Anyone who hoped that the IEBC’s announcement of the election date would put an end to the endless, polemical and ill-informed debate must be disappointed today.
We read of people who are surprised, even outraged, that it can be next year, including the Vice-President who is “surprised by latest twists and turns”, William Ruto – “Where did they get the March date from?” or Martha Karua who said it is “illegal”. Did they not read the constitutional bench judgment, that said (quite rightly we believe) that Parliament would be automatically dissolved on 14 January 2013 and the election must be within 60 days? It was not a fault of the court to fail to fix the precise date for the election – they were right that this was for the IEBC (something not understood by people like Jakoyo Midiwo MP – another non-reader of the judgment?)
Maybe the politicians focussed only on the court’s other decision (erroneous we believe): that the principals could agree in writing to dissolve the coalition, which would have the effect of dissolving parliament, and elections must follow within 60 days. Right or wrong, unless and until reversed on appeal, it is now the law. The principals have jointly failed to meet the expectations of Kenyans. The IEBC says it acted only because the Principals showed no sign of doing so.
Perhaps the President was misled by the Minister of Justice and the Attorney General who, even more surprisingly, do not seem to have read the judgment – if the press is right to say they advised him that dissolving the Coalition would not dissolve Parliament. With refreshing and unusual deference to public opinion, several politicians say that they support December election because people want that date. But this cannot be achieved (despite what Ruto says) by moving a resolution in Parliament. Nor (despite what Martha Karua says) by Raila withdrawing unilaterally from the Coalition – neither Principal alone could bring about dissolution. The only way would be for the Bill to amend the Constitution to be passed: that would put the date as December this time and in the future. But it seems that Bill may have been withdrawn?
Raila and Anygang’ Nyong’o say that March elections will “prolong” the life of parliament and executive. Surely they understand that past elections only happened in December because Parliament was dissolved prematurely by Presidents – a power Kibaki no longer has? Parliament is not being extended – merely living out its original term. And as for the idea that people want December date because this means having new leaders for the new year: you must be joking! Every draft of the new Constitution since CKRC 2002 has had an August date, and until recently the people were supposed to be insisting that August must be the date for the first election.
The President will gain a few weeks extra, because of the transition to the new system that is likely to involve a run-off election. Alex Ndegwa in the Standard is alarmist to suggest the President’s total term may be extended by 8 months – this is a worst case scenario involving the maximum time for run-offs and court challenges. Anyway timing of the election will not affect the length of the run-off and court challenge combination. We have always said the elections could have been in January, any time after the automatic demise of the 10th Parliament – which might have been less disruptive of school timetables? Two months between dissolution and election is nowhere required by law, and from the next elections there will be no such gap at all.
Few seem to see any mileage in paying any attention to Isaack Hassan’s explanation for making an announcement: on the need for certainty to end speculation and get on with the administrative arrangements for election. Journalists and op ed writers are equally to blame, often showing considerable ignorance. Debates are conducted and often decisions are made without any regard to the Constitution, yet parliament and the government are entrusted with its implementing and safeguarding.
This matter like others could have been easily resolved if we people read and respected the constitution instead of the matter being turned into a major controversy, peppered essentially by self-servicing interests. But, let us not be naïve: maybe the politicians, though not sorry to get a few more months in office, want to appear to respect popular opinion. It is not that they do not understand the Constitution or the judgment, but are “playing the politics” to use Raila’s expression (see the Sunday Standard).
False assumptions among churches may be understandable though unfortunate (and “big surprise” on the part of a bishop surprising). Among civil society (including Ken Wafula, chair of the National Council of NGOs, who says that the IEBC’s only mandate is to declare election results) is unforgiveable since a primary task of theirs is to educate people in constitution and civics. Or are they playing politics, too?
If there is really a pending appeal from the constitutional bench decision, what a pity the courts have not been able to deal with it yet. The courts do not seem to be pulling their weight in terms of dealing speedily with urgent matters. Hopefully the Court of Appeal will not allow their decision to be affected by either the wrangling or the announcement. What is at stake is also the rule of law and respect for the constitution. Almost no one who is quoted in Sunday’s paper appears to have paid proper attention to what the constitution says. It is a poor omen for the prospects of constitutionalism.
The authors are directors of Katiba Institute.
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