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Elections to be held in March 2013, court rules

Posted by Administrator on January 15, 2012

THE High Court has ruled that the next general election will be held in March 2013. But if the election has to be held this year, President Mwai Kibaki and Prime Minister Raila Odinga will have to dissolve the coalition government in writing, ruled justices Isaac Lenaola, Mumbi Ngugi and David Majanja. Going by the ruling, the Eleventh Parliament, the Senate and county assemblies will serve a shorter term ­– less than five years – because the election date has already been set by the constitution as second Tuesday of August of every fifth year, the judges said.

In a judgment read yesterday for close to two hours, the three judges said that to determine the date of the first election under the constitution, reference has to be made to sections 9 and 10 of the sixth schedule. The schedule states: “In the year 2012, elections can be held within 60 days from the date of which the National Coalition is dissolved by written agreement between the President and the Prime Minister, in accordance with section 6(b) of the National Accord and Reconciliation Act of 2008.”

The elections can also be held after the expiry of the term of the Tenth Parliament on the fifth anniversary of the day it first sat. The current Parliament first sat on January 15, 2008 and its term will expire on January 14, 2013. The elections can thereafter be held within 60 days after dissolution of the Parliament.

In the ruling, the judges said the President no longer has the power to dissolve Parliament under the constitution. Section 59 of the former constitution, which gave the President power to dissolve Parliament, was not extended in the new constitution, said the judges. They said the election date can only be set by the Independent Electoral and Boundaries Commission, which can do so within 60 days after the expiry of the term of the current Parliament or two months after the dissolution of the coalition government. They agreed with IEBC lawyer Pheroze Nowrojee, saying the electoral body has been mandated by the constitution to set dates just as it has been doing with the by-elections and the referendum.

Kilome MP John Harun Mwau, politician Milton Imanyara, Prof Larry Gumbe and others, had brought the case forth. They wanted to know the date of the next general election, what would happen to the un-expired term of the current Parliament if the polls are held in August this year, and whether the term of the President can be amended without a referendum.

There have been various schools of thought concerning the election date. Some people said the poll should be held in August this year as per constitution. The Cabinet has proposed the date should be pushed to December and has already tabled a bill in Parliament for debate. Several lawyers including Kibe Mungai and Prof Yash Pal Ghai said the date could only be derived after reading the sixth schedule.

In the ruling, the three constitutional court judges said that the term of the President couldn’t be amended without subjecting Kenyans into a referendum because his term has been protected by the constitution. “In accordance with Article 255 of the constitution, an amendment to the constitution amending the term of the President cannot be effected into law without a referendum,” ruled the judges.

They said the current Parliament has also been protected by virtue of the sixth schedule, which they said was placed in the constitution to clear doubts. “We are cognizant to the fact that the sixth schedule was a compromise political package arrived at between various factions of politicians in order to ensure the passage of the constitution,” said the judges.

They said since the ruling is expected to generate a lot of debate, Kenyans should bear with it because they have tried their best to interpret the law and maintain a balance. “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,” said the judges.

The electoral body through Nowrojee had earlier ruled out the possibility of holding the elections in August saying some provisions that are to be fulfilled by political parties, had been overtaken by events. The IEBC has further set its calendar including registration of voters and which can only begin on June 9, this year.

Nowrojee said Section 27 of the Act requires political parties to submit nomination rules to IEBC six months before the nomination of its candidates. And to comply with the provision, parties should have submitted the said rules by the end of November 2011 if the elections are to be held in August 2012.

The ruling was made as political parties are gearing up for the election. It also comes as a relief for civil servants wishing to vie for political seats as they can now continue working for a few months. If the elections were to be held in August, they would have been required to quit office by today.

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