 We begin this morning conversation. Make sure that you give us your comments. We shall sample them even as you continue with this evening conversation right here on Y25. For now, Karibunisana, you've given Kenyan your stand tonight. But now, let me first of all start by dispensing the issue of the CJ and his advisory to the president. In your take, let me start with you Dan. Is the president bound by the CJ's advisory? Yeah, constitutionally, if you look at Article 261, the constitutional is elaborate in its both form and context. It states very well, if you look through that, that on an advisory, if the parliament fails to enact any law within a specified period of time, then the chief justice would issue an advisory to the president and the president is bound to act on the advisory because that is the constitution of the land. And therefore, I would objectively clarify that we are bound to the supreme document of this nation and that is the constitution of Kenyan. So whether that now the president enact or not purely relies on a number of factors that would really be interesting to see as the day falls or as the week falls that would compel the head of state in consultation with other items to enact an action. Lastly on that matter, our constitutional envisage the separation of powers. In the parliament or the legislature, the judiciary and the executive are both in consultation with each other but they are supremely independent in the manner that they act because they are three arms of the government. And therefore, any advisory that is taken from the judiciary in line with the interpretation of the constitution, therefore bequith any head of executive or the two speakers at the legislature to enact that constitutionally. But now looking at what the CJ had said, there are many legal experts of coming to say that he must act on it. Do you believe so that he is bound by the CJ's advisory and he must act on it? If he does, then it will imply something else legally. Ram, I think we have to look at it from very many angles. When you look at the interpretation of the constitution in article 261, the word is shal. And when you look at the interpretation of many scholars, some say shal may be used interchangeably with will, which means it's at your own peril, and some religious scholars will say that you shall not murder, which means you should totally not murder, but if you murder, what are the repercussions of you murdering? So from me, the angle I'm looking at it, I think it's, first of all, as much as it's in the constitution, the judiciary going straight ahead to ask the executive to dissolve parliament, where is parliament in this? As Dan has mentioned, there are three arms of power working separately. And the purpose of the legislature is representation, oversight. When you look at those functions, they cannot surely be removed, cannot only be dissolved because of only one thing. They also have a role of representation, which is a big deal. Secondly, if you look at the reality of things and the nature of the way life works, if we actually dissolve parliament in 60 days and we ask our legislatures to seek a fresh mandate, what exactly does it mean? What if we seek a fresh mandate and we still get the same and equal terms? What exactly would that mean? Will dissolving parliament really remedy the issue of the two-thirds gender rule? No, it will not. Which means the two-thirds gender rule can only be sorted in a matter of legislation. If you want the legislatures to go, we'll sort it out. If you're demanding for a fresh mandate, which is elections, currently the IEBC is improperly constituted. IEBC itself does not have, the commissioners are not two-thirds gender rule sensitive. We know the likes of Kina Koninkada who left a long time ago. So who exactly is running the show? We are currently at a very critical stage in this country. We are still managing COVID and we've been a bit successful so far in what we are doing. We still have the issue of BBI and quote-in-quote alluming referendum. So to bring this thing right now, for me I believe it's a big thon in the flesh. I believe that the president, just like he ignored the order to take the 42 or 41 judges, he's the same issue, he'll still ignore. Maraga has four months to go, let him go. So the president can ignore that? I believe he should. And there is nothing legally that binds him in your opinion? Yes, but there is a sort of loophole because this is between the judiciary and the executive regarding the legislature. So the parliament has already gone to court asking for a stay. Do you still believe, do you stand with her that the president should ignore? Like Anita really began by mentioning that for us to have been here, there's a number of failed attempts at the floor of the National Assembly on matters of truth, touch, gender. And all of these took a precedence because there was a number of advisory that was made. This is not the first and the last. The issue went through the High Court. The issue has gone through the Supreme Court story, the Court of Appeal. Now it's landed in the Supreme Court. There is something in law that is called precedence, that wherever you set a precedence on any issue that is not an acted upon, in a number of times, the probability is that that will be repeated again and that will set a pace of people acting on the same in default or they will assumed. The issue here is that the National Assembly, which is a branch of the legislature, has been given several attempts to make sure that the two-third gender issue is well taken into consideration. But Ram, something that is so interesting that you see, while we try to ignore the proxy that was taking place in the National Assembly, you could realize that it was so deliberate. How many times have we had lack of quorum in the National Assembly when the issue was introduced? Several times, not once, not twice. There is a number of times, the former majority leader had actually had to appeal to the members of the National Assembly to pass the laws or rather that would render and put the National Assembly at a very precarious position. His plea by that time was not taken into consideration of and therefore my admission on my submission is that other scholars would really want to see this view in a political angle, that it is up to the president to make sure that the political goodwill is shown so that the advisory is ignored. I am looking at it in a manner that illegality, the legitimacy of the parliament should we ignore the advisory. Remember, we really need 21 days for us to discover that if we ignore the advisory given by the Chief Justice, any other bill, any other law that will pass by the National Assembly will be redundant and will be unconstitutional. So that is what I am saying in this stand that if we take this precedence and ignore and say, you know what, we are dissolving the National Assembly, how are we sure that if we ignore these that we will set it. How are we sure that if we have the next parliament this will be sorted out. My issue is not that one. My issue is the messages that we are sending to any other person outside there that this is okay to ignore. Even to the global perspective. I am coming to you Anita, because you are saying that the timing is quite interesting because the CJ's time is almost up. Let me quote the LSK president, Nelson Harvey. He said this and I quote, if the president ignores the CJ's advice, there are two consequences. One, the effective today any laws passed by the National Assembly and the Senate are of no effect. And any oversight role that is ordinarily undertaken by parliament towards vetting of state appointees, towards giving reports on state agencies will be of no effect. He went on and said that Treasury must hence forth seize remitting salaries and all other allowances to the members of parliament. Yet you still say that we need to ignore this. What do you think about this comment by the LSK president? When I hear what Harvey is talking about he's given us two roles of the National Assembly as I said. We have oversight which he has mentioned and we also have representation. What we forget, the number one major reason is representation of the people. That's what the National Assembly does. Then we have the other roles, oversight and the final one enacting bills. But the number one role for starters is representation one out of three. Are these roles affected by this advisory? The only two that is mentioned are the ones that are affected. But look at it Ram. If we go by what Harvey is saying and what CJ Maraga is saying and we dissolve parliament as the president has been advised we are supposed to hold a general election. I've said which body, which organ is supposed to be in charge of taking care of the elections. It's the IEBC. How will the IEBC yet before one year or one and a half years towards any general election usually parliament passes bills in relation to IEBC. Currently IEBC is improperly constituted in terms of commissioners. So which body exactly are we looking at? For me to be really honest it looks like Mali whereby we want to tie the executive hands and give it certain finalities which in actual practice cannot actually make sense. So from where I'm looking at it for me I think it's safe for the president to ignore and wait Maraga has already made his legacy. One he nullified the elections. Two he is one of the first I guess chief justice or president of the judiciary to be in quote-unquote rogue as he has been. But for me the way I'm looking at it it doesn't make sense. It cannot be adhered to because things will not go normally. My question is why now? The issue of timing because this thing laps about two, three years ago. So why today? Why is today the right time to bring these issues up? You should have brought it last year. You should have brought it the other day. I know Dan has already said that he had tried to bring up the issue but even when you look at the niti grittis in terms of implementation ram for us to achieve two-thirds gender rule and when I look at some of the submissions by the petitioners and the way forward we have the 47 women rep and currently as we stand today we should have added 68 more women and how will we get the 68 more women? One of the petitioners was suggesting through political parties whereby we come to yet political parties have their way of running the show according to the political parties act. So you're telling us we have to take it down to the political parties and tell political parties when you front candidates for this area it can only be a woman. Is that really democracy? You feel it's not. Is that really democracy? Yes, Dan. Well, Anita interestingly mentioned about the supremacy of the people and the power the constitution have. There is a very interesting article after that that it says that all state offices are bound to protect, to uphold and to promote the ideals of the constitution. The head of the executive was sworn in and swole the Bible and declared that one of his interesting project was to uphold and defend the constitution. So I think for me this would be very interesting. It would be a mixed reaction from the hero state should he really fail to act on the advisory because that is exactly what he swole to act. On the other side matters of constitution matters of the law becomes matters of the law. So the moment it, you know the political anger of it creeps in to interfere with the matters of the constitution and constitutionalism then we are losing our strength and our standard as a nation. I want to tell you that the national assembly as much as it has the authority as much as it is vested on the supremacy of the representation of the people the constitutional is a representation of the people you know well we understand and people are asking about the timing what I am saying is that if we asking about the timing the national assembly had got enough time to enact all these laws and I am so wary because 2,000 gender rule might not only be the only legislation that they are failed to do if we are beginning to track there might be other legislation if we are failing if we are failing you understand if we are failing to enact the advisory that I am telling you any other body any other person and the laws allows in the constitution to move in court to challenge any other so we are going to have a barrage we are going to have a colossal number of petitions number of actions that the enaction and the failure to enact 2,000 gender rule advisory set up presidents too now referendum I don't think or any other thing is not an issue that Kenyans need right now and I hold that view very strongly if we have to begin to debate on any other issue we are having institutions like IBC the way Anita mentioned that should be felt with commissioners and not any other issue that is going to burden Kenyans you know with another thing we are post COVID and trying to overcome the problem but how are we feeding them? remember we value your feedback make sure that you are part of this conversation from wherever you are watching us from at Y254 channel the hashtag is the stand KE at Ramaguko now in regards to this discussion leaders, key political leaders came through to give their voice in it let me pull up a tweet by Senator James Orango it's coming up in a bit a tweet by the senator it's coming up on your screen there Senator James Orango is saying that CJ Maragas let me let me pull it down a bit I'm unable to read that so senator James Orango is saying alright found it CJ Maragas advice to the president to dissolve parliament is momentas probably the most significant and historic from a constitutional standpoint how we apply foundational principles and values of the rule of law and constitutionalism is now the big test you agree with that Dan? very and I think from his experience as a senior council he has acknowledged the failures as a nation we've had to enact this and I agree with Orango because he said that this is very momentous this moment is a moment where now the holders the people who propose to promote constitution must act so that they approve to the country that we are a country of constitutionalism not only quoting the constitution but also acting on the moments of the constitution that requires interpretation like the one that we are having right now I look at it from two standpoints one the first part where he actually acknowledges that this is a big thing right from the judiciary but then he goes ahead you cannot look at the first part in isolation he goes ahead and just read the last statement the last statement where he talks about constitutionalism so in the last statement it will be coming up on your screen in a bit he says that is the senator James Orango he says in the very last part that how we apply foundational principles and values of the rule of law and constitutionalism is now the big test exactly so he gives us a caveat he says it's a big thing in history bla bla bla we've acknowledged it but when it comes to practical application of what we have how will it be he also raises question on his last part so yes we acknowledge it's a big thing Maraga will get his legacy three months to go October, November, December but the last part how exactly what are the procedures under which this thing will be done what are the procedures yes let's pull up one other tweet by senator Moses Rotangula coming up on your screen and he says on the tweet that on the basis of the legal doctrine and logic of balance of convenience CJ Maraga is dead wrong he has acted painkuriam and nobody or authority will act on the same the resolution restatement and construction construct of the gender rule is not just about parliament and what is it about? and actually it's not just about parliament because parliament only gives us the elective part we have the appointment in terms of appointment you agree with what the senator is saying? yes I agree with him totally just like I agree with the last part that Jim Sorango has said this thing about gender it has to have actually called down effect we also note that he is a member of the senate who is part and parcel of the parliament that has failed to deliver that so for me I think but she says so it's Jim Sorango the realization that we are failing to meet the required standards of the constitution is actually hitting so hard on others canyons and our representatives now what we are realizing right now is by the fact that we've taken too long to promote political ideals and promote values vis-a-vis promoting constitutionalism and this is what we are facing we might be seated and talking about what is really political convenience without thinking what really are we setting for the future generation in terms of protecting the constitution of this country I have a question so for me for what I think is it takes a painstaking process for us to converse about the issue of advisory and not to take it from a political correct point of view Ram my question is we are making politics with constitutionality exactly and this is what this is the problem that we are in this set this is the problem that we are in fundamental political question was constitution made for man or was man made for the constitution you tell me the constitution was made for man man is able to interpret the constitution by itself you know Ram Ram it is interesting the foundation of legal documents and what has even guided us that we have what is called constitution remember the rule of Magna Kata you know that was an acted way long by King George in England by that time what it did protect people from it protected people from you know what somebody say the safeguards of life and property the realization that man if left alone is not able to govern himself or herself unless there is a guiding principle that sets the norm this is the problem that we are having in the constitution in this country for a long time Kenyans had been yaning for the constitution we had it we birthed it in 2010 we cannot crucify we cannot you know addictate when now the constitution convenience for the political class in this country I am painstakingly saying that you know it has probably found as off guard as a political class but then do we really need to throw away the dictates of the constitution because of political relevance or because of political convenience and because of timing I am really saying no to this because this is setting around presidents in this country we value your feedback keep tweeting the hashtag is the stand KE at Ramaguko at Y254 channel remember the parliamentary service commission will move to court to challenge the adversary that was made by this chief justice David Maraga what will happen next let's take a short break we'll be back in a bit to answer these questions and much more keep it wild