Unfortunately for Kenyans, though fortunately for lawyers, the Committee of Experts has again managed to leave things uncertain about when the first elections are to be. The truth is there is no clear answer. There are arguments in favour of the following:
• they must be held on the second Tuesday of August 2012 (as Article 101 says)
• they must be held sometime between January 15 2013 and 60 days later.
Just possibly they may be held at any time between now and mid-March 2013 – but only if the President has the power to dissolve Parliament, which is doubtful.
The problem arises because of a shift of scheme in the various drafts by the CoE. In Article 129 of their first and second drafts they fixed general elections as on the Tuesday before the last twenty-eight days of the term of the National Assembly, not on precise Tuesday in the year. And in the transitional arrangements they had the critical sentence: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.” This clearly meant that the current Parliament would go on until it would have expired according to the rules that brought it into being, under the old Constitution. That would have been January 15 2013, because it first sat on January 15 2008. The elections would have been on December 11 2012.
But the Parliamentary Select Committee decided on a quite different system of scheduling elections. However, the CoE left the original sentence about the current National Assembly continuing for its unexpired term. But now that sentence is not clear. Does “unexpired term” still mean the same thing? Or does it mean a term cut short by referring to Article 101(1) about second Tuesday of August?
We argue that it still means the same thing and that Parliament’s term goes on until January 15 2013. One reason is because the Constitution says that the first elections are to be led within 60 days after the dissolution of the National Assembly at the end of its term (in section 9(1) of Schedule 6). This suggests that the date of the end of its term is known or can be worked out, and the election is fixed in relation to that end. But if the date of the election is fixed at August 14th, when is Parliament dissolved? There is no rule in the Constitution to answer that. (In future Parliament’s life just continues until the next election day – Article 102).
We admit that to understand “unexpired term” we need to look at the old Constitution section 59. And that section is no longer in force (unlike a few other sections on the same topic in the old Constitution, that remain in force until the elections). But in our view that does not matter – clearly when the CoE first used the phrase about unexpired term they meant to refer to the term it had when it came into being in 2008.
The only way the traditional December elections took place was by the President dissolving parliament before its term ended. But can he now dissolve early? We read that when the President purported to prorogue Parliament, he could not in fact do it – because this was a power under section 59 of the old Constitution, which is no longer in legal effect. (Incidentally, old section 58 is still in force, under which he can fix the start of a new session, so possibly the recall by the Speaker is unconstitutional!).
By the same logic, he cannot dissolve parliament – because that also is a section 59 power, as we have seen. This is complicated by the fact that the CoE clearly thought that Parliament could in some circumstances be dissolved early – if only because they refer in section 9(2) of Schedule 6 to the possibility of the coalition being dissolved and general elections being held before 2012. Clearly they thought that the first elections would naturally be in 2012.
The CoE “Revised Harmonized Draft” was clear: first of all the National Assembly continued for its unexpired term “unless it is dissolved earlier” and “Until the expiry of its term, Parliament may be prorogued or dissolved by the President only with the agreement of the Prime Minister.” If the coalition was dissolved there must be elections within 90 days.
These provisions disappeared at the hands of the PSC in Naivasha – clearly politicians could not stomach “going home” early, even if the coalition ended. The CoE had only a very short time to produce their very final draft, including deciding which of the decisions taken by the PSC that went beyond its powers they would reject, and which accept.
In short, it is our view that the CoE fell into the trap set by the PSC and has given the National Assembly until January 15 2013. Elections can be any time within the following 60 days. We would prefer moving to the new system in August 2012, but find it hard read the Constitution that way. But the parliament then elected should finish its term when elections finally take place on the second Tuesday in August – 2017.
Cottrell is a law researcher and teacher while Ghai is the former chairman of the defunct Constitution of Kenya Review Commission.
• they must be held on the second Tuesday of August 2012 (as Article 101 says)
• they must be held sometime between January 15 2013 and 60 days later.
Just possibly they may be held at any time between now and mid-March 2013 – but only if the President has the power to dissolve Parliament, which is doubtful.
The problem arises because of a shift of scheme in the various drafts by the CoE. In Article 129 of their first and second drafts they fixed general elections as on the Tuesday before the last twenty-eight days of the term of the National Assembly, not on precise Tuesday in the year. And in the transitional arrangements they had the critical sentence: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.” This clearly meant that the current Parliament would go on until it would have expired according to the rules that brought it into being, under the old Constitution. That would have been January 15 2013, because it first sat on January 15 2008. The elections would have been on December 11 2012.
But the Parliamentary Select Committee decided on a quite different system of scheduling elections. However, the CoE left the original sentence about the current National Assembly continuing for its unexpired term. But now that sentence is not clear. Does “unexpired term” still mean the same thing? Or does it mean a term cut short by referring to Article 101(1) about second Tuesday of August?
We argue that it still means the same thing and that Parliament’s term goes on until January 15 2013. One reason is because the Constitution says that the first elections are to be led within 60 days after the dissolution of the National Assembly at the end of its term (in section 9(1) of Schedule 6). This suggests that the date of the end of its term is known or can be worked out, and the election is fixed in relation to that end. But if the date of the election is fixed at August 14th, when is Parliament dissolved? There is no rule in the Constitution to answer that. (In future Parliament’s life just continues until the next election day – Article 102).
We admit that to understand “unexpired term” we need to look at the old Constitution section 59. And that section is no longer in force (unlike a few other sections on the same topic in the old Constitution, that remain in force until the elections). But in our view that does not matter – clearly when the CoE first used the phrase about unexpired term they meant to refer to the term it had when it came into being in 2008.
The only way the traditional December elections took place was by the President dissolving parliament before its term ended. But can he now dissolve early? We read that when the President purported to prorogue Parliament, he could not in fact do it – because this was a power under section 59 of the old Constitution, which is no longer in legal effect. (Incidentally, old section 58 is still in force, under which he can fix the start of a new session, so possibly the recall by the Speaker is unconstitutional!).
By the same logic, he cannot dissolve parliament – because that also is a section 59 power, as we have seen. This is complicated by the fact that the CoE clearly thought that Parliament could in some circumstances be dissolved early – if only because they refer in section 9(2) of Schedule 6 to the possibility of the coalition being dissolved and general elections being held before 2012. Clearly they thought that the first elections would naturally be in 2012.
The CoE “Revised Harmonized Draft” was clear: first of all the National Assembly continued for its unexpired term “unless it is dissolved earlier” and “Until the expiry of its term, Parliament may be prorogued or dissolved by the President only with the agreement of the Prime Minister.” If the coalition was dissolved there must be elections within 90 days.
These provisions disappeared at the hands of the PSC in Naivasha – clearly politicians could not stomach “going home” early, even if the coalition ended. The CoE had only a very short time to produce their very final draft, including deciding which of the decisions taken by the PSC that went beyond its powers they would reject, and which accept.
In short, it is our view that the CoE fell into the trap set by the PSC and has given the National Assembly until January 15 2013. Elections can be any time within the following 60 days. We would prefer moving to the new system in August 2012, but find it hard read the Constitution that way. But the parliament then elected should finish its term when elections finally take place on the second Tuesday in August – 2017.
Cottrell is a law researcher and teacher while Ghai is the former chairman of the defunct Constitution of Kenya Review Commission.
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