Why President Kibaki may get six more months

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By Alex Ndegwa

President Kibaki’s term may be extended by up to six months after the expiry of his tenure next year if the date of the General Election is changed to December 19.

President Kibaki takes oath of office at State House, Nairobi, on December 30, 2007. His second term in office ends on December 30, next year. Picture: File/Standard

The President’s second term in office ends on December 30, next year, five years after he was sworn into office following the disputed 2007 presidential vote. However, he could be in office longer should the outcome of the presidential vote — set held on December 19 if the Cabinet’s proposal is approved by Parliament — be contested in court or spill to a run-off.

The proposal to hold the presidential election so close to the expiry of the president’s term has divided MPs, with claims that the extension would be illegal or could cause a constitutional crisis.

"It’s illegal because they are trying to extend the President’s term, which is fixed," charged Imenti Central MP Gitobu Imanyara.

Another dispute is over the limited powers the President would exercise as he holds brief before the president-elect is sworn-in, given the mutual suspicions between the coalition parties, particularly over key appointments.

Lands Minister James Orengo said his interpretation of the Constitution is that it does not anticipate a power vacuum, but added that the incumbent’s powers would be limited in the interim period.

"The incumbent stays in office until the president-elect is sworn-in. But he would be in office with limited powers such that he cannot, for instance, make any public appointments," Orengo told The Standard On Sunday.

Limited powers

Imanyara concurred: "Even if the President stays in office until the president-elect takes over, his powers would be extremely limited."

Orengo explained that the August date in the Constitution was calculated to ensure that there was sufficient time to the expiry of presidential term.

"What we are doing is destabilising the constitutional framework. The Constitution anticipates all elections are done within the terms, both parliamentary and presidential so that we don’t end up eatinginto the next terms," he said.

The minister, however, added that on the decision, he was bound by the Cabinet’s collective responsibility.

Kisumu Town West MP Olago Aluoch suggested that there was a risk of plunging the country into a constitutional crisis if sufficient time was not allowed.

"When the House considers the Constitutional amendment Bill, we will ensure that the possibility of such a crisis does not arise. We are going to address it with an amendment," he said.

The ODM MP, however, declined to give the exact details of the amendment that some MPs are considering.

Constitutional questions

Planning Assistant Minister Peter Kenneth also argued that a run-off election could spill over outside the President’s term, which could raise constitutional questions.

However, Justice Minister Mutula Kilonzo said there was no cause for alarm because even if the President’s term lapsed before the election was concluded, the Constitution allowed him to stay on.

"There would be no constitutional crisis even if the run-off stretches beyond the term of the current President. This is because once the elections start, Article 142 of the Constitution kicks in and he leaves office upon the swearing-in of his successor," explained Mutula.

Article 142(1) stipulates: The President shall hold office for a term beginning on the date on which the President was sworn-in, and ending when the person next elected President in accordance with Article 136(2)(a) is sworn-in.

Metropolitan minister Njeru Githae supports the view, adding that given President Kibaki is not vying for office, nobody should have jitters on the issue.

"There will be no vacuum because the Constitution is clear that the President remains in office until the president-elect is sworn-in. In our case, it’s even better that the incumbent will not be running for office," said Githae.

Imanyara, however, dismissed the argument as self-serving. "The Cabinet action lacks good faith. There is something they are not telling Kenyans. None of these issues they have raised requires an amendment to the Constitution."

He added: "The manner that the Bill was presented as an omnibus together a popular one of gender raises issues," said Imanyara. The Bill has already faced opposition in the House from MPs who want the issues isolated.

A look at the constitutional provisions detail how the President could be in office for up to six months past his initial tenure.

If a presidential election were challenged in the Supreme Court, it would take 28 days to resolve the petition and swear-in the new President.

If the election is annulled, a fresh election is held within 60 days.

Assuming the fresh election does not produce an outright winner, a run-off is held within 30 days and it takes longer if the outcome, too, is disputed.

The Constitution provides for an election petition filed within seven days after the date of declaration of the results. The Supreme Court shall hear and determine the petition within 14 days.

If the Supreme Court determines that the election of the president-elect is invalid, a fresh election shall be held within 60 days after the determination.

The Constitution states that in the event that the election is contested in court, the president-elect shall be sworn-in on the seventh day following the date at which the court renders the decision. The Constitution stipulates that a run-off election shall be held within 30 days after the previous election.

Supreme Court

If the presidential election were pushed to a run-off, whose outcome was also contested at the Supreme Court, the period stretches to five months.

With some MPs toying with idea that the earliest the election can take place is March 2013, the President’s stay in office becomes even longer.

Yatta MP Charles Kilonzo said he was not privy to any idea floated to amend the Constitutional amendment Bill, but ruled out a change of the elections date to (March) 2013.

"It’s out of the question that we could take elections into 2013. That won’t happen," said Kilonzo.

On the dangers of holding an election too close to the expiry of the President’s term, Orengo responded: "Those are the issues that would be raised before the Supreme Court."

Orengo added: "We are amending the Constitution for expediency. We appear to have adopted the line that if we have difficulties with the Constitution, we amend it. That shouldn’t be the case."

"According to Mutula and (Prof Yash) Ghai, it’s not possible to hold elections in August. Mutula gave a timeline of preparatory issues that make an August date impossible," said Kilonzo.

Imanyara argued that availability of funds was the last reason to justify a change of date of elections.

"That’s the reason the Budget makes provision for a Contingency Fund," he said.

Writing in March, last year, as negotiations on the proposed Constitution peaked, Prof Peter Kagwanja, a PNU activist, stoked controversy.

Kagwanja suggested transitional provisions were to enhance the powers of the PM during the 2010-2012 transition when the Kibaki presidency will enter its lame duck phase.

The cornerstone of this masterstroke strategy, he argued, was the "incumbency theory" whose practical side was the National Accord as the foundation of the post-referendum power relations on the road to 2012.

"Ultimately, the full tenure for the Accord is guaranteed by the inherent fear among MPs of a premature end to the 10th Parliament, plunging them into costly elections before they have paid all their loans and dues," said Kagwanja, adding: "This time will enable the PM to gradually assume the double-status of a ‘crown-prince’ and ‘incumbent.’"