The African Court on Human and Peoples' Rights recently gave an advisory opinion on implications of the Covid-19 crisis on the right of African citizens to participate in elections. That appears to have provided additional munitions to proponents of the suggested postponement of the 2022 General Election in Kenya.
The point of departure is a clarification of the court's determination. Three issues were raised by the Pan-African Lawyers Union, the author of the request for the advisory opinion: The decision to conduct elections or not in the context of a public health emergency or a pandemic; obligations of African states to protect the right to participate in elections during the crisis; and the obligations of the states that postpone elections owing to the crisis.
On the first issue, the court found that a state can decide to hold or not hold elections during a pandemic provided that the decision is preceded by consultation with health authorities and political actors, including civil society.
On the second, it held that for states to restrict rights related to elections during Covid-19, that must be in the form of a general law, in furtherance of a legitimate purpose, proportionate and not undermining the essential content of election-related rights.
On the third issue, the court decided that for elections to be postponed, the above mentioned caveats on restriction of election-related rights similarly apply.
Importantly, where a government's term expires following postponement of elections, the court was of the view that domestic law governs the options available, including an interim replacement, extension of term or a caretaker government. Where such law does not exist, a new one may be enacted after consulting political actors and civil society.
Not legally binding
A critical question arises: In the event that the Covid-19 crisis persists or worsens as we draw closer to August 2022, can Kenya postpone the general election? First, an advisory opinion by the African Court is not legally binding; it did say such are meant to provide guidance to AU member states.
The court gave primacy to application of domestic law and prior consultations with political actors and civil society in determining whether to conduct elections, restrict election-related rights during the Covid-19 crisis or even postpone elections. This, then, essentially means that our Constitution is the first port of call in assessing circumstances that may interfere with the elections scheduled for next year.
The date for general elections in Kenya is etched in stone: The second Tuesday of August in every fifth year, which is also the date when the term of Parliament expires -- the exception being if the country is at war. Further, postponing elections amounts to suspension of some political rights.
As advised by the African Court, postponing elections must be the last resort. Our Constitution is the principal guide on when that can be done or the right to participate in elections otherwise restricted.
Mr Kahuthia is an Advocate of the High Court and a PhD Candidate at Ghent University, Belgium. email@example.com.