, NAIROBI, Kenya, Jan 13 – Kenya will hold general elections by March 2013, unless the coalition government is dissolved before then, the High Court ruled on Friday in the controversial dispute.
The date of the general elections, the first since deadly post-poll violence four years ago, has sparked heated debate with rival politicians proposing wildly differing dates from August this year to March 2013.
Parliament “expires on 14 January 2013, the elections shall be held within 60 days of 15 January 2013,” the three judge bench said.
“However, the polls could be held this year within 60 days (after) the coalition is dissolved by written agreement between the president and prime minister,” the ruling said.
Justices Isaac Lenaola, Mumbi Ngugi and David Majanja however acknowledged the volatile political undertones on the date of next elections and displeasure by certain quarters.
“We are conscious that our findings may be unpopular with a section of Kenyans who have preconceived notions about the elections but we hasten to remind Kenyan that our undertaking is not to write or re-write the Constitution to suit popular opinion,” they said.
“Our responsibility is to interpret the Constitution in a manner that remains faithful to its letter and spirit and give effect to its objectives.”
The court however gave the Independent Electoral and Boundaries Commission (IEBC) the sole mandate to determine the exact date when the polls should be conducted.
Following the decision, the judges said the terms of service of those to be elected in the next polls will be shorter than five years.
According to the Constitution, elections should be held on the second Tuesday of August every fifth year.
“Whatever date the first elections are held on, the next elections must be conducted on the second Tuesday of August of the fifth year from that date, hence the term for the next President, Members of Parliament, Governors and members of the County Assemblies may be shorter than five years as a consequence of the transitional provisions,” the judges ruled.
Immediately after the judgment the chairman of the Commission for the Implementation of the Constitution (CIC) Charles Nyachae welcomed it saying that only the courts are mandated to interpret the contentious issue and not individuals.
CIC had been listed as one of the respondents in the case together with the Attorney General and the Independent Electoral and Boundaries Commission.
In their findings the judges heavily relied on the provision of section 9 and 10 of the Sixth Schedule of the Constitution that provided for the Coalition government and its term.
“We are cognisant of the fact that the Sixth Schedule was a compromise political package arrived at between the various factions of politicians in order to ensure passage of the Constitution. We believe that we have discharged our constitutional responsibility and call upon all Kenyans to continue with the task of Constitution implementation and nation building.”
Since the 2007 elections, Kenya voted for a new constitution endorsed in 2010, which fixed the general election date for August every five years.
The Independent Electoral and Boundaries Commission (IEBC) had ruled out the possibility of holding the next General Election in August 2012.
The IEBC had told the court during the hearing of the petition that there were certain provisions of the Elections Act that must be complied with before the next elections are held.
Their lawyer Pheroze Nowrojee said that time had already lapsed for some activities if the elections are to be held in August.
Nowrojee said that among the provisions was the registration of voters, which he said can only begin in June 9, 2012.
He added that the Section 27 of the Act requires political parties to submit nomination rules to the IEBC six months before the nomination of its candidates. And to comply with the provision, parties should have submitted the said rules by the end of November 2011 if the elections are to be held in August 2012.
The same view was supported by Kibe Mungai (amicus curiae) who told the judges that elections should be held in March 2013. The lawyer faulted an amendment Bill tabled in Parliament by Justice Minister Mutula Kilonzo saying it has been proposed based on serious misapprehension of the law.
Mungai added that if the minister wanted an amendment to alter the election date, the target should have been the Sixth Schedule.
On his part petitioner Mugambi Imanyara stated that the August date was definite and the Attorney General should not waver about it.
Kilome Member of Parliament Harun Mwau who was also one of the petitioners told the court that the elections should be held in March 2013. He wants the court to give a declaration for the MPs to be paid for the unexpired term in case the court decides that the next elections will be held in August 2012.
Kenya plunged into violence after the December 27, 2007 general elections in which then opposition chief Raila Odinga – now prime minister – accused President Mwai Kibaki of having rigged his re-election.
What began as political riots soon turned into ethnic killings and reprisal attacks in which homes were torched and people hacked to death in the country’s worst violence since independence in 1963.
President Mwai Kibaki will not contest the next elections as the Constitution bars him from vying again, after serving two terms of five year each.