulswamad Nassir said it was impractical to imagine that an election would be called when the country was preparing for a referendum through the BBI.

"I’m pleading with the naysayers who are against constitutional change in this country that we as Parliament need to ensure every single thing that has affected this House is going to be changed through the BBI.

The solution

Lugari MP Ayub Savula was categorical that the solution to the impasse in the realisation of the gender principle lay in the BBI process.

“We expect the report to be released and then set the stage for a referendum. All those who are anti-BBI will support it because of the Maraga’s hammer. We must address all these issues through the BBI once and for all,” said Mr Savula.

Senator Samson Cherargei (Nandi), an ardent supporter of the Deputy President, believes the CJ’s advisory is a scarecrow to lawmakers opposed to the BBI report.

“The advisory of the CJ on this matter is to use it as a scarecrow so that BBI does not receive opposition in Parliament. It is being used as a scarecrow to bulldoze the two Houses to support the proposed constitutional amendments,” said Mr Cherargei. 

[Report by Allan Mungai, Rawlings Otieno and Moses Nyamori]