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.

She said the formula for arriving at the date should have been 60 days before the expiry of the term, which would have set the date around November 14, this year.

The judge effectively rejected the March 4, 2013, and the arguments that the IEBC programme of activities and timelines necessitated elections are held next year.

All five judges were, however, unanimous in rejecting a High Court decision early this year that said elections could be triggered by the President and the Prime Minister dissolving the Grand Coalition Government and Parliament.

The only remaining hurdle to IEBC delivering a clean and credible General Election is the tussle over the acquisition of electronic voter registration kits. This has delayed registration of voters and civic education.

The case filed at the High Court by Kilome MP Harun Mwau, and politicians Mugambi Imanyara had sought a definite date for elections.

The applicants first took the case to the Supreme Court, which referred it to the High Court.

Three High Court judges, Justice Isaac Lenaola, Lady Justice Mumbi Ngugi, and Justice David Majanja failed to declare the specific date for elections, but pronounced two scenarios on which the election date could be set.

One was that the President and the Prime Minister agree in writing to dissolve the Coalition Government.

The other, accepted by the IEBC and many political players, was that elections be held within 60 days after January 14, when the term of the Tenth Parliament expires.

The judges agreed that the Independent Electoral and Boundaries Commission (IEBC) should set the date of the elections, but must do so within the Constitution.

“The finding the elections could be held in 2012 was based on the National Accord, but there is nothing in the Accord which triggers the dissolution of Parliament,” said Justice Githinji.

He said the High Court was wrong when it purported to amend Section 9(2) of Schedule Six in the Constitution to provide for the holding of elections in 2012, by implying that the dissolution of the Coalition would include Parliament.

Githinji said courts should not usurp the legislative powers of the National Assembly, terming the move as activism and speculative jurisprudence.

The entire Bench agreed that the High Court erred in giving the President and PM power to dissolve Parliament, which had not been granted under the Constitution.

“The decision had invited an election in 2012, without providing for circumstances in which they could be triggered. This was an artificial decision leading to unworkable and impractical result,” Githinji added.

It is thus legally impossible to hold elections between October and December this year, the judges said.

“A date in October 2012 proposed by the appellants has no constitutional underpinning and it’s impracticable to hold them in view of the time lines in the Elections Act,” said Githinji.

“The IEBC has fixed elections within the 60 days, and that date should be respected,” Githinji said.

Lady Justice Okwengu also dismissed argument that elections should be held before expiry of the term of the Tenth Parliament.

“Argument that this would lead to extension of Parliament can only hold if that term was to expire on the date of the elections,” she said.

Justice Rawal said interpreting the law to set the elections before expiry of the term would affect the election timelines.

“In my view the first election is a special event and the Constitution has treated the same as such,” said Rawal.

Maraga rejected the reasoning that the elections should be held within 60 days after the second Tuesday of August, saying if that were the decision of the High Court, he would have dismissed it.

“Kenyans would have wanted the elections to be held in December as usual, but the Constitution does not allow us as it secures the term of the Tenth Parliament,” he said.

Two civil society organisations, the Centre for Rights Education and Awareness and the Caucus for Women Leadership, filed the appeal asking the court to specifically declare that elections should be held latest by October 14, 2012.

They asked the court to declare that any extension of the date should only be possible with an amendment to the Constitution an appeal that was consequently consolidated with another one Mwau filed.

But the civil society groups had to cross a legal hurdle; they were not parties to the High Court case.

The lobby groups argued that although they were not party to the High Court cases, they had constitutional rights and authority under the Court of Appeal rules to file the appeal as entities interested in political and development matters of the country, including the elections.

“We felt the decision was wrong and the court had misdirected itself and the counsel who appeared in it may not have done justice to the question determined,” said their lawyer, Stephen Mwenesi.

They submitted that on the second Tuesday of August 2012, all MPs will cease to hold office and further argued that the Constitution requires that elections be held within 60 days, a date falling on October 14, 2012.

But Attorney General Githu Muigai submitted that it was not in the public interest to alter the March 4 date.

On their part the IEBC, through lawyer Pheroze Nowrojee, supported the High Court, arguing that there was nothing wrong in giving two options for the election dates.

Law scholar Yash Pal Ghai, who appeared as a “friend of the court” argued that though there was a popular expectation of elections in December, there was nothing in the law that fixed that period.