Kenyans will soon know the date of the next General Election after the Supreme Court set October 26 and 27 to hear two petitions seeking its determination.
The dates were agreed upon through consensus by Supreme Court registrar Martin Muya and lawyers representing the Commission on the Implementation of the Constitution (CIC), the Interim Independent Election Commission (IIEC) and several interested parties.
The Chief Justice will constitute a bench to hear the first petition filed by the CIC seeking an advisory opinion of the Supreme Court on the election date on October 26. Another bench will hear the petition filed by the IIEC on October 27.
However, it is not known whether the Supreme Court will sit as a full bench or whether the CJ will appoint two judges for the purpose of the mentions.
“As the president of the Supreme Court, the CJ has the prerogative to determine how many judges will sit on the bench,” said Mr Muya.
The Supreme Court has seven judges with the CJ Dr Willy Mutunga as the president. Others are Deputy CJ Nancy Baraza, Justices Philip Tunoi, Mohammed Ibrahim, Jackton Boma Ojwang’, Dr Smokin Wanjala and Njoki Ngung’u.
According to Article 163 (2) of the Constitution, the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
Apart from having the original jurisdiction to hear and determine disputes relating to presidential elections, the Supreme Court may give an advisory opinion at the request of the national government or any state organ.
There has been uncertainty over the next election date with Cabinet approving a Bill that seeks to move the election from the second Tuesday of August every fifth year as provided for by the Constitution to the third Monday of December every fifth year.
Several organisations and individuals have moved to court challenging the move, with the High Court suspending the hearing of the cases until the Supreme Court makes a decision on the two cases pending before it.
Among those who have filed petitions are Kilome MP John Harun Mwau who want the elections to held in March 2013 and lawyer Milton Mugambi Imanyara jointly with Prof Lawrence Gumbe and Mr Martin Muthomi Gitonga who argues that the elections should be held in August 2012 as provided for in the Constitution.
The Cabinet has approved the Constitution Amendment Bill 2011 to change the elections date to December 17, 2012 after Justice Minister Mutula Kilonzo published the Constitution Amendment Bill, 2011 on September 21.
Four lobby groups led by Kituo Cha Sheria filed a suit seeking to stop him from tabling the Bill in Parliament for debate, maintaining that the Constitution can only be amended through a referendum.
The IIEC filed the case at the Supreme Court after different opinions emerged over its interpretation on when the elections will be held under the new Constitution.
The Cabinet wants the election date moved from the second Tuesday of August to the third Monday of December every fifth year of the election cycle. If Parliament amends the law, then next year's General Election will be held on December 17.
The CIC has also opposed the move by the Executive to move the election date and have asked the Supreme Court to intervene, accusing the MPs of avoiding the court for political expediency.