Heat mounts over Bill to change 2012 polls date

By Vitalis Kimutai and Evelyn Kwamboka

The saga around the date for the General Election has put Parliament, the Judiciary, and Independent Electoral and Boundaries Commission on a collision course.

Whereas the Supreme Court on Tuesday declined to give its highly awaited advisory opinion on the matter, the newly installed IEBC chairman Ahmed Issack Hassan moved to stamp his authority by declaring December as the only logical date for the polls, and not August, next year.

And Parliament was also undecided on whether a Constitutional (Amendment) Bill brought to the fl oor of the House by the Government to change the Constitution to change the election date to December should proceed. The Bill, filed on behalf of the Cabinet by Justice Minister Mutula Kilonzo, failed to go through the first reading after a heated debate, with backbenchers opposing it. They argued it had two other issues they wanted separated from the matter of the elections date.

Parliament is this afternoon expected to continue debate on the same Bill after time on the Motion ran out on Tuesday.

The issues in the Bill include the date when the names and details of the 80 new constituencies come into effect.

According to the amendments this will not be tied to the dissolution of Parliament, but to the next General Election that they have proposed for December.

The Bill also aims at giving full effect to Articles 27 (8) and 81 (b) of the Constitution, which provides that not more than two-thirds of members of any elective public body shall be of the same gender.

The Bill also seeks to solve the problem of gender parity and equity in elective positions, and more specifically in Parliament and the Senate.

Hassan last week told a parliamentary committee interviewing him for the job that December is the more practical date, while August is a populist one.

On Tuesday, he reiterated his position to journalists after officially taking over his new office, saying that the only logical date for the polls is December and not August.

However, Hassan said the December date for the polls would apply to the 2012 General Election, after which the IEBC would revert to the August date in 2017, in line with the Constitution.

"I wish to clarify that in the matter of elections that we have taken to court. We wish to have the date changed only for the next General Election," Hassan said.

However, he pointed out that if the court rules the poll must be held in August, then IEBC would ensure that is done. "If that happens, there will be a lot of constraints that we will face, and we have to multi-task and reduce the timelines of programmes we have set out in preparing for the General Election," Hassan said.

Withheld discretion

Hassan said: "There is a lot to be done, including recruitment of staff, procuring of election material, voter education, and voter registration."

On the other hand, at the Supreme Court, the highest court in the land presided by Chief Justice Willy Mutunga and his deputy Nancy Baraza, referred the matter back to the High Court, but with a rider that although they had the authority to give the opinion they had withheld the discretion.

"We declare that the Supreme Court has the jurisdiction to render an advisory opinion in the instant matter, but decline in exercise of our discretion, to give such an opinion with regard to the date of the next General Election," the court’s president, CJ Mutunga added.

However, Mutunga who read the ruling, said the Supreme Court judges reserved the reasons they could not give their opinion on Tuesday.

The Supreme Court Bench, in addition to the CJ and deputy CJ, includes justices Philip Tunoi, Mohammed Ibrahim, Jackton Ojwang’, Smokin Wanjala, and Njoki Ndung’u.

The decision of the Supreme Court now leaves the question of the election date to be determined by the High Court’s Constitutional and Human Rights Division.

Three cases touching on the same issue will now be placed before Justice Isaac Lenaola who heads the division at the High Court, on November 18, for mention and directions.

The decision was made by the seven-judge Supreme Court Bench in an objection that had been filed against the Interim Independent Electoral Commission (now IEBC) by the Attorney General’s office.

The High Court will now handle the matter and if any party is aggrieved by its decision, it will have to move to the Court of Appeal before it finds it way to the Supreme Court.

In the matter that was before the Supreme Court, the defunct electoral commission had sought the court’s advice on when the next General Election should be held.

Representing the AG’s office, deputy Solicitor General Muthoni Kimani told the court that the matter is the discretion of the High Court.

She said the applicant is a State organ and, according to the Constitution, should seek the Attorney General’s advice, adding that in this case, this was not done.

She noted that if the Supreme Court rules on the matter, it would be taking away the High Court’s duties as provided for in the Constitution.

She told the seven-judge Bench that the Supreme Court should formulate guidelines on admitting advisory opinions, so that in future, not everybody will run to the court.

Advisory opinion

Representing the IEBC, lawyer Pheroze Nowrojee said the question of the election date squarely falls within the Supreme Court’s jurisdiction.

He submitted that for a State organ to seek advisory opinion from the AG, Article 163 (6) of the Constitution that gives the Supreme Court powers to do that, has to be amended first.

Nowrojee produced in court a letter in which the commission sought the AG’s opinion on the matter in August, and a reminder on September 20. "The request was made by IIEC [now IEBC] to the AG and no response has been given to date," he said.

Lawyer Mugambi Imanyara, IIEC, and Kilome MP, Harun Mwau, filed the matters pending before the High Court.

As if to emphasise the logistical challenge if the polls are held in August next year, Hassan said only electronic voter registration and transmission of results electronically would be embraced and not electronic voting.

"There is very little time between now and the next elections for the country to embrace electronic voting owing to logistical issues," he said.

Hassan further stated that seven million eligible voters lack national identity cards, and there is need for the Government to ensure the documents are issued. About 12.6 million voters are in the IEBC roll.

Hassan revealed the IEBC commissioners would be on a retreat this week in Mombasa for an induction course in readiness to roll out various programmes to prepare for the General Election.

He said the commissioners were committed to their oath of office and would not betray the trust of the people.

"We understand the enormity of the task ahead of us, and we are asking for the support and goodwill of all stakeholders to ensure we have a free and fair elections," Hassan said.

He added: "As a commission, failure to deliver on our mandate to ensure a free, transparent and fair elections is not an option. We must succeed."

In the next four months, IEBC is expected to conduct boundary reviews for the 80 new constituencies to be created ahead of the General Election.

The Kitutu-Masaba constituency by-election and that of eight civic wards, he said, would go on as planned, since the IEBC had taken over all programmes previously under the dissolved Interim Independent Electoral Commission.

IEBC commissioners are Yusuf Nzibo, Abdulahi Sharawe, Albert Bwire, Thomas Letangule, Mohamed Alawi, Joyce Wangai, Lilian Bokeeye, and Kule Galma Godana.