The Constitution of Kenya, at article 101, provides that a general election to elect Members of Parliament shall be held on the first Tuesday of August in every fifth year, and article 136 provides that an election to elect the President of Kenya shall be held on the same date as the date of a general election to elect Members of Parliament. Mwai Kibaki's Cabinet, divided as it has been on many issues, has united around the decision to amend the Constitution to shift the date of the general election from August to December on, among many, a flimsy ground that the date of the general election clashes with the budgeting process of the Government of Kenya. The combative chairman of the Commission for the Implementation of the Constitution has announced that his Commission will seek an interpretation of the Cabinet's decision from the Supreme Court of Kenya. The Minister for Justice, National Cohesion and Constitutional Affairs insists that the Cabinet decision is not wrong in and of itself, but that he would be guided by the decision of the Supreme Court, even though he s persuaded that the Supreme Court is incompetent to make this decision in the absence of rules to govern the procedure of the Court.
What seems to have been forgotten is that ever since the Bomas Conference, the people of Kenya have expressed a clear desire to shift the general election date from the Christmas period to August, citing, among other reasons, that it had traditionally interfered with the enjoyment of a religious period and usually cost them more when it came to preparations for the New Year. They argued, persuasively I think, that the cooling down period between the general election and Christmas was invaluable in reminding the political class of the values that hold this nation together.
Unfounded rumours are already swirling that the reasons why the Cabinet endorsed the proposal have nothing to do with the government's budgetary cycle but that it was an attempt to take into account the legal problems faced by some of the suspects of the PEV facing the possibility of trial at The Hague. But is the desires and wishes of Kenyans that are being given the short shrift by the Cabinet. The Cabinet, drawn as it is from Members of Parliament, should reflect the wishes of the voters who elected them and they all say that an August election is their preference. Any amendment to the Constitution regarding the date of the general election is not subject to the Referendum Rule found in article 255 of the Constitution, but given the strong desire for the people to retain the August date, the Government, especially the Cabinet, must seek out the views of the voters to determine whether such a shift is warranted or not. Mr Nyachae, the CIC Chairman, is surely right to state that it is far easier for the government to reorganise its budget cycle to accommodate the election date than to amend the Constitution to accommodate the budget cycle.
As for the Justice Minister's assertion that the lack of rules of procedure for the Supreme Court makes the Court unqualified to offer its interpretation of the Constitution as sought by the CIC, he should be reminded that the Constitution also makes provisions for this situation. Until the appointment of the Supreme Court, the Court of Appeal had responsibility for the subjects under the jurisdiction of the Supreme Court. That is no longer the case. With the appointment of the Supreme Court and the swearing into office of the Judges of the Supreme Court, the court is fully constitution and competent to execute its mandate as envisioned in the Constitution, the lack of rules of procedure not withstanding. The provisions of the Constitution defining the Jurisdiction of the Court are absolute and do not depend upon the publishing of rules of procedure. Indeed, it can be argued that the Court can make up the rules as it goes, despite the confusion that will be sown, and make a determination regarding any matter that is properly within its jurisdiction.
This is the Constitution that an overwhelming majority of voters endorsed on August 4, 2010. Kenyans declared that they would no longer be led by the nose b their elected representatives or their Cabinet. They declared their sovereignty as a nation and as a people and the Cabinet or the National Assembly does not have the authority or the right to claw back this sovereignty. If President Kibaki and Prime Minister Odinga wish to be remembered as the First Defenders of the Constitution, they must shoot down this plan to amend the Constitution to accommodate a cabal accused of high crimes against the people of Kenya. It is the least they can do as they shepherd Kenya into a new beginning, a beginning we anticipate will come about on the first Tuesday of August of 2012.
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