The other day, President Kibaki clearly said to the relief of everyone that elections will be held at the end of this year, which everyone understood to mean December.
Without missing a beat, however, the president quickly retracted and said the elections will be held in March 2013, citing the constitutional court ruling.
Kibaki’s pronouncement is troubling and quite frankly strange because it is unheard of for a president to cite a ruling of a lower court for a proposition when that ruling itself is on appeal.
The constitutional court ruling is not final and is therefore not binding on anyone and if the president agrees with it, he has not given us any reason why he only agrees with half of the ruling and not the other half.
The court gave us a confusing two part ruling in which it erroneously ruled that the correct election date is March 2013 while at the same time ruling that the elections can be held this year only if the coalition partners agree to dissolve the coalition triggering an election 60 days upon dissolution of the government.
Yet, to hear Kibaki say it, the court has ruled that the elections shall be held in March 2013 and there is nothing he or anyone can do about it.
This is obviously not the case.
Even assuming for a moment that the constitutional ruling can withstand scrutiny on appeal and be affirmed as is, the prevailing wisdom and consensus in the country is that elections must be held this year so it would behoove the president and prime minister to sit down and agree on a date to dissolve the coalition government and set in motion a process to hold elections latest by December.
It is obvious Kibaki is hardly ever enthusiastic in consulting with the PM on any of these issues but much as he may not wish to, we are now a country where the rule of law is paramount and cannot be ignored for the sake of advancing narrow and selfish political and personal interests.
The constitutional mandate for consultation on key issues such as this is there to ensure our top leadership acts in unison in the interest of our country, and for no other purpose or gain.
But even this requirement for dissolving the government to trigger new elections is cumbersome and unnecessary.
The Supreme Court has the power to properly interpret the constitution and authoritatively set the election date as December 2012 and no torturing of the constitution is needed to reach that conclusion as was obviously the case in the constitutional court erroneously reaching its conclusion about the election date being 2013.
The constitutional court essentially decided to ignore several provisions in the main body of the constitution and entirely based its decision on the provisions of the Sixth Schedule which it tortured in its legal analysis to reach its conclusion, complete with reliance on the legal doctrine of generalibus specialia derogant, which it wrongly applied as to the date issue.
The Supreme Court can fix this if and when the case gets to it, if it so choses but, in the event it agrees with the constitutional court, then either the president and prime minister must agree to dissolve the government as per the second part of the constitutional court ruling and give is a date certain in 2012 or Parliament must enact a law setting the date for December.
We simply must not have election date extended to March 2013 and this notwithstanding the fact members of parliament will stand to gain monetarily with a prolonged parliament life and certainly it should be of no consequence what impact a prolonged presidency may or may not have on ICC cases as those rooting for a March 2013 naively seem to believe.
A December 2012 date is desirable and a majority or even super majority of Kenyans favor this date for several reasons:
First, December is simply the month we as Kenyans have traditionally held our general elections and even though the constitution set the new election date on the second Tuesday in August in every fifth year,” August elections this year is simply an impossibility therefore either by interpretation or statute, the date must remain in December.
Second, although the constitution provides for diaspora voting, it is unlikely the mechanisms will be in place for such voting this election circle so having a December election is preferable for Kenyans living in the diaspora as this is the only time in the year those willing and able to can make arrangements to travel to Kenya for the holidays as well as to vote.
Third, there is no compelling reason elections must be held in March other than extending the president’s term of office by and among those who see some advantage in doing so.
In sum, we must have elections in 2012 and the best thing the president should do for the sake of the country and specifically to avoid further uncertainty as to election date is simply agree to a December date and the PM having already agreed to this, this should be as good as done.
There is no reason to continue with this soon to be unnecessary uncertainty which can quickly morph into irresponsible leadership, if not worse.
There are certain things not worth putting our country through the wringer for and this is clearly one of them.
Let’s have elections the soonest possible and once the people have spoken, usher in a new government hopefully to take us in a new path to progress and prosperity but any delay in getting to those elections shall clearly be seen as an effort to scheme against the people for the benefit of a few and that cannot be acceptable.