Sunday, January 15, 2012

What next after judges’ ruling on election date?



By KEPHER OTIENO

So what next after the Constitutional Division of the High Court ruled over the elections date controversy, leaving the critical decision to President Kibaki and Prime Minister Raila Odinga?
Justices Isaac Lenaola, David Majanja and Mumbi Ngugi came up with a dichotomous verdict, saying
A packed courtroom awaits the election date verdict by the judges on Friday. [PHOTOS: FILE/STANDARD]
either the transitional elections should be held after the first anniversary of the Grand Coalition Government or if the principals agree in writing to dissolve Government.
East African Law Society Vice President Aggrey Mwamu faults the judges for leaving a constitutional lacuna likely to precipitate further redress in the Supreme Court for failing to take into account the expiry of the President’s tenure.
Article 142(1) stipulates that the President shall hold office for a term beginning on the date on which the he was sworn-in, and ending when the person next elected President— in accordance with Article 136(2)(a) —is sworn-in.
Taking into account that the President was sworn in on December 31, it means by end of this year, his tenure in office will have expired and this evokes fundamental question whether he will be sworn in a fresh to wait for a new regime.
"What will we do after the President’s term ends in December 31? Will we swear him to hold for four months for the elections to be conducted to swear in his successors or will he be in office under the goodwill or trust of the public or what happens? Mwamu posed.
But Maseno University political scientist Tom Mboya supports the judgement as well researched and well thought out "although the judgement erred in arrogating the principals’ power of dissolving Parliament."
"By giving the Executive powers to dissolve Parliament, it means they overlooked the doctrine of separation of powers because Parliament is supposed to control its own calendar and anything short is an affront to its gains," says Mboya.
On the positive, he says the verdict was right because it will give the State ample time to conduct thorough civic education and allow Kenyans to prepare adequately for the rigorous polls next year, where for the first time, Kenyans will vote in six people at a go.
Hailing the decision as "most prudent", East Africa Legislative Assembly MP Gervase Akhaabi says it was the most realistic decision considering the country was not practically ready for the exercise by August.
According to the Eala legislator, the decision now gives many political players ample time to prepare for political competition. Further, MPs at the Arusha-based assembly with an eye on a political seat have a fighting chance. The life of Eala comes to an end this year by June.
"Those of us no longer keen at re-election to Eala, for instance, now have enough time to adjust to the pulse of local politics," says the lawyer who is keen on an elective position in Busia County.
While some MPs see the ruling as an affront to the Constitution, others claim it was defensible so that there is no leadership vacuum during the transition period although to some it would evoke constitutional dilemma.
"We cannot afford to interpret the law from our personal understanding of concepts which may be out of touch with the adjudication of the real meaning of the articles of the Constitution,’’ added Mwamu.
Mboya said if the President is nudged to extend his sitting in office then he would definitely spark legal sanctions that will only embarrass him instead of opting to retire peacefully to leave a rich legacy devoid of woes.
In principle, bureaucratic rules and regulations apply to all members of an organisation and they bind even the most powerful figures such as President.
"Bureaucracy supported by a rational view of the world in which long established customs and practices usually give way to form of rules and regulations often in the form of law," argues Mwamu.
The lawyer claims that power must be exercised as legitimised by the law. Several MPs who spoke to The Standard on Sunday asked Kenyans to be careful in interpreting new laws.
Nyando MP Fred Outa argues that MPs should not rush in overlooking real meaning of certain laws in effect misinforming the public on their contents.
"My appeal to colleagues is to be keen and consult widely before making weighty decisions," Outa said.
Power vacuum
According to Lands Minister James Orengo, 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. Orengo explained that the August date in the Constitution was calculated to ensure there was sufficient time to the expiry of presidential term. Recently, the issues raised a lot of controversy. Planning Assistant Minister Peter Kenneth also argued 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.
In the meantime, Mutula maintains the Constitutional Amendment Bill that seeks to change election day from August to December still remains on course for consideration by Parliament.
"If I were the Justice minister, I would quickly withdraw the (Constitutional Amendment) Bill before theHouse, since the ruling now takes into account the concerns raised by the Cabinet," says Akhaabi.

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