Next Polls Can Only Take Place In 2013

Thursday, 28 July 2011 00:06 BY PROF YASH PAL GHAI AND JILL COTTRELL

We were astounded to read in the leader in Daily Nation on 23 July that elections for the next Parliament have to be held on the 14 August 2012 (“Constitution is clear on the date of elections”). Those who argue that the correct date is 15 January 2013 were summarily dismissed. It is amazing that the leader writer of the biggest newspaper in the country should not have done his/her home work. Indeed we observe a similarly cavalier attitude to the text of the constitution in the media generally.
There are two completely different models for the end of the current National Assembly, timing of elections and beginning of the next National Assembly. Under the new Constitution – once the system is completely up and running – the old concept of “dissolution” of the National Assembly ceases to be relevant. The National Assembly continues in office until the date of the next election; then the term of the old one “expires” (no use of “dissolution”) (Art. 102(1)). The date of the election is fixed by the Constitution (as the second Tuesday in August) and that date fixes the end of the National Assembly’s term.
Under the old Constitution, the House would be automatically dissolved on the fifth anniversary of its first sitting, and could be advanced by a presidential order (and usually was) (section 59). The date of dissolution fixed what happened next: “Whenever Parliament is dissolved, a general election of members of the National Assembly shall be held, and the first session of the new Parliament shall commence within three months after that dissolution.” (section 58(3)) – so the precise date of the election was not fixed but it had to happen in time for the new Parliament to sit.
The Daily Nation completely ignored the transitional provisions in the Constitution: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term” (Schedule 6 para. 10). And “the first elections……shall be held…within sixty days after the dissolution of the National Assembly at the end of its term” (para. 9(1)).
There are admittedly problems in completely reconciling all provisions of the Constitution. But you cannot simply ignore constitutional provisions because they are inconvenient!
Clearly the CoE had in mind the old model – dissolution followed by election. The election date is fixed by reference to the dissolution (see underlined words). If the election date is 14 August, we don’t know how to fix dissolution.
The only way to fix dissolution is by looking at the basis of the current National Assembly, which is the old Constitution that gave it maximum five years. That This is the only way to decide its “term” for the rest of which it stays in office. This must be so even though the specific section (59) of the old Constitution is no longer law.
Old section 59 which gave the President power to dissolve prematurely has been repealed. Only if the Chief Justice “advises” the President to dissolve because of failure to pass implementing laws can premature dissolution happen (Article 261(7)).
The CoE “Revised Harmonized Draft” was clear: the National Assembly continued “unless it is dissolved earlier” and “Until the expiry of its term, Parliament may be prorogued or dissolved by the President only with the agreement of the Prime Minister.” If the coalition was dissolved there must be elections within 90 days. These provisions disappeared at the hands of the PSC in Naivasha – clearly politicians could not stomach “going home” early, even if the coalition ended.
The CoE restored an oblique mention of premature dissolution, if the coalition was dissolved (in Sch. 6 section 9(2)), without apparently realizing that the provision allowing premature dissolution would disappear. And they introduced a reference assuming 2012 was the natural date for election – which means either that they did not realise that without premature dissolution the “natural” date would be 2013 not 2012, or that they anticipated that the previous convention of premature dissolution would prevail – again not realising the significance of doing away with old s. 59!
In short, it is our view that the CoE gave the National Assembly until January 15 2013. Elections can be any time within the following 60 days. This leaves the question: when do we move to August elections? It must be done and legislation must deal with it. Either it should be done as soon as possible – August 2017 – or the normal five-year duration of Parliament should be deviated from as little as possible – which would mean elections in August 2018.
We realise this is not a popular view (other than with MPs). And there are good reasons for wanting elections in August 2012: the sooner we have the new executive and the legislature, and the sooner we get on the track to August elections, the better. But integrity in interpreting the Constitution must be the primary principle.