Post by Onyango Oloo on Sept 25, 2005 20:51:13 GMT 3
Wako Bill: Experts Warn Over 2007 Poll
By Benson Amollo, Kenya Times, September 26, 2005
CONSTITUTIONAL experts yesterday warned that the 2007 general elections could fail to take place as scheduled should the proposed new constitution pass at the November 21st referendum.
The experts further cautioned that a loophole whether wilfully or otherwise, created at the drafting stage could guarantee the incumbent a fresh five year term starting from the day new elections are held under the new constitution. That means that President Mwai Kibaki could be legally in office until the year 2017.
The lawyers now argue that Attorney General Amos Wako had overlooked serious matters in the drafting of the proposed set of laws and that should the November referendum endorse the document, then the country might be thrown into political confusion..
In an interview with the Kenya Times, lawyers led by public law lecturer Prof Okoth Ogendo, Chairman of the Law Society of Kenya, Tom Ojienda, International Commission of Jurists (ICJ-Kenya) Chairman, Otiende Amollo, Constitutional lawyers Patrick Kiage and Mutakha Kangu said President Kibaki could be courting chaos through Article 288 of the draft in its ‘flawed’ transitional arrangement.
Prof. Ogendo, one of Kenya’s foremost constitutional law experts, said the draft leaves grave doubts as to whether presidential elections will be held by 2007 now that they are no longer tied with parliamentary ones. Under Article 288 in the Sixth Schedule of the Draft Constitution, there are no clear cut specifics on the executive transition from the current constitution to the proposed one, upon adoption.
Part I subsection 6(1) of the Article, states that the President and the Vice President immediately before the effective date shall continue to serve as President and Deputy President, respectively in accordance with this Constitution and as elected members of Parliament until the first elections held under this Constitution.
In sum, this would imply that President Kibaki will assume afresh term in office beginning from the time of the implementation of the new Constitution, notwithstanding, the period served after 2002 general elections.
The article in subsection 3 of part I, states that the National Assembly, existing immediately before the effective date shall continue as Parliament for the purpose of this Constitution for its unexpired term and shall within six months of the effective date revise Standing Orders in accordance with this Constitution.
In legal implication, the article, said Mr Amollo, would mean that only legislators will face the 2007 polls and not the President whose office will be subjected to an election in 2010.
He said that it reeks of a constitutional flaw, when in principle parliamentary and presidential elections will consequently be held separately.
“This is wrong because there is no clause in the presidential terms of office stipulating when such a term should take effect. It overlooks the duration served previously by the Head of State.”
Kiage, said that the legal loophole that entitles the President to a fresh term is tricky and sets a precedent for litigations against the draft Constitution, upon becoming law.
He blamed Mr Wako for what he termed as a “mischievous oversight” and that “unless it was done with an intent, Kenyans have valid grounds to reject the draft at the referendum.”
Kiage said that the ambiguity would only serve to strike a return to the past, where in 1992, the then President Daniel Moi, declared fresh terms of office to begin the two term limitation after Parliamentary amendments despite a 14 year stint in State House.
According to Kiage, opposing parties in the referendum duel still have better grounds for negotiations to harmonise on contentious issues ahead of the referendum and that it is not illegal to reschedule the referendum.
But lawyer Kibe Mungai, was quick to allay as misplaced, the perception that the legal implication of Article 288, could lead to an abuse by the Executive, adding that fresh terms of office can only be mandated by an election since the “President is elected and not appointed.”
Kibe said that under the current constitution, Section 30, President and National Assembly constitutes parliament and that Article 288 will safeguard the status quo in its entirety, to be followed by amendments on standing orders as provided in the said article.
“I don’t think there is any mischief with the article. What will happen is that elections shall be done after amendments by the current parliament which also includes the president. There is no cause to panic since the same is legal.”
Kangu on his part wondered how Parliament will under the transitional arrangement, be dissolved to pave way for elections under the arrangement if it is not specified in the draft.
“In the current constitution, the president dissolves parliament and announces an election. But in the proposed Constitution, a dilemma is posed, especially on the transition from the current constitution to the new one.”
Ojienda said that there are likely to be a number of conflicting provisions in the proposed new Constitution since Article 288 provides that even after being endorsed at the referendum, it can only serve alongside the current constitution.
He said that the loopholes give the President a hand to exercise powers uncalled for and that with the many uncertainties, the country will be chaotic, if the new Constitution comes into effect.
“These are the reasons why Kenyans must reject the draft at the referendum.
It has blurred provisions without any framework for implementation. It is poorly drafted and it confuses.”
By Benson Amollo, Kenya Times, September 26, 2005
CONSTITUTIONAL experts yesterday warned that the 2007 general elections could fail to take place as scheduled should the proposed new constitution pass at the November 21st referendum.
The experts further cautioned that a loophole whether wilfully or otherwise, created at the drafting stage could guarantee the incumbent a fresh five year term starting from the day new elections are held under the new constitution. That means that President Mwai Kibaki could be legally in office until the year 2017.
The lawyers now argue that Attorney General Amos Wako had overlooked serious matters in the drafting of the proposed set of laws and that should the November referendum endorse the document, then the country might be thrown into political confusion..
In an interview with the Kenya Times, lawyers led by public law lecturer Prof Okoth Ogendo, Chairman of the Law Society of Kenya, Tom Ojienda, International Commission of Jurists (ICJ-Kenya) Chairman, Otiende Amollo, Constitutional lawyers Patrick Kiage and Mutakha Kangu said President Kibaki could be courting chaos through Article 288 of the draft in its ‘flawed’ transitional arrangement.
Prof. Ogendo, one of Kenya’s foremost constitutional law experts, said the draft leaves grave doubts as to whether presidential elections will be held by 2007 now that they are no longer tied with parliamentary ones. Under Article 288 in the Sixth Schedule of the Draft Constitution, there are no clear cut specifics on the executive transition from the current constitution to the proposed one, upon adoption.
Part I subsection 6(1) of the Article, states that the President and the Vice President immediately before the effective date shall continue to serve as President and Deputy President, respectively in accordance with this Constitution and as elected members of Parliament until the first elections held under this Constitution.
In sum, this would imply that President Kibaki will assume afresh term in office beginning from the time of the implementation of the new Constitution, notwithstanding, the period served after 2002 general elections.
The article in subsection 3 of part I, states that the National Assembly, existing immediately before the effective date shall continue as Parliament for the purpose of this Constitution for its unexpired term and shall within six months of the effective date revise Standing Orders in accordance with this Constitution.
In legal implication, the article, said Mr Amollo, would mean that only legislators will face the 2007 polls and not the President whose office will be subjected to an election in 2010.
He said that it reeks of a constitutional flaw, when in principle parliamentary and presidential elections will consequently be held separately.
“This is wrong because there is no clause in the presidential terms of office stipulating when such a term should take effect. It overlooks the duration served previously by the Head of State.”
Kiage, said that the legal loophole that entitles the President to a fresh term is tricky and sets a precedent for litigations against the draft Constitution, upon becoming law.
He blamed Mr Wako for what he termed as a “mischievous oversight” and that “unless it was done with an intent, Kenyans have valid grounds to reject the draft at the referendum.”
Kiage said that the ambiguity would only serve to strike a return to the past, where in 1992, the then President Daniel Moi, declared fresh terms of office to begin the two term limitation after Parliamentary amendments despite a 14 year stint in State House.
According to Kiage, opposing parties in the referendum duel still have better grounds for negotiations to harmonise on contentious issues ahead of the referendum and that it is not illegal to reschedule the referendum.
But lawyer Kibe Mungai, was quick to allay as misplaced, the perception that the legal implication of Article 288, could lead to an abuse by the Executive, adding that fresh terms of office can only be mandated by an election since the “President is elected and not appointed.”
Kibe said that under the current constitution, Section 30, President and National Assembly constitutes parliament and that Article 288 will safeguard the status quo in its entirety, to be followed by amendments on standing orders as provided in the said article.
“I don’t think there is any mischief with the article. What will happen is that elections shall be done after amendments by the current parliament which also includes the president. There is no cause to panic since the same is legal.”
Kangu on his part wondered how Parliament will under the transitional arrangement, be dissolved to pave way for elections under the arrangement if it is not specified in the draft.
“In the current constitution, the president dissolves parliament and announces an election. But in the proposed Constitution, a dilemma is posed, especially on the transition from the current constitution to the new one.”
Ojienda said that there are likely to be a number of conflicting provisions in the proposed new Constitution since Article 288 provides that even after being endorsed at the referendum, it can only serve alongside the current constitution.
He said that the loopholes give the President a hand to exercise powers uncalled for and that with the many uncertainties, the country will be chaotic, if the new Constitution comes into effect.
“These are the reasons why Kenyans must reject the draft at the referendum.
It has blurred provisions without any framework for implementation. It is poorly drafted and it confuses.”
