On August 27, 2010, Kenya promulgated a new constitution – the Constitution of Kenya 2010. The new constitution provided for a new structure of government and contained transitional provisions governing the conclusion of the term of the serving government and the establishment and commencement of the term of the new government through a general election.
Previously, in 2008, Kenya’s legislature had passed the National Accord and Reconciliation Act, 2008 to establish a coalition government through a National Accord, which was a reconciliation framework brokered after the violent aftermath of the disputed results of the general election held in December 2007. A dispute arose on the interpretation of some provisions of the new constitution and the National Accord and Reconciliation Act, 2008 on the question of what would trigger the first general election under the new constitution and how the date of the election would be reckoned.
The petitioners claimed that there was an apparent inconsistency between Articles 101 and 102 of the Constitution, 2010 (hereinafter referred as the Constitution) and paragraphs 9(1) and 10 of to the Sixth Schedule (hereinafter referred to as Schedule) as to the actual date of the next general election. The respondents were divided on their interpretation of the two Articles of the Constitution and the two sections of the Schedule. Invoking the jurisdiction of the High Court under Articles 165 and 259 of the Constitution for interpretation of the Constitution, they sought two declaratory orders:
- That the two Articles and two sections aforesaid are inconsistent in so far as they imply that the next general elections should be held on a date other than the second Tuesday of August 2012
- That the next general elections of the President and the National Assembly, Senate, County Assemblies and County Governors shall be held at the same time on the second Tuesday of August, 2012.
The Constitutional petition No. 185 of 2011 was filed by Milton Mugambi Imanyara against the Attorney General. It was triggered by the publication of the Constitutional of Kenya (Amendment) Bill, 2011 which sought to amend Article 136 (2)(a) of the Constitution relating to the date of election of the President which provides:-
“An election of the President shall be held –
(a) on the same day as a general election of the members of Parliament being the second Tuesday in August in every fifth year; or ……………..”
The petitioner averred that the Bill intended to amend the phrase “the second Tuesday in August” to read “the third Monday in December”; that the amendment was intended to circumvent the constitutional petition No. 65 of 2011 and would thus contravene the Constitution, and that, it was intended to be effected without reference to a referendum.
The petition sought two declaratory orders:
- That no amendment effecting the term of the President would be enacted without a referendum
- That the proposed amendment was inconsistent and in contravention with Article 136(2) (a)
The third petition No. 123 of 2011 was filed by Hon. John Harun Mwau against the Attorney General as a member of Parliament for Kilome Constituency on the basis that the people of Kilome desired to know the date of the next general election. At the hearing, the three petitions were consolidated. The High Court in addition gave leave to Professor Yash Ghai; Dr. Stephen Kimemia Njiru and the International Centre for Constitutional Research and Governance (ICCRG) to participate in the proceedings as “friends of the Court”.
DECISION OF THE HIGH COURT
The High Court summarized the rival submissions, considered them and made the following findings as embodied in the order given on 12th March, 2012.
T IS HEREBY ORDREED:
- THAT the Court has jurisdiction to determine this matter and it is founded on two grounds, first failure to hold the first elections on a day fixed in accordance with the provisions of the Constitution will be a threat to the Constitution and therefore any party is entitled to move the Court under Article 258(1) for appropriate relief and secondly, the Supreme Court in Constitutional Application No.2 of 2011 directed this Court to determine the Petitions having been satisfied that the Court has jurisdiction.
- THAT the date of the first elections under the Constitution is determined by reference to Sections 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 the Prime Minister in accordance with Sections 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 of the Anniversary of the day it first sat which is designated by Legal Notice No.1 of 2008 on 15th January 2008 and the term therefore expired on 14th January, 2013 and the elections shall be held within sixty days of 15th January, 2013.
- That in accordance with Article 255 of the Constitution, an amendment to the Constitution affecting the term of the President cannot be effected into law without a referendum.
- That the terms and conditions of service of Members of Parliament are governed by the National Assembly Remuneration Act (Chapter 5 of the Laws of Kenya) and Parliamentary Pensions Act (Chapter 196 of the Laws of Kenya) which are saved by virtue of the provisions of Section 6 and 7 of the Sixth Schedule up to the end of the term of the National Assembly or upon dissolution .
- The schedule contains the Transitional and Consequential provisions.
Section 2 of the schedule suspends inter alia:-
“the provisions of Chapter Seven of the Constitution except that the provision of the chapter which apply to the first general elections; chapter Eight, except that the provisions of the chapter relating to the election of the National Assembly and the Senate would apply to the first general elections under the Constitution (emphasis added).
S1ection 3(2) specifies the provisions of the former Constitution which would continue to apply until the first general elections. That section excludes section 59 which gave the President power to prorogue and to dissolve Parliament at any time.
The result of the decision of the majority is that the order No. 2(b) of the High Court that the elections shall be held 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 and the term therefore expired on 14th January, 2013 and the election shall be held within sixty days of 15th January, 2013 is confirmed.