I now feel comfortable to add my thoughts to the debate. The next elections, according to the Sixth Schedule will happen WITHIN 60 days after the dissolution of the current Parliament AT THE END OF ITS TERM.
Now, the end of its term, I submit, is catered for under the clause that the government and Parliament keeps quoting: “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.”
So, the same Constitution at article 101 gives Parliament a five-year term. And they say, this term expires on the DATE OF THE NEXT ELECTIONS. Fine.
The question is, five years from when? Some lawyers, like Mr Abdikadir Mohammed and Mutula Kilonzo –both with personal interests in this matter - argue that it is five years from the date of the last elections. Both are brilliant lawyers; they delivered a new Constitution and they’re the key to its implementation.
Where do they get their argument from? I don’t know. I think it is “the spirit” of the law, because I see no “letter” to sustain that argument.
But these fellows know that there’s a clause that envisages that the elections will be held in 2012 (clause 9 (2) of Sixth Schedule) and so, they hope and know, that that has to happen. But how will Parliament pack its bags to allow for elections in 2012?
I see no avenue for that. IMHO, the President can’t dissolve Parliament, despite the myth being peddled by the now defunct Committee of Experts --that he still has powers to do so.
I think they thought by extending the powers under the Executive, they had preserved those powers. But then, the power to dissolve is not under the functions of the Executive, its in article 59, which ‘died’ on August 27.
The only way Parliament can be dissolved, I submit, is if this matter ends up in court and the court rules as per “tradition”. The courts can sustain this argument by, say, citing article 259, it that says that the Constitution shall be construed in a manner that “promotes its purposes, values and principles; advances the rule of law…; permits the development of the law; and contributes to good governance.”
Anyway, that’s where my obviously limited competence as a ‘judge’ ends.
Back to the matter at hand: Five years from when?
Other lawyers argue that it’s five years from the date when Parliament first met i.e January 15, 2008 or thereabouts. Those in this school of thought like Ababu Namwamba, insist that their five years will expire in January 2013, and therefore elections will be held on or before March 15, 2013. He can sustain this argument by selectively reading clause 3(2) of the Constitution and focusing on clause 9(1&2) of the Sixth Schedule, of course, with emphasis on clause 10.
The basis will be that Parliament will run its full five years, and as long as the 10th Parliament is ‘alive’, then the National Accord and Reconciliation Act continues to be valid. The Act was meant to ‘die’ with the promulgation of a new Constitution, but because it is ‘protected’ (or should I say ‘preserved’?), then it will run until Parliament is dissolved or the coalition parties (ODM and PNU) agree in writing to part or if one partner withdraws following a decision by highest decision-making organ of that party in writing.
Now, that, is for the coalition parties to decide—but most likely, I think, it is likely to come after January 15, 2013 when the sun sets on the 10th Parliament.
Okay, as a colleague would say, “I am making a lot of sense” but I’ve “failed to give direction”. Well, in such confusion, what direction does someone take? None! Let the courts and the lawmakers do their job. Any other person doing so, including me, is just guessing.
But if you allow a little paranoia –you know anything is possible in our politics—there’s that disturbing part of clause 10 of the Sixth Schedule: The National Assembly existing immediately before the effective date SHALL CONTINUE as the National Assembly FOR THE PURPOSES OF THIS CONSTITUTION for its UNEXPIRED TERM.”
Now, if you read that closely, we’re looking at 2015? Aren’t we? These fellas were sworn in on August 27, 2010, and it says they have a five year mandate and when they say it is for purposes of implementing the Constitution, then, they will and can, go until 2015. Is that possible? I think it is.
President Kibaki and Prime Minister Raila Odinga also took an oath on this day. They can say the National Accord’s implementation continues.
There’s this clause 7 (1): “All law in force immediately before the effective date continues in force and shall be construed with the ALTERATIONS, ADAPTATIONS, QUALIFICATIONS and EXCEPTIONS necessary to BRING IT INTO CONFORMITY with this Constitution.”
I am just thinking.
Just like I said that MPs won’t pay tax and some disagreed with me; just like I said the said ‘outrage’ over provincial administration was flummery; I say again, that MPs and politicians will have their way in this ‘peaceful’ country. Maybe we sowed the seeds of a violent revolution on August 27, maybe we did not.
Hey, lest the National Cohesion and Integration Commission or the police come for me, let me keep quiet.
PS: I called some bigshot at the now defunct CoE about the matter and he (it was a man) told me: “Eh bwana, huko nilitoka kitambo sana. I can’t comment about anything. Hiyo kazi nilimaliza.” If I wrote a PhD thesis and years later after I leave university, I can’t defend the thinking that went behind it, do I deserve to be called ‘Dr’ or ‘Prof’? But then this is the Constitution. Isn’t it? Just thinking.
PS2: The spirit is change. But then if the CoE was categorical on when the Chief Justice and the Attorney General were to leave, why did it shy away from making a similar recommendation for MPs?