FIVE-YEAR POLL CYCLE

The myth of a 2022 general election

Fifth year of August 8, 2017, general election will begin on August 8, 2021.

In Summary
  • The key phrase in the Constitution pertaining to a general election is thus “the second Tuesday of August, in every fifth year”.
  • It might be prudent for those preparing for the next general election to seek interpretation of the Constitution in the High Court.
A voter casts her ballot at the Old Kibera Primary School in Kibera, Nairobi, on August 8, 2017.
A voter casts her ballot at the Old Kibera Primary School in Kibera, Nairobi, on August 8, 2017.
Image: JACK OWUOR

A myth is defined as a widely held but false belief or idea. The Kenyan body politic believes that the next general election will be held on the second Tuesday of August 2022. This article endeavours to prove that this is a myth.

The Constitution limits the term of the President in Article 142 (1). The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President in accordance with Article 136 (2)(a) is sworn in.

Article 136 (2)(a) states that the election of the President shall be held on the same day as a general election of members of Parliament, being the second Tuesday of August, in every fifth year; or in circumstances contemplated in Article 146. This Article deals with the vacancy in the Office of the President.

The election of MPs is also covered in Article 101 (1). This Article also states that a general election of members of Parliament shall be held on the second Tuesday of August, in every fifth year. Article 180 (1) on the election of the county governor, states that the county governor shall be directly elected by the voters on the same day as a general election of members of Parliament, being the second Tuesday of August, in every fifth year.

The key phrase in the Constitution pertaining to a general election is thus “the second Tuesday of August, in every fifth year”.

In determining the date of a general election there will be need to (i) know the date of the previous election which becomes the date upon which any year count begins and (ii) understand the meaning of “every fifth year”.

In determining the date of a general election there will be need to (i) know the date of the previous election which becomes the date upon which any year count begins and (ii) understand the meaning of “every fifth year”.

This can only mean that four years have passed, the fifth year is current but has not elapsed. One should note that it does not mean “after five years” which is an indefinite and an unknown period of time. The minimum period would be five years but the maximum period can range from five years and one day to the end of time.

The first general election under the 2010 Constitution was held on March 4, 2013. Four years of this election date ended on March 3, 2017. The fifth year of this election began on March 4, 2017. The general election under Articles 101 (1) and 136 (2)(a) was then held on the second Tuesday of August of the fifth year, being August 8, 2017.

In 2017, the general election for members of Parliament was held on the second Tuesday of August, this being August 8, 2017. The fourth year of this general election will thus end on August 7, 2021. The fifth year of this general election will then begin on August 8, 2021.

Given that elections of MPs shall be held on the second Tuesday of August of the fifth year, this day will fall on August 10, 2021. This date is dictated by Articles 101 (1) and 136 (2)(a). A general election being held the second Tuesday in August 2022 will therefore be an election in the sixth year of the general election, a date which the Constitution does not envisage.

I would not want to hazard a guess as to the origin of the myth of a general election being held on the second Tuesday of August 2022. It might be that there is a reading from different Articles in the Constitution or that there is a correct reading of the same Articles but the Articles having different contents – meaning that there are different versions of the Constitution.

The IEBC is mandated to conduct the general election for MPs and it would be interesting to hear from them which Articles of the Constitution they are using to prepare for the general election. The date as interpreted by them should also be of interest.

It might be prudent for those preparing for the next general election to seek interpretation of the Constitution in the High Court. A similar exercise was done in 2012 when those elected under the previous Constitution sought an interpretation as to the end of their parliamentary terms and the date of the first general election under the 2010 Constitution. The courts spoke and the first general election under the 2010 Constitution was set for March 4, 2013.

If this interpretation of the general election date as herein argued is correct, then a general election in 2022 will remain a myth or there will be a need to change the Constitution. The Constitution is also clear on the term of Parliament. Article 102 (1) states that the term of each House of Parliament expires on the date of the next general election. Article 102 (2) deals with the extension of the term of Parliament when Kenya is at war.

Lecturer, Technical University of Kenya. [email protected]