21 September 2017

Kenya: If Clock On Fresh Presidential Poll Runs Out, What Next?


Nairobi — What would happen in the event the Independent Electoral and Boundaries Commission fails to hold a fresh presidential poll by the time November 1 rolls round, is the latest bone of contention between President Uhuru Kenyatta and Opposition leader Raila Odinga.

President Kenyatta has been categorical that no vacuum would exist and that he would remain the legitimate leader of the Republic of Kenya in accordance with Article 142 of the Constitution.

The law states: "The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President in accordance with Article 136 (2) (a) is sworn in. A person shall not hold office as President for more than two terms."

Odinga on the other hand contends that President Kenyatta is, as things stand, a temporary incumbent and once the 60 days - since the Supreme Court ordered a fresh presidential poll - are up, he would cease to hold power.

The legal fraternity itself is not of a single mind with election law practitioner Paul Nyamodi describing the clock running out on the 60 days a "constitutional crisis of monumental proportions as the Constitution doesn't envisage a situation where it (election) would not happen."

Bobby Mkangi who was a member of the Committee of Experts that drafted the Constitution, agrees that such a scenario would be "extra-constitutional territory."

In his opinion, the options available would be the Attorney General moving to the Supreme Court for an advisory opinion, the IEBC postponing the poll, "if it's argued the electoral process is already underway in the keeping with the 60 day time limit set out in Article 140(3) of the Constitution," or a political compromise be reached.

"That's where the 'nusu mkate' (a coalition government) you've heard people talking about would come in and might require Parliament to make amendments to the Constitution."

The 'transitional' and 'caretaker' government references that have been bandied about are however not terms found in the Constitution.

What is does say is that in a scenario where there is a vacancy in both the Office of the President and the Office of the Deputy President, the Speaker of the National Assembly would act as President for a period of 60 days within which period an election should be held.

But both Nyamodi and another legal mind, Kethi Kilonzo, agree that the 60 day clock - set for the conduct of a fresh presidential poll by the Supreme Court - running out would not occasion a vacancy in the office of the President. "He (President Kenyatta) remains President," was Kethi's take.

"It's the act of an incoming President that terminates the term of a sitting President because it is the intention of the Constitution that there is no vacuum," Nyamodi said.

Felix Odhiambo of the Electoral Institute for Sustainable Democracy in Africa however doesn't see things as being so clear-cut.

"There's what you might call a conflict here. The temporary incumbency should last until the expiry of 60 days but the Constitution also provides that the sitting President will exercise the powers of the President until a new President is sworn in.

"What can mitigate this conflict is that the Supreme Court has inherent powers to extend the 60 days. Remember in 2012 we were faced with this situation arising out of the fact that constitutionally a new election ought to have fallen in December given the fact that traditionally since 1992 we were holding our election in December.

"But because of the new Constitution that stripped President (Mwai) Kibaki of the powers to dissolve Parliament, Justice Lenaola as he was then a High Court judge, extended the term of Parliament and that is how we ended up with an election in March of 2013 as opposed to December of 2012. That is the only window of opportunity."

Nyamodi however strongly disagrees and is of the mind that any extension of the 60-day period explicitly spelt out in the Constitution would amount to a "constitutional coup".

"Anybody who is arguing the postponement of the election beyond 60 days is then looking to stage a constitutional coup."


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