BY KIBE MUNGAI
Last Friday the Constitutional Court comprising Justices Isaac Lenaola, Mumbi Ngugi and David Majanja delivered a landmark judgement to determine the date of the coming general election.
The learned judges gave two possible sixty periods within which the Independent Electoral and Boundaries Commission may fix the precise date(s) of the next general election. The first scenario is that the general election may be held in the year 2012 within sixty days from the date on which the National Coalition Government is dissolved by written agreement between the President and Prime Minister in accordance with Section 6(b) of the National Accord and Reconciliation Act, 2008.
The second scenario is that the next general election will be held within sixty days of 15th January, 2013 upon the expiry of the term of the Tenth Parliament on the fifth Anniversary of the day it first sat which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008.
The judges further held that the President has no power or authority to dissolve Parliament and therefore Parliament will serve its full term which expires on 14th February, 2013. The High Court’s decision has generally been well received by the public although controversy still remains among lawyers, the media and politicians as to whether general elections can be lawfully held in 2012. This writer was one of the advocates in the three cases leading to last Friday’s decision and alongside Prof. Yash Pal Ghai and the lawyers for Kilome MP John Harun Mwau we took the position that elections can only be lawfully held in March, 2013. In my considered view the option of an election in 2012 is based on a mistaken interpretation by the High Court.
I believe this mistaken interpretation is partly borne by the fact that because the possibility of the general election in 2012 being triggered by dissolution of the coalition government was not directly in issue during the hearing of the three petitions, the learned Judges did not benefit from the submissions of the advocates on this issue. However now that the issue has been raised by the Court’s decision we must confront it and lay it to rest so that all Kenyans can prepare for the general election on the basis of certainty. There are five major reasons why I hold the view that dissolution of the coalition government cannot trigger a general election in 2012.
First under the former Constitution the holding of a general election is triggered by the dissolution of Parliament and government (read the Cabinet) remains in office until the general election is held and the winning presidential candidate is sworn in office. Section 3(2) of the Sixth Schedule extends the application of Section 58 of the former Constitution. Section 58(3) of the former Constitution reads as follows:-
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.
In simple language the next general election cannot be held until the term of the Tenth Parliament expires on 14th January, 2013.
Secondly, the option of holding the general election in 2012 is simply unconstitutional because the 290 members of the National Assembly and members of the County Assemblies cannot be lawfully held in 2012. The reason is that under Article 89(9) of the Constitution the constituencies and wards that the IEBC is in the process of determining will not come into effect until Parliament automatically dissolves on 14th January, 2013.
The third reason why the 2012 option of a general election is founded on legal quicksand is that the Sixth Schedule itself actually disallows it. There are two grounds why that is so. The first ground is that Section 9 of the Sixth Schedule – which may have led the judges to the 2012 option – was inserted through political inspiration hence the apparent disregard of its legality. Section 9 of the Sixth Schedule reads as follows:-
(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.
(2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012. (emphasis mine)
To be sure, unless the Committee of Experts are deemed as having intended to sow a constitutional crisis Section 9(2) could not be enforced from the outset. The reason is that upon promulgation of the new Constitution on 27th August, 2010 the holding of a general election before 2012 was not possible because from that date henceforth the term general election refers to election for the President, Senate, National Assembly, Governor and County Assemblies. Thus the reference to a general election in Section 9(2) of the Sixth Schedule is legal nonsense. The second ground why the Sixth Schedule disallows a general election in 2012 is that Section 9(2) itself has already expired because no general election was held before 2012 and so the said provision cannot be applied to justify an election in 2012.
The fourth reason why the 2012 general election option is misplaced is because if the Prime Minister and ODM Ministers are to remain lawfully in office then the option of dissolving the coalition is a suicide clause. As most Kenyans know, the National Accord was signed by President Kibaki on behalf of Government/PNU and Prime Minister Raila Odinga on behalf of ODM. The National Accord and Reconciliation Act was subsequently enacted, inter-alia “to provide for the formation of a coalition Government and the establishment of the offices of Prime Minister, Deputy Prime Ministers and Ministers of the Government of Kenya…” By virtue of Section 8 of that Act the National Accord and Reconciliation Act shall cease to apply if the coalition is dissolved, or a new Constitution is enacted. Thus if the coalition is dissolved the Act will cease to apply and Prime Minister Odinga and his ODM Ministers will lose their positions automatically.
The fifth reason why the 2012 general election will not be lawful is because Section 3(2) of the Sixth Schedule, inter-alia, states that “the National Accord and Reconciliation Act, 2008 (No. 4 of 2008) shall continue to operate until the first general elections held under this Constitution”. In my humble view the Constitution having expressly extended the application of that Act until the first general elections are held the High Court simply lacked jurisdiction to authorize the President and the Prime Minister to dissolve the coalition government in the mistaken belief that such an act would trigger a general election in 2012.
In view of the foregoing reasons, it seems to me that the Attorney General Prof. Githu Muigai is enjoined to publicly state that the next general election cannot be lawfully held in 2012. Of course, in the event that the AG fails to do so the International Centre for Constitutional Research and Governance (ICCRG) which I had the privilege to represent in those cases will certainly move the High Court to review its decision in order to set aside the part of its orders giving the option of the 2012 general election from an otherwise great and learned judgement.
(The writer is a constitutional law practitioner based in Nairobi (firstname.lastname@example.org)