Court of Appeal upholds March 2013 Elections date
Written by David Indeje
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The Court of Appeal has upheld the March 4th 2013 election date similar to what the High Court had ruled in January.
The decision was reached by a Five Judge Bench: Justice Martha Koome, Justice Erastus Githinji, Justice Hannah Okwengu, and Justice Kalpana Rawala and Justice David Maranga.
The Appeal Judges Martha Koome, Erastus Githinji, and Hannah Okwengu said the General Election should be held by January 15, 2013 arguing Parliament’s life should not exceed a five-year cycle.
Justice Koome declared that the polls should be held no later than January 15, 2013. She also said the August House should be dissolved on November 14, 2012.
She ruled that the High Court misinterpreted the Constitution and the two alternatives given by court were unconstitutional.
Judges Githinji and Koome both declared them null and void. They said the President had no powers to dissolve Parliament.
Justice Okwengu settled on the March 4, 2013 date agreeing with Justice Githinji.
Further Githinji said a ruling on a 2012 Election Date is based on Speculative Jurisprudence and thus, ruled, should be held on March 14th.
Thus, four out of the five judges: Justices Hannah Okwengu, Kalpana Rawal and David Maraga said the polls should be held on March 4, the date set by IEBC which was a majority as read by Justus Eratus Githinji to have the polls held within 60 days upon the expiry of the term of the current parliament ending January 14, 2013.
The ruling follows an appeal by lobby groups who sought a determination on the date of the next General Election.
The High Court ruling had provided two options one being that an election would only be possible in 2012, within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the National Accord and Reconciliation Act, 2008.
This option, according to the electoral body, is beyond their control and there being no agreement between the two principals, the second option was the best.
The second option stated that; ‘the election be held within 60 days of the expiry of the term of the National Assembly on 15th January, 2013.
The Prime Minister has indicated that he favors the elections to be held in December as has been the tradition saying a March election would impact negatively on education, farming and economy.
“I met the IEBC at my offices yesterday afternoon and shared my views on the General elections with them. I would like to see the next General Elections held in December 2012, and not in March 2013, or any other later date,” he said
The 10th Parliament legislators were sworn in on January 14, 2008, their term ends on January 14, 2013.
This means IEBC will set the election date within 60 days after the dissolution of the National Assembly at the end of its term as stipulated under the Sixth Schedule of the Constitution.
However, according Article142 of the constitution, the term of the president ends when a new one is sworn. It states: "The President shall hold office for a term beginning on the date on which the president was sworn in, and ending when the person next elected President in accordance with the Article 136(2) (a) is sworn in."
Early this year, the high court gave an option of elections being held in 2013, sixty days after the national assembly's term expires or in 2012 if the coalition government is dissolved with the Independent Electoral and Boundaries Commission fixing the election date within a 60-day period.
The Constitutional bench that comprised of Justice Isaac Lenaola, Mumbi Ngugi and David Mayanja Shigomere made the ruling after going through three petitions filed by Lawyer Mugambi Imanyara and Kilome Mwau who had sought the clarification of when the date of the next election will be in separate applications that were consolidated.
“The date of the first elections under the Constitution is determined by reference to section 9 and 10 of the Sixth Schedule as follows;(a) In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and Prime Minister in accordance with section 6 (b) of the National Accord and Reconciliation Act, 2008; or (b) Upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat which is designated by Legal Notice No. 1 of 2008 as 15th January 2008. The term therefore expires on 14th January 2013. The elections shall be held within sixty days of 15th January 2013,” ruled the Judges.