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Post by Onyango Oloo on Sept 20, 2010 14:26:17 GMT 3
WHEN WILL WE GO FOR PRESIDENTIAL AND GENERAL ELECTIONS?
By Miguna Miguna, September 17, 2010 Without prejudice to the anticipated determination by the yet-to-be-established Supreme Court, this column seeks to resolve two important technical constitutional questions. Firstly, when will the next presidential and general elections be held? And secondly, can any person participate as a presidential candidate and simultaneously (on the same day) seek another elective public office? The new Constitution stipulates that the next presidential and general elections shall be held on the same day, being the second Tuesday in August every fifth year. This is a significant departure from the American system where elections for President, Senate, House of Representatives, State and Municipal elections are fixed but held separately; not on the same day. Sub-article 136(1) of the new Constitution provides that “The President shall be elected by registered voters in a national election conducted in accordance with this Constitution and any Act of Parliament regulating Presidential elections.” In other words, the next elections must be conducted as provided for in the new Constitution. Any Act of Parliament regulating Presidential elections cannot contradict the Constitution, specifically sub-article 136(2)(a) and (b), which stipulate that: The words “shall” and “the second Tuesday in August, in every fifth year” are underlined in order to signal their singular importance. The Constitution does not allow discretion in determining when the next elections will be held. Those ten words will soon become the most debated, argued over and possibly litigated in the history of this country. Those ten words show that Kenyans had a clear intention that both Presidential and general elections must be held together on the same day and on the second Tuesday of August – not December - within every fifth year. There is also a two-term limit for all presidents, applicable retroactively. Had Kenyans wanted the elections to be staggered like in the U.S.A., they could have provided for it. Clearly, Kenyans wanted to prevent unsure and unpopular politicians from engaging in electoral speculation. In other words, Kenyans intended to prevent those who pretend to contest Presidential elections in order to hedge their chances in parliamentary, senatorial or any other elections. Where elections are staggered like the U.S.A., a senator or governor with an unexpired mandate can run for President and when unsuccessful, revert to his or her existing electoral position. But to answer the first question, we need to ask: when did Kenyans hold the last presidential and general elections? The correct answer: December 27th, 2007. When is the fifth year from December 27th, 2007? Correct answer is 2012. Therefore, the second Tuesday in August of the fifth year following the last elections is Tuesday, August 13th, 2012. Barring any national emergencies, the next presidential and general elections must be held on Tuesday, August 13th, 2012 because the Constitution says so. It is not subject to change by an Act of Parliament. Unless the Constitution is amended to provide otherwise, that is the date all national elections must be held. Moreover, because the President was originally sworn in on December 30th, 2007, he cannot, constitutionally, serve beyond December 2012. Any power and authority exercised beyond the stipulated date would be unconstitutional. Elections cannot be held in December 2013 by virtue of the provisions of article 136 cited above. Article146 simply provides that the office of president becomes vacant if the holder dies, resigns or otherwise ceases to hold office. The principle of separation of powers requires the executive, judiciary and legislature to function separately and independently. No person can contest more than one election simultaneously. No one can be a member of the executive, legislature and the judiciary at the same time. If allowed, then anyone can contest as president, senator, MP, governor, deputy governor, councilor and also seek to become a judge simultaneously. Kenyans could not have intended and the Constitution doesn’t allow such absurdities. Finally, the Constitution enshrines two levels of government; national and county. These are two governments; not one. It is wrong to assume that the county government will be answering to the national government. Both governments will be directly elected by the people and it is to the people that both governments will be answerable to. |
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Post by kamalet on Sept 20, 2010 14:40:29 GMT 3
Rather than speculate as most folk do in bar....how about an extract from the law?
Elections and by-elections
9. (1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term. [/color]
(2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.
National Assembly
10. 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.
As they said in school...now discuss!!
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Post by mank on Sept 20, 2010 16:14:05 GMT 3
Rather than speculate as most folk do in bar....how about an extract from the law?
Elections and by-elections
9. (1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term. [/color] (2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012. National Assembly 10. 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.As they said in school...now discuss!![/size][/quote] Its a loaded topic. Perhaps Mutahi Ngunyi knows it best, as it seems to have ended his engagement with The Nation. We have also been through it Here |
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Post by job on Sept 20, 2010 20:39:44 GMT 3
Of course, the silly season of politics has arrived, and political chicanery is building.
This is a timely reminder by Miguna that Kenyans already know the next date of the general elections, and it is August 13, 2012.
Ever since Daily Nation’s false prophet Mutahi Ngunyi threw the trial balloon in his fallacious ‘civilian coup’ article (which was immediately dismissed quite eloquently by a COE expert, Njoki Ndung’u), some politicians and their supporters have been having toying with Ngunyi’s ideas. Ideas of hanging onto power, beyond constitutionally stipulated periods!
Let’s get some facts straight:
1) The new constitution does not in any form whatsoever extend the term of Kibaki even by a single day. The last day Kibaki can hold office is December 30, 2012. Neither does the new constitution extend the term of the tenth Parliament.
2) There will be no power vacuum. A presidential election must be held before Kibaki’s last day (December 30th, 2012) – which is clearly provided for in the new constitution as being “the second Tuesday in August, in the fifth year of Presidency”.
3) Kibaki’s fifth year of Presidency is 2012, thus if one reads Article 3 of the new constitution and provisions in Chapter 2 of the old constitution (which continue to apply), then the date of the next election as Miguna explains is August 13, 2012.
4) While it is true that Kibaki still retains executive powers under the former Constitution to specifically dissolve Parliament for the 2012 election, the fact remains that most if not all MPs would be running for one office or another (MP, Senator, Governor, President) on the same August 13, 2012. They will need to be released early for campaigns. I can bet you many (more than 70%) are fired up and gearing for higher offices – especially Governorships and Senate seats.
Kibaki’s hands are therefore tied in that whereas he still retains imperial presidential powers to keep the dissolution date secret, (a) the election date has been predetermined & (b) MPs will themselves push for early dissolution as many/most prepare for greener pastures – they have powers to sabotage and embarrass the executive.
Thus Kibaki has few options to avoid creating a constitutional crisis. I doubt the last legacy Kibaki would want to leave with is staging a deliberate constitutional crisis – it can backfire terribly, and turn a jittery electorate hostile towards him even in retirement.
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Post by mank on Sept 21, 2010 2:44:53 GMT 3
Of course, the silly season of politics has arrived, and political chicanery is building.
This is a timely reminder by Miguna that Kenyans already know the next date of the general elections, and it is August 13, 2012.
Ever since Daily Nation’s false prophet Mutahi Ngunyi threw the trial balloon in his fallacious ‘civilian coup’ article (which was immediately dismissed quite eloquently by a COE expert, Njoki Ndung’u), some politicians and their supporters have been having toying with Ngunyi’s ideas. Ideas of hanging onto power, beyond constitutionally stipulated periods!
Let’s get some facts straight:
1) The new constitution does not in any form whatsoever extend the term of Kibaki even by a single day. The last day Kibaki can hold office is December 30, 2012. Neither does the new constitution extend the term of the tenth Parliament.
2) There will be no power vacuum. A presidential election must be held before Kibaki’s last day (December 30th, 2012) – which is clearly provided for in the new constitution as being “the second Tuesday in August, in the fifth year of Presidency”.
3) Kibaki’s fifth year of Presidency is 2012, thus if one reads Article 3 of the new constitution and provisions in Chapter 2 of the old constitution (which continue to apply), then the date of the next election as Miguna explains is August 13, 2012.
4) While it is true that Kibaki still retains executive powers under the former Constitution to specifically dissolve Parliament for the 2012 election, the fact remains that most if not all MPs would be running for one office or another (MP, Senator, Governor, President) on the same August 13, 2012. They will need to be released early for campaigns. I can bet you many (more than 70%) are fired up and gearing for higher offices – especially Governorships and Senate seats.
Kibaki’s hands are therefore tied in that whereas he still retains imperial presidential powers to keep the dissolution date secret, (a) the election date has been predetermined & (b) MPs will themselves push for early dissolution as many/most prepare for greener pastures – they have powers to sabotage and embarrass the executive.
Thus Kibaki has few options to avoid creating a constitutional crisis. I doubt the last legacy Kibaki would want to leave with is staging a deliberate constitutional crisis – it can backfire terribly, and turn a jittery electorate hostile towards him even in retirement.
I have been through the articles you invoke, and I do not see them adding up to Aug 13 (perhaps I miss something). Miguna arrives to this Aug 13 date by ignoring the transition clauses all together. Would you shed more light on how the articles you mention lead to this date? A good starting point would be to use the articles to illuminate the end of term of the current National Assembly. We know that the elections should occur after that date per transitional 9. (1). |
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Post by kmdo on Sept 21, 2010 4:05:51 GMT 3
I think that the second Tuesday of August 2012 will be the 14th.
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Post by kamalet on Sept 21, 2010 8:19:43 GMT 3
Mank
You are headed in the right direction. I quoted the Transition Clause 9 and 10 with regard to elections.
Clause 9 talks of the elections being held within 60 days of the disolution of the current parliament at the end of its term When does its term end? Neither Miguna nor Job are answering this question!
Clause 10 makes reference to the National Assembly existing prior to the effective date being allowed to continue as the National Assembly for its unexpired term. Again the question to answer is - when does the term of the current parliament expire?
When you take your calculators and start from when the current parliament was constituted - then one should easily get the date when its term expires (and this by the way would be as per the old constitution!)
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Post by sang2000 on Sept 21, 2010 16:24:18 GMT 3
Kamalet,
I would like folks to talk about the relevance of the Schedule Six, Clause 9 and 10. Clearly, this to me, says that Kibaki is the only one here who holds the card. He can simply decide to keep hanging on and he will still be president come 2015, even if he decides to dissolve NARA. If NARA is dissolved, the PM's office ceases to exist, but the presidency continues.
Nowhere does the new constitution says that the elections must be held in August of 2012. When it refers to "Effective date", it is the date the new constitution was promulgated.
This is what I wrote in my Facebook page several weeks ago. Unfortunately, every time I have raised this question, I am met with utter silence.
By James Sang on Monday, September 20, 2010 at 9:08am.
As Kenyans troop to the polls later this morning, it is likely that they will vote for a constitution that potentially might extend the life of parliament, and the rulership of Kibaki and Raila to August 2015 - unless they voluntarily dissolve NARA, or when the life of parliament expires in January 2013. After reading Mutahi Ngunyi's analysis, whose sections of it I have posted below, it seems to me that if Kibaki/Raila decide to hold on to the NARA accord and not dissolve it before 2012, or 2013, we could see them continue in office till 2015. The new constitution says that the next elections will be held on the 2nd Tuesday in August of every FIFTH year beginning the date the president promulgates the constitution, which in this case, will be two weeks after it's published in the Gazette. So the next General Elections technically will be held in August 2015 and not 2012. Did this issue come up during the debates? Did I miss something?
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Post by mtumishiman on Sept 21, 2010 16:56:45 GMT 3
Kamalet, I would like folks to talk about the relevance of the Schedule Six, Clause 9 and 10. Clearly, this to me, says that Kibaki is the only one here who holds the card. He can simply decide to keep hanging on and he will still be president come 2015, even if he decides to dissolve NARA. If NARA is dissolved, the PM's office ceases to exist, but the presidency continues. Nowhere does the new constitution says that the elections must be held in August of 2012. When it refers to "Effective date", it is the date the new constitution was promulgated. This is what I wrote in my Facebook page several weeks ago. Unfortunately, every time I have raised this question, I am met with utter silence. By James Sang on Monday, September 20, 2010 at 9:08am. As Kenyans troop to the polls later this morning, it is likely that they will vote for a constitution that potentially might extend the life of parliament, and the rulership of Kibaki and Raila to August 2015 - unless they voluntarily dissolve NARA, or when the life of parliament expires in January 2013. After reading Mutahi Ngunyi's analysis, whose sections of it I have posted below, it seems to me that if Kibaki/Raila decide to hold on to the NARA accord and not dissolve it before 2012, or 2013, we could see them continue in office till 2015. The new constitution says that the next elections will be held on the 2nd Tuesday in August of every FIFTH year beginning the date the president promulgates the constitution, which in this case, will be two weeks after it's published in the Gazette. So the next General Elections technically will be held in August 2015 and not 2012. Did this issue come up during the debates? Did I miss something? Sang, The two sections in Part 3 of the Sixth Schedule -- 9(1) and (2) -- show that the current Parliament ends in 2012 and explain what may happen if the calender ends earlier. The current Constitution says the election will be held in every fifth year and not after every five years. The fifth year in which the election is anticipated runs from January 1, 2012 to December 31, 2012. If the Constitution sets the election date as the second Tuesday of August -- which should fall within the the fifth year -- then that makes it 14th of August 2012. It is apon the President to provide for the 60-day campaign period by dissolving the Parliament earlier. |
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Post by mank on Sept 21, 2010 17:14:41 GMT 3
Now we wait on Job. While we wait, I think it would be well in order to ask that all who contribute to this discussion should refrain from the sensitional talking points of false prophets (Mutahi Ngunyi, the "elloquent Njoki Ndung'u", and even Miguna), and such allegations as that Kibaki supporters are toying with ideas of how Kibaki can hang onto power beyond his stipulated period. I think there is a grand issue here for discussion that has been systematically subjugated by the sensitivities of some strong personalities. We have to bring that to a check! As far as I can tell, this perception that ONLY Kibaki supporters are toying with ideas of how Kibaki can overextend his term exists only in the imagination of those who present themselves as fighters against the same. But this imagination was the drag on this same discussion on the other thread that I linked hear earlier. If the constitution seems to give Kibaki an opening to extend his term, then any reader/analyst of the law (be it Kibaki supporter, protagonist or an indifferent) could toy with the idea that Kibaki could extend his term within the law (needless to say it is not about Kibaki, but the election date). It is about the constitution, not the reader/analyst. And implications of the law are what we should discuss on the thread, not the reader and his/her affirmation, or lack thereof, of Kibaki. I devoted a lot of time to this mather on the other thread, and took a number of names from those who fight their imaginations instead of engaging in unfolding debates. That is why I am being verbal here, to ask that we do not repeat that nonsense. I was called " static", " no-value", etc. Still the discussion I was moving ranges on in debate, and it will probably continue until either the constitution is amended, or time forces us to coin out coping mechanisms that are currently not clearly stipulated in the constitution. So I hope those who insulted me are rethinking their comprehension of the subject. They can stay as they choose. This time it has to be about the constitution. That is why it will be very helpful if Job clarifies the law by which .... ...Kenyans already know the next date of the general elections, and it is August 13, 2012.[/b][/color] [/quote] Mtumishiman: According to 9(1) of the Sixth Schedule, the first elections occur after, not before end of current National Assembly's term: Elections and by-elections
9. (1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term. [/color][/size][/quote] |
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Post by job on Sept 21, 2010 18:03:58 GMT 3
Sang,
Welcome to JUKWAA.
You are right in the sense that Kibaki holds the card to -dissolving Parliament for the next elections. But he doesn't determine the date for the next elections. That has already been pre-determined by the constitution itself.
In fact, we already know the dates for all future elections, be it 2012, 2017, 2023, etc (see below).
There is a specific Article (3) in the constitution that stipulates the date of the next general elections. It defines it as “the second Tuesday in August, in the fifth year of Presidency”.
The issue of elections in 2013 or 2015 doesn't arise because the same constitution allows certain provisions in the old constitution to apply (in Chapter 2 of the old constitution).
Those provisions specifically outline terms of expiry of the Tenth Parliament and expiry of President Kibaki's term. They explicitly prevent Kibaki extending his term even by a minute. They limit Kibaki's term in office to December 30, 2012 which is also the expiry date for the Tenth Parliament.
Therefore, as Article 3 demands, elections for president, parliament, senate, county governors, and civil seats must be held before December 30th, 2012. That should eliminate any speculation about extensions of 5-year terms of office.
Coming back to Article 3, Kibaki’s fifth year of Presidency is 2012. Therefore “the second Tuesday in August, in the fifth year of Kibaki's Presidency” is August 13, 2012 (or is it August 14, 2012)?.
That is the date of the next general election. It doesn't mean that Kibaki ceases to be President after August 13, 2012.
Like the tradition in the US, even after those elections, Kibaki will in fact continue to serve as President until December 30th, 2012, when his term expires and the next President-elect gets sworn into office.
Thus, there's not even room for a vacuum.
However, nobody is trying to turn a blind eye to the fact that the constitution is silent on the process of dissolving the Tenth Parliament, which is also refered to regarding general elections.
I'm not a lawyer, but my lay understanding is that the new constitution did not wish to remove previous executive powers granted to the Presidency in 2007 (before the new constitution came into effect).
Part of those powers were the power to dissolve and prorogue Parliament.
As per the old & terrible constitution, only a President can dissolve Parliament.
Kibaki still retains these executive powers granted in the former Katiba, to dissolve Parliament for the 2012 election.
If Kibaki doesn't do it in a timely fashion - in time for the August 2012 elections - then he might create a constitutional crisis.
Knowing Kibaki's record, I cannot rule out the possibility he might want to play deadly games.
But then, since the 2012 general elections will for the first time involve very many positions (Presidency, 290 MPs, 94 Senators, 47 Governors, thousands of civic and county assembly positions), stakes will be high.
On the same August 13, 2012, many current MPs are already planning respective campaigns. I know of a Cabinet Minister who has already set up his campaign team for a 2012 bid for Governorship.
Many MPs are already fired up for 2012 - though I think many will be disappointed. Kibaki's hands will be tied by the disparate interests of these MPs and a restless public, and international community anticipating elections. Everyone is expecting elections in 2012, nothing short of that.
Kibaki’s options for chicanery are therefore limited by a lot of circumstances. So, he may still retain imperial presidential powers to keep the dissolution date secret but the constitution itself already pre-determined the date for elections. He has little choice - either do the right thing or create a constitutional crisis as part of his retirement legacy.
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Post by politicalmaniac on Sept 21, 2010 18:19:35 GMT 3
A lot of factors preclude the lame duck P.O.R.K from desperately holding on to power beyond when his term expires in Dec 2012.
Leave alone all that legal mumbo jumbo above, but the optics of it stinks. His so called legacy, virtually non existent will disappear for sure should he occasion a constitutional crises of this sort. This chicanery will tear up the country again and this time we may even get a real Military coup. And this is a very real possibility esp if it looks like the Hon Prime Minister stands a good shot at succeeding the lame duck currently in office. I am sure that the option of DELIBERATELY triggering a crises to prevent ODM from winning, is on the mafiya table. With these people, nothing surprises me any more.
I am not gonna panic wondering if he will hand over.
He has no choice but do so. The alternative is a PEV LIKE disturbance. We are tired of this man!
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Post by mank on Sept 21, 2010 18:21:36 GMT 3
...You are right in the sense that Kibaki holds the card to -dissolving Parliament for the next elections. By what section of the constitution does Kibaki hold the power to dissolve parliament? |
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Post by job on Sept 21, 2010 18:26:34 GMT 3
...You are right in the sense that Kibaki holds the card to -dissolving Parliament for the next elections. By what section of the constitution does Kibaki hold the power to dissolve parliament? of the old constitution |
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Post by mank on Sept 21, 2010 18:32:10 GMT 3
By what section of the constitution does Kibaki hold the power to dissolve parliament? Correct me if I error, but my understanding is that Article 59 of the old constitution ceased to apply once the new constitution was promulgated. |
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Post by job on Sept 21, 2010 18:59:22 GMT 3
Mank,
This is my understanding. In the Sixth Schedule of the new Constitution, which deals with transitional issues, Article 3 clearly provides for the extension of the provisions of Chapter 2 of the old Constitution- concerning the Executive - until the next General Election.
The transition clauses speak about the continuity of the Executive as it is till the next election, which is pre-determined. Until this date, the current President still retains all his executive powers under the former Constitution, including the power to dissolve Parliament for the 2012 election (59 {2}). Sad but that's the way my lay self sees it!
And it is specifically that power to disolve Parliament (a precursor to the general election) that is being referred to as the 'secret card' Kibaki holds. The card's weight is however minimized by the fact that the election date is already pre-determined (August 2012).
And of course, as we have come to learn about Kibaki - a very notorious character - people are not ruling out possibility of Kibaki staying quiet, pretending that no elections will be held in August 2012 & refusing to dissolve parliament on time, thereby creating a constitutional crisis right before the next polls.
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Post by mank on Sept 21, 2010 19:19:24 GMT 3
Mank,This is my understanding. In the Sixth Schedule of the new Constitution, which deals with transitional issues, Article 3 clearly provides for the extension of the provisions of Chapter 2 of the old Constitution- concerning the Executive - until the next General Election. That's my understanding too. However article 59 did not fall under Chapter II ( the executive). It was under Chapter III – Parliament. Article 59 does not fall under any of the sections of the old constitution that are given life during the transition period. This is what the article says:Accordingly, Kibaki has no constitutional power to dissolve parliament. However there is a mismatch between the date you allege is known by Kenyans to be the next elections day Aug 13/14 2012, and the time period when the constitution supports the next election ( post Dec 29 2012). If you still believe Aug 2012 is constitutionally supported I would be interested to see your arguments. However the one of ignoring the transition clauses and picking the clauses for post transition as did Miguna and Mtumishiman before is obviously not a useful pitch at this point. |
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Post by job on Sept 21, 2010 20:03:26 GMT 3
Chapter 2 (Executive) of the old constitution refers to executive powers designated/dispersed in other Chapters and Sections of the constitution as well.
For instance, executive powers derived from Chapter 2 regarding the preservation of public security are defined under section 85, while the appointment and removal of Ministers and Assistant Ministers fall under sections 16 and 19.
Similarly, the assignment of responsibility (by a President) to a Minister falls under section 18; while as you correctly point, the presidential powers over prorogation and dissolution of Parliament fall under subsections (1) and (3) of section 59 (Ch. 3).
Thus the powers are not all confined in Chapter 2. They may fall in other chapters (details and specifics) but are generally derived from Chapter 2.
We will find out soon - but from reading the Sixth Schedule, especially Article 2, which calls for continuity of the executive as it is currently, Kibaki clearly has those powers.
I've twice detailed how I arrived at the August 2012 above. It's just a matter of understanding or interpreting what "second Tuesday in August, in every fifth year" is.
I can bet you, inserting that clause in the constitution means something. It was pre-determined very deliberately and is not to be ignored as meaning nothing.
On this - I'll end my take here.
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Post by mank on Sept 21, 2010 21:38:20 GMT 3
This constitution's main goal was to trim the powers of the president. If Clause 59 was going to be given power, it would certainly have been explicitly pointed out in the plethora of others that were mentioned in article 3 of sixth schedule. But the constitution precisely activated a bunch of selected sections from 30 up precisely to Section 58. Why would it truncate its identification right at Section 58 if Section 59 was supposed to be given life as well?
We shall not find anything about Kibaki's constitutional power from what he does. Several actions he has taken are not consistent with the law, so why would we believe we can learn the stipulates of the law through his actions?
Then, understanding of when the next election is to happen by law, when one refuses to account for a word like "AFTER", is not an understanding at all. It is only a confession that if we agree to such obvious issues then some that we have branded "false prophets" will be vindicated.
The clause about "second Tuesday in August, in every fifth year" is not for the transitional period. That is why we have the Sixth Schedule.
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Post by kamalet on Sept 22, 2010 8:45:11 GMT 3
Mank
It would appear that Job does agree with the bit about when the life of the current parliament will end...29th December 2010. Now my understanding is that prior to this date or by this date, there will be a process of "dissolution" of the National Assembly and then within 60 days of the dissolution, an election under the current constitution will be held. I suspect that the powers of dissolution are still held by the President. If the president dissolves parliament tomorrow, then elections to parliament (and Senate)will be held within 60 days of the dissolution but those of the county assemblies and governors would be held "within" 2012".
The second important thing is the provision that elections will be held "every fifth year" on the second tuesday of August. My understanding is that the constitution does not work retroactively unless provided for which means that the calculation of the "every fifth year" can only start after the 2012 elections. The new constitution is clear that the current national assembly must serve its term to the end.
I am thus still struggling to understand where this 12th August 2012 date is coming from!
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Post by mtumishiman on Sept 22, 2010 9:44:54 GMT 3
Good peaople, there are no grey areas in this matter. If you look at the FIFTH SCHEDULE on the LEGISLATION TO BE ENACTED BY PARLIAMENT, it gives a two-year period for MPs to put in place an Act of Parliament to define procedure for assumption of office of president. This is in line with tha Constitution which states that [Article 141 (4)] Parliament shall, by legislation, provide for the procedure and ceremony for the swearing-in of a President-elect. In defining procedure, MPs will bring light to all those dark areas where the devil is lurking.
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Post by mtumishiman on Sept 22, 2010 15:53:09 GMT 3
According to the transitional and consequential provisions in the Sixth Schedule 12(3), a person who was elected President before the effective date is not eligible to stand for election as President under this Constitution. This rules out Kibaki’s appetite for a third term, if any.
Now on matters of dissolving the Parliament, it is indeed true that parts of the new Constitution are held in abeyance until the final announcement of all the results of the first elections for Parliament. The current President will thus use the powers donated through Section 58 of the former Constitution to dissolve Parliament. But that is not a secret weapon since collective failure by MPs or or inertia to put in place the required pieces of legislations within stipulated time frame could, upon an appeal of any citizen, lead to dissolution of Parliament.
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Post by mank on Sept 22, 2010 16:54:37 GMT 3
Kamale and mtumishiman, Am just too committed elsewhere to respond as fully as I would like. In brief, Kamale, my main interest was to understand how the Aug. 14 date gets derived. To the extent that there is no algorithmic derivation, yet the constitution stipulates an algorithmic derivation of the first elections date, I miss where there is agreement on this thread. Its hard to reconcile one's admition that Kibaki's term does not end till Dec 29 or 30 with the same person's claim that Aug 13 is the trivial elections day yet the constitution requires elections to occur 30 days after that the end of term. I have reviewed the old thread, and gotten reminded of how TNK and I ended this discussion. I think what TNK pointed out would be the only reasonable explanation of how the constitution supports elections in 2012. But it too, is not strong: as I responded to Job, it is hard to rationalize how article 59 of the old constitution was intended to be effective in the transition phase, yet the constitution itself goes meticulously picking the clauses to be effective and cuts the line precesely at article 58. According that explantion any election in 2012 is based on zig-zag clauses which painstakingly skirt around the main clause that's supposed to address the first elections under this constitution. The zig zag clauses aslo rest their hope on the current presidency to voluntarily activate its suicide just like Mtumishiman suggests here: The current President will thus use the powers donated through Section 58 of the former Constitution to dissolve Parliament. I won't ask what Kibaki's interest would be to prematurely terminate his term, but I would like to ask what anyone takes to be the compelling promise that he will do so, and that he will do so to precisely line up the election for the 2nd Tue in 2012. Note that the new constitution was meant to take power away from the president. As you read it you realize that it actually went great lengths into achieving that goal. It is only in refusing to admit a gap that it left that now people are ironically claiming that the power still rests with the president. As people push power back into the president, the power may become gladly accepted - but to assume that it will be obviously used for the interest of everyone would be a step into an extremely naive political world. I don't know how on Jukwaa people can get the courage of rationalizing that world. My humble opinion is that the constitution implementation organs aught to be picked quickly, and modalities for managing such confusion be deviced. Vaguely I recall seing provisions for handling such lose ends in the implementation phase. It is absolutely careless to gamble with matters like these by hoping that an individuals will act in the interest of the country. Stuff happen - even the best intentioned people can lose sanity and become no longer dependable to make any call, whether good to all or even to themselves. Here people are arguing that someone will certainly make a call that is not necessarily in his best interest, and I cannot fathom how they determined the date on which that call will be made. |
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Post by mtumishiman on Sept 22, 2010 17:45:48 GMT 3
Kamale and mtumishiman, By the way Mtumishiman, Section 58 of the old did not give the president power to disolve parliament. Perhaps its through the window of that mistake that you trivialize this matter. It is Section 59 that did.Look at these three options: [1] Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, [2] provisions of the former Constitution concerning the executive, [3]and the National Accord and Reconciliation Act, shall continue to operate until the first general elections held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election. The provisions on executive in the former constitution covers, among others, section 59. I thinks this answers your question on dissolution of Parliament. There is no lacuna here. |
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Post by enigma on Sept 22, 2010 18:05:23 GMT 3
Ok so we engage in hair splittings when the KATIBA says clearly the second tuesday of the August of 2012. The latest Bunge will break will be 13th JUne 2012 but most likely March 2012. That is the plain situation as I see it.
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