Parliament and Supreme Court headed for clash over polls date

Monday October 10 2011

Parliament may be headed for a clash with the Supreme Court on the date of the next and subsequent General Elections when the House resumes its sittings on Tuesday afternoon.

The Supreme Court is scheduled to begin preliminary hearings on the matter on Thursday.

The Constitution puts the election date at the second Tuesday of August of every fifth year. But the Cabinet is seeking Parliament’s approval to change that to the third Monday of December of every fifth year. (READ: Cabinet moves to change Kenya's election date)

The Bill to alter the election date is already in Parliament awaiting formal introduction on the floor of the House.

According to Justice Minister Mutula Kilonzo, the House can go ahead with the amendment to the Constitution, while the Supreme Court on its part goes ahead with hearings, which will in the end lead to a declaration as to the date of the next polls.

“I don’t see a contradiction at all. I am doing it under article 256, while the Judiciary is proceeding with its functions under article 159,” he told the Nation on Monday in an interview.


Article 256 provides for a “parliamentary initiative” to amend the Constitution, while article 159 defines judicial authority.

However, the minister is apprehensive that the House may throw out the Bill, if it finds it has sinister intentions.

“Parliament can decline to take that initiative when I present the Bill tomorrow or the day after. It is their prerogative. The House is not bound by what the Cabinet decides (as far as article 256 is concerned),” said the Justice Minister.

But he said there was no way Kenya will have an election in August unless the Constitution is amended.

“As the minister of Justice and in charge of election matters, I cannot give you an election in August,” he said.

He noted that because the law prescribes that the Bill should not be debated within three months of its introduction in Parliament, then the Supreme Court can go ahead and make its declaration within that period. It is that declaration that will inform how the House will proceed.

If it is introduced this week, the Bill will be debated in mid-January, 2012.

The Chief Executive of the Law Society of Kenya, Mr Apollo Mboya, said “it will be nice” for the Supreme Court to quickly make a determination on the date of the next polls.

He argued that Parliament knew all along that the polls have to be held in August 2012, but delayed the processing of the IEBC Bill (now Act), and thus delaying the whole process of preparing for the next polls.

“We should not use legislative delays and administrative failures as a reason to amend the Constitution,” the LSK CEO told the Nation. “We need to put the IEBC in place as fast as possible”.

The focus on amending the Constitution comes as MPs get ready to conclude debate on the Independent Policing Oversight Authority Bill — which the House failed to approve on deadline.

The House also has to train its energies on seven Bills, one of which will set up the National Land Commission to spearhead land reforms while the rest will govern the rollout of the devolved governments in 47 counties across the country.

These Bills have a deadline of 18 months after the Promulgation Day (August 27, 2010), and thus, they have to be enacted by February 27.

With the practice of the House taking a Christmas break and then resuming in late January, the coming weeks are crucial for the second phase of legislating the laws on the implementation of the Constitution, if the MPs have to avoid a last-minute rush.

The Finance Bill — the legal instrument to increase or reduce taxes on goods and services — is also coming up for debate and approval. This has a December 31 deadline and it is much-needed to help raise money to finance the Sh1.15 trillion national budget for the fiscal year 2011-2012.

Political controversy

There is also the political controversy about ministers with unresolved corruption-related questions on their heads — like Foreign Affairs’ Moses Wetang’ula (over procurement of embassy land in Japan) and Transport’s Amos Kimunya (over the secret sale of the Grand Regency Hotel).

Anxiety is building in the august House over the date of the next polls with most of the MPs keen to stay in the House until the end of “their unexpired term” according to the Sixth Schedule of the Constitution.

While Cabinet ministers have vowed to push the Bill to amend the Constitution to alter the election date, some MPs among them Gatanga’s Peter Kenneth (left) and Gwassi’s John Mbadi have vowed that they will scuttle any plan to push for December elections.

On Monday, the Gwassi MP repeated the threats to oppose the Bill in the House, terming it as an “affront to the Judiciary”.