By MAKAU MUTUA
Posted Saturday, October 22 2011 at 15:48
Posted Saturday, October 22 2011 at 15:48
I hate to alarm anyone, but I am unhappy over a looming constitutional crisis unless cooler heads prevail.
The new Constitution is either silent or sloppy on three key matters. Unfortunately for us, the three matters are pivotal to the launch of the new constitutional dispensation.
The three are — who dissolves Parliament, when Parliament is dissolved, and the date for the next General Election.
I suggest that we must act now to avoid a national catastrophe. It’s no use making assertions devoid of legal and constitutional authority.
Nor should we silence those who are raising contrary views, even if they are doing so in bad faith. Let’s clean up the mess before it engulfs us.
Let me first tackle the question of who, if anyone, is empowered to dissolve Parliament. Section 59 of the old Constitution authorised the President to dissolve Parliament before the expiry of a five-year period.
Traditionally, the President did so several months — usually in October — before elections in December.
Under the new Constitution, the President has no “explicit power” to dissolve Parliament, except in one special circumstance when MPs fail to pass the necessary reform laws before 2012.
Article 261(7) provides that the “Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament” if “Parliament fails to enact legislation” required to implement the Constitution. This is a mandatory, not idle, constitutional provision.
Except in the collapse of the coalition government, the Constitution nowhere else contemplates the dissolution of Parliament.
The presumption is that future Parliaments — after 2012 — will not be dissolved.
That’s because their terms will “automatically expire” upon the next General Election for members of Parliament, which must be held “every second Tuesday in August in every fifth year” according to Article 101(1).
For the avoidance of doubt, the Constitution in Article 102 defines the “Term of Parliament”.
It states that the “term of each House of Parliament expires on the date of the next election”.
Again — to repeat — the date of the next election is “every second Tuesday in August in every fifth year”. Future election dates are automatically fixed in the Constitution.
But none of these provisions tell us when the first General Election under the new Constitution will be held, or whether Parliament will have to be dissolved one last time, as in the past.
This is important because some provisions of the old Constitution have been preserved until the next General Election.
This retention of aspects of the old legal order is in Chapter 18 — Transitional and Consequential Provisions.
In other words, the new Constitution suspends — for a time — some of its own provisions in favour of the old Constitution.
It is this mixture of the old and new Constitutions that we must navigate with deftness or be damned. It’s like the making of sausages — bloody and unpleasant.
In my view, the new Constitution rules out an election in August 2012. Why?
Because Section 10 of the Sixth Schedule provides in clear language that 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”. The operative language here is “its unexpired term”.
Secondly — and this is key — Section 9(1) of the Sixth Schedule provides that the “first elections” under “this Constitution shall be held at the same time, within 60 days after the dissolution of the National Assembly at the end of its term”. This is the clincher for me as to when the next elections must be held.
It’s undeniable that Section 9(1) of the Sixth Schedule contemplates the “dissolution” of Parliament, although it doesn’t say by whom, or when.
But it provides that elections must be held within 60 days of the dissolution of Parliament.
For elections to be held in August, as some have argued, Parliament would have to be dissolved in June. Section 9(2) of the Sixth Schedule complicates matters.
It says that the first elections under the new Constitution could be held even earlier than August if the coalition government under the National Accord collapses.
Whatever the case, Section 9 of the Sixth Schedule makes clear that all elections — President, National Assembly, and Counties — must be held “at the same time” in 2012.
My reading of the Constitution is that the Sixth Schedule meant to bridge the old and the new orders to allow a seamless transition.
Thus Section 12 of the Sixth Schedule, which temporarily constitutionalises the National Accord and the offices of the President and the Prime Minister, gives the President the “implicit power” to dissolve Parliament one last time so that the first elections can be held in December 2012.
Let me be clear. The Constitution cannot be read to permit the first election under it in 2013.
That would be a clear constitutional violation because the “unexpired term” of the Tenth Parliament terminates on December 27, when it was elected five years ago. Nor can the first elections be in August.
However, the second election — in 2017 — and all future elections shall be held every second Tuesday of August in every fifth year.
The President has the “implicit authority” in the new Constitution to dissolve Parliament in October and call elections. This is firm legal ground because of tradition and practice.
But to avoid any crises over the date of the election, I have no doubt that the Supreme Court — the last authority on the question — will settle this vexing matter in the case currently before it.
We shall do as the Supreme Court orders.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.