Hassan said the commission’s legal experts were of the opinion that a referendum would be required for a change in the election date as it would result in an extended term of office for the President/FILE
Hassan said the commission’s legal experts were of the opinion that a referendum would be required for a change in the election date as it would result in an extended term of office for the President.
He said the commission had therefore recommended to the Justice and Legal Affairs Committee of the National Assembly that the matter be taken before a Constitutional Court before it is tabled on the floor of Parliament for adoption.
“Because there is also that opinion that a referendum is not necessary if both the National Assembly and Senate, by two-thirds, vote in its favour. And so for the avoidance of doubt it may be a good idea to seek an interpretation from a Constitutional Court so that we don’t amend it through Parliament or go through a referendum when there’s a doubt about these issues,” he proposed.
But while agreeing with the IEBC that it would take a referendum to change the election date, the Chairman of the Commission for the Implementation of the Constitution Charles Nyachae told Capital FM News that it was unnecessary to move to the Constitutional Court.
Nyachae said the Constitutional Court had already addressed the matter when it ruled on the date for the last General Election under a new Constitution and their finding could only be challenged by a higher court.
“We have explained the same in our advisory opinion to the committee,” he said. “That altering the election date would fall under Article 255 of the Constitution and would thereby require a referendum.”
Article 255 (i) of the Constitution includes an amendment to the term of the President to the list of 10 things that would require a referendum to amend.
In the judgement Nyachae referenced of January 13, 2012; Justices Isaac Lenaola, Mumbi Ngugi and David Majanja found that “In accordance with Article 255 of the Constitution, an amendment to the Constitution affecting the term of the President cannot be effected into law without a referendum.”
Ochieng however argues that it is possible to change the election date through a parliamentary process and contends that it would be in the best interest of Kenyans to hold the General Election in December as it would not interfere with the school calendar – public schools in many instances being used as polling stations – and would likely help voter turnout as many people would be in their home constituencies for the Christmas holidays.
“Strictly speaking, whether we hold the election in August or December 2017, we will not be extending the term of the President because like legislators, he is elected for five years. We would only do so if we voted past the date he assumed office, which would be April 9 of 2018,” he explained.
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