NAIROBI, Kenya Sep 18 – Civil society groups advocating for the full implementation of the Constitution want the Supreme Court to fast track the hearing of a case seeking the determination of the next elections date.
Jukwaa la Katiba President Morris Odhiambo on Sunday said they will be seeking to enjoin themselves in a case filed by the Interim Independent Electoral Commission (IIEC) so as to push for the rights of Kenyans.
The lobby groups have also added their voice to the rejection of a Cabinet decision which seeks to move the election date from the second Tuesday of August to the third Monday of December of every fifth electoral cycle.
“We the people of Kenyans are waiting to see the last of this Parliament; that is the motive; it’s because of that, that they want to cause a lot of confusion and therefore claim that we cannot have elections on the August 14,” Odhiambo said.
He warned that such frivolous amendments which are aimed at serving selfish personal interests will lead to a return to dictatorship in the country.
“This is something that should not be done in a frivolous manner at all, and we say we must uphold the supremacy of the Constitution; as anticipated by the Constitution itself. All those organs are formed and operate under the Constitution,” he said.
The IIEC turned to the Supreme Court seeking the declaration of the date of next general election after different opinions emerged over its interpretation on the exact date of when the next elections will be held under the new Constitution.
Chapter 8, Section 101 (1) of the Constitution expressly states that a general election shall be held on the second Tuesday of August of the 5th year of expiry of Parliament’s tenure.
MPs and a section of the members of the Committee of Experts have mainly argued that Transitional clause No 10 shields the current Parliament from being dissolved before its term expires.
The commission had written to the then Attorney General Amos Wako and its lawyer Otiende Amolo to seek their legal opinion.
Amolo who also served in the Committee of Experts that drafted the Constitution had opined that the elections will be held in December 2012 whereas Wako who also served as an ex-officio member of the committee left office before responding.
The CIC which is tasked to oversee the implementation of the new Constitution has insisted that the subject of the next date of election is not arguable since it is clear.
According to CIC Chairman Charles Nyachae, the Constitution expressly provides that the election date will be held on August 14 2012.
Nyachae said opening up the Constitution to convenience amendments at such an early stage, risked jeopardising the gains envisaged by the new law.
He also noted that the proposed amendments would have a significant drawback on the implementation of the Constitution including aspects touching on devolution.
“Kenyans must be vigilant to ensure that we do not replay the 1963 scenario where due to numerous piecemeal amendments, the Constitution became a pale shadow of its original self,” he warned.
He further explained that the uncertainty caused by the Cabinet over the election date was unwarranted.
Reverend Timothy Njoya, one of the pioneer agitators of the Constitution change also opposed to the Cabinet move and said the Cabinet decision was irregular because only Parliament is mandated to make any changes on the laws as outlined in the Constitution.
“They are taking us back to the Lancaster Constitution where the Cabinet behaves as if it has power and authority and it is supreme over the Constitution. We have the Constitution to remove an imperial Presidency and now we have an imperial cabinet which is worse,” the clergyman said.
When newly appointed Attorney General Githu Muigai took over office, he advised the government against amending the Constitution for convenience purposes.
“In my view we need to be able give this Constitution some sanctity and if each time an issue arises we rush to amend it, then we will fall back into the original problems of the 60s and the 70s,” Prof Muigai warned.
Constitutional Affairs Minister Mutula Kilonzo has already gone ahead with the publication of the Bill to amend the election date.
He defended the Cabinet decision saying that it was aimed at giving Kenyans a definite election date.