By Charles Kanjama
If there is one thing the Friday court ruling on election date by justices Lenaola, Ngugi and Majanja has shown, it is that our Constitution is unacceptably full of contradictions, inconsistencies and ambiguities.
Only a hardened lawyer can read the court decision without getting troubled at what it says about the Constitution. At one point, the judges quote Otiende Amollo, an advocate, who was a member of the Committee of Experts (CoE) that drafted the document. The judges note Otiendeâs opinion that CoE intended the life of the Tenth Parliament to be terminated according to the provisions of the former Constitution.
Otiende had candidly opined, "It was thought prudent to allow the evils inherent in the former system, including the unpredictability of the election date, to come with the system all the way to the grave, and start on a clean slate after the elections in (December) 2012." He added that CoE expected the next elections to be held between December 27 and 29, 2012.
The judges chose to reject this explanation and instead imputed a contrary intention to the framers, namely "to remove the hand of the President in the dissolution of the Legislature and to provide for a fixed term." So the concern is that if the court is confident that the framers sent mixed signals on the next General Election, how did ordinary Kenyan voters in August 2010 have a chance to understand them?
Shouldnât the court focus its interpretation on what Kenyans should reasonably have understood in August 2010? Kenyans reading section 9 of the Sixth Schedule, which talks about Parliament being dissolved, would have understood âdissolutionâ as invoking the provisions of the old Constitution.
Keep in mind that section 59, which the court rejected, is the only provision in the old Constitution that talks about the term of Parliament, and its dissolution, whether by the President (s.59(2)) or after five years (s.59(4)).
Let it be clear that we advocates respect and admire the three judges of the Constitutional Division of the High Court. We also like them, and are fully confident about the integrity of the judicial process that culminated in the ruling.
So this review of the court decision is merely an exercise of legal analysis, similar to what could be done by the Court of Appeal and the Supreme Court if the decision is appealed.
To my mind, the inconsistencies in the Constitution have seeped into the courtâs election date judgment with grave results. The court for example held that section 12 of the Sixth Schedule to the Constitution "amended the National Accord... by preserving the position of the President and the Prime Minister until the next General Election." This finding is in conflict with the very same section 12, which foresaw that the President and Prime Minister could "vacate office (earlier) in terms of the former Constitution and the Accord." The National Accord and Reconciliation Act 2008 states, "The Coalition shall stand dissolved if: (a) the Tenth Parliament is dissolved; or (b) the coalition parties agree in writing; or (c) one coalition partner withdraws from the coalition..." The Constitution did not amend this provision to eliminate options (a) and (c), and vary option (b) to mean âthe President and Prime Ministerâ instead of their respective parties.
My view is that the spirit invoked by the court has resulted in an untenable situation where the transitional provisions of the Constitution have been amended by interpretation. This has led to a creative exercise where the court has given power to fix the election date to the electoral commission, amended the National Accord, and expanded the phrase "term of office of the President" to include any change in election date.