In a news article titled Legal vacuum clouds election date, MPs tenure, the East African Standard Online carried a story the other day in which it reported that a “controversy looms over what the exact date of the General Election is,” and that legal experts were in agreement that the new Constitution is not explicit on how the term of the current Parliament can be terminated.
The online paper also reported that “opinion remains sharply divided on the position of the Constitution about termination of term of the current Parliament, deemed the transition.”
The Standard appears to have picked up on an article by Prof. Yash Ghai earlier this year, The election date not clearly spelt out in which the professor seems to suggest there is confusion as to when Parliament can be dissolved and therefore when elections must be held under the new constitution.
I don’t think there is any confusion at all and those raising this issue, merely want to murky the waters for their own varying reasons.
To understand where I am coming from, let’s start with matters of common sense and practice before looking into what the constitution says:
(1) It makes no sense to extend the life of Parliament, and by definition, the presidency, beyond five years, which is the term under which both were elected.
(2) On the other hand, depending on circumstances and what country or jurisdiction, any elected politician’s term of office can always be cut short either voluntarily, or by recall, death or expulsion, in the case of elected legislative body members or by impeachment, vote of no confidence, resignation, or death, in the case of presidents and prime ministers.
(3) The public is served better, the more frequent and shorter the term of their elected officials and five years is the maximum number of years elected officials serve globally.
Both the current 10th Parliament and the President were elected under the old constitution, which set five years as the maximum period of time either can serve in office.
The new Constitution also sets five years as the maximum number of years members of the house and senate can serve, ditto for the president.
The question is when elections are to be held.
Under the old constitution, the president had the enviable powers to prologue or dissolve parliament at will and thus one of the many reasons MPs toed the president’s line and always sang to the tune of his music.
The new Constitution stripped the president of that power but did not expressly provide any other mechanism to dissolve Parliament in connection with holding new elections.
Prof. Ghai and others appear to point to this as one of the reasons there is “uncertainty” as to when the first elections should be held under the new Constitution but I say, there is nothing uncertain about when the first elections should be held.
Although the new Constitution stripped the president power to dissolve Parliament, and therefore forcing new general elections, the new Constitution clearly fixed the date for the general elections for Members of Parliament, to be “on the second Tuesday in August in every fifth year.”
This date is mandatory and automatic under Article 101 of the constitution.
There is no more need for the president to dissolve Parliament in order for elections to take place and neither is such a declaration necessary; the clock starts ticking on the date of elections and on the second Tuesday in August of the fifth year, it’s go back to the people and seek a new mandate for MPs and the president.
Members of the 10th Parliament were elected—and I always use the term sparingly, given some were obviously rigged in, on December 27, 2007. The members were sworn in on that cantankerous 15th day of January, 2008, which means, the next Parliamentary elections must be on August 14, 2012, under Article 101 of the constitution (second Tuesday in August of the 5th year), counting from the date of election, not the date of swearing in.
This is the only interpretation that makes sense to me and, even though one other might (holding the first elections under the new Constitution in December 2012), all others must be viewed with great suspicion as mischief must be lurking underneath.