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.

“Parliament’s term is fixed at five years which for the current House ends on January 15. According to the election rules, when this happens then Parliament stands dissolved, which in effect triggers an election that must be held within the next 60 days,” he says.

Issues at hand
He says while it is true the Supreme Court as the highest court in the land can invite itself to the issue at hand and either upholds or overturns the Appeal Court’s ruling, there are also implications to the election date that the country must weigh.

“The fact is we may be late as a country to hold elections in December because of the impracticalities of doing so. IEBC has strict timelines it’s yet to meet. We still have not embarked on voter registration,” he says. 

“Rules and procedures for nominations by political parties are yet to be made, and the electoral commission is yet to finalise delimitation of boundaries. There are also other tendering processes including those for ballot boxes and papers that the electoral commission must handle,” adds Odhiambo.He argues the pending processes are proof the country is already time barred for a December poll, and that the Court of Appeal’s ruling has also pre empted debate from quarters said to be floating an August 2013 date.

Supreme law
Ndubi, however, maintains convenience is not an excuse to go against the Constitution, which is the country’s fundamental law and an expression of the people’s sovereign will.

“We are having people looking for every possible excuse to delay the elections including some legislators, who are already toying with the idea of having the exercise postponed until the country has in place a biometric system of voting,” he says.

Chairman of the Elections Observation Group (ELOG) Kennedy Masime says the Appeal Court’s ruling is positive in the sense that it gives a definite date for the country’s first election under the new Constitution.

“The electoral commission is unprepared for a December election and it would be a disaster if we had it at this time,” says Masime.

Besides setting a definite date for the poll, Masime also lauds the court’s ruling, which he says, makes it clear that the President has no power to dissolve Parliament.

He too says chances that the Supreme Court will overturn the lower court’s ruling are slim given the logistics that would have to accompany such a decision.