The Kenyan National Assembly has proposed the introduction of a Constitutional Amendment Bill that seeks to amend the Constitution so that the general election will be held on the third Monday in December of the fifth year as opposed to the current Constitutional provision under Article 101 for elections to be held on the second Tuesday in August of every 5th year.
Implications of this amendment:
Important to note, is that the proposal made by the National Assembly has dire consequences on the legitimacy of the next general elections that all citizens should be made aware of. Firstly, the current proposal up for debate extends the term of Parliament and the term of all elected leaders by four months and 10 days. The MP's are forming the argument that if the elections are held in August 2017 as required by the Constitution, they will not have served their alleged full term of five calendar years in Parliament. This assumption that they must serve five full years is actually a falsehood, as the Constitution, which is the supreme law of our land Kenya, stipulates in unequivocal terms, as per Article 102, “the term of each House of Parliament expires on the date of the next general election.” Note that the Constitution does not, in any way stipulate or allude to the fact that MP's should serve for five calendar years. Therefore, the contract that MP's signed with their constituents on 4th March 2013 actually expires on 8th August 2017, not anytime before, or anytime after that date.
Secondly, the Constitution is very clear about the date of the next general election. Article 101 provides that “A general election of Members of Parliament shall be held in the second Tuesday in August in every fifth year.” The proposal by MP's to move the general elections to the month of December could be interpreted, as a selfish move by MP's to elongate their term in office and draw more money from the exchequer for their salaries and allowances. The advocates of this Bill should seek interpretation of the meaning of the fifth year, because as it currently stands, the fifth year ends in August 2017.
The third argument to repute the unsubstantiated claims made by MP's is that, the term of office of the Independent Elections and Boundaries Commission (IEBC) Commissioners expires in November 2017. The movers of the Bill are proposing that the Commissioners will be replaced a month before the proposed December elections. Considering the intricate nature of Kenyan elections, this might have dire consequences on the administration and management of the general elections. For any legitimate election it’s important to ensure that the Electoral Commission has prior institutional knowledge, understanding of the operations of an election and has had hands-on experience in electoral matters. The recruitment of the Commissioners could also be politicized, challenged, or even manipulated based on vested interests. If challenged in court, given the short timelines (one month), the elections might not actually occur in the proposed month of December, rather is pushed to the early months of 2018, which actually counteracts their original arguments.
Analysis of the justifications given:
The first argument that the MP's are using to justify a December election is that any general election held in August would interfere with the budget process. This argument holds no water as the Constitution and the Public Finance Management Act 2010 provides a schedule under which estimates for the subsequent financial year are to be submitted to the National Assembly by the end of April, and that they should be approved by the end of June. This revolutionized the old system under which the budget was usually not passed until sometime after the financial year began. Furthermore, under Article 222 of the Constitution, it authorizes expenditure by the national government awaiting the approval of the Appropriation Act for that year by the National Assembly.
The second unsubstantiated argument that MP's are proposing is that elections held in August would interfere with the school programme and the exam timetable. This is another falsehood used to fuel the propaganda around the MP's argument, as the KCPE exams are usually held in November and the KCSE exams in October. Public schools are on vacation in both December and August. At the earliest, the second Tuesday in August will be the 8th and the latest could be the 21st, therefore, holding an election in August does not affect the school calendar whatsoever. In case of a Presidential run-off, the Constitution provides that it must be held no later than a month after the first election. So it would mean that schools would have to close for a day sometime between the beginning of September and the 21st September. Likewise, this does not affect the school calendar or the exam timetable as alleged by the MP's.
The third argument that the amendment of the date of elections reflects the unique circumstances and tradition of Kenya is unsubstantiated. From the re-establishment of multiparty democracy in 1992 up until to 2007, elections were held in December, usually after Christmas (on 27th or 29th December). Before that, elections had been held in March in 1988 and September in 1983. Therefore, claims that elections should be based on Kenyan tradition rather than as per the Constitution is weak, and merely an attempt to sway Kenyans in an unfounded argument that would only leave the country and the legitimacy of the election in shambles, rather than towards the thriving democracy we envision.
Last but not least, the argument that the change to a December election favours the habitual behavior of Kenyans who register to vote in their home area, as opposed to where one lives and works, is linked with a tradition of going 'home' at Christmas. This is merely not true. Most Kenyans do not travel during the second week of December; rather Kenyans travel very close to 25th December up until the New Year. This argument made by MP's further perpetuates tribal politics as they are encouraging people to travel home to vote for one of their own instead of voting for a leader who serves them directly and appropriately wherever they stay.
Article 255 (1) (f) provides that a proposed amendment to this Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with Clause (2) by a referendum, if the amendment relates to the term of Office of the President. Since the President is one of the beneficiaries of this change, the enactment could only be made through a referendum.
In light of this, it is fair to say that our honourable MP's should instead direct their energies and resources to improving other areas of the electoral process that require their intervention such as the following, rather than fueling unsubstantiated propaganda in the media to unassuming Kenyans:
One, the amendment of Article 97 and 98 of the Constitution to provide a solution for meeting the two-thirds gender requirement.
Two, the amendment of the Election (Amendment) Act which changed Section 34(8) of the Elections Act, 2011 requires that a member should be in the party list on which to contest the election three months before the list is submitted to the Office of the Registrar of Political Parties (ORPP). Party hopping needs to be regulated. It is clear that most politicians do not believe in the ideals of the parties they are subscribed to. This was evident during the recent Kajiado Central by-election nominations process when Mr. Memusi Kanchory, who was initially seeking nomination through the Jubilee Alliance Party (JAP), hopped to the Orange Democratic Movement (ODM) after losing the initial nomination.
Three, focus should be to amend Article 88 of Constitution to review the mandate of the IEBC to disassociate the Commission from hearing and determining electoral disputes, as the IEBC’s entire focus should be management and administration of elections.
Four, MP's should seek to increase the time-frame for filing and determination of Presidential election disputes from the current 14 days to a more reasonable time-frame.
Lastly, MP's should introduce provisions to stagger elections instead of holding elections for six elective positions on one day.
These recommendations are suggestions that would improve the management and administration of Kenya’s elections and should be on the forefront of our leaders’ agendas, rather than the unsubstantiated propaganda that they are disseminating to Kenyans on the illegitimacy of elections held in August 2017. As stakeholders involved in Kenya’s democratic process, we strive to continuously improve the credibility and legitimacy of these processes in order to increase the stability and prosperity of our great nation. Our only hope is that our MP's would also prioritize the same.
Article written by Kennedy Kimani : Kimani is the Programme Head, Policy and Legal Reform, at the Institute for Education in Democracy.