PRESIDENT Kibaki might have to remain in office beyond June 2013 if the outcome of the election is successfully challenged in a court of law.
The first round of the presidential election is due to take place on March 4 and the second round on April 10. According to the revised legal timelines published by the Independent Electoral and Boundaries Commission yesterday, a fresh presidential election will be held on May 31 in case there is a successful petition of the outcome of the first round.
The constitution requires the IEBC to hold fresh elections within 60 days following a successful petition in the Supreme Court of the result of a presidential election.
However if the petition is not successful, the second round run-off will be held on May 1, or 30 days after determination of the petition. In either scenario, President Kibaki will continue occupying State House at least until June.
The constitution gives the IEBC up to seven days to declare the results of the elections with the new president being sworn in 14 days later.
The timetable does not provide for a successful second round petition. However assuming that a repeat of the second round takes place eight weeks after April 10, Kibaki could even stay in power up to July.
Yesterday morning IEBC chairman Ahmed Issack Hassan met President Kibaki at State House to brief him on the preparation for the election and the schedule.,
If the first round of the polls is not challenged, the second round run-off will take place on April 10, the day that the trial of Jubilee deputy presidential candidate William Ruto starts at The Hague. The trial of Jubilee presidential candidate Uhuru Kenyatta will start the day after on April 11.
The results of the April 10 run-off will be declared by April 17, and those seeking to challenge the results must do so by April 24. According to the timelines published yesterday, IEBC will be required to declare the results of the first round on March 11 while any challenge the results must be filed by March 18.
The IEBC timelines largely correspond to the Supreme Court (Presidential Petition) Rules 2013 about to be gazetted by Chief Justice Willy Mutunga.
The Supreme Court's decision on the presidential elections will be final. The rules prepared by the Judiciary Working Committee on Election Preparations also allow for a pre-poll petitions "by any person."
On December 11 a five bench Supreme Court unanimously declared that election of a president is a process. As such, the Supreme Court can entertain a dispute on the validity of a presidential election "at any critical steps of the electoral process."
According to the proposed rules, petitions can start after the official nomination of presidential candidates by the Independent Electoral and Boundaries Commission between January 29 and 30.
"These rules apply to petitions filed in relation to elections to the office of President and includes petitions arising before the polling date relating to nominations by the commission," the rules state.
The presidential election can also be petitioned after the IEBC announces the winning candidate in either the first or second round. In a striking departure from the past, the rules make it explicit that service of the petition on the respondent need not be personal.
"Upon filing a petition, the petitioner shall serve the petition on the respondent within 24hours. Service of the petition on the respondent shall be (a) directly on the respondent; or (b) by advertisement in a newspaper with national circulation," Rule 8 says.
Historically, presidential petitions in Kenya failed due to the stringent requirement of personal service and other technicalities. The first presidential election petition filed in 1993 by veteran politician Kenneth Matiba against former President Moi flopped on a technicality.
A physically incapacitated Matiba granted his wife power of attorney to sign the petition papers but Justice Riaga Omolo struck it out saying that Matiba ought to have personally signed it.
Last year, Omolo was consequently declared unfit to serve in the judiciary by the Vetting of Judges and Magistrates Board. In 1998 judges Emmanuel O'Kubasu, Mbogholi Msagha and Moijo ole Keiwua insisted on Mwai Kibaki personally serving President Daniel arap Mou despite the obvious difficulties in the Kanu era. Their decision was upheld at the appeal.
The IEBC has also advised that the outcome of all other elections must be challenged by April 8 and dispensed off within six months. IEBC commissioners led by chairman Ahmed Issack Hassan yesterday briefed President Kibaki at Harambee House on preparations for the elections.
Hassan told Kibaki that the IEBC registered 14.9 million voters. IEBC will open the register for inspection from January 15 and voters can check their status using an SMS platform,, according to a Presidential Press Service statement .
Issack told Kibaki that the IEBC will gazette 33,000 polling stations across the country. Kibaki emphasized that all relevant arms of government must ensure that Kenya has a smooth, free, fair and peaceful election.
Internal Security minister Katoo ole Metito, Justice minister Eugene Wamalwa, Head of Civil Service Francis Kimemia and Attorney General Githu Muigai attended the meeting along with other senior government officers.