Lobby groups challenge ruling on election date

Two civil society groups have gone to the Court of Appeal to challenge a ruling by the Constitutional Court on the date of the next general election

The groups are challenging the ruling on grounds that Judges misinterpreted the Constitution.

The Centre for Rights Education and Awareness and the Caucus for Women’s Leadership want implementation of the High Court ruling suspended until their appeal is heard and determined.

Through lawyers Stephen Mwenesi and Anne Njogu, the activists submitted that the Constitutional Court misdirected itself in interpreting the Constitution and did not give specific answers to Kenyans in regard to the date of the elections.

“The High Court erred and misdirected itself by not giving proper interpretation of Section 9 and 10 of the Sixth Schedule to the Constitution,” said Mwenesi.

In the appeal filed under certificate of urgency, the lobbyists want a stay of the implementation of the ruling and an order restraining the Independent Electoral and Boundaries Commission (IEBC) from announcing an election date in the event that the President and the Prime Minister dissolve the coalition government.

On January 13, the Constitutional Court ruled that the first general elections under the current Constitution will be held in March 2013 unless the President and the Prime Minister dissolve the Coalition Government.

Justices Isaac Lenaola, David Majanja and Mumbi Ngugi gave two alternatives for deciding the date of the elections, casting the responsibility into the hands of President Mwai Kibaki and Prime Minister Raila Odinga. (READ: Court: Kenya set for 2013 poll unless coalition dissolved)

The Court ruled that for election to be held in 2012, the president and the PM must agree in writing to dissolve the coalition government and the elections held within 60 days after the dissolution.

“If the elections are to be held in 2012, it must be done within 60 days upon the dissolution of the National Coalition Government by written agreement between the president and the PM in accordance with Section 6 of the National Accord and Reconciliation Act,” the Judges ruled.

The other option set by the Court was for the polls to be held sixty days after the term of the current parliament ends in January 15, 2013.

“The 5th anniversary of the day the 10th parliament first sat is designated by a legal notice as January 15 2008. The term therefore expires on January 14 2013 and the elections shall be held within sixty days from January 15 2013,” the judges said.

However, the activists disagreed with the Judges, reasoning saying that the ruling went expressly against the spirit of the Constitution which removed the power of the president to decide the date of elections.

They argued that the decision amounted to amending the Constitution which can only happen through a referendum.

“It was wrong for the court to say that the president and the prime minister can dissolve the government and call for elections yet it is why Kenyans voted for the new Constitution to strip the president of those powers,” said Mwenesi.

On determining the five year term of Members of Parliament, the group said that the court made a mistake by announcing that it is a fixed term that ends on January 14 2013.

They argued that the Judges failed to give sufficient regard for established constitutional convention and the meaning of the term “fifth year.”

“The judges did not give effect to the meaning of the “fifth year” in Article 101 of the Constitution and instead referred to the repealed constitution to determine that MPs term can expire on a date after 2012,” said the petitioners.

They claimed that the Judges misconstrued section 9(2) of the Sixth Schedule and failed to recognize that the Constitution did not contemplate a general election not within the year 2012.

According to the petitioners, the date of the first general election under the constitution in accordance with Section 9(1) of the Sixth Schedule is within 60 days after August 14 this year, and that the last possible date for the elections should be October 14.

They submitted that Article 101 and 102 of the Constitution is very clear on the date of the elections, and that the term of parliament is not fixed and can end any time within the fifth year after MPs were sworn in.