Elections: March 4 vs. December 17

Setting the date of the next election was never going to be an easy fix. Yes the constitution calls for the election of President, Parliament, Senate, county assemblies and county governors to be held, “on the second Tuesday in August in every fifth year.” However Article 9 (1) of the Sixth schedule of the constitution also provides for the first elections for the President, the National Assembly, the Senate, county assemblies and county governors to be held within 60 days after the dissolution of the National Assembly at the “end of its term.” Also Article 10 of the same schedule provides for the National Assembly existing immediately before the effective date of the constitution to continue for its “unexpired term.”

Determining the time frame for what constitutes the unexpired term and end of the term of the National Assembly has become central to the determination of the election date. Despite the fact that the debate on the date of the next election has been going on for over a year there seems to be neither clarity nor precision on exactly when the next election will be held. When exactly the does the term of the current National Assembly end? When do we begin to count the start of current National Assembly’s term in order to determine the date of its expiry? Do we start counting 5 years from December 2007 when the Parliamentarians were elected into office? Or do we begin to the count from 15 January 2008, the time at which Parliament opened?

Interpretation of the constitution with regards to the determining the exact time frame of the National Assembly’s unexpired term and consequently the next election date seems to be an exercise in buck passing. MPs first brought up the issue of the impossibility of an August election in late 2010 citing their unexpired term. The cabinet then proposed a constitutional amendment to ensure that the current National Assembly would sit for its full term. The Commission on the Implementation of the Constitution (CIC), opposed to the Cabinet’s proposed amendment, sought the Supreme Court’s intervention on the issue of the election date. The Supreme Court declined to give its advisory opinion on the date of the next election and ordered the High Court to making a ruling on the election date, citing the High Court’s primary role of hearing constitutional matters. The High Court in turn ruled that date of next election was a matter for the President and Prime Minister to decide.

Stemming from the failure of the President and the Prime Minister to reach an agreement on the date of the next election; and in order to, “remove uncertainty, anxiety and suspense” surrounding the election date, the Independent Electoral and Boundaries Commission (IEBC) recently announced that the next general election would be held on 4^th March 2013.  The IEBC showed the clarity and decisiveness in announcing a definite date for the next election. However this has been eroded by the IEBC’s ensuing announcement that if push came to shove, elections could be held on 17^th December 2012. The March date is not cast in stone yet, parliament, the courts, the two principals working in conjunction could still change the date.

In the meantime the IEBC’s announcement the 4^th March 2013 election date has elicited a range of the responses:

The CIC has thrown its weight behind the IEBC decision to have the next election held on 4^th March 2013 stating that date is in tandem with the constitution (read the CIC full statement on the election date here). The President has supported the March 2013 election date, while the Prime Minister has been vocally opposed to it. Presidential aspirants William Ruto (MP Eldoret North) and Martha Karua (MP Gichugu) have also opposed the March 2013 date. MP Martha Karua has called the March 2013 date unconstitutional and has stated she will stop accepting her salary as an MP in December of this year. Despite vocal opposition from some quarters several MPs support the March 2013 date. According to nominated MP Mohammed Affey, “ Most MPs favour a March date.” North Horr MP, Chachu Ganya speaking in support of the Mach date has stated that the March date should not be seen as an issue of MPs trying to earn from more extra months, but instead as MPs looking at the bigger picture of setting the right laws in place. According to Kabando wa Kabando (MP Mukuwe-ini) “MPs are not likely to shorten their terms because 72 per cent of them [will] lose elections,” he has also said, “three months is a small price to pay in clearing parliamentary business and laying a constitutional foundation for Kenya.”

What are your thoughts on the election date?

Posted by Mzalendo Editor on March 23, 2012

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