IEBC’s election date is reasonable

The date selected by Issack Hassan and his team for Kenya’s next general election should be accepted with gratitude for a number of reasons. To begin with it should by now be absolutely clear to all that the two Principals have no desire to dissolve the coalition Government soon. Mwai Kibaki has expressed the wish to have elections in March next year; but Raila Odinga would prefer to have them in December this year. What would happen if Raila simply walked out of the coalition?

Top lawyers including Attorney General Githu Muigai and the Justice Minister Mutula Kilonzo seem to believe that nothing would happen when Raila pulls out of the Government. Kibaki would continue to be the President and Parliament would also continue functioning as the Legislature until its term constitutionally expires on January 15th 2013. There are other highly respected lawyers led by Martha Karua who believe Parliament would automatically dissolve when the coalition Government is disbanded. That would force the country to hold elections in December this year.

As matters stand now election will take place on March 4th 2013 unless someone challenges that decision by Issack Hassan in court. The chances of the Court of Appeal changing IEBC’s date are very slim because Hassan made his announcement by strictly adhering to the law. It was basically based on January 13th 2012 judgement by Judges Isaac Lenaola, Mumbi Ngugi and David Majanja on the issue of election date.

Before their January 13th ruling the three Judges listened to all the arguments for and against next years’ election. Of these the strongest argument was present to court by Prof. Yash Pal Ghai who insisted that the election date for the first elections under the Constitution was within 60 days from the end of the term of the National Assembly which would be in mid-January 2013.

According to the judgement, he argueds that the Constitution could not be read as providing for elections in December 2012. This date was as a result of a popular expectation that elections were generally held in December, and they were so held in 1992, 1997, 2002 and 2007 though nothing in law fixed December as the election month.

This argument by Prof. Ghai must have tremendously influenced Hassan and his team in determining the date for the next election. Soon after Hassan’s announcement politicians were up in arms accusing him of having no such powers. Among the loudest was Immigration Minister Otieno Kajwang who boastfully claimed to have read the new Constitution as a lawyer without seeing anywhere in the supreme law where Hassan got powers to announce the election date.

But while announcing the date Hassan clearly said the Independent Electoral and Boundaries Commission (IEBC) was constitutionally mandated to conduct elections and referenda in the country. According to the Constitution, he explained, the elections of the President, Members of Parliament and of County Assemblies were to be held on the same day. But in determining the date of the first general elections under the Constitution, the Commission was guided by the Constitution, the Elections Act, 2011 and the Constitutional Court Judgment delivered on January 13, 2012 in Constitutional Petition No. 65 and 123 of 2011.

According to the IEBC boss the Judgment, though appealed against, had neither been stayed nor overturned. He explained the judgement gave two possibilities on the date of the first general elections under the Constitution: First it examined the possibilities of an election in 2012 which would be within sixty days from the date on which the National Coalition was dissolved by written agreement between the President and the Prime Minister in accordance with Section 6(b) of the National Accord and Reconciliation Act, 2008.

The second option, explained Hassan, would be within sixty days from the expiry of the term of the National Assembly on 15th January, 2013. Hassan clearly explained that of the two options, the first one was outside the control of the Commission; because it required a joint agreement in writing by the two Principals.
Rather than attacking Hassan for attempting to exercise powers he did not have, Kajwang and those who think like him, would have been more reasonable to listen to the IEBC boss’ reasons for unilaterally taking the action he did of naming the date. The Commission, he said, had consulted widely within and without, and in particular, it had consulted the two Principals with the view to actualize the first option the Court Judgment had recommended.

He reiterated that it should be understood that his Commission had repeatedly stated that it was ready to conduct the general elections in December 2012. However, after the consultations, it had become clear to the Commission that there was no agreement between the two Principals as required by the Court Judgment under the first option. Apart from failing to reach an agreement on when to dissolve the coalition Government with President Kibaki, Prime Minister Raila is on record attacking the court judgement in a rather vulgar language.

For calling the court “bandia” or kangaroo, the PM was vehemently attacked by Chief Justice Willy Mutunga, who is the President of the Supreme Court. He said in a Statement: “Mr Odinga is the Prime Minister of the Republic of Kenya. As a creature of the law, he is a critical and fundamental arm of the Executive. He must be aware that he bears a duty to uphold and protect the independence of the Judiciary as required by the Constitution – especially in instances where he is unhappy with its decision. It is therefore, distressing that individuals who bear a special responsibility to uphold the Constitution because of their leadership role would appear to vilify the courts.”

Rather than attack courts or the IEBC, those opposed to the March 4th election date should realise that Hassan was in fact compelled by the law to proceed with the second option recommended by the Court Judgment which required the Commission to fix an election date within 60 days from the expiry of the term of the 10th Parliament on March 14, 2013. Even more important than the mere date for holding the next general election, the country expects Hassan and his team to conduct these elections in a free, fair and transparent manner that would be organised in a peaceful atmosphere.

That is obviously why he said when fixing the date that he knew that successful and credible elections were deliberate designs of painstaking planning, logistics and collaboration of all key players and stakeholders. According to Hassan the Commission considered the earliest possible date of election taking into account certain statutory electoral processes included the requirement that political parties must comply with the provisions of the Political Parties Act, 2011 by April 2012.

Despite all the noise made by politicians there were only four political parties that had complied with the law when Hassan was announcing the election date. There was also the requirement that the High Court should hear and determine applications filed in respect of the published Final Report of the Commission outlining boundaries of constituencies and wards, within three months. Whether the noise makers like it or not these legal procedures will have to be followed and they indeed take time.

The IEBC will also need some time to procure vital election material which will hopefully digitize the entire process and make it more transparent. The electoral body has yet to do the mapping of new electoral units and conduct voter education on the new electoral unit as well as prepare a fresh voter registration based on the new electoral unit. When all this has been done then the voter register will need time to be inspected. The noise makers have also got to understand that this time political parties have to submit their party rules at least six months before party nominations. This takes time too.

If there are things to be ashamed of about the last general elections, the manner in which political parties conducted their primary elections must be one of them. One of the weakness of the current laws concerning elections is the fact that they are not more stringent about the manner in which parties nominate their candidates for parliamentary, gubernatorial and senatorial positions. According to the law political party nominations should be completed at least 45 days before the election date.

According to Hassan the rules concerning nominations must be submitted to the Registrar of Political Parties at least seven and half months before elections. There is also the requirement that political parties submit their party membership lists to the Commission at least three months before submission of party nominations to the Commission. Hassan explained that the requirement for potential candidates to refrain from directly or indirectly participating in public fundraising or harambee within eight months preceding a general election was important to be observed by all as the Commission keeps a sharp eye on every politician.

The IEBC boss also explained that the requirement for public officers intending to contest in the elections to resign from office at least eight months before the elections was a process that would obviously be time consuming for the Commission to keep a keen eye on. He said the requirement for independent candidates not to be members of any political party at least three months before the elections was important to observe as it would also be time consuming.

He said the need for certainty regarding the date of the general elections was a matter of both immense public interest and legal and administrative concern. The Commission had therefore conformed to the rigid legal steps leading to the election date. The country needed to know the election date and the Commission had to remove the uncertainty, anxiety and suspense surrounding this date. With this very convincing argument Kenyans should stop arguing about the election date and instead start organising for the March 4th elections according to the law. The remaining time is in fact very short.