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Averting another live costly political and Constitutional Crisis

Wednesday 18th January, 2012

 

    The High Court of Court declared that President Mwai Kibaki Presidency terminates on 29th December 2012. The country expects unequivocal, decisive and goodwill leadership from the President and Prime Minister to facilitate holding of the elections this year.

2.       The 2007 General elections were held under the repealed Constitution. This Constitution in Section 9 provided that “(1) The President shall hold office for a term of five years beginning from the date on which he is sworn in as President.” Accordingly, the President’s term in office is expected to expire on 30th December 2012 and thus Kenya’s anticipate that Kibaki should hand over power to the President-elect on this particular day.

3.      The country is therefore  prepared to hold  elections way before this date  so that there can be an election where a president-elect shall be elected under set out procedure and be ready to assume office  by 30th December 2012.

4.      President Kibaki in his end of his 2011 End Year address to the Country promised a smooth transition from the Coalition Government which derives its legitimacy from the National Accord to a government that derives legitimacy from the people.

5.      We urge the President to faithfully ensure that there is no lacuna in the Presidency. This is because the Constitution does not provide for clear transitional clauses to guide on succession of the Presidency in case the president’s term expires before a president-elect has been elected.

6.      This far the Coalition Executive and Parliament have exhibited a high degree of contempt and disregard for the law.

7.      Today political leadership represents a country marooned deeply and gravely in political impunity and anarchy.

8.      Elected as  well as appointed holders of public offices respectively are only concerned, haggling and angling for either political  power capture or retention with utter disregard of the consequences that will befall the country and her people.

9.      We fear the current events and actions by the holders of public office (both elected and appointed) are either directly or indirectly preparing the country for another round of bloodshed.

10.  President Kibaki should avert this situation before it happens by ensuring elections are held this year and within the timelines that would allow amicable resolution of all possible presidential election related disputes.

11.  Coalition Government was formed for a particular purpose and drew its political legitimacy from the National Accord.

12.  It has achieved certain significant milestones. However, currently, it is beginning to cannibalize these achievements. Coalition governments are supposed to be transitory and temporary.

13.  In order to determine precisely when the next General Election should be conducted and avoid creating unnecessary crisis in the presidency and the whole country, it is imperative to take into consideration various scenarios contemplated in the Constitution which will govern the Presidential elections.

 

a)      An election resulting  to a run-off and a petition

First, the Constitution contemplates a run off in Article 138 (5) in the following terms “If no candidate is elected, a fresh election shall be held within thirty days after the previous election and in that fresh election the only candidates shall be…”  This is a very likely scenario in the forthcoming General Election where the candidates competing for the Presidency might fail to receive (a) more than half of all the votes cast in the election; and (b) at least twenty-five per cent of the votes cast in each of more than half of the counties, which are the prerequisites for a candidate to be declared President.

Second, the Constitution also contemplates a situation where a candidate may decide to file a petition to challenge the election of the President –elect. Article 140 in this regard provides “(1) 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. (2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. (3) 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.” This implies that in case of a petition challenging the election of the president-elect, there shall be an extra 81 days to take into consideration.

Third, the Constitution also provides for the period within which the Chairperson of the Independent and Electoral Boundary commission (IEBC) shall declare the results of the election. This is enshrined in Article 138 (10) in the following terms “Within seven days after the presidential election, the Chairperson of the Independent Electoral and Boundaries Commission shall—(a) declare the result of the election; and (b) deliver a written notification of the result to the Chief Justice and the incumbent President. This provision also provides an extra 7 days to consider.

Fourth, it is also important to consider Section 9 of the Transitional and Consequential provisions in the Sixth schedule of the Constitution which provides that “(1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.”

Considering all these crucial steps and  in order to have a President-Elect after the expiry of Kibaki’s term, elections should be held at least 178 days before 29th December 2012, which means that elections should be held on 4th September 2012. The Coalition Government should be dissolved 60 days before this date i.e. 6th July 2012.

b)     An election where there is a clear winner

With reference to Article 138 (10) above, from the date President Kibaki’s term in office expires on 29th December 2012; we should calculate seven days before the expiry of the term to land on 21st December 2012 as a possible election date where there is a clear winner.

In order to have presidential elections on the 21st December 2012 the Coalition Government must have been dissolved 60 days prior to this date i.e.  19th October 2012.

c)      An election where there is no clear winner (a Runoff)

According to Article 138 (5) of the Constitution, in case there is a runoff, the first election should be have been done on 21st November 2012 and the run off then will be on 21st December 2012.

In order to have presidential elections on the 21st November 2012 and then give room for probability of a runoff, the Coalition Government must have been dissolved by 21st September 2012.

d)     An election conducted after a petition( Supreme Court invalidity results after run off)

The Constitution provides that a petition be filed within seven (7) days after the declaration of the results of the Presidential election and an additional fourteen (14) days within which the Supreme Court shall hear and determine the petition.  If Supreme Court determines the election of the President-Elect to be invalid, the Constitution provides that a fresh election be held within 60 days after the determination. Hence, 60 days before the expiry of the President’s term takes us to another possible election date to be 28th September 2012.

In conclusion, regard should be had to Section 12 of the of the Transitional and Consequential provisions in the Sixth Schedule of the Constitution which provides that “(1) 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.”

Accordingly, this provision contemplates that the President could only hold power until his term comes to an end under the repealed Constitution or the national accord.

It suffices to observe that the Constitution of Kenya borrowed significantly from American model of Presidential system. It would be advisable to learn few lessons from how this system works. For instance America Elections are due November 6, 2012 yet the President-Elect will assume office in Mid-January 2013.

Further post-election violence cost more than 1133 lives, 900 documented rape cases, close to  600, 000 displacement( still many not settled yet) and close to 26, 000 properties destroyed not forgetting that the economy was literally crippled dropping from progress growth of 7% to about 1.7%. We do not want a blood-shed or any situation that may lead to a political or constitutional crisis. We therefore appeal to the President and Prime Minister to avoid any situation that can precipitate a crisis. It is our submission that the current Executive and Parliament ceased to serve national good rather they are pre-occupied with confrontational political campaigns.

 Signed by:

Ndung’u Wainaina

 Executive Director
International Center for Policy and Conflict

 

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