Ruling clears the way for March 2013 vote

The electoral commission swung into action on Tuesday after the court paved the way for the General Election to be held on March 4, 2013.

Independent Electoral and Boundaries Commission chief executive James Oswago said they were prepared for the election where Kenyans will, for the first time, pick six representatives in one day.

“The judgement confirms the election date remains unchanged. So we will go ahead with our plans,” he said.

He spoke a few hours after appellate judges Erastus Githinji, David Maraga, Hannah Okwengu and Kalpana Rawal upheld a decision by the High Court that the election be held within 60 days of the expiry of the current Parliament’s term on January 14, 2013.

Only Lady Justice Martha Koome dissented, ruling that Kenyans go to polls before January 15.

Agree in writing

The judges, however, unanimously agreed that the President had no power to dissolve Parliament and call elections, ultimately setting aside the first option given by the High Court that elections can be held earlier if the President and the Prime Minister agree in writing to dissolve the coalition government.

“The National Accord ceased to exist when the new Constitution was promulgated and the President lost the power to dissolve Parliament. The effect of that part of the ruling gave powers to the President and the PM which the Constitution does not bestow on them,” Mr Justice Githinji said.

He added that even if the coalition was to break, no elections can be held since the life of Parliament is protected until January 2013. Mr Justice Githinji said the High Court exceeded its mandate by giving an option that was “unworkable, unpractical and illogical”.

Presidential aspirants Kalonzo Musyoka and Musalia Mudavadi, Education Minister Mutula Kilonzo and MPs Charles Keter and Gitobu Imanyara welcomed the ruling and urged the commission to put its house in order and go ahead to supervise the elections.

However, Ms Martha Karua and Prof James ole Kiyiapi, who say they will vie for the presidency, opposed the ruling stating that the Constitution required elections to be held within a five-year cycle.

The four judges said it will be impracticable to hold the elections between October and December since the Constitution has removed the power of the President to call elections.

“The drafters of the Constitution decided that it would be in the interest of political stability to ensure current MPs conclude their term, that is why the first election under the Constitution should be held 60 days after expiry of Parliament’s term in January,” said Judge Githinji.

He said High Court judges Isaac Lenaola, Mumbi Ngugi and David Majanja correctly interpreted the end of this Parliament’s term, and that the electoral commission was within the law to pick March 4.

Justice Githinji said that although the Sixth Schedule was part of the Constitution, it was a transitional bridge between the old and new constitutions.

He ruled that Chapter 8 of the Constitution was suspended until after the first elections and that it was erroneous to conclude that the elections should be held on the first Tuesday of August. He said the law did not also provide for an October 14 poll.

Justice Maraga said that even though a majority of Kenyans would have wished that the elections were held in December, the Constitution does not provide for it.

Lady Justice Okwengu said the Constitution provides for Parliament to complete its term uninterrupted.

Judge Rawal ruled that the date of election was a special event that could not be interrupted in a manner not provided for by the Constitution.

Lady Justice Koome said Parliament should be dissolved on November 14, 60 days before the expiry of its term for December elections.

“Courts should interpret the Constitution in a way that promotes good governance, transparency and accountability. I disagree with the order that elections should be held after expiry of Parliament’s term,” Judge Koome said.

The judges also ruled that the Centre for Rights Education and Awareness and the Caucus for Women’s Leadership that appealed the ruling were not properly before the court as they were not parties to the petition in the High Court.

They only allowed an appeal by Kilome MP Harun Mwau to quash part of the judgment which gave the President powers to dissolve Parliament.

The two groups said on Tuesday evening that they will review the ruling before deciding the next course of action.

“We are awaiting a copy of the judgment for a review before making a decision whether to pursue the matter in the Supreme Court or leave it at that,” said Ann Njogu of the Centre for Rights Education and Awareness.