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Constitutional CRISIS?!?!?!?!




Even as MPs animatedly bang tables at press conferences and heckle in public (some sadly in their mother tongues [mzalendo where are you?!?]) about the illegality of the speaker’s ruling and decision to reject debate on the controversial nominations of the Chief Justice, Attorney General, DPP and Director of Budget, claiming that a rejection of the names will lead to a constitutional crisis come 27th February, it would be very important, at the earliest to clarify exactly what this constitutional crisis would mean – as opposed to what they want their not so ignorant constituents to believe it to mean.

Fiction: The judiciary will be left in a mess-vacuum – headless as it were, if there is no Chief Justice after 27th February.

Fact: The office of the Chief Justice though an important one is mainly administrative and ceremonial (or so it has been made under Gicheru). The Court of Appeal’s Presiding Judge is perfectly capable of overseeing the transition in an acting capacity.

Fiction: Marende has no right to interpret the constitution, to reject debate on the nominations, and to refer the matter back to the Principals.

Fact: Lawyers interpret the law on various occasions including periods of giving advice to clients. As head of the National Assembly, the Speaker ensures that any legislation that emanates from the house is not in conflict with the constitution. Therefore he had every right to address the constitutionality of the nominations when called upon to do so. In addition, this will not be the first nor the last time the Speaker of the National Assembly has suspended or outlawed debate on issues. Courts of law have the final say on what can be deemed constitutional or not.   

Fiction: Rejection of the presidential nominations by the Speaker is a violation of the principal of the separation of powers and a usurping of roles.

Fact: Each of the arms of government has to be checked by another arm of government. Government nominations have to be approved by Parliament, Parliamentary legislation can be challenged on the basis of being in conflict with the constitution and therefore unconstitutional. So too can Government policy hence keeping the Executive in check. Ordinary citizens too have a right to go to court and claim contravention of the constitution or a threat(s) of contravention (Article 258) and hence Petition No 16 of 2011.

THE TRUTH therefore is that indeed there will be a constitutional crisis if Parliament fails to legislate and the constitution is not implemented – at least the almost 29 legislations that have to be in place by 2012. It will definitely be a crisis when an ordinary Kenyan resolves to go to court and evokes Article 261 (seeking the dissolution of parliament on the basis of failure to legislate).

DO our ever zealous politicians REALLY want that kind of CRISIS? Are they remotely aware of the ability of the masses to unite against a stubborn oligarchy?

   

Comments

  1. juristFebruary 22, 2011 at 8:39 AM

    What Constitutional Crisis? The sky will not fall and we will continue to eat Ugali.

    ReplyDelete
  2. UnknownFebruary 22, 2011 at 9:06 PM

    What politicians know well is to mislead the public and make interpretations according to their interests.
    Separation of powers, checks and balances is important to every state to guard against excesses of the Executive arm.

    ReplyDelete
  3. bemihbloggerFebruary 23, 2011 at 1:58 AM

    Man must not live on bread alone....the bible says...Jurist!

    faith wouldn't agree more

    ReplyDelete

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