Maraga verdict hands Uhuru, Raila grounds for referendum

Chief Justice David Maraga.

People from Nairobi’s Eastlands say that the social currency when they were growing up was ‘audacity’. You had to prove yourself by daring others, and standing up to dares. In Eastlands, you drew a line on the ground and dared another kid to cross it. There were even dare words, like ‘ng’we!’, which you only said when you decide to be brave enough to cross the ‘point of no return’. 

If someone in the neighbourhood dared you, you look them straight in the eye and dare them back. You do not run home to tell your mother that you are being threatened, because she, in the true spirit of Eastlands, will also dare you to go back and be audacious. 

If you did not have audacity in Eastlands, you were officially ‘the wretched of the earth’, bulldozed by everyone, taunted even by children and condemned to permanent tears. You were better off staying indoors all day, living a safe but boring and cowardly life. In those play streets, if you do not risk anything, you risk everything. You see, the thing about dares is that they come at an unpredictable cost. Once you set a dare, or take up a dare, you enter into the realm of probability. You venture into the unknown. 

The Constitution made a serious dare to a group of people; “do this one task within five years, or else, you will lose your job”. Cross this line, and you are finished. Say ng’we! 

Unfortunately, the group of people who were given an ultimatum by the Constitution are not ordinary Kenyans who would bend over backwards to protect their jobs. The people who were dared are politicians.

They are the summit of hardheaded ‘Eastlanders’ from all over the country, always ready to cross the point of no return. They are a chaotic conference of daredevils. They don’t respond to threats. In fact, when the Constitution dares them, they dare the Constitution back! 

Because of these daredevils, Chief Justice has advised the president to dissolve Parliament. Some parliamentarians have said ‘ng’we!’- do it! They have thrust themselves deep into the realm of probability. And guess what, the president will do it! It looks like the Constitution will win the dare. Giving and taking dares has three main risks. The first risk is that dares can backfire. When a dare backfires in Eastlands, someone ends up going home with one less tooth and a limp that will last a week. In this case, who will go home limping and missing a tooth? Is the Chief Justice, Parliament or the president? 

The second risk is that the outcome of the dare can acquire a life of its own, to the extent that you forget what the original dare was about! And this is what will happen with the current constitutional crisis we find ourselves in.

Yes, Parliament will be dissolved. But what happens next? What will happen is that we will go into an early General Election. All legal indications show that the presidential, parliamentary and county elections cannot be de-linked. But what will also happen within the General Election is a referendum. By advising the president to dissolve Parliament, Maraga has unintentionally accelerated the BBI process. 

Uhuru Kenyatta and Raila Odinga’s crusade for the BBI referendum was previously premised on moral grounds. The argument was against a winner-take-all system that causes high octane, deadly elections. But with only a moral reason for a referendum, Kenyatta and Odinga needed to be persuasive. 

Now they have been handed constitutional grounds for a referendum. And this ‘new and improved’ referendum will not only touch on matters of the dissolution of Parliament and the actualisation of the two-thirds gender rule. Other questions like the transition to a parliamentary system will feature prominently.  The third risk of issuing dares is that weaknesses are exposed. In this instance, the biggest weaknesses revealed are those of our Constitution itself. Our mother law is full of convolution, contradiction and conflict. 

The Constitution is convoluted because it is not only vague in its expression, it is also excessive in its instruction. It is a legal overkill. It is a case where we have so much law that you need more law to interpret it, even more law to execute and implement it. Our Constitution is replete with contradiction. Is the Chief Justice’s pronouncement on the dissolution of Parliament absolute or should it be presented before the public for resolution since the same Constitution gives sovereignty to the people?  

The Constitution is full of conflict because people can and will interpret it for their own purposes, depending on their political lens. Currently Kieleweke or Tangatanga lenses are the prisms that inform dominant interpretation. In its convolution and contradictions, the Constitution is bent to the will of politicians and not the other way round. 

Finally, when Chief Justice Maraga retires in a few months, he will do so as the Chief Justice who delivered the BBI. And because of this unintended result of a dare, he will probably go home with a limp that will last a week.

- The writer is a PhD candidate in political economy at SMC University. [email protected]