By BEAUTTAH OMANGA
A constitutional crisis is in waiting. The exact date President Kibaki's tenure should end differs from the constitutional election timetable.
Constitutionally, President Kibaki and the coalition government's term is supposed to be in place until December 30, 2012.
But Kibaki, having taken oath of office on December 29, 2007, is expected to see his five-year term to the end.
The same applies to MPs who were sworn in on January 15, 2008.
Lawyers are united that under the new Constitution, in which the President has no powers to decide when to prologue Parliament, the yet to be established Electoral and Boundaries Review Commission will now have the powers to slice the terms of the coalition Government and end the current Parliament's term by five months.
"The new electoral body, with constitutional powers, will slice the terms by five months since that will be the only option. There is no provision for an extension of the term such that we have elections in August 2013," said Lawyer James Mwamu (pictured right).
Some MPs who sought anonymity were of the view that alternatively, to avoid a constitutional crisis, there should be reached a consensus that the President, Prime Minister, Cabinet ministers and MPs be paid their arrears and prepare to pave the way five months early.
Greed for money
"We will let go of the five months if we are paid. Not that we are greedy for money, we just have to observe the law," said an MP.
The MP argued that some of his colleagues might opt to challenge attempts to cut short their term, given that the new Constitution says elections must be held in August of every fifth year.
Ikolomani MP Bonny Khalwale (pictured left) thinks MPs should be prepared to leave by June 2012.
"The law is clear that Parliament should be dissolved 60 days to the General Election. Going by that, we should close shop by June 14, 2012 to pave way for elections in August 2012, " said Dr Khalwale in an interview.
He said the issue dominated MPs' interactions, with some expressing concern that they stood to lose remunerations if they left early.
"The law says they will remain active until they hand over to the in coming crop. That means they will remain on the payroll in the period ahead of the elections," said Khalwale.
Mr Mwamu, who is also the East African Law Society Secretary, said it would be unconstitutional to extend the term of the current Parliament beyond 2012.
Mwamu advised that if any MPs felt robbed of their tenure, they could go to court for interpretation.
"The new electoral body's decision will be final since it will be mandated to apply the constitutional electoral timetable," said Mwamu.
Betty Nyabuto, a lawyer, says the country should be prepared for elections in August 2012 and that MPs will have no choice but to comply.
"The August election date will affect all newly created offices and delaying it for a year will be unconstitutional," said Nyabuto, a former CEO at the LSK.
But constitutional lawyer Harun Ndumbi, quoting Section 9 of page 196 of the new Constitution, says the current Parliament will be in office until December 2012, and that the August date will only apply in the subsequent election in 2017.
"The immediate next elections will be held within 60 days after dissolution of the House. 2017 will be the first to have elections in August". He said the only change to the traditional manner in which past elections have been conducted will be the requirement that the President dissolves Parliament 60 days before the August date.
Under Schedule Six's Section 9, the new Constitution reads: "The first elections for the President, the National Assembly, the Senate, county assemblies and county governors shall be held at the same time within 60 days after the dissolution of the National Assembly at the end of its term."
It also states in Section 10 that the National Assembly existing immediately before the effective date shall continue as the National Assembly for purposes of the Constitution for its unexpired term.
It is not clear then when the counties will elect their representatives if the current Parliament runs its full term and elections for all offices are held in August.
The debate is bound to elicit more reactions from lawyers and other interested parties.
Source: The Standard | Online Edition
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