The untold story behind the Cabinet’s push to change the date of the General Election is beginning to unravel just as Parliament and the public begin debate on the proposals.
In an interview with the Sunday Nation, Justice Minister Mutula Kilonzo said the Cabinet decided to seek a constitutional amendment to hold the elections in December because President Kibaki’s term expires on December 30, 2012.
If the elections are not held before that date, Mr Kilonzo said, the country will not have a President and Commander-in-Chief because, legally, the President’s term would have expired.
The minister’s explanation is likely to raise eyebrows given that the government has consistently cited logistical reasons for its efforts to have the elections held in December instead of August.
The feasibility of holding the first elections under the new Constitution in August 2012 is a key issue in a Cabinet paper prepared by the minister.
Independent Electoral and Boundaries Commission chairman Issack Hassan has also expressed the same concern.
The introduction of the President’s term in the ongoing public debate is likely to draw further criticism from a section of MPs and civil society already deeply suspicious of the move to amend the Constitution in its infancy.
For instance, the Justice minister will be hard pressed to answer questions about the propriety of amending the Constitution to cater to the interests of one person.
Mr Kilonzo said it would be unconstitutional to hold the polls in December unless the mother law were amended to reflect a December date.
The Constitution, he said, was not clear on the date of the next polls and a correct reading would put them some time in March 2013.
If the elections are pushed into 2013, there would be a “big crisis” because there would be no one to organise the next elections, he said.
Mr Kilonzo’s amendments seek to delete the words “dissolution” and “unexpired term” from the Constitution and in their place state the election date as the “third Monday of December 2012”.
“The amendments seek to resolve the lingering issue of the use of the word ‘dissolution’ ... since the Constitution has no provision for dissolution or even a definition of the word except in a situation where Parliament defaults in enacting legislation under Schedule Five. The other one seeks to put to rest the public confusion regarding the phrase ‘its unexpired term’ in reference to the Tenth Parliament,” he said.
The minister is taking refuge in the fact that most of his amendments are on suspended articles and that they will all come into effect on the polling day of 2012.
He told the Sunday Nation that the amendments are crucial for the country to prepare for “quality, transparent and credible first elections that Kenyans so earnestly desire”.
But Parliament’s Constitutional Implementation Oversight Committee (CIOC) insists that the issue of the next elections should be left to the courts.
The MPs and a section of civil society said the public had every reason to push for an August date because they needed a December free of politics so they could enjoy their Christmas holidays.
In Parliament, Gichugu MP Martha Karua, who is a presidential hopeful in the next General Election, did not mince her words when contributing to the amendment debate.
“The incumbency has lost the power of deciding an election date. They want to get it just one more time through the back door, by dictating the date to be in December through this Constitution (amendment),” she said.
Ms Karua opposed the minister’s proposal that the term of Parliament should expire in 2013, so elections could be held within 60 days thereafter.
“If we go to the interpretation of the statutes, the first rule is to give words their natural and ordinary meaning. The second rule is to interpret in a manner, things of a similar nature. .. Nowhere in the world, not even in dictatorial regimes, has the term of Parliament not been interpreted to include the elections.
“Therefore, if a term of Parliament is four years, elections must be within those four years. If it is five years, they must be within and not outside five years. Any interpretation that claims that the term of Parliament excludes the period of elections would lead to an absurdity. I do not think Kenyans were looking for an absurdity. They were looking for an election date,” the Gichugu MP said.
The Bill to alter the election date nonetheless made it to the House because, according to the Speaker, there was nothing illegal or unprocedural in the manner in which the Cabinet-sponsored Bill was brought before the House.
The amendment also has a proposal on how to achieve the two-thirds cap on either gender in elective posts, especially for Parliament.
According to the minister, he had done nothing wrong in proposing that the seats should be topped up to satisfy the gender requirement.
Mr Kilonzo appeared to rely on the fact that MPs, together with the Committee of Experts, ratified a similar proposal for the county assemblies.
Article 177(1) (b) of the Constitution reads: “A county assembly consists of ... the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.”
That is in addition to the elected officials in the wards within each county.
“Aren’t those the very words I have used. They are in your Constitution word for word. If they are good for the counties, why are they bad for the National Assembly and the Senate?” he asked, adding that if the House sought to come up with another formula, it would have to amend article 27(8), which would, in turn, call for a referendum.
Although Mr Kilonzo has been under pressure from the CIOC and a section of MPs to withdraw his Bill, he has stuck to his guns.
“These very MPs have denied me a departmental committee. The CIOC deals with implementation. If they give me the Justice and Legal Affairs Committee, I will explain to them everything and they, in turn, will make MPs understand why we have to hold elections in December,” the Justice minister said.
A section of Kenyans have expressed concern that the issue of revising the Constitution arose even before the document has been tested.
But the Justice minister doesn’t think so.
He said in India, the constitution was adopted in 1950, and the first amendment appeared exactly 18 months later on June 18, 1951.
That constitution has since been amended 94 times and “it is keeping together the largest democracy in the world”.
The Constitution of the United States of America, the world’s most powerful nation, has so far undergone 27 amendments, after the first amendment on September 25, 1789, only 15 months after it was ratified.