Why date changed

By MARTIN MUTUA and PETER OPIYO

President Kibaki has chosen August 27 as the date to promulgate the new constitution after advice from lawyers.

Kibaki was advised that the law provided a 28-day window for promulgation of the new laws after the announcement of the final referendum tally.

However, the terse announcement by the Presidential Press Service yesterday afternoon created confusion, with lawyers differing on the correct date when the new law should come into force.

"In compliance with the Constitution of Kenya Review Act, 2008 and the Constitution of Kenya (Amendment) Act, 2008 His Excellency President Mwai Kibaki will promulgate the new Constitution on Friday 27th August 2010," read the terse statement sent on Monday to newsrooms.

Attorney-General Amos Wako, Justice Minister Mutula Kilonzo and Narc Kenya Chairperson and Gichugu MP Martha Karua said the new date was right, although other lawyers differed with their position.

Karua was involved in drafting the Constitution of Kenya Review Act 2008 that anchored the review process when she was Justice minister.

She explained that the Constitution of Kenya Review Act of 2008 was the guiding principle for the President’s move.

Both Wako and Mutula confirmed that they had been consulted before the President made the announcement.

Mutula said Article 43 of the Constitution of Kenya Review Act gave room for any petitioners opposed to the new laws to lodge their cases with the Interim Constitutional Dispute Resolution Court, within the 14 days after the IIEC had published the results of the referendum.

Within law

Karua interpreted this as 14 days after August 20. After this date, the President has another 14 days to either promulgate the new constitution, or let it become law on its own, as it will not require any promulgation after that period.

She said there should be no cause for alarm, as President Kibaki had acted within the law.

However, yesterday’s announcement caught many Kenyans by surprise, as most expected the promulgation date would be August 20, exactly two weeks after the Interim Independent Electoral Commission (IIEC) published the results of the August 4 referendum.

The new constitution, in article 263 says: "This Constitution shall come into force on its promulgation by the President or on the expiry of a period of 14 days from the date of the publication in the Gazette of the final result of the referendum ratifying this Constitution, whichever is earlier."

But the Government’s chief legal adviser dismissed fears the new constitution was getting off on a false start.

Wako said: "I can confirm to you as the Attorney General of the Republic of Kenya the President (Kibaki) has not erred, but acted within the law."

He said the date was picked in conformity with the Constitution of Kenya Review Act 2008. He said the first 14 days from the publication of the results was meant to give time for anyone who wants to file a petition against the new constitution.

Misleading President

President Kibaki is then free to promulgate the new law within the following 14 days, the AG said.

Like Wako, Justice Minister Mutula Kilonzo also said that the date was picked after Government lawyers looked at the provisions of the Review Act.

But Muite dismissed the interpretations that were given by Government officials and said that Kibaki should be careful not to fall into a trap that would make him miss the opportunity of bringing the new constitution into force.

The former Kabete MP advised the President to promulgate the new constitution by August 20 if he wanted to make a mark in history, saying that the new law would come into force by that date, even if Kibaki opted to delay the promulgation ceremony.

Muite warned that as per Section 163 of the new constitution, the new law will come into effect by August 20, and any promulgation after that will only amount to a mere ceremony.

"The law is very clear on when and how the new law comes into effect. Anybody advising the President to delay the ceremony is misleading him," said the former Kabete MP.

"Given that nobody has since moved to court, the President has a choice to promulgate the constitution or sit back and let it promulgate itself by August 20," said Muite.

He said the 14 days mentioned started running on Saturday, after the IIEC published the referendum results.

Imenti Central MP Gitobu Imanyara also supported Muite’s position that the new law would come into force by August 20. "The President can only promulgate the new Constitution on or before August 20, but if he chooses to do so, it comes into effect automatically.

"So the (new) date he chose is wrong, unless he wants to go and be entertained by traditional dancers on the August 27," said Imanyara.

Section 63

The director of Kituo Cha Sheria Priscilla Nyokabi also said it was wrong for the President to pick a date later than Friday next week.

Nyokabi said the timelines were clear, both in the Constitution of Kenya (Amendment) Act and the new Constitution and that it was wrong for the President to choose August 27.

A source holding a senior position in one of the Agenda 4 commissions told The Standard the correct law to be followed now was Section 63 of the new constitution.

The official, who asked not to be named due to the sensitivity of the issue, said he did not understand why confusion was being created over an issue that was clear.