There must be an election coming! People are beginning to wonder whether the election date is somehow not set in constitutional stone.
In last Monday’s Star a former Senator argued that, since the President was sworn in on November 28, 2017, his term does not end until that date in 2022 – and that since elections must be on the second Tuesday in August, it will in fact not happen until 2023.
I doubt whether this will take in many people, even without reading the Constitution. The actual swearing-in may vary for several reasons only some of which are dealt with in the Constitution. Any idea that somehow the President is entitled to a full five-year term and must be compensated is faulty. As it happened, of course, Uhuru was already President and just stayed on.
PRESIDENT’S TERM OF OFFICE
The Constitution does not actually say the President has a term of five years. It says that the President remains in office (unless earlier resigns or is removed) until the next President is sworn in. One goes out as the other comes in.
It is not the old Constitution, which said, “The President shall hold office for a term of five years beginning from the date on which he is sworn in as President.”
But even that one envisaged that there might be some delay in the transition – and then the sitting President would remain until the new one came in.
It is clear that the Constitution does envisage elections being five years after the previous ones. We had elections in 2017; so how can anyone argue they should not be until 2023 – leaving aside any issue of absolute necessity because of, say, Covid-19?
The structure of the provisions on timing is that the general election for Parliament is to be on “the second Tuesday in August in every fifth year”. Any other election – presidential. gubernatorial or county assembly - is to be on the same day.
There are a few potential unusual situations or even doubts. If a president leaves office for any reason when there is no Deputy President, there must be a presidential election within 60 days. But this creates no uncertainty because the person then elected President serves only until the next scheduled date of a parliamentary – and therefore presidential – election.
More puzzling is what happens if the Chief Justice “advises” (which means directs) the President to dissolve Parliament, and have a general election, because Parliament has not passed laws required by Schedule Five of the Constitution.
Does anyone else have an election that day? And, assuming not, does this mean that forever the link between parliamentary and other elections is broken? Of course, we all know that the CJ has in fact made this “recommendation”. But the courts’ tolerance of delaying tactics means that the crucial question will probably never be put to the courts.
And if we were at war, and Parliament delayed an election, would this mean that other elections would also be delayed? This provision is derived from parliamentary systems – where electing Parliament is electing the government. It would be odd if our Parliament could extend its own term but the presidential election had to go ahead.
Possible reasons for delaying (either that the situation was so confused or unsafe that elections could not be organised or safely held, that Parliament was so embroiled in the conduct of the war that it could not take time off to fight an election, or that national unity was essential) would equally apply to the President. They might not apply equally to county entities. Hopefully the courts will never have to decide this.
‘THE SECOND TUESDAY IN AUGUST IN EVERY FIFTH YEAR’
This phrase entered our constitution drafts at that infamous Parliamentary Select Committee (PSC) meeting in Naivasha in 2010.
The previous draft had said that Parliament must be elected just over a month before its term expired – and its term was five years from the date of its swearing-in. Five years would have ended “at the beginning of the date of the relevant year that corresponds to the date on which the period began” [please remember this]. So if sworn in on August 15, 2013 they would have left office at the beginning of August 15, 2018.
The phrase “fifth year” – or anything similar – did not appear in earlier drafts.
Not for the first time, someone has recently appeared to say something to the effect: “There is a problem. In 2022, the second Tuesday in August is on 9th. But that is one day more than five years after the 2017 election. So it is in the next year that runs from August 8, 2022. Therefore the elections must be in 2023.”
Commonsense surely indicates that this is nonsense. On that basis our next few elections would be in 2023, 2028, 2034, 2040, 2045. In other words, sometimes five and sometimes six years apart.
How can someone reach this conclusion? Because they assume that “a year” means a period of 365 days (266 days in a leap year) from one event to the next. So if a day falls outside that period it is in the next year.
But the word “year” has two meanings. If I ask you “what is this year?” would you answer “this is in the fifth year since the last parliamentary election”? Or would you say “This is 2021”? If there is a choice of meanings, take the sensible one – this is a principle of interpretation of law.
But doesn’t the Constitution say a year is a period that begins on one date and ends on the corresponding date a year later [in that phrase I asked you to remember]? Well – No. The Constitution was defining a period. But the drafters were clearly conscious of the fact that “year” had another meaning. They even used that other meaning: the “date in the relevant year”.
The Committee of Experts, producing the final draft Constitution, adopted the phrase “fifth year” from the PSC without realising the issue it might cause. But time was short. The PSC produced its report at the beginning of February 2010.
The Final Proposed Draft is dated May 6. In those three months, the CoE had to get to grips with what the PSC had suggested – some of which was nonsense. They decided what they had to accept because it was politically sensitive (maybe they were sometimes wrong), redrafted the document, and presented it to Parliament. Parliament voted for it on April 8. Then it had to be printed to go to the nation. It is not surprising they missed a few things that they could have clarified.
WHAT ABOUT 2017?
People had assumed for long that there would be an election in December 2012. Even the CoE assumed it. But the Supreme Court decided – quite rightly – that the old Parliament’s term ended in January 2013 and the election had to be before sometime in March. It was – on March 4. The August in the fifth calendar year from then was August 2018.
But the Court of Appeal decided — in the case about the MCAs’ elections — that 2017 was the correct election year. They quoted that same definition of a year. They also seemed to feel that somehow the 2013 election ought to have been in 2012. That the natural thing was to have an election in 2017. They were deciding in November 2017 – just after not one but two presidential elections. Could they possibly have been reluctant to say those elections were a year early?
We need clarity about election dates.
We can’t have five years sometimes meaning six years. Probably the case will end up in the Supreme Court, and could - maybe should – go straight there. What’s past is past, but sense must prevail in future.
To be clear, in my view, “fifth year” means fifth calendar year and the Constitution fixes our next election as next year.
