Friday, January 13, 2012

D-day for ruling on election date



By Wahome Thuku

Superstitious Kenyans are hoping today will not live up to its reputation as the High Court is set to rule on the date of the General Election.
Although there is no written evidence to support it, Friday, the 13th, is held by the superstitious to be a day of bad luck.
But eyes will be set on the Constitutional Division of the High Court today where judges Isaac Lenaola, David Majanja and Mumbi Ngugi are scheduled to deliver the most significant binding interpretation of the Constitution since it became the law of the land. President Kibaki and most Cabinet ministers, led by Justice and Constitutional Affairs minister Mutula Kilonzo, will be hoping that the court rules firmly in favour of a December election as this would give them enough time to tie up the loose ends.
For Kibaki, December is ideal as it means the Independent Boundaries and Electoral Commission (IEBC) will have more time to ensure a orderly handover of power through a well organised presidential election, something he sees as key to his legacy.
As for MPs, December would give those steeped in debt, and others who plan to jump parties enough time to make choices.
Indeed, Eldoret North MP William Ruto and his rebels in the Orange Democratic Movement (ODM) have scheduled the launch of their relatively unknown outfit, United Republican Party (URP) for Sunday, hoping the matter of the General Election date will have been decided.
It is a court ruling that will certainly spin the order of things in the political arena, because it will set the timelines within which political parties, candidates, their supporters, and IEBC will work in preparing for the polls.
Kilome MP Harun Mwau and Nairobi lawyer Mugambi Imanyara filed the case seeking a determination on the polls date last year.
Anxiety has gripped the political scene in the past weeks with leaders engaged in a mad rush to put their acts in order.
The IEBC has published the new electoral boundaries, which raise the number of constituencies from 210 to 284.
In Parliament, a Bill has already been tabled to amend the Constitution and push the election date from August of every fifth year to a date in December.
Justice and Constitutional Affairs minister Mutula Kilonzo tabled the Bill in November, last year. It will, however, not be debated until next month when the country will have absorbed the High Court decision on the matter.
Referendum
In the suit, Mr Mwau argued that the earliest that elections could be held is March next year, citing Section 9 of the Sixth Schedule of the Constitution, which states that elections should be held within 60 days (two months) after the expiry of the term of the current Parliament.
He said he was sworn-in as MP on January 15, 2008, and his term should end on January 14, next year.
Lawyer Imanyara, however, argued that the elections could only be held on the second Tuesday in August of every fifth year in accordance with Article 101 of the Constitution, which therefore means August 14.
His lawyer Nelson Havi says only a referendum can change that date and that it is possible for MPs to vacate their seats before end of their term and it has happened before.
Attorney General Githu Muigai, on the other hand, has put up a case for December elections. Through the Deputy Solicitor General Muthoni Kimani, the AG told the court that December was the most practical time for elections.
Ms Kimani asked the judges not to make arbitrary decision, but consider views of the institutions mandated to organise the elections.
She was referring to remarks by the IEBC chairman Isaack Hassan that it would be impractical to hold the General Election in August. But the Constitution Implementation Commission Chairman Charles Nyachae is backing August as the date expressly provided in the Constitution.
The case had been taken to the Supreme Court for a legal opinion on the election date, but was referred back to the High Court to allow all the parties to access the judicial system from the lowest to the highest level.
Resigning
This means that whichever way the court rules, the decision could still be challenged all the way back to the Supreme Court. If it goes back there, the Supreme Court would deal with it differently as an appeal from the Court of Appeal.
A ruling in favour of a December election would be a bonus for Mutula Kilonzo who would likely drop that controversial part of the Bill.
And if the court decides on August date, Parliament would still have the leeway to change the date, but opinion is divided on whether this is possible without a referendum.
Already, some MPs have vowed to shoot down the Bill, maintaining that elections should be in August. A decision in their favour will certainly solidify their position, making it even more difficult for the Bill to pass in Parliament.
But it will be a shocker to many public officers seeking to contest political seats, including Education Permanent Secretary James ole Kiyiapi. This is because Section 42(5) of the Elections Act requires that public officers who intend to run for an electoral office must resign from their offices at least seven months before the date of elections. If elections are set for August 11, Wednesday this week should have been their last day in office.
Only the President, Prime Minister, the Vice-President and MPs are exempted from resigning unless they do so voluntarily.
But two voters have gone to court to have this section of this Act suspended, saying it discriminates against potential candidates still in public service. A preliminary decision on that case will also be made this morning.
If the court decides on August elections, the three months from May 11 to the polls date would be critical for political parties, aspirants and their supporters.

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