RSS

Tag Archives: Kenya Election Date

Court’s Decision on Election Date Being March 2013 Is Wrong; An Update

In Elections Must Be Held In 2012, Not 2013 As the Constitutional Court Ruled, I took the position that the court was wrong in ruling that the next general elections must be held in March 2013. I took this position based on my previous analysis of the issue.

I have had time to review the court’s ruling in its entirety but still maintain the position the decision is wrong.

The only thing I would add to what I previously said after reading the opinion is if there was any political consideration in the decision–and one can’t rule that out completely, that’s something you’ll have to look elsewhere to find any conclusive evidence of it because the decision is well reasoned and supported with sound legal arguments and law.

As is always the case with cases such as this, however, one can come up with an equally well reasoned and legally sound decision going the opposite direction.

In fact, there is enough law and reasons argued in the parties’ submissions in this case to support a ruling the date is August or December as well!

This is why who is the judge or who are judges in any given case is crucial in the outcome of any case, especially one like this where the stakes may not be that high but significant nonetheless.

In sum, the 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 under the legal doctrine of generalibus specialia derogant, which was wrongly applied in my view as to the specific date issue and I am sure others would agree.

Having read this opinion and knowing what the Supreme Court has projected thus far as to where it’s coming from and its philosophy, however, an appeal of this decision is futile as the Supreme Court is unfortunately likely to affirm with minor dicta (hopefully) disagreeing with some of the analysis in the decision and modifying part of its decision (regarding dissolution under NARA).

For example, the court relied on Prof. Ghai’s submission to find that “there is nothing in the National Accord and Reconciliation Act, 2008 that provides that an election must be held upon dissolution of the coalition established by the Accord.”

That may be true, but the constitution does (by a reading of several provisions together) so this is really a non-issue.

Instead, the court basically read an amendment (rightly so) into NARA making it clear Parliament is dissolved with the dissolution of the coalition.

Although I see no harm in requiring that both parties agree in writing as to dissolution of the coalition, it’s preferable that either party retain the right to do so in accordance with the wishes of their respective parties.

This being the case, the court has kicked the ball over to the coalition partners and if the both put country first, they ought easily agree on a suitable date to hold elections in 2012, if anything because we need not prolong this period of uncertainty as to when the elections will be held as a number of things and decisions do ride on it not the least of which are the various laws affected by the date.

 
Leave a comment

Posted by on January 13, 2012 in Law, Politics

 

Tags: , , , ,

Elections Must Be Held In 2012, Not In 2013 As The Constitutional Court Ruled

A 3-judge panel of the Constitutional Court has ruled that the first elections under the new constitution should be held in 2013, unless the coalition partners President Mwai Kibaki and Prime Minister Raila Odinga agree to dissolve the coalition in which case the court ruled the elections must be held within 60 of dissolving the coalition.

Instead of clarifying the issue of when should the next elections be held, the court has confused Kenyans even more.

Indeed, the court is acting as if it’s interpreting a contract provision in which it is purporting to balance the monetary interests of Members of Parliament and the need to clean house and start afresh.

In so balancing, the court has concluded it’s better to have the MPs complete their contractual employment and therefore get their full pay instead of telling us what the constitution says about the election date.

The court is wrong on this and the Supreme Court must step in and fix the issue with the clarity it deserves.

The constitution is clear as to when the next elections should be and so one is left to wonder whether that meant anything to the court in its ruling.

Even before examining the constitution, a few facts are worth noting and these are first, 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.

Second, depending on circumstances and what country, any elected politician’s term of office can always be cut short in any number of ways, including voluntarily, or by recall, death or expulsion, in the case of elected legislative body members or by impeachment, no vote of confidence, resignation, death, in the case of presidents and prime ministers.

The court therefore predicating its decision on the notion that the MPs must serve their term in full is without sound reason other than pleasing the MPs and that is not a good enough a reason to ignore what the constitution says.

Third, 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 the court was asked to answer 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.

Some analysts, including 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 there is nothing uncertain about when the first elections should be held.

Although the new Constitution stripped the president’s power to dissolve Parliament, and therefore cause 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 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.

 
2 Comments

Posted by on January 13, 2012 in Law, Politics

 

Tags: , , , , ,