No respite as court rules on elections date

By  Lillian Aluanga-Delvaux

Parties seeking to have a December 2012 election may still have a chance to realise an earlier poll to the March 2013 date upheld by the Court of Appeal.

Although Justice Martha Koome held a dissenting opinion on the matter, a unanimous decision by Justices Kalpana Rawal, Hannah Okwengu, Erastus Githinji and David Maraga appears to have settled debate on the date of elections.
Justice Koome had argued elections be held no later than January 15, 2013.

An earlier decision by the Independent Elections and Boundaries Commission ( IEBC) had seen the electoral body settle for a March 2013 date.

This followed a ruling by the High Court which had chosen not to give a specific date for the election, but instead argued it be held either within 60 days of the dissolution of the Grand Coalition Government, or within 60 days of the expiry of Parliament’s current term.

The March 4, 2013 date was, however, challenged by a section of the civil society, which argued any extension of the election date could only be made through a constitutional amendment.

“Anybody dissatisfied with the ruling can appeal to the Supreme Court which would be expected to determine whether it would be unconstitutional to hold the elections outside the five year cycle,” says Haki Focus Executive director Harun Ndubi.

The human rights lawyer maintains that polls should under no circumstance be held outside the five-year cycle, adding that any such move would be going against the Constitution.

According to Ndubi, besides Parliament ‘extending’ its five-year term, a March 2013 election would also pose unique circumstances for the President whose term technically ends in December.

“Extending the President’s term cannot be a judicial decision. There is no way such a term can be altered without a referendum,” says Ndubi. But there are those who hold a different view, and argue that chances of success for a challenge to the Appeal’s Court ruling on the matter at the Supreme Court are slim.

“The President’s term, under the Transitional Clause, is protected until the first election under the new Constitution is held,” says Electoral Institute for Sustainable Democracy in Africa Country Director Felix Odhiambo.

A March 2013 election, according to Odhiambo, does not necessarily extend Parliament’s term, given that the earlier High Court’s interpretation of the issue made it clear that the current Parliament’s term expires on January 15, 2013.