Early polls up to you, judges tell Kibaki and Raila

• Constitutional Court rules out a General Election until after January 14, 2013, unless principals mutually agree on early date

However, Ms Karua argued that the election period falls within the parliamentary term, meaning elections should be held by January 14. “I totally disagree with the court ruling. Term of office must include the election period and that’s the interpretation world over,” she said on her Twitter account.

The Judges based their decision on Section 9 of the Sixth Schedule which states that the first elections 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.

Raging debate

They said that the issue of the date when the first elections can be lawfully held is intertwined with the issue of whether the President can dissolve Parliament under the Constitution.

The judges sought to put to rest what has been a raging debate over the date, ruling that the law must not be interpreted based on popular public opinion.

“This case has generated substantial public interest. The public and politicians have their own perceptions of when the election date should be. We must, however, emphasise that public opinion is not the basis for making our decision,” ruled the judges.

They said that Article 159 of the Constitution is clear that the people of Kenya have vested judicial authority in the courts and tribunals to do justice according to the law and that their responsibility was to interpret the Constitution and uphold its provisions.

The judges rejected the argument of Mr Imanyara and the Commission for the Implementation of the Constitution that the publication of the Kenya Constitution Amendment Bill, 2011, demonstrates that the elections should be held on the first Tuesday of August.

“The publication of the Bill only evinces an intention to locate an election date convenient to the movers of the Bill. It is neither a decision nor can such an intention be used to fix an election date,” the judges said.

They ruled out an August date for the elections, saying that the term of the National Assembly cannot be shorter that five years and that the Sixth Schedule is not affected by provisions of Article 101 which provides for elections in the second Tuesday of August.

And the court appeared to be sending a message to parliament on changes to extend the President’s term in office, saying that Kenyans have the say to make such a change through a referendum.

“In accordance with Article 255 of the Constitution, an amendment to the Constitution affecting the term of the President cannot be effected into law without a referendum,” the court said.

President has no power

Furthermore, the judges’ ruled that the President has no power under the Constitution to dissolve Parliament since Section 59 of the old Constitution was repealed and there is no specific provision entitling him to do so.

The court also gave direction that the only organ entitled to fix the date upon the expiry of Parliament’s term is the Independent Electoral and Boundaries Commission.