Shifting 2012 poll date recipe for constitutional crisis



The new constitution categorically states that should a person successfully challenge presidential poll results within fourteen days, another election shall be held within 60 days.

It reiterates that if no presidential candidate garners more than 50 per cent of the votes cast and at least 25 per cent of the votes in each of the of more than half of the counties, the election would be nullified and fresh polls held 30 days later between the first two candidates.

As a precautionary measure, the second Tuesday of August 2012 is an inaugural election date under the new constitution. For all intents and purposes, the choice of August under the circumstances was deliberate as it was meant to seal legal loopholes and avoid a power vacuum come December 30 when the second and last term of President Mwai Kibaki ends.

Now, there is too much ado about nothing over this date, a requirement that addresses problems of monumental proportions. The proposal to push the inaugural date to December could be a disaster in the making. There is a likelihood of a run off or nullification of the presidential polls that would go beyond the expiry date of President Kibaki’s second and last term. A minute longer past the date without taking a fresh oath would be an illegality.

The Committee of Experts (CoE) made sure that a repeat of a presidential poll precipitated by a petition or shortage of national and county votes especially in next year’s elections was kept a safe distance from the last date of this government.

After long days, weeks and months of sleepless nights on intensive deliberations and consultations, the CoE arrived at the second Tuesday of August in every five years as the logical day to hold general elections in Kenya.

The committee considered a number of factors before they arrived at the election date that has suddenly become controversial in the lips of the Executive and the Legislature respectively.

The Cabinet claims that the date could conflict with the budget cycle and wants the date pushed to third Tuesday of December under the new constitution. However, the Legislature that has since become a slave of the Executive. Before 1992, elections were held any time and not beyond five years when Parliament was dissolved three months ahead of such polls.

December became synonymous with our elections only after the country became a multi party system in 1992 when the Electoral Commission took over the running of elections from the Provincial Administration.

The elections in August or December in 2012 were not distant possibilities but the Executive should take the blame for the delays in implementing the supreme document. More than a year after the promulgation of the constitution, the Independent Electoral and Boundaries Commission (IEBC) has just been formed. The Commission may not be able to successfully meet the August or December polls deadlines.

A series of mutilations of the supreme law by the cabinet are not informed by logic and legal reasons but smacks of mischief and malice that promise to plunge the country into a constitutional crisis.
Without weighing the consequences of such palatable changes, the legislature rubber stamped amendments to the Political Parties Act and the recall of non performing lawmakers.

Parliamentarians scrapped a ban from holding political party posts because they are not appointed State Officers as articulated in the constitution. Consequently, elected leaders are clinging to party positions for purposes of imposing friends, relatives and cronies on the electorate through party nominations.

But the one big question is, what happens to party leaders who may be appointed as Cabinet Secretaries or Principal Secretaries in the next government by a president who is a party leader? Would the next president expect the appointees to relinquish their party positions before taking up the appointments.

The legislature also approved amendments to the recall clause that makes it difficult to unseat non performing elected leaders and condones mediocrity.

It is unfortunate that legislators have not addressed the consequences of their self serving changes of the Kenyan views reminiscent to infamous amendments made in the Lancaster House Constitution by their predecessors.

The writer is a former Cabinet Minister and one time Secretary General of the then ruling party, Kenya African National Union (KANU).

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