Dissolving grand coalition unlikely to trigger early polls despite court ruling

The Constitutional Court, comprising Justices Isaac Lenaola, Mumbi Ngugi and David Majanja, recently delivered a landmark judgement to determine the date of the next General Election.

The judges gave two possible options the Independent Electoral and Boundaries Commission may rely on to fix the precise date(s) of the poll.

The first scenario is that the General Election may be held this year within 60 days from the date on which the National Coalition Government is dissolved by written agreement between the President and Prime Minister in accordance with Section 6(b) of the National Accord and Reconciliation Act, 2008.

The second option is that the election would be held within 60 days of January 15, next year upon the expiry of the term of the Tenth Parliament on the fifth anniversary of the day it first sat, which is designated by Legal Notice Number 1 of 2008 as January 15, 2008.

The judges further held that the President has no power or authority to dissolve Parliament and therefore, the august House will serve its full term, which expires on February 14, next year.

The High Court’s decision has been well received by the public although controversy still remains among lawyers, the media and politicians as to whether the General Election can be lawfully held this year.

This writer was one of the advocates in the three cases leading to last Friday’s decision and alongside Prof Yash Pal Ghai and the lawyers for Kilome MP John Harun Mwau we took the position that elections can only be lawfully held in March, 2013.

In my considered view, the option of an election being held this year is based on a mistaken interpretation by the High Court.

However, now that it has been raised by the court’s decision we must confront it and lay it to rest so that all Kenyans can prepare for the General Election on the basis of certainty.

There are five major reasons why I hold the view that dissolution of the coalition government cannot trigger a General Election this year.

First, under the former Constitution, a General Election is triggered by the dissolution of Parliament and government (read the cabinet) remains in office until the poll is held and the winning presidential candidate is sworn in office. Section 3(2) of the Sixth Schedule extends the application of Section 58 of the old law. Section 58(3) of the former Constitution reads as follows:-
“Whenever Parliament is dissolved, a General Election of members of the National Assembly shall be held, and the first session of the new Parliament shall commence within three months after that dissolution.”

In simple language, the next election cannot be held until the term of the Tenth Parliament expires on January 14 next year. Secondly, holding a poll this year is unconstitutional because election of the 290 members of the National Assembly and those of the County Assemblies cannot be lawfully held in 2012.

This is because under Article 89(9) of the Constitution, the constituencies and wards that the IEBC is determining will not be implemented until Parliament automatically dissolves on January 14 next year.

The third reason why the 2012 option is founded on legal quicksand is that the Sixth Schedule of the Constitution disallows it. There are two grounds why that is so.

First, Section 9 of the Sixth Schedule — which may have led the judges to the option — was inserted through political inspiration hence the apparent disregard of its legality.