Court to decide elections date on January 13

A ruling on the date of the next General Election will be made on January 13 next year. (Read: Battle for election date)

The High Court will make the ruling just as the 90-day waiting period for the proposed amendment to change the date from August to December next year will be lapsing.

But since Parliament is expected to be in recess in January, MPs will not have immediate chance to debate on the changes after the ruling has been made.

Some lawyers appearing before the High Court argued that MPs alone cannot change the election date and that there must be a referendum.

Justices Isaac Lenaola, David Majanja and Mumbi Ngugi gave the direction on the election date after the conclusion of the hearing of a petition filed by Kilome MP Harun Mwau, Mugambi Imanyara, Martin Gitonga and Prof Lawrence Gumbe seeking a determination of the date.

December elections

The ruling will put to rest a raging debate and different opinions on Constitutional interpretation of the next election day.

In yesterday’s final submissions, the Independent Electoral and Boundaries Commission submitted that it would only be practicable to hold elections in December next year.

Through lawyer Pheroze Nowrojee, the electoral body submitted that they require time to prepare and organise the elections, which cannot happen before December 2012.

He said that the law provides for fresh registration of voters, which can only start after June 9, 2012, and certain provisions that political parties must comply with before the elections.

“Political parties are required to submit their party nomination rules six months before the nominations. To comply with the Act, they ought to have done so by the end of last month,” said Mr Nowrojee.

The lawyer added that the President has no power to dissolve Parliament and call for an election, saying the Constitution is clear that the General Election is to be held on predetermined dates independent of the president.

The Commission on the Implementation of the Commission on the other hand submitted that the elections should be held in the Second Tuesday of August next year, according to Article 101 of the Constitution.

But Mr Kibe Mungai, representing the International Centre for Constitutional Research and Governance differed with both and said the elections should be held in March 2013.

He supported submissions of the Kilome MP that the transitional clauses of the Constitution provide for election 60 days after the expiry of the current Parliament.

Mr Mungai told the court that if the five-year term of MPs ends on January 14, 2013, it follows the elections will take place in March 2013.

He said the first elections under the Constitution for the President, National Assembly, Senate, County Assemblies and Governors shall be held within 60 days after the dissolution of Parliament at the end of its term.

That is a lie

The lawyers dismissed a move by Justice minister Mutula Kilonzo to have the elections held in December through a Bill in Parliament, saying that only the Constitutional Court has authority to set the date.

Mr Mungai said the minister should have proposed to amend the Sixth Schedule instead.

“We are being told the court cannot interfere with what is happening in Parliament because of separation of powers. That is a lie because the court is there to strike a balance and can stop anything by the Executive,” said Mr Nelson Havi, representing Mr Imanyara.

He said Parliament cannot alter the Constitution without a referendum.