Ever since the Cabinet approved the amendment of the Constitution to move the date of the next General Election from the second Tuesday of August to third Monday of December, next year, the decision has elicited debate.
However, in light of mixed reactions, the Cabinet through Minister for Justice Mutula Kilonzo has put up a spirited fight vowing they will not backdown. The Cabinet believes election law is not among those that should be subjected to a referendum.
Parliament is instead fully empowered to amend this particular law. Latest reports have indicated a draft of Constitution Amendment Bill 2011 has been prepared and once it is enacted, elections would be held in December.
The Government has listed a raft of reasons it is not tenable to hold elections in August. Besides saying the move would not be in line with the Government budgetary cycle, the members have cited the time for preparation, especially in regard to the issue of devolution and delineation of the constituencies.
However, those opposed to December date have asked Kenyans to ignore the issues raised by the Cabinet. The Constitution is the supreme law of the land. No other considerations should override its supremacy.
As a way of trying to enforce the implementation of the new law, two statutory bodies â the Commission on Implementation of the Constitution and the Independent Electoral and Boundaries Commission â have filed separate advisory opinions before the Supreme Court. They want the highest court in the land to resolve when the next elections would be held.
Also the civil society groups have made similar efforts. A few days ago, a group led by Kituo cha Sheria and Youth Agenda argued before the court it was unconstitutional to change the date of elections. For them the Constitution must be respected and upheld to the letter and in spirit.
Further, the groups argued it was morally wrong to amend the Constitution before one year elapses. They argue if we do this, we will set a bad precedent. What will follow will be the floodgates of amendments, particularly moved by those who opposed the Constitution at the referendum. This would weaken the foundation and defeat purposes for which the new laws were enacted.
From old to new orders
Those who support the position of the Cabinet argue that the laws are not cast on stone. Given that Kenyans did not have enough time to read and conceptualise the Constitution, there is a high possibility that some provisions did not reflect the popular will.
And so during the transitional period such provisions needed to be fast tracked to build a vibrant and a strong constitutional foundation. Further, the Constitution is a living document and so nothing stops the representatives of Kenyans from proposing and ensuring such amendments were undertaken.