Debate on next year’s elections delay emerges
By Oscar Obonyo | April 25th 2021
With only 472 days to next year’s General Election, political players are increasingly entertaining debate on the possibility of a delayed poll.
This is largely informed by a congested calendar of political and legal activities ahead of the polls, scheduled for Tuesday, August 9, 2022.
Alive to the sensitivity of the subject and technicalities involved, parliamentary leadership is however cautious.
“It will be good if we can do that (delay the polls), at least for smooth execution of parliamentary tasks at hand. But again, our hands are tied on this,” Senate Majority Leader Samuel Poghisio told The Sunday Standard.
Conceding that parliamentary business is tight, National Assembly Minority Leader John Mbadi maintained that legislators are nonetheless up to the task: “We will chew gum and climb stairs at the same time, and if necessary work through the night. After all, we have done it before and can still do it.”
Noting that procedures of extending the life of Parliament are in place, Poghisio and Mbadi said if and when there can be consensus on the subject, presumably between “Handshake partners”, President Uhuru Kenyatta and ODM leader Raila Odinga, they would act accordingly “in the interest of Kenyans”.
“If it comes in a formal manner then we shall deal with it. But if it doesn’t come through, then the law will take its cause if we end up delaying and clogging our parliamentary business,” said the West Pokot senator.
The Senator and the Suba South MP, also ODM’s national chair, were however fast to clarify that neither the Kanu nor the ODM leadership had met to consider such a proposal.
Presently, it is a race against time as both Houses of Parliament try to enact the BBI Bill and several related statutes ahead of the 2022 elections. Of key interest are the proposed 70 new constituencies and a structure of the Executive designed to include new positions of prime minister and two deputies.
The biggest headache at the moment is the execution of a referendum, whose timelines are not looking good, not to mention demarcation of the proposed constituencies – a highly politicised and delicate process that the Independent Electoral and Boundaries Commission (IEBC) estimates will take a minimum of 12 months.
Thorns in the way
Indeed, the electoral body itself is in the process of being reconstituted. Electoral laws require that the outfit be fully constituted and in place 12 months ahead of a General Election.
There are also thorns strewn in the way of the proposed 70 constituencies, considering that Article 89(4) of the Constitution demands that reviews of boundaries be completed “at least twelve months before a general election of Members of Parliament.”
While the BBI Bill cleverly addresses this threat through a clause exempting the new constituencies from the Article 89 requirement, lawyer Harun Ndubi says the threat remains “since the Bill is yet to be passed into law, and further delay of the same only confirms this danger”.
And there are more fears that highly vested political interests and the emergence of litigations could further delay and complicate the situation.
Against this backdrop is the Covid-19 reality that has halted much of political activity, especially public campaigns by presidential aspirants. And considering Kenya’s highly intensive and competitive presidential poll, one wonders how aspirants will market themselves across the 47 counties within the remaining days. New aspirants are particularly disadvantaged.
Saying he had encountered the Parliament extension talk “only at the level of a rumour”, immediate former Secretary-General of the United Nations Conference on Trade and Development (Unctad) Mukhisa Kituyi expresses caution over delaying the polls.
“Where political programmes such as the BBI cannot fit within our stipulated election calendar, then they should be suspended and not the other way round.
"Otherwise allowing political programmes to disrupt our electoral circle sets a dangerous precedent where, in future, governments will find an excuse to repeatedly tamper with the election date in order to accommodate interests of individuals,” he said.
Dr Kituyi, a presidential aspirant who is yet to officially hit the campaign trail, protests at anything that compromises the constitutional agenda: “You cannot be part of the national solution yet you want to put your personal interests first.”
The joint secretary of the BBI task force, Paul Mwangi, however, maintains the exercise is on track and cannot possibly stretch to the next parliamentary calendar year.
“Unless it is a victim of deliberate sabotage, BBI should proceed smoothly. Parliament meets next week to take a vote on the Bill before we proceed to a referendum, after which the enactment of the Bill and related statutes should take effect,” said Mwangi.
On eligibility of the electoral body, he argued that the entity had already demonstrated, by conducting various by-elections over the period, that it was up to scratch, adding that the courts had previously ruled on its legal status.
Article 102(2) of the Constitution stipulates that if the term of each House of Parliament expires “when Kenya is at war” and that “Parliament may, by resolution supported in each House by at least two-thirds of all the members of the House, from time to time extend the term of Parliament by not more than six months at a time.”
Sub-article (3) of the same clarifies that Parliament shall not be extended under clause (2) for a total of more than 12 months.
Ndubi observes that there is little room for legal manoeuvres but points out “a possible loophole” in the definition of the word, war. “What is our understanding of war? Does it imply engaging a foreign country militarily or does an internal State of Emergency, say a conflict between members of two tribes, amount to a war? Depending on how desperate the country’s leadership is, coupled with vested political interests, and backed by both parliaments, anything is possible,” he said.
Alternatively, in the event of an insurrection or major political, security and health crisis, the president, with approval of Parliament, can invoke Article 132, sub-article 4(d), by declaring a state of emergency or war, and thereby extend the life of Parliament.
“There are other cards a president can misuse to achieve a desired political goal, much as – in our present case – such a move would be utterly reckless, unpopular and expensive,” observed Ndubi, who unsuccessfully petitioned Kenyatta’s re-election in October 2017.
These hurdles notwithstanding, former Teso North MP Arthur Odera says that the initiative will be pushed through willy-nilly “because it accords its main backers a platform for Kenyatta succession plan”.
“However, the Constitution is tight on the justification for an extension of a parliamentary term. Besides, such a move would politically cause lots of trouble for the president in terms of public disaffection,” said Odera, a commentator on political affairs.
Following the Handshake between President Kenyatta and Raila in 2018, the government has navigated through parliamentary business and National Assembly Deputy Majority Whip Maoka Maore hopes this cordiality will not change.
“Our desk may be full, but if we can comfortably navigate through the turbulence at the top, we shall deliver before the next General Election. With political goodwill and numbers on our side, which have brought us this far, we shall apply the same Handshake gear to pull through,” said the Igembe North MP.
As the debate on delayed polls generates heat, some pundits claim the ruling Jubilee Party leader’s handlers, through State agencies, may strategically be “releasing the balloon in the air” aimed at gauging citizens’ reaction. This will enable the said agencies to advise the president accordingly on the viability of extending the life of Parliament.
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