Kenya`s next General Elections can only be held in August 2017

The usual hullaballoo and phobia about elections from the political class has begun almost three
years to the next General elections in Kenya. Kenya`s parliamentarians have embarked on a no
go zone of changing the date as stipulated under law to be in August 2017 to a convenient date
of December the same year. While their reasons of impracticability of date and budget process
are justifiable; this has not gone down well with those who believe in the supremacy of the
Constitution of Kenya 2010. The naysays of this new found date (at least by MPs) propound that
paying fidelity to the law is to adjust all other agendas to fit into the law and not the other way
round of making amendments to fit into other agendas! Can parliament amend the constitution
through a two thirds majority without a referendum? This debate marks a legal dilemma which is
likely to see its light of day in the chambers of the highest courts in the land.
Article 136 (2), stipulates that an election of the president shall be held a) on the same day as a
general election of Members of Parliament, being the 2nd Tuesday in August, in every fifth year.
Previously this date was uncertain and left everyone spinning at the whims of the executive.
This clause left no room for machinations that were initially being witnessed by the powers that
were and often used as a secret weapon by the president incumbent. Surprisingly, this is the
subject of debate today. Can parliament alter the General election a date to their will? It is true
that the role of MPs includes legislation to enforce the constitution. There are some obvious
restrictions in black and white reflecting the letter and spirit of who owns the law in article 1 on
supremacy of the people.
Effective citizen participation is a pillar anchored in the constitution and a tool for good
governance and effective service delivery. Articles 201 (a), 196 (b) 184 (c), 174 (c),124 (b),118,
35, 34, 10-2 (a) provide for access to information and public participation in the decision making
processes. This decision of amending the constitution is precipitate and seems to superintend
this and a window is offered in article 255 (1) on amendment by referendum.
To hold a referendum, in accordance with article 257 requires at least the collection of at least
1,000,000 valid voter signatures, drafting of a bill, with the satisfaction of Independent Electoral
and Boundaries Commission (IEBC) the bill be subjected to each county assembly within three
months, if approved within 3 months after the submission date, parliament shall be ceased of
the bill which would ultimately require presidential assent. Recognizing the intricacies of holding
a referendum makes any December date or any other untenable.
We recall that in postponement of the 2012 general elections to March 2013, a high court ruling
declared that in the event of the next general elections; the constitution had to accorded its
aspirations. In accordance with article 259 (1); the constitution is to be interpreted in a manner
that a) promotes its purposes, values and principles and 2 in case of any conflict in our minds;
the English version language prevails.
Opinion by Otachi Jacob Orina (Communication and Governance Czar)
The writer works with Tachicom-Kenya and his views expressed herein are personal and do not
necessarily reflect those of the Habitat.