NAIROBI, Kenya, Jul 31 – The Court of Appeal on Tuesday upheld the decision by the Independent Electoral and Boundaries Commission (IEBC) to declare the next General Election for March 4, 2013.
The decision was in a majority ruling of four-to-one after Justice Martha Koome differed, arguing that elections should be held by January 15, 2013 at the latest.
Justices Hannah Okwengu, Kalpana Rawal and David Maraga agreed with the majority decision read by Justice Erastus Githinji to have the polls held within 60 days upon the expiry of the term of the current Parliament, which ends on January 14, 2013.
The High Court had in January ruled that the first polls since a disputed vote in December 2007 should be held either within 60 days of the dissolution of the Grand Coalition government or within 60 days after the expiry of the term of the current Parliament.
The Centre for Rights Education and Awareness (CREAW) and the Caucus for Women’s Leadership appealed against the High Court ruling claiming that the judges misinterpreted the Constitution.
The Independent Electoral and Boundaries Commission had set the date of the elections for March 4, 2013 after the Principals failed to give any guidance.
Lawyers Milton Imanyara, Martin Gitonga and Kilome MP Harun Mwau also appealed against sections of the High Court decision in January.
Justice Githinji who led the way in upholding the March 4 date said that the decision was firmly supported by provisions of the Sixth Schedule which he termed an ‘integral part’ of the of the Constitution.
“It is not illogical that first elections under the Constitution will be held on a date different from the date of the other elections. The framers of this Constitution intended that the National Assembly will complete its term and elections will be held within 60 days,” the judgment said.
He said that Article 101 which provides that the General Elections will be held on the second Tuesday of August in every fifth year was not specific to any election and only provided a clear date of subsequent elections after the first one under the new Constitution.
Justice Githinji also ruled as erroneous the High Court order which said that a General Election could be held this year within 60 days of the dissolution of the Grand Coalition Government by President Mwai Kibaki and Prime Minister Raila Odinga.
He said that the current Constitution deprives the President Kibaki – even in conjunction with the PM – of powers to dissolve Parliament and that the High Court had erred in allocating itself those powers.
Justice Koome who presented a dissenting judgment ruled that the High Court misinterpreted the Constitution and the two alternatives given by court were unconstitutional.
She said that Parliament should be dissolved on November 14, and elections conducted within the life of this Parliament.
“Traditionally elections are held within five years… the dissolution of Parliament 60 days after the expiry of its term contradicts provisions of Section 10 of the Sixth Schedule as it extends the period of the National Assembly beyond it term,” she said.
On the matter of enjoinment of the Center for Rights Education and Awareness (CREAW) in the appeal, Justice Koome granted the appeal to the extent of the issues that were canvassed in the High Court.
Lawyers representing the IEBC led by Pheroze Nowrojee welcomed the ruling although those who led the appeal insisted they will study it with the view to appeal.
Lawyer Stephen Mwenesi who represented CREAW said he is revising the judgment with view of finding grounds for possible appeal in the Supreme Court.
“It’s a well reasoned out judgment; they agreed with us and granted some orders and we will study the reasons why they are not agreeing with us and take action within stipulated 14 days,” said Mwenesi.
The buck now lies with the IEBC after it bagged another judgment earlier in the month preserving its lists of 290 constituencies.