Big relief as Court of Appeal settles for March, 2013

By WAHOME THUKU

A ruling by five Court of Appeal judges has removed the delusion of power held by the two principals over the General Election calendar and placed it firmly in the court of the Electoral Commission.

The ruling, with one dissenting opinion, was a delicate balancing act of staying true to the Constitution while also taking into account the larger public interest. The judges stated in a ruling that is now case law that President Kibaki and Prime Minister Raila Odinga cannot force elections by dissolving the Grand Coalition Government, which was set up under the National Accord and Reconciliation Act.

Civil servants intending to vie for public office in the elections must leave office by September 4, and the term of the next Parliament will also be shorter by eight months, as the 2017 General Election reverts to the date set in the Constitution, which is the second Tuesday of August of the election year.

This means that the next Parliament will only sit for four years and four months.

Backing the March 4 date set by the High Court earlier this year, the judges said the Constitution is clear that subsequent elections must be in August.

But this was not before the country held its breath as Lady Justice Martha Koome kicked off the process by declaring that the General Election should be held no later than January 15.

And as the IEBC and politicians braced for a major upset of their elections calendar, the other judges, Justice Erastus Githinji (president of the court), Lady Justice Kalpana Rawal, Lady Justice Hannah Okwengu, and Justice David Maraga ruled one after in favour of March 4.

Lady Justice Koome also ruled that groups and individuals not party to the High Court ruling that sparked the Court of Appeal review retained the right to be enjoined in the appeal, and not just appear as amicus curiae (friends of the court).

Parties in the case advocated for various dates, including the second Tuesday of August 2012, while others argued for a date within 60 days after January 1, 2013.

According Lady Justice Koome, the election date should fall within 60 days to the end of the term of the House.

“In my view dissolution of Parliament within 60 days after expiry of the term extends it beyond the five years hence violating the Constitution,” said Lady Justice Koome.