Election date: It’s time to move country forward

On January 13, 2012, Justice Isaac Lenaola, Lady Justice Mumbi Ngugi and Justice David Majanja delivered a historic judgment on three consolidated petitions on the date of the next General Election.

The court opined that the next elections can only be held in 2012 if the President and Prime Minister dissolve the coalition government in accordance with the National Accord and Reconciliation Act.

Failing this, the next elections can only lawfully be held within 60 days of January 15, 2013, since the term of the 10th Parliament ends on January 14, 2013 as per the transitional provisions, sections 9 and 10 of the Sixth Schedule.

In both options, the exact date will be fixed by the Independent Electoral and Boundaries Commission.

The court further held that the term of the current President ends on December 29, 2012, that is, the date on which he was sworn in as President.

Any amendment to the Constitution affecting the term of office of the President requires a referendum.

Some people have misinterpreted this last part, suggesting that presidential elections should therefore be held separately and prior to those of the Senate, National Assembly and counties.

In my opinion, in making the finding on the term of office of the President and the requirement for a referendum, the court was in no way suggesting different dates for the elections. But first things first.

In civilised nations, people respect and accept the judgement of others even where they may not agree.

In the contested elections between George Bush (Republican) and Al Gore (Democrat), there are many who believe Bush’s brother, then Governor of Florida, tilted the scales to hand a narrow but vital victory to his brother.

The US Supreme Court ruled in Bush’s favour in a judgment many faulted but accepted.

The rationale is that this is the only way to move a country forward. Stability and the collective interests of all dictated that, in the final analysis, the important issue was for America to have a Commander-in-Chief and avoid a protracted dispute on the issue.

Since August 27, 2010, when the Constitution was promulgated, the Executive has known the Bills that need to be passed to have an August 14, 2012 elections date.

But it has dragged its feet, hurriedly passing eight Bills on the eve of the end of the first year, some of which are now being challenged in courts.

The IEBC has said that given the many issues it needs to attend to, it is impractical to conduct credible elections in August 2012.

The emotive issue of delineation of constituencies and the unresolved census come to mind.

In my opinion, the overriding consideration in Kenya today is the need to move the country forward peacefully.

The President and the Prime Minister must, therefore, without further delay, inform Kenyans if they will dissolve the coalition to facilitate elections in 2012.

Clarity and certainty on the election date is part of free and fair elections.

Alternatively, the President and the Prime Minister need to make it clear that they will not dissolve the coalition so that the country knows that the next elections will be held between January 15 and March 14, 2013 on a date to be fixed by the IEBC.

In the event elections are held in 2013, there will be no vacuum constitutionally in the presidency.

The court correctly pointed out that section 12(1) of the Sixth Schedule provides that the President and the Prime Minister shall continue in office until the next General Election, whenever it might be held.

In the event of the next presidential elections being contested in court, President Kibaki will continue to legally hold office until the timeline set out in law for the resolution of the dispute is exhausted – May 2013.

There is, therefore, no basis for amendment to the Constitution to provide for separate elections.

If presidential elections are held prior to those of the Senate, National Assembly and counties, the results of the former will influence the latter.

Many Kenyans still believe “development” in their areas can only come if they are in “government.”

One finding on which Justices Lenaola, Ngugi and Majanja deserve accolades is making it clear that future elections shall be held on the second Tuesday of August in every fifth year.

The 11th Parliament and the fourth President of Kenya now know in advance that their term of office will be shorter than five years.

Mr Muite is a senior counsel and Safina party leader.