Monday, October 16, 2017

On temporary incumbency

134. Exercise of presidential powers during temporary incumbency.
(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President...(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office...may not exercise the powers of the President specified in clause (2).
140. Questions as to validity of presidential election.
(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.
This is where my laissez-faire attitude towards grammar and comprehension that comes to bite me in my backside. The 1st September invalidation of the 8th August presidential election have given rise to the a simple question with profound implications: is Uhuru Kenyatta bound by the provisions of Article 134 on the exercise of presidential powers during temporary incumbency?

It all depends on how you interpret the judgment of the Supreme Court on the 1st September. The Supreme Court was called to determine whether or not the presidential election was valid. It found that the election of the president-elect was invalid. The key expression in Article 140 (3) for our purpose is "president-elect". Taken together with the words in Article 134 (1) (a), "during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office", Uhuru Kenyatta is bound by the provisions of Article 134 because, notwithstanding that his election was invalidated, the period described in 134 (1) (a) is not yet spent.

The date of the first vote in a presidential election was the 8th August. A newly elected president has not yet assumed office. What the Supreme Court ordered, in the language of Article 140 (3), is not a presidential election but a fresh election for the office of the president. Until Uhuru Kenyatta is successfully elected on the 26th October, and a petition under Article 140 is defeated, he remains a temporary incumbent in the office of the president and is bound by the provisions of Article 134.

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