Doubts over when Kibaki term ends

By Martin Mutua and Lucianne Limo

On which month should Kenya hold elections next year heralding end of President Kibaki era? Should it be August, the month the Constitution has fixed for all General Elections or should the Tenth Parliament complete its terms as the Transitional Clauses of the Constitution say — so that elections are held in December? The answer to these burning questions appeared elusive at a meeting of four institutions key to implementation of the Constitution and planning for elections that would give Kenya its fourth President in about 50 years.

The next elections are supposed to end President Kibaki’s term. Looked at from another angle, it appears the dispute could as well be over when his second and last term ends.

Should he leave office in August or stay on until December?

The confusion arises from the fact Chapter Eight, Section 101 (1) of the Constitution, decrees: "A General Election of Members of Parliament shall be held on the second Tuesday in August in every fifth year."

However, according to Transitional Clause Number 10, "The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term."

Members of Parliament have not been receptive to the argument he vacates office in August because it would also mean they, too, have to pack their bags and go seek a fresh mandate.

It is also is believed Kibaki would want to stay in office for the complete five years of his last term — and is not keen on losing even a day.

The meeting yesterday meant to find a common ground between the four key institutions did not yield fruit. It ended in a standoff, with a landmark commission insisting the yet-to-be constituted Supreme Court will have to resolve the potential impasse.

Officials from the Interim Independent Elections Commissions (IIEC), the Commission for Implementation of the Constitution (CIC), Kenya Law Reform Commission (KLRC), and the Ministry of Justice and Constitutional Affairs attended the morning meeting.

Planning the election

It was precipitated by an exclusive story published in The Standard on Wednesday, which revealed IIEC was planning for elections in December, next year. Even though IIEC is supposed to close shop when Independent Elections and Boundaries Commission is formed, the interim commission led by lawyer Ahmed Issack, is preparing the ground for the poll so that the expected permanent commission can take over smoothly.

According to the plan reported exclusively by The Standard, the commission anticipates registration of voters would be completed by August, next year, so Kenyans can go to the polls in December.

It has set registration of voters for Kenyans in the Diaspora who will be voting for the first time in local elections between September and December next year.

On learning IIEC was planning for elections in December, CIC under its chairman, Charles Nyachae, called for an urgent meeting to tell the election chiefs the polls should be held in August.

KLRC Secretary, Joash Dache, who attended the meeting, said the dispute was weighty and that only the Supreme Court could rule on it. But CIC differed with KLRC over election date, maintaining it should be in August according to the new Constitution.

A member of the Constitution Implementation Oversight Committee Mr John Mbadi argues elections should be held in December.

Exempts parliament

The Gwassi MP argues: "The elections should be held in December. Even though the Constitution talks about August, there is a provision in the Transitional Clauses that exempts this Parliament from this provision. That is why the Sixth Schedule was put in to clarify the situation."

"CIC should tell us why these sections were put in the sixth schedule. They were not placed there for fun. The experts were aware of the transition from the old to the new Constitution and that is why they were put there," he argued.

Mr Nyachae disputed the December date saying Article 101 of the Constitution states that polls would be conducted on the first Tuesday of August of every election year, and in the case of the next General Election, it should be August 9, next year.

"Those with dissenting opinion have the options of moving to the Supreme Court to seek clarification," said Nyachae at a press conference in his office. Justice Minister Mutula Kilonzo disagrees, saying he supports calls for elections in December. "Personally, as Minister for Justice, I am for the December date, but I welcome any other view," he said.

Dache argued even though the new Constitution spells out when elections should be conducted, Transitional Clauses seem to point to the contrary.

"It has been envisaged in the new Constitution that the next General Election be held in August, but if you look at the Transitional Clauses they say the current Parliament must go its full term. Now this means that the election will be held in January 2013," he said.

Supreme court

Dache said the intervention of the Supreme Court would be sought to give direction on the correct dates.

Nyachae, also sought to calm public anxiety over pace of implementation, especially legislation of electoral laws. He said CIC is working on legislation that would ensure elections were held in August, next year.

Nyachae explained Judicial Service Bill and Vetting of Judges and Magistrates Bill have been passed by Parliament and were now awaiting presidential assent.

Nyachae further said the commission is expecting to receive the Elections Bill from the AG in the coming week, while they have Political Parties Bill, which is being reviewed.

IIEC commissioners interviewed told The Standard the earlier document dated March 14 had since been revised to accommodate the August deadline. "Which ever way you want, the commission is ready for an election either in August or even December. Our draft work plan can accommodate either of the dates," added IIEC commissioners Winnie Guchu and David Chirchir.

—Additional reporting by Augustine Oduor