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READ THE ONSTITUTION

Elections should be held in 2021, not 2022

“The second Tuesday of August in every fifth year” translates to Tuesday, August 10, 2021

In Summary

• The Constitution states the President’s election shall be held on the same day as a general election of MPs, which is given as the “second Tuesday of August in every fifth year, or in circumstances contemplated in Article 146,” a provision that deals with vacancy in the Office of the President.

• The proper legal analysis and math calculation must yield the correct year for the next elections to be 2021, counting “every fifth year” from the last polls — October 26, 2017.

President Uhuru Kenyatta and ODM leader Raila Odinga during the BBi launch at the Bomas of Kenya on November 27, 2020.
BBI DUO: President Uhuru Kenyatta and ODM leader Raila Odinga during the BBi launch at the Bomas of Kenya on November 27, 2020.
Image: COURTESY

Now that President Uhuru Kenyatta has for all practical purposes and intent tamed Deputy President William Ruto, there is no doubt he and ODM leader Raila Odinga will have BBI easily passed and promulgated into law.

The only issue now remaining is how BBI will be implemented.

According to Raila, who is the unofficial driver of this bus, drafting of the final BBI report is at an “advanced stage".

This means the balance of the political momentum that Covid-19 jolted into an abrupt stop will resume soon after the pandemic is contained and things resume to some semblance of normalcy.

 

Raila’s revelation came just days after the Referendum Bill, 2020 was published in the Kenya Gazette, indicating the legislative agenda must be carried out despite the virus crisis and besides the reading of the budget. Nothing will have more priority than BBI implementation.

However, not all proposals in the BBI will be subject to a referendum. The drafters of the bill will confine it to two or three fundamental issues.

The selected issues are to address the major ills at the core of what the BBI is designed to address and that is ending electoral disputes, violence, and deaths after every general election.

All other proposals in BBI will be implemented through executive orders or regular legislative action with the President’s assent or veto.

With Uhuru and Raila having done their purges in Parliament, and with the ongoing deals to form a grand coalition, and further given the handshake is steady, it is a foregone conclusion that other proposals shall be passed into law as a mere formality.

The only question remaining after that will be when the next elections will be held. Everyone, starting from the media and the public, somehow believes the polls will be in 2022. This is wrong.

The correct election year should be 2021 and this is why.

 

Article 136(2)(a) of the Constitution states that the President’s election shall be held on the same day as a general election of MPs, which is given as the “second Tuesday of August in every fifth year, or in circumstances contemplated in Article 146" - a provision that deals with the vacancy in the Office of the President.

The Constitution requires in Article 136(2)(a) that the President’s election shall be held on the same day as a general election of MPs, which is also given as the “second Tuesday of August in every fifth year, or in circumstances contemplated in Article 146” described above.

At the same time, Article 142(1) limits  the president’s tenure to “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.”

As for county bosses, Article 180(1) states that governors shall be elected in polls held on the same day as a general election of MPs, which as noted above is the second Tuesday of August in every fifth year.

As you can see in all these provisions, the phrase “the second Tuesday of August in every fifth year” is key in determining when elections should be held under the  Constitution and, more importantly, when the next elections must be held.

Without going into the weeds on this, the proper legal analysis and math calculation must yield the correct year for the next elections to be 2021, counting “every fifth year” from the last polls — October 26, 2017. The next elections should be held on Tuesday, August 10, 2021.

In other words, given we are now in the fourth year since 2017, 2021 will be the fifth year by which the Constitution mandates that elections be held not later than “the second Tuesday of August” of that year.

This is the only reading of the Constitution that will prevent our being in an even longer campaign mode than we already have been and continue to be, paralysing everything until the succession game is over.

Samuel Omwenga is a legal analyst and political commentator