NAIROBI, Kenya, Mar 19 – The Commission for the Implementation of the Constitution (CIC) says there will be no breach of the law if President Mwai Kibaki were to stay in office until mid next year as a new president is elected and sworn into office.
CIC chairman Charles Nyachae told Capital News on Monday that the Constitution expressly allows the two principals to remain in office until the next administration is elected and sworn in.
While making reference to the Sixth Schedule of the Constitution, Nyachae dismissed concerns that the two leaders would unlawfully enjoy extra time in office saying that the country was in transition and the likely extension was part of the process.
“This is the Constitution; it is the supreme law and we cannot keep moving backwards and forwards so that when the Constitution is not convenient for our particular circumstance we question it and when it is convenient we let it go,” he argued.
“The President and Prime Minister will continue in office until we have the elections,” he stated.
Section 12 of the Sixth Schedule states that the President and Prime Minister shall continue in office until the first general elections under the new Constitution are held or if they vacate office in terms of the former Constitution and the National Accord and Reconciliation Act.
Nyachae also pointed out that the same argument was advanced by the Constitutional Court while issuing its ruling on the election date.
He further supported the decision by the Independent Electoral and Boundaries Commission to set March 4, 2013 as the next polls date.
“From our position as the CIC, the electoral body has acted perfectly in order and within its mandate. It is therefore difficult for us to see how it can be faulted on this one,” he said.
Nyachae further explained that Article 101 of the Constitution, which sets out provisions for the general elections, would not apply for the first elections under the new dispensation.
He also dismissed concerns that the incoming Parliament would have a shortened term arguing that it was part of being in a transition.
“There is no God-given right for any Parliament to serve any particular term. When Kenyans adopted the Constitution, its transitional provisions bore certain consequences,” he noted.
“If the consequence is to adjust Parliament’s term, whether for this current one or the next, then it is just part of the transition,” he argued.
Nyachae urged Kenyans to exercise restraint while debating the issue.
He made it clear that the position by the IEBC was guided by the court’s ruling and it would be prudent to avoid making misleading arguments on the debate.
“It’s important that even as we have this public conversation surrounding the election date, we do so from a point of correct and factual information,” he said.
He added that there were three likely scenarios that could alter the March 4, 2013 election date as set by the IEBC.
One would be if the Court of Appeal overruled the decision by the High Court and issued a fresh poll date. The second would be if the two principals agreed – in writing – to dissolve the coalition government while the third option was through amending the Constitution.
“If a higher Court, either the Court of Appeal or the Supreme Court, varies or reverses the decision issued by the Constitutional Court then we could have a new election date,” he said.
A group of women has already filed an appeal before the Court of Appeal seeking to quash the decision that was issued by Justices Isaac Lenaola, Mumbi Ngugi and David Majanja.
The suit, which was filed in January, is still pending.