Saturday, January 14, 2012

Kibaki and Raila hold the key to polls date



By Wahome Thuku

President Kibaki and Prime Minister Raila Odinga now hold the key on whether the eagerly awaited General Election would be held anytime this year.
And failure by the two to decide on an election date this year, the polls will be held anytime between January 15 and March next year.
This is the reality that the country absorbed Friday from a High Court ruling on the contentious polls date.
It’s now clear that dissolution of the Coalition Government by Kibaki and Raila is the only action that will send the country to the polls this year.
Raila said he would soon meet the President and hold discussions on the ruling and thereafter inform Kenyans when the elections would be.
A jam-packed courtroom where High Court judges delivered their ruling on the general elections date case in Nairobi on Friday. Photo: Ann Kamoni/Standard
"We will soon meet with the President and see how to expedite the discussions so that Kenyans know the elections date to diffuse anxiety and tension," said Raila from his Karen home.
President Kibaki had already assured Kenyans that the elections would be held in 2012. In his speech on New Year Eve, he pledged that 2012 would be the year he would hand over power in a smooth transition.
The Government has given all indications that elections should be held in December, a month which IEBC also favours.
Working with that assurance, the country is now focused on an election between October and December.
Dissolve coalition
That will, however, only happen if the two principals dissolve the coalition in writing or it collapses.
However, whether the elections are precipitated by dissolution of the coalition, or Parliament the actual date will be set by the Independent Electoral and Boundaries Commission, the court ruled.
The decision by judges, Justice Isaac Lenaola, Justice David Majanja, and Justice Mumbi Ngugi dimmed anticipation elections would be held in August.
Kilome MP Harun Mwau and Nairobi lawyer Mugambi Imanyara filed the case last year. Prof Lawrence Gumbe and Mr Martin Muthomi Gitonga were also enjoined in the case.
They had filed the petition against the Commission for Implementation of the Constitution, the IEBC, and the Attorney General.
The court reaffirmed the fact that President Kibaki cannot dissolve the current Parliament under the new Constitution.
Section 9 of the Sixth Schedule of the Constitution provides that the elections will be held within 60 days after the dissolution of Parliament.
Citing Section 10 of the same schedule, the court held that the life of the current Parliament had been saved in the Constitution and would only end on January 15, next year unless the coalition is dissolved earlier.
The ruling was a score to Mr Mwau, who took the matter to court, seeking a determination that tenure in Parliament, was protected under the Constitution and could not be cut short.
Political parties, aspirants, election organisers and the country will now be looking up to the two leadersto announce when the coalition will be dissolved.
That will then give them the timelines within which to prepare for the polls.
That not withstanding it’s almost certainly that the elections will not be in August or before. The most likely order of events will be for the President and the PM to ask the IEBC to set the most appropriate date, and then dissolve the coalition. It would be possible even to dissolve the coalition on the eve of the elections.
Focus will also shift to the consequences of dissolving the coalition. The coalition was established through enactment of the National Accord and Reconciliation Act 2008, purposely to resolve the political crisis witnessed after the disputed 2007 presidential election.
The Act, which was entrenched in the Constitution, was to give effect to the Agreement on the Principles of Partnership of the Coalition Government, to foster national accord and reconciliation and to provide for the formation of a coalition government.
It established the Prime Minister’s position with authority to co-ordinate and supervise functions and affairs of Government.
The agreement to establish the coalition was signed by President Kibaki on behalf of the Government/PNU and Raila on behalf of ODM on February 28, 2008.
It was signed at the steps of the President’s Harambee House office, thus ending bloody post-election crisis.
The signing was witnessed by chief mediator in the talks Kofi Annan as chairman of the Panel of Eminent African Personalities, and Tanzania President Jakaya Kikwete, who was chairman of the African Union.
Section 6 of the Act provides that the coalition shall stand dissolved if the Tenth Parliament is dissolved, or the parties agree in writing or if the partners withdraw by a resolution of the highest decision-making organ of the parties in writing.
The country would be curious to see how dissolving the coalition before the elections would work.
On the question of the MPs’ pension and terms of service, the court held that under the National Assembly Remuneration Act terms and conditions of service were only applicable as long as they were in office.
Popular opinion
The judges acknowledged that any decision not confirming August as the election month would disappoint many. "We are conscious that our findings may be unpopular with a section of Kenyans who have preconceived notions about the elections, but we hasten to remind Kenyans that our undertaking is not to write or re-write the Constitution to suit popular opinion, said Justice Lenaola.
"Our responsibility is to interpret the Constitution in a manner that remains faithful to its letter and spirit and give effect to its objectives."
The Government may now not push for an amendment to change the election date from August to December, having been given a blank cheque on election date.
The Government was also given a chance to consider setting aside money for elections in the next budget.
The Sixth Schedule, which contains the transitional and consequential provisions, has been the source of most constitutional debates and controversies since August 27, 2010, when the new Constitution was promulgated.

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