Kenya: Election Set for 2013 Unless Unity Govt Ends

The Nation (Nairobi)

13 January 2012

The date when Kenyans will vote in their next president is yet to be known after a court ruling on a case seeking interpretation of the first General Election under the new Constitution gave two options.

Judges Isaac Lenaola, David Majanja and Mumbi Ngugi, sitting as a Constitutional Court, delivered the landmark ruling Friday.

They ruled that the General Election can only be held in 2012 if President Kibaki and Prime Minister Raila Odinga agree, in writing, to dissolve the Grand Coalition Government. This would be 60 days after the Principals agree to terminate the National Accord that holds the coalition parties, PNU and ODM, together.

The other option would see Kenya go to the polls in 2013 after the expiry of the Tenth Parliament. This would be 60 days after the House first sat on January 15, 2008.

The judges also ruled that the Independent Electoral and Boundaries Commission (IEBC) will be the body to determine the exact date.

The Constitution envisages that elections be held on the second Tuesday every fifth year, which translates to August 14, 2012.

The Chairman of the Commission for the Implementation of the Constitution (CIC) Charles Nyachae welcomed the ruling saying that only the courts are mandated to interpret the contentious issue and not individuals.

However, Gichugu MP Martha Karua disagreed with the ruling.

“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 three-judge bench gave its judgment on two cases which were filed separately but were heard together because they all sought to have the court’s interpretation on the right date of the polls.

When the dispute over the date of the next General Election was argued before the three judges in December last year, parties in the petition proposed three different dates.

Whereas Attorney General Githu Muigai rooted for December, Kilome MP Harun Mwau proposed March 2013 while lawyer Mugambi Imanyara, Prof Lawrence Gumbe and Martin Gitonga submitted that the elections should be held in August 2012.The The Commission on the Implementation of the Commission (CIC) also supported the August date

The AG asked the judges to consider precedents from other jurisdictions in similar situations, maintaining that December was the most practical date.

He submitted that the court’s final decision should not be arbitrary but balanced to incorporate the views of bodies mandated to organise the next elections.

His position was supported by the IEBC which submitted that they require time to prepare and organise the elections, which cannot happen before December.

Mr Imanyara and his co-petitioners said the polls should be held on the second Tuesday in August of every fifth year in accordance with Article 101 of the Constitution.

They said this was the only date stated clearly in the Constitution, adding that it could only be changed through a referendum.

The Commission on the Implementation of the Commission (CIC) supported the August date, saying that Parliament alone cannot change the election date unless there is a referendum.

Mr Mwau based his argument on the transitional clauses in the Constitution which provides for election 60 days after the expiry of the term of the current Parliament.

The Kilome MP said he was sworn in on January 15, 2008, therefore, his term should end on January 14, 2013.

Section 9 of the Sixth Schedule 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.

The ruling will not only impact on the political scene but also affect the civil service which has several of its top officials declaring that they will run on the forthcoming elections.

Electoral laws require any public officer who intends to contest an election to resign from public office at least seven months before the date of election.

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