By JULIUS SIGEI jsigei@ke.nationmedia.com AND PATRICK NZIOKA pnzioka@ke.nationmedia.com
Posted Friday, March 9 2012 at 22:30
Posted Friday, March 9 2012 at 22:30
President Kibaki’s public announcement on Friday that Kenya's next elections will be held next year could see him remain in office as late as June next year.
Revealing for the first time that he favoured a March 2013 General Election in line with the Constitutional Court ruling, the President said he could not go against the court’s ruling.
His remarks, when he addressed Nyeri County leaders at the Sagana State Lodge, open the door for him to remain in office legally until June next year if there is a presidential run-off and to exhaust all legal challenges.
But this could change and he could leave office by April if there is no run-off and the President- elect is not challenged.
The high threshhold in Article 138 (4) requiring that a candidate shall be declared elected as President if the candidate receives more than half of all the votes cast in the election and at least 25 per cent of the votes cast in at least half of the counties, could see a run-off being held to determine the fourth President when the life of the current Parliament ends automatically on January 15.
The Constitution also provides for a two-week period within which to challenge the results in the Supreme Court.
Interestingly, President Kibaki is the only one to get more than 50 per cent in the multi-party era — in 2002, when he garnered over 65 per cent of the vote.
In 1992 President Daniel arap Moi of Kanu had 36.3 per cent of the national vote while in 1997 he had 40.12 per cent.
In the 2007 General Election, whose presidential results were disputed by the ODM, President Kibaki received 47 per cent of the national tally.
The Constitution provides that elections must be held within 60 days of the dissolution of Parliament after which seven days are allowed to file any petitions to be determined within the next 14 days.
Article 138 (5) reads: “If no candidate is elected, a fresh election shall be held within thirty days after the previous election.”
Article 140 (1) says “A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.”
Section (3) says that if the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.
Chapter 18 of the transitional and consequential clauses says the persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve as President and Prime Minister respectively, in accordance with the former Constitution and the National Accord and Reconciliation Act, 2008 until the first general elections held under this Constitution, unless they vacate office in terms of the former Constitution and the Accord.
The Vice-President and the entire Cabinet of 42 ministers and more than 70 assistant ministers are also protected by the clause which could see the current occupants draw their huge salaries long after they will have served their terms.
It was the first time President Kibaki, who was given the mandate by the court together with Prime Minister Raila Odinga to determine the election date if they agreed to dissolve the coalition government.
Alternatively this Parliament can run its course with the General Election being held in March, 2013, a position the President now favours.
The President, who was addressing leaders from Nyeri County at the Sagana State Lodge, emphasised that he respected the law and that he could not change the ruling by the court on the election date.
In a statement by the Presidential Press Services, the President said the court ruling was binding.
The statement was prompted by remarks the President had earlier made in the meeting that were interpreted to mean the elections will be held before the New Year.
In the statement, the President reiterated that he does not engage in falsehoods or underhand schemes and is always forthright in his national duties.
The President, who spoke first during the meeting, called on leaders who did not understand their roles as specified by the Constitution not to engage others in blind competition.
Such leaders, he said, were not necessary since they will be of no use to the people if they do not understand their roles.
Present at the meeting were Cabinet ministers George Saitoti, Amos Kimunya and Njeru Githae among other senior government officials.The President called on the leaders to accept the bitter truth that it was important they understand their role in the new Constitution.
The leaders were taken through some aspects of the devolution chapter in the Constitution.
Mr Kimunya, the Transport minister, set the tone of the meeting when he assured the residents that Parliament will factor in the issues raised by the President and pass the devolution Bill by next week.
President Kibaki declined to sign the Bill into law and send it back to Parliament with suggestions that the provincial administration should be retained and should answerable to the Central Government through the President.
Reacting to the President’s announcement, Justice and Constitutional Affairs minister Mutula Kilonzo, who has a pending Bill in Parliament to amend the Constitution to fix the elections date to December, welcomed the President’s position on the polls saying the decision to abide by the court’s ruling was in order.
“The President is right to respect the judicial findings,’’ Mr Kilonzo said from his Mbooni constituency.
The minister seeks to have the elections held on the third Monday of December, of an election year instead of the second Tuesday of August as currently provided. This, he has argued, would put an end to the controversy surrounding the election date.
But on Friday, Mr Kilonzo said he would seek “formal instructions’’ on whether or not to withdraw the Bill because it also seeks an amendment to provide gender parity and equity in elective positions and more specifically in the National Assembly and Senate.
And Mr Abdikadir Mohammed, chairman of the House committee that oversees implementation of the Constitution said his team has always been opposed to any amendment of the document.
“We were of the view that transitional clauses clearly ruled out any other date other than that in the Constitution and amending it would send wrong signals. The court’s ruling in this case is superior,’’ said the Mandera Central MP.
Mr Mohammed said a review of views presented to the committee by the public indicated that the majority were in support of a December or March election.
“We held a meeting on Wednesday to look at the public views and found that a December date was the most popular one while August was out of the question,’’ said the Constitution Implementation Oversight Committee chairman.
The committee, he said, would still present the findings to the House, he added.
Additional reporting by Njeri Rugene
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