There’s no justification for pushing polls to next year; December will do
Posted Monday, January 16 2012 at 20:00
I do not belong to that rarefied profession of men and women who rather pompously refer to each other as ‘‘learned friend’’.
I have never been called to any bar other than the one that serves various drinks that ultimately require a dose of stabilisers.
Since I am not a learned friend, I suppose that I am an illiterate in the estimation of those who coined and secured copyright on the term.
But then it doesn’t really matter. Being a lawyer is not so much about using the learned bit to provide the authoritative final word; it is about making the arguments that will find favour with your client, or with your political, ethnic, ideological or religious posturing.
Last Friday, High Court judges Mumbi Ngugi, Isaac Lenaola and David Majanja pronounced a ruling on the election dates that has generated considerable debate.
Some of those unhappy with the ruling have suggested that it ought to be challenged before yet another bunch of lawyers higher up in the judicial food chain.
Judges Ngugi, Lenaola and Majanja were given a key challenge to resolve the riddle of when the next general election must be held because lawyers, typically, cannot agree on what the Constitution says.
Lawyers in key offices such as the Commission on Implementation of the Constitution chairman Charles Nyachae and his Independent Electoral and Boundaries Commission counterpart Ahmed Issack Hassan have been at odds over the elections dates.
So have their learned friends in the political realm such as Justice and Constitutional Affairs minister Mutula Kilonzo and his predecessor, Martha Karua.
The High Court did not make a definitive ruling. Instead it opted to offer scenarios.
One, to the obvious delight of sitting MPs, has the effect of pushing the elections back to March next year, rather than the August 14 date this year some argue is set by the Constitution.
The other option passes the buck to President Kibaki and Prime Minister Odinga if a way is to be found to hold the elections this year.
The judges thoughtfully provided an easy primer for the benefit of those of us unlearned fellows not equipped to digest the ruling.
I have read the condensed ruling for dummies, the full version, and the various interpretations offered by lawyers in all newspapers.
My mind is even more muddled than before, but having been handed that particular ball, President Kibaki and Prime Minister Odinga must rise to the occasion and ensure elections are called before the end of this year.
They will face pressure from incumbent MPs, but true leaders must decide whether they are beholden to the people or to their courtiers.
There is an element of the ruling that still puzzles me. The court agreed with the argument that the Ninth Parliament must serve its full-five year term, from when the House was inaugurated on January 15, 2008, up to January 14, 2013, after which polls can be called within 60 days.
This argument is hogwash even to my layman’s mind. I have followed every election in Kenya since I was a 10-year-old in 1969.
A five-year term has never meant MPs serving the full five years from swearing in; it has meant an election not more than five years after the previous one was held. It therefore amounts to fraud to push the expiry of the Ninth Parliament’s term to mid-January 2013 instead of December 27, 2012.
A crazy precedent has been set. If we have the next elections in December this year or any time between January and March next year, the next set of malcontents elected will challenge the mid-August 2017 date for the subsequent polls.
They will insist they must also serve out a complete five-year term.
Then there’s the other issue of the presidential term. President Kibaki was sworn into office on December 30, 2007. His term of office, therefore, expires on December 29, 2012.
If we push elections beyond that date, will the President go home to Othaya and leave a vacancy at State House?
Actually, that might be quite appealing. And happily provides the best reason for elections before the end of this year.