Uhuru fate still uncertain after two presidential polls

Two presidential elections have been held in the last three months but it is not yet clear whether the incumbent Uhuru Kenyatta will serve his second term in office.

Though its mention attracts varied political and legal interpretations, President Kenyatta has now served as a temporary incumbent for 96 days today.

His period of temporary incumbency started on August 8. It is now stretching as the Supreme Court prepares to start hearing petitions challenging his re-election in the repeat poll of October 26.

NO VACUUM

With the petitions still pending, it is difficult to tell how long his temporary incumbency will continue.

Attorney-General Githu Muigai has rubbished calls by the Opposition and civil society for an interim government, saying the Constitution does not contemplate such a government.

“There is no vacuum in the executive authority of the Republic of Kenya merely because an election is under way, no matter how many times the poll may be repeated. In any event, the integrity of the constitutional order cannot be substituted by any other form or arrangement of government as this would violate the express provision of Article 3(2) of the Constitution and, therefore, for the avoidance of doubt, there is no constitutional basis for a caretaker government or a transition government,” said Prof Muigai.

As a temporary incumbent, President Kenyatta cannot nominate or appoint judges of the superior courts and constitutional commission office-holders. He can also not appoint or dismiss Cabinet Secretaries and other State or public officers.

CONSTITUTION

The Constitution also stipulates that he cannot appoint or dismiss ambassadors or high commissioners, exercise the power of mercy and confer honours in the name of the people and the republic.
Since 2013, Mr Kenyatta’s election has been challenged on three occasions. A petition filed by the Opposition in 2013 was dismissed by the Supreme Court.

The one filed by the National Super Alliance after the August 8 General Election led to the annulment of his victory.

For the third time, his election is being challenged before the Supreme Court by civil society activists Njonjo Mue and Khelef Khalifa as joint petitioners in one of the cases, and former Kilome MP Harun Mwau in another suit.

The annulment of his re-election was historic, being the first in Africa.