So people (well some MPs) want the general election to be in August next year. Most people regret that they have not already seen the back of the current House – which they would presumably have done if the courts had decided that the elections were to be in December this year.
In fact the courts were not even asked about August 2013. The contenders were August 2012, December 2012, and between January and March 2013. The Court of Appeal decided the last was the correct interpretation of the constitution.
We believe that this was the correct interpretation, indeed one of us was amicus curiae (friend of the court), who advanced that date. But regardless of our view, that court decision is the law; that is now what the constitution means.
No-one appealed to the Supreme Court. So after a time the possibility of doing so lapsed. But anyway, it would have been hard to raise the possibility of August 2013 if it had not been an issue in lower courts.
And since there is that decision, it is unlikely that anyone could now bring a new case on the election date. A basic principle of law is that once a matter has been decided by the courts, it is not possible to go back to the court with it (other than on appeal within the time limit, long past in this case).
There must be an end to litigation. The courts have decided that this applies to constitutional cases. The anxiety of those who have already resigned to contest about the possibility that they might have to wait five more months is a clear illustration of why the courts take this approach.
We should also make it clear that any argument in favour of the August 2013 should not succeed before the courts. The Court of Appeal decided that the relevant part of the constitution was Schedule 6, sections 9 and 10: which say the existing House continues for its “unexpired term”, after which elections must be held within 60 days.
The court decided (and the three judges of the High Court had agreed) that this means the end of its term under the old constitution, because it was that constitution under which the House was elected.
This transitional provision applies and not the provision in the constitution about elections in August, which will apply to the following elections.
The only reason December was a live issue was that people remembered that the last two elections were held in December, forgetting that this happened only because Moi (in 2002) and Kibaki (in 2007) dissolved Parliament early.
Those two previous parliaments did not run to the end of their terms. This erroneous recollection was shared by the Committee of Experts, which clearly assumed that the normal year for elections was 2012.
The language of the constitution in Schedule 6 prevailed over the CoE’s erroneous assumption; it would prevail over the date that even the CoE did not contemplate – August 2013.
The court ruling tells the country what the constitution means. It means the elections must be between January 14, 2013 (when the term of the present Parliament ends) and 60 days later.
Most clearly of all, the Independent Electoral and Boundaries Commission cannot hold the elections at any other time. It was actually a party to the case.
There are also policy reasons for sticking with the planned date – the sooner we get to the full application of the constitution, especially concerning the governance of the country, the better. Continuing with present arrangements for another five months (that is until three years after the adoption of the constitution) is hardly consistent with the spirit of change and reform underlying the constitution.
With a new constitutional order, it is imperative to give the people the opportunity to elect the executive and the legislature at the earliest possibility, and with it the introduction of the improved system of representation, governance and accountability.
With the election date determined by the courts, the responsibility of the IEBC is clear: to get on with the elections on its preferred date of March 4.
A later date will be unfair to those who have resigned public offices on the assumption of a March 4 poll. The failure to hold elections on March 4 will create a major crisis. It will undermine the rule of law, and the role of courts to settle constitutional disputes.
We have no more time for litigation when both the High Court and the Court of Appeal have in very clear terms decided on the dates. Those who want to participate will nominate themselves. Others will have to wait until August 2020.
The House is not to become the 'August House' – in the sense that it is elected in August – yet. Let us hope the new House, to be elected in March, really deserves the cliché 'august House'. Dictionaries define 'august' in terms like revered, impressive, respected, admired.