Hers was a lone voice in suggesting a different General Election date during Tuesday’s ruling.
All Lady Justice Martha Koome’s four colleagues were unanimous in recommending a March 4, 2013 date. But their arguments were as varied as their number:
Justice Koome said the High Court misinterpreted the constitution, resulting into impractical solutions. It should have interpreted the constitution in a way that promotes good governance, transparency and accountability.
“Parliament cannot go beyond its term and should be dissolved on November 14, 60 days before its expiry to enable elections in December this year since the traditions and customs of the country’s elections have always been December,” said judge Koome.
But Lady Justice Kalpana Rawal disagreed with Lady Justice Koome’s opinion, saying that Election Day is a very special event that cannot be treated in a manner not provided for by the Constitution.
She said that the October 14 date suggested by the appellants was not an issue discussed before the High Court and that elections can only be held after expiry of Parliament’s term in January.
And Justice Erastus Githinji said the President has no power to dissolve Parliament and call for elections since the National Accord ceased to exist when the new constitution was promulgated and the President lost the power to dissolve parliament.
He said it would be legally impossible and impracticable to hold the elections between October and December since the constitution has removed the power of the president to call elections.
The High Court, he added, correctly interpreted the end of Parliament as January 15 and that the electoral commission was within the law to set March 4 as the date of elections.
Chapter 8 of the Constitution, he said, is suspended until the first elections adding that it was erroneous to conclude that the elections should be held on the first Tuesday of August, adding that the suggested date of October 14 has no basis in law.
Justice David Maraga agreed with Justice Githinji, saying that even though the majority of Kenyans would have wished to go for elections held this year, the Constitution does not provide for a December election and that the March 4, 2013 date set by the IEBC is lawful and cannot be faulted.
The appeal was incompetent since the appellants had not participated in the High Court petition and they have not shown how the ruling has affected them directly or indirectly.
“No rights of the appellants has been affected; they are busy bodies who have no locus standi since nothing prevented them from seeking to be joined in the High Court petition which was widely publicised,” said judge Maraga.
Lady Justice Hannah Okwengu said the Constitution provides for Parliament to complete its term uninterrupted and that there was logic in the date set by the electoral commission to give candidates a chance to campaign.
There will be no vacuum in government if elections are held in March 2013 since the president, Prime Minister and the cabinet shall continue serving until after the elections and new government appointed.