, NAIROBI, Kenya, Feb 13 – Legal opinion is divided on whether the dissolution of the Grand Coalition Government will automatically lead to termination of the term of the current Parliament to pave way for elections.
Although many constitutional experts opine that the dissolution of the coalition government will automatically dissolve Parliament, some differ that a break-up of the coalition will automatically trigger a general election.
Debate has raged over interpretation of a three-judge constitutional ruling, which decreed that if the President and Prime Minister agreed to dissolve the government in writing, it should precipitate a general election within 60 days.
The chairman of the Independent Electoral and Boundaries Commission (IEBC) Isaack Hassan appeared to take cue, and last Friday and wrote to President Mwai Kibaki and Prime Minister Raila Odinga asking them to dissolve the coalition in October to pave way for a general election in December.
Ekuro Aukot, the former Director of the Committee of Experts that drafted the Constitution said in an interview that the National Accord is part the supreme law by virtue of being in the transitional provisions.
Aukot said that an agreement between the two Principals was enough to dissolve Parliament and set the stage for the next general election.
“The Committee of Experts in drafting the transitional provisions envisaged and appreciated that there had to be a transition that would usher in a new order and not disorder, no Parliament in the country’s history has completed its full five year term,” he said adding that the President and the PM would be within the law to dissolve the government.
Senior Counsel Paul Muite is also articulate on the matter arguing that the dissolution of Parliament should not be debatable as it comes automatically with the dissolution of the Grand Coalition Government or with the expiry of its term.
Muite urged the two principals to make their pronouncement on the dissolution of the government so that the date of elections is made certain.
“This is the operation of the law and not an individual act, the two (President and PM) are being very unfair to the voter by keeping mute on the issue; they are also being unfair to the IEBC which should plan for the elections and fix the date,” said Muite.
According to constitutional lawyer Koki Muli, the dissolution of the government will practically render Parliament redundant as it would be hard for it to function in isolation and on its own without the Cabinet.
“Technically, the dissolution of the government does not dissolve Parliament but practically such dissolution incapacitates Parliament. Parliament cannot functionally exist without the Executive,” said Muli.
Lawyer Kibe Mungai however argues that the next election cannot be held until after the term of the 10th Parliament expires on January 14 next year.
Mungai maintained that the dissolution of the coalition government only breaks up the Executive arm of government and will have no effect on the life of the current Parliament.
Mungai said that Parliament is not a creation of the coalition government and must live its full life.
He further argued that, holding a poll this year is unconstitutional because the election of the 290 members of the National Assembly and those of the County Assemblies cannot be lawfully held in 2012.
“Under Article 89(9) of the Constitution, the constituencies and wards that the IEBC is determining will not be implemented until Parliament automatically dissolves in mid January next year,” he explained.
Muigai held that under the former Constitution, a general election was triggered by the dissolution of Parliament but the Cabinet remained in office until the next President was sworn in office.
“If the Prime Minister and ODM ministers are to remain lawfully in office then the option of dissolving the coalition is a suicide clause,” he argued.
He said that Section 3(2) of the Sixth Schedule which protects sections 30-40, 43-46 and 48-58 extends the application of Section 58 of the former Constitution.
Section 58(3) of the former Constitution read that:”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.”
Justice, National Cohesion and Constitutional Affairs Minister Mutula Kilonzo also holds Mungai’s position, saying that the power of the two principals in dissolving the government does not extend to Parliament.
“They cannot dissolve Parliament casually as they may do with the coalition,” said the minister.