Why the next elections may be held in 2013

The General Election could be held in 2013 contrary to the popularly held view that it will be in August next year.

Many at high levels of government and influential coalition politicians are of the view that the new Constitution preserves the term of the current MPs until January 15, 2013, exactly five years after the current Parliament was sworn in on January 15, 2008.

Those pushing for the March 2013 date cite Article 262(10) of the Constitution which says that this Parliament must serve its full term. It says: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.”

For them, having been sworn in on January 15, 2008, the five-year term ends on January 15, 2013. Therefore, they argue, the poll would be held 60 days after January 15, 2013 which would be March 15, 2013.

Justice minister Mutula Kilonzo supports this position and says: “The current Parliament was sworn in on January 15, 2008. You don’t need to be a rocket scientist to know that.”

But he advises that the elections law should be enacted by Parliament first before talking about the election date.

Apparently, the minister’s view on Parliament’s term is shared by influential Cabinet ministers, MPs, academics and a member of the team that wrote the new law.

If the argument carries the day, it means President Kibaki will retire after the 2013 elections.

But Mr Charles Nyachae, the chair of the Constitutional Implementation Commission, maintains that the next election must be held next year. Mr Nyachae says the General Election must be guided by Article 101 of the Constitution.

It says that a General Election “shall be held on the second Tuesday in August in every fifth year.”

He adds: “There is nothing else in this Constitution which suggests any other date apart from the one given by Article 101.

This is very clear to us and this is what the law says”.

He says a “plain reading” of Article 101 “clearly indicates” the first General Election under the new Constitution will be held on August 14, 2012.

Elections chief Issack Hassan has said that while awaiting a clear decision on the matter, his commission would peg its preparations on the Nyachae date but that December would be more appropriate to give them ample time for preparation.

December would be five years after President Kibaki was sworn into office for a second and final term.

“We are preparing for the August election but we are also aware that there is another interpretation given by other organs of government.

We have decided to consult with CIC because it is important for Kenyans to know the date in good time,” Mr Hassan said.

Those opposed to the August date argue it would shorten the life of the current Parliament.

Since the law requires the poll to be held within 60 days after the dissolution of Parliament, it means the current MPs would be sent packing in May next year, 10 months from now.

This then poses the quesiton of who will dissolve Parliament so that elections can be held in August? The new Constitution stripped the President of powers to dissolve Parliament.
Mr Nyachae and senior counsel Paul Muite — who says he will seek the presidency — feel that no trigger is required to set in motion the elections except the determination of the date “which is clearly stated in Article 101”.
All that is needed, Mr Nyachae argues, would be for the polling institutions to prepare for August 14.
“Everyone must ensure that the intention of the Constitution is achieved within the timelines set by the law,” Mr Nyachae said.

And on Thursday last week, Kilome MP Harun Mwau, known for his penchant for accuracy and detail of the law, moved to the High Court saying the uncertainty on the election date had caused confusion and asked the judges to declare that the General Election be held in March 2013.

Mr Mwau also wants the court to rule that the term of the current Parliament started on January 15, 2008 and would expire on January 15, 2013. He further wants the court to declare that the President has no power to dissolve Parliament under the current Constitution.

“The people of Kilome constituency desire to know when the next General Election will be held in order to prepare and make an informed decision when the time for electing their representatives comes,” he argues.

Mr Muite backs Mr Nyachae arguing that anybody suggesting another date is introducing confusion and uncertainty. He disagrees that the life of the current Parliament expires in January 2013.

“The Constitution is not categorical about a five-year term.

It talks of a full term, not five-year term. Even if Parliament is dissolved after one year, like the President used to do under the old Constitution, that would be a full term.”

Constitutional scholar Yash Pal Ghai argues that those who wrote the Constitution – the Committee of Experts – shielded the life of the current Parliament until January 15, 2013.

“Elections can be anytime within the following 60 days,” Prof Ghai argues.

Mr Amolo Otiende, a member of the Committee of Experts, says that they had intended that the first election under this Constitution would be held towards the end of December 2012 as has been the practice in recent times.

However, he emphasises that the elections cannot spill over to 2013. He also says that nothing compels the election to be held on the second Tuesday of August 2012.

“The contemplation was, going by precedent, that Parliament will be dissolved around October 2012, allowing about two months of usual preparation, for elections to be held between 27th and 29th of December 2012,” he said in an opinion published on Wednesday.

Another school of thought in Cabinet holds that the election date should be pegged on the life of the coalition government which was sworn in on March 7, 2008.
Those who think so argue that the life of the current government ends on March 7, 2013. Therefore, in their view, elections should be held on May 27, 2013, sixty days after the dissolution of Parliament.

Transitional provisions

Dr Mukhisa Kituyi, a former Trade minister, thinks the election date would require compromise and proposes December because the transitional provisions promise the current Parliament its full tenure.

“While some will attempt to stretch this into 2013, the most realistic reading should be that elections are held as they would have if the last Constitution was in force.”

According to the former Kimilili MP, there will be no major “reform loss” if the country goes to the poll in December.

If the matter ends up at the Supreme Court, it will most certainly be a major test for new Chief Justice Willy Mutunga and his team.