I am aware that varied interpretations have been proffered on this matter, the main contentions being whether elections shall be in August 2012, December 2012 or March 2013.
From the outset, let me state that both in intent and design, it was the settled contemplation of the Committee of Experts (CoE) that the first elections under the New Constitution would be held towards the end of December 2012 as has been the practice in recent times.
There is the school of thought that roots for the 2nd Tuesday of August 2012, citing Sections 1(1), 136(2), 177(1) and 180(1) Articles 101 and the transitional clauses in the 6th Schedule Section 2 that suspends certain provisions of the Constitution.
Schedule 6 Section 2(1) states that the provisions of the Constitution relating to Representation, Legislature and the Executive are suspended until the final announcement of all the results of the first elections for Parliament.
The other school supports lections on March 2013, basing their argument on Schedule 6 Section 9(1), to the extent that it provides: “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.”
This presumes that the first elections for all elective positions shall be held 60 days after the dissolution of Parliament.
The argument goes that the extension of the application of the provision of the former Constitution in Schedule 6 Section 3(2) does not preserve Section 59 which gives the president powers to dissolve Parliament, meaning that Parliament must finish 5 years since it started in early 2008, then after 60 days elections will be held.
This is said to be buttressed by the Section 10 of the 6th Schedule which states 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.
With respect, the foregoing interpretations are erroneous and misleading. It is true that the basic Articles dealing with elections provide as follows:
Article 101 (1); “A General Election of Members of Parliament shall be held on the second Tuesday in August in every fifth year. (Election of both Mps and Senators)”;
Article 136 (2); “An Election of the President shall be held on the same day as a general election of members of Parliament being the second Tuesday in August, in every fifth year”.
Article 177 (1); “A County Assembly consists of: - Members elected by the registered voters of the wards each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;”
Article 180 (1); “The County Governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.”
It is true that a reading of these substantive Articles suggest the election would be on the 2nd Tuesday of August 2012.
However, a careful reading of Schedule Six demonstrates that it was clearly intended and stipulated that this will not be the case with the 2012 elections, or other elections if Parliament were sooner dissolved.
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This is so because ALL the four basic Articles cited above (A.101, 136, 177 and 180) fall in chapters whose application is suspended. The Legislature (including Articles 101) the Executive (including Articles 136), and Devolved Government (including Articles 177 and 180), are all suspended by virtue of Schedule Six, Section 2(1) & (2) respectively.
The “August 2012” proponents then argue that Schedule 6 Section 2(b) essentially reinstates the operations of Chapter Eight as far as it relates to election to the National Assembly and the Senate, and therein lies the fallacy.
First, it is important to note that whatever interpretation one seeks to apply, it must be one that leads to all elections being held at the same time as dictated by Schedule 6 Section 9(1)(a) to the extent that it provides thus;
The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.
Even the misreading of Schedule 6 Section 2(1) (b) would only apply to the National Assembly and the Senate.
It would lead to a ridiculous result where the elections for Parliament are held in August, and those for President, Governors and Councillors (County Representatives) are held on any other date. That would contravene Schedule 6 Section 9(1).
Second, the provisions cited in aid of the exemption argument justifying the August date [Schedule 6 Section 2(1) &(3)] only relate to procedures and qualifications, and do not at all deal with the question of the date of the elections.
Thus, provisions of the old Constitution on the Legislature remains in force, BUT the provisions of the Constitution concerning eligibility for elections, systems of lections and the electoral process, together with those on elections of Governors and membership of County Assemblies, shall apply [see Schedule 6 Section2 (1)(b) & (3)(a)].
Third, it is important to note that the main parts that preserve the Legislature and its processes, and the Executive and its inequities, are Schedule 6 Section 10 and 12 respectively.
Specifically, Schedule 10 preserves the life of Parliament “for its unexpired term”.
So what is the term of the current Parliament?
Because Section 10 preserves the “unexpired term” of Parliament as constituted in 2007/2008, its unexpired term must be viewed from the lenses of the Constitution then in place.
Under Section 59 of the Old Constitution, and unlike the Constitution, which now specifies the term as 5 years, Parliament did not have a fixed term.
The term of Parliament was: “on expiry of the five years or if sooner dissolved by the President” or, as under the National Accord and Reconciliation Act; which was part of the old Constitution and remains part of the Constitution.
Therefore, there can be no question of Parliament “serving an exact five full years” nor can there be an argument to supplant the clear provisions of Section 59 of the old Constitution!
The argument then advanced is that Schedule 6 Section 3, which deals with extension of provisions of the old Constitution, does not specifically preserve or Section 59. But that is the mistake! It need not!
Insofar as Schedule 6 Section 10 actually preserves the erstwhile term of Parliament, it automatically imports the very provision, which defined the “term” of Parliament, and how that term would terminate, and that is Section 59 of the old Constitution.
Similarly, insofar as Schedule 6 Section 12 preserves the National Accord and Reconciliation Act, it imports the three ways contemplated under that Act which would trigger dissolution of Parliament.
Thus, the CoE debated all these issues, including the possibility of fixing an exact date in December 2012 for elections (see Hansard of 4th & 6th January, 4th, 5th, 8th, 18th & 22nd February and 18th May, 2010) but ultimately rejected that idea.
First, it would present immense difficulties as the “five year terms” of the President and Parliament are not co-extensive; the former having been sworn-in earlier.
Second, having preserved the Executive and Legislature, it was thought prudent to allow the evils inherent in the former system, including the unpredictability of the election date, to come with the system all the way to its grave, and to start on a clean slate after the elections in 2012
Thus, ultimately, the contemplation was, going by precedent, that Parliament would be dissolved around October 2012, allowing about two months of usual preparation, for election to be held between 27th to 29th December 2012.
It could also be earlier if Parliament were dissolved earlier.
Importantly, the elections were tied to the life of Parliament.
What is important then is that the elections cannot spill over to 2013, and nothing compels them to be held on the 2nd Tuesday of August 2012 either.
The Schedules, precedent and tradition leads one to late December 2012.
—The writer is an advocate of the High Court of Kenya and a former member of the Committee of Experts (CoE).
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