How court handed Raila 'secret weapon'

• The High Court ruling on the election date has inadvertently handed Prime Minister Raila Odinga an ace card to the General Election.
• He is the only presidential candidate who has a say on when the election would be held should he reach an agreement with President Kibaki to dissolve the coalition government and pave the way for the IEBC to set the polls date.

The constitutional court’s ruling on the election date may have inadvertently handed Prime Minister Raila Odinga a secret weapon against his rivals in the presidential race.

By ruling that elections can only be held this year if the two principals agree in writing to dissolve the grand coalition, High Court judges Isaac Lenaola, David Majanja and Mumbi Ngugi gave the PM a great say in when the elections will be held, an opportunity he could exploit to his benefit. (READ: Early polls up to you, judges tell Kibaki and Raila)

Going by the ruling, the Prime Minister is the only candidate in the race for State House who has a direct say on when the elections may be held.

The judges ruled that the elections can only be lawfully held this year “within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and Prime Minister” according to the National Accord and Reconciliation Act. (DOWNLOAD: Election Date Ruling)

The second option is “within sixty days from the expiry of the term of the National Assembly on 15th January 2013.”

The judges cited the Sixth Schedule of the Constitution to justify their conclusion that only President Kibaki and Mr Odinga can determine if elections will be held this year.

“We find that if the coalition is dissolved in the manner provided in section 6(b) of the National Accord and Reconciliation Act, 2008, that is, if the President and Prime Minister agree in writing to dissolve the National Coalition then the general elections shall be held in the year 2012 and in terms of section 9(2) of the Sixth Schedule, the election for the first county assemblies and governors shall also be held on the same date during 2012,” they ruled.

Were categorical

Whereas the judges were categorical that the new Constitution had done away with the old order which gave the sitting President absolute powers to dissolve Parliament and by extension determine the date of the next election, they appeared to reintroduce the same constitutional order by giving the two principals powers to dissolve the coalition government and pave the way for the elections.

Former President Moi fully exploited the powers of the old Constitution vested in the presidency to determine the election date and to outwit his opponents.

Pushed by the then nascent opposition to declare when he would dissolve Parliament to allow the first multiparty elections in 1992, Mr Moi said: “That (the election date) is my secret weapon.”

He hurriedly dissolved the Sixth Parliament when the biggest threat to his rule, the Forum for the Restoration of Democracy (Ford) had just split into two factions – one led by Kenneth Matiba and the other by Jaramogi Oginga Odinga.

President Moi exploited the powers 10 years later in an attempt to scuttle efforts to usher in a new constitutional dispensation, which would have created a level playing ground in future elections.

On the eve of the first Bomas conference, he announced the dissolution of the Eighth Parliament, effectively stalling the process given that MPs were major participants in the talks. In the grand coalition government, the two principals have often differed on major national issues.

A year ago, Mr Odinga subjected Mr Kibaki to trying moments when he publicly rejected the President’s choice of nominees for the positions of Chief Justice, Attorney-General and Director of Public Prosecutions on the grounds that they had not consulted and concurred in accordance with the law.

The President was forced to withdraw the nominees and follow due process. After the Friday ruling, Mr Odinga was guarded, only stating that he would consult with the President on the issue before making further comment.

The PM did not however rule out the possibility of the elections in March 2013. “It is a possibility, but we first have to look at the High Court ruling before we give direction,” the PM said.

While remaining noncommittal on how soon the country can expect a definite answer from the principals, Mr Odinga promised to make the consultations as short as possible to avoid causing political tensions.