Judges shun popular opinion to lay down the law for principals

What you need to know:

  • Court revitalises the National Accord by stating that polls can only be held in 2012, 60 days after dissolution of the ruling Coalition

Political manipulation could determine when the next elections will be held after the High Court on Friday opted out of pointing to an exact date.

The three-judge bench ruled that the elections could be held within 60 days after President Kibaki and Prime Minister Raila Odinga dissolve the coalition government.

Alternatively, the court directed that the elections could be held within the same period after the term of the current Parliament comes to an end on January 14, 2013.

The ruling by Mr Justice Isaac Lenaola, Mr Justice David Majanja and Lady Justice Mumbi Ngugi sought to solve the issue which has occupied the psyche of Kenyans as the coalition government entered its final year. The judges were aware of high expectations from 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.”

Agree in writing

“Our responsibility is to interpret the Constitution in a manner that remains faithful to its letter and spirit and give effect to its objectives,” they added.

In a way, the judges were throwing back the challenge of determining the elections date to politicians, who for their own interests, were behind the controversy surrounding it.

By ruling that the elections date hinges on the decision by President Kibaki and Mr Odinga to dissolve the coalition, they were leaving it to political kingmakers in the courts of the President and the PM to carry the day.

“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,” they said in their ruling.

The National Accord states that the coalition government ceases to exist if the partners agree in writing following the decisions of their top party organs. Politicians make decisions at particular times when they believe that they hold an advantage over their rivals, a fact which applies to both in the PNU Alliance and the ODM.

This option strengthens the Cabinet move to present a Bill in the House seeking to amend the Constitution and switch the elections date to the third Monday in December in the fifth year after elections. In this year’s case, it means December 17.

For this to happen, MPs have to pass the Bill to pave the way for the President and the PM to agree in writing to dissolve the coalition government by the end of October.

On Friday, Constitutional Affairs minister Mutula Kilonzo, who presented the Bill in Parliament, welcomed the ruling stating that MPs had two choices: Either support his Bill or go to the elections next year.

“There are only two options for members: They either support my Bill or I respect the court ruling. I am very happy with the ruling,” he said.

For the December date to stand, it means that the President and the PM have to dissolve the coalition government by the end of October this year. But dissolving a government is no easy job. It needs wide consultations in both camps.

And this brings in the issue of the term of Parliament which the judges referred as the second determinant. They ruled that upon the expiry of the term of the 10th Parliament, elections would be held within 60 days thereafter.

“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 sixty days from January 15, 2013,” the judges said.

Paid for remaining months

MPs will have to be convinced to be sent home two or three months earlier than the expected time. This is likely to be sorted out through a deal which will see the MPs paid for the remaining months. This, of course, will be from the budget of the Parliamentary Service Commission.

The days when the President could wake up in the morning and send home MPs ended after MPs fixed their term in Section 59 of the former Constitution. And the judges referred to it in their ruling on Friday.

“Following the repeal of the former Constitution and together with it section 59 thereof and in the absence of a specific provision entitling the President to dissolve Parliament, the President has no power under the Constitution to dissolve Parliament,” they said.

Then there are those who would want the President to continue holding office even after his term ends on December 29 at midnight since he took his oath on December 30, 2007.

This fits well into arguments that the next elections should be held in March 2013 after the term of Parliament ends on January 14, 2013.

Those against this argument submit that President Kibaki should go home after December 30 since he will have no legal authority to continue being the Head of State.

The judges, however, sorted this issue when they declared that the terms of the President and that of the PM were preserved by Section 12 of the Sixth Schedule.

“This means that any problem that may have been caused by the incongruence of the term of Parliament and the President is cured by the fact that the President and Prime Minister in office remain until the first elections irrespective of the date of the election,” they ruled.