The High Court on Friday declined to give a definite date for the next elections, placing the task in the hands of President Kibaki and Prime Minister Raila Odinga.
A three-judge bench of the Constitutional Court, in a landmark ruling, declared that unless President Kibaki and Mr Odinga dissolved the government by the end of October, the next elections could be held in early 2013.
Should the President and the PM opt not to bring to an end their mediated political marriage, the judges ruled that the elections date would be hinged on the term of the current Parliament, which comes to an end on January 14 next year.
The ruling by Justices Isaac Lenaola, David Majanja and Mumbi Ngugi added more uncertainty to the date of the next elections which has been a subject of heated debate, with the Cabinet seeking to move it permanently to the third Monday of December in the fifth year after last General Election. The Constitution fixes it on the second Tuesday of August. (DOWNLOAD: Election Date Ruling)
Aware of the impact of their ruling, they said: “We are conscious that our findings may be unpopular with a section of Kenyans who have preconceived notions about the elections but we hasten to remind Kenyans that our undertaking is not to write or re-write the Constitution to suit popular opinion. Our responsibility is to interpret the Constitution in a manner that remains faithful to its letter and spirit and give effect to its objectives.”
Litigants John Harun Mwau, Mugambi Imanyara, Lawrence Gumbe and Martin Gitonga had separately placed before the judges two options for the elections date — August 14, 2012 and March 2013.
But in their ruling, the judges were categorical that the dissolution of the coalition government established by the National Accord on February 28, 2008 was a key determinant.
The accord states that the coalition government stands dissolved when either of the coalition parties agree in writing or one coalition partner withdraws from the mediated arrangement.
“If the elections are to be held in 2012, it must be done within 60 days upon the dissolution of the National Coalition Government by written agreement between the president and the PM in accordance with Section 6 of the National Accord and Reconciliation Act,” ruled the judges.
If the two principals do not dissolve the government, it is likely that Kenyans will go into the polls next year, after the term of the current Parliament ends on January 14.
“The 5th anniversary of the day the 10th Parliament first sat is designated by a legal notice as January 15, 2008. The term therefore expires on January 14, 2013 and the elections shall be held within 60 days from January 15, 2013,” the judges said.
But even this interpretation drew mixed reactions with Gichugu MP Martha Karua, a former Justice minister, and her successor, Mr Mutula Kilonzo, differing over the matter.
While Ms Karua felt that the ruling did not push the election date beyond January 14 next year, Mr Kilonzo was of the view that the elections date could be pushed to March next year.
Another point of contention was whether this automatically pushed President Kibaki’s term to March next year.
It was not also clear whether the taxpayer would have to pay MPs for their unfinished terms should the election is held before completion of their term.
Mr Kilonzo submitted that the election date can only be announced after the expiry of Parliament’s term.
“An unexpired term of Parliament ends on January 14 and it is only after that when the elections can held,” he said on phone.
However, Ms Karua argued that the election period falls within the parliamentary term, meaning elections should be held by January 14. “I totally disagree with the court ruling. Term of office must include the election period and that’s the interpretation world over,” she said on her Twitter account.
The Judges based their decision on Section 9 of the Sixth Schedule which states that the first elections for the President, National Assembly, Senate, County Assemblies and Governors shall be held within 60 days after the dissolution of Parliament at the end of its term.
They said that the issue of the date when the first elections can be lawfully held is intertwined with the issue of whether the President can dissolve Parliament under the Constitution.
The judges sought to put to rest what has been a raging debate over the date, ruling that the law must not be interpreted based on popular public opinion.
“This case has generated substantial public interest. The public and politicians have their own perceptions of when the election date should be. We must, however, emphasise that public opinion is not the basis for making our decision,” ruled the judges.
They said that Article 159 of the Constitution is clear that the people of Kenya have vested judicial authority in the courts and tribunals to do justice according to the law and that their responsibility was to interpret the Constitution and uphold its provisions.
The judges rejected the argument of Mr Imanyara and the Commission for the Implementation of the Constitution that the publication of the Kenya Constitution Amendment Bill, 2011, demonstrates that the elections should be held on the first Tuesday of August.
“The publication of the Bill only evinces an intention to locate an election date convenient to the movers of the Bill. It is neither a decision nor can such an intention be used to fix an election date,” the judges said.
They ruled out an August date for the elections, saying that the term of the National Assembly cannot be shorter that five years and that the Sixth Schedule is not affected by provisions of Article 101 which provides for elections in the second Tuesday of August.
And the court appeared to be sending a message to parliament on changes to extend the President’s term in office, saying that Kenyans have the say to make such a change through a referendum.
“In accordance with Article 255 of the Constitution, an amendment to the Constitution affecting the term of the President cannot be effected into law without a referendum,” the court said.
President has no power
Furthermore, the judges’ ruled that the President has no power under the Constitution to dissolve Parliament since Section 59 of the old Constitution was repealed and there is no specific provision entitling him to do so.
The court also gave direction that the only organ entitled to fix the date upon the expiry of Parliament’s term is the Independent Electoral and Boundaries Commission.