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Legal vacuum clouds election date, MPs tenure

By | Jun 26th 2011 | 4 min read
By | June 26th 2011

By Juma Kwayera

Controversy looms over the exact date of the General Election with legal experts in agreement the new Constitution is not explicit on how the term of the current Parliament can be terminated.

But opinion remains sharply divided on the position of the Constitution about termination of term of the current Parliament, deemed the transition.

After the President was stripped of the power to prorogue or dissolve Parliament at the end of the five-year term, the vacuum created provides a platform for MPs to argue their term began afresh with the promulgation of the new Constitution.

Asked about the apparent vacuum, Justice Minister Mutula Kilonzo said Parliament, like other institutions, subscribes to the new laws. Attorney-General Amos Wako, who is in New York, was non-committal on the matter.

Mutula could not state in specific terms how in the absence of Section 59 (2) of the old Constitution, the National Assembly would be dissolved to prepare for next elections.

Under the old dispensation, the President had the prerogative to dissolve Parliament and set the date for elections.

He told The Standard On Sunday based on the principle of separation of powers only Parliament can set its calendar.

In the absence a clear position on the termination of the term of current Parliament, there are doubts over willingness of MPs to subject themselves to fresh elections.

National Accord

The Justice minister argues: "All institutions are under the Constitution. The term of Parliament is set by it, as well as the National Accord and Reconciliation Act."

However, less than two months before the country marks the first anniversary since the promulgation of the new Constitution, the National Assembly has not put in place legal and constitutional instruments to allow it control its calendar – termination of the term of Parliament being one of them.

Consequently, there are reports that there is lobbying within the Government to exploit the grey areas in the Constitution to prolong the life of the Tenth Parliament as MPs procrastinate in implementing the Constitution.

Wako, who was involved at every stage of writing the Constitution, responded to questions about who will terminate the Tenth Parliament and when it would be terminated, thus: "I am in New York and did not carry the Constitution. I will be in touch on my return."

Citing ambiguities in Section 102, which says: "The term of each House of Parliament expires on the date of the next election," lawyer Stephen Mwenesi notes inconsistencies in the new Constitution are a recipe for social and political upheavals. Even more intriguing is talk of the term of the current Parliament being adjusted so that it starts on August 27, last year, when the new Constitution was promulgated.

Such is the determination to extend the term of the current Parliament that a drafter at the State Law Office, who raised the red flag over the apparent lacuna, was reportedly spirited out of office with a handsome golden handshake.

Drafter, who was one of the co-ordinators for the Committee of Experts (CoE) that harmonised five drafts to come up with the final document that was approved in a referendum and subsequently promulgated in August, last year, is said to have persistently pointed out the vacuum, but his superiors would have none of his complaints.

Mwenesi says the haziness is when the term of the current Parliament expires, or if it began afresh with the repeal of the old Constitution, under which MPs were elected. This is in spite of what it says in Section 10 of Part Three of the Sixth Schedule.

First General Election

It provides: "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."

Part One of the same schedule says: "Sections 30 to 40, 43 to 46 and 48 and 58 of the former Constitution concerning the Executive and the National Accord and Reconciliation Act (2008) shall continue to operate until the first General Election held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election."

Implicit in this provision, argues Mwenesi, is the repeal of section 59, which would have taken care of the dissolution of Parliament until MPs work out the modalities of ending their tenure.

According to the Fifth Schedule, legislation on elections and vacation of office of MPs should have been completed within a year.

However, six weeks to August 27, the day of promulgation of the new Constitution, the way forward is remote following the adjournment of the House last week.

The procrastination by Parliament is replete with more risks. It says in Chapter 18: "If Parliament fails to enact legislation in accordance with (High Court) order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament." Under the same chapter, Parliament can extend the timelines in the Fifth Schedule for the enactment of new laws by a year.

The Sixth Schedule of the new laws that deals with transitional and consequential provisions is silent on how the term of the current Parliament can be terminated. In the old constitution, the powers to prorogue or dissolve parliament were vested in the presidency.

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