With the unity of purpose usually shown by Kenyan parliamentarians when their self-interest is at stake, it would not be surprising if a push for an extended term, likely to be mounted in the first half of next year, succeeds.
The end of this year and the beginning of another will for Kenyans also serve to set the country firmly in election mode.
This will be in keeping with the trend where the election campaign fever is almost continuous, with only a brief respite between one poll and the next five years later.
The real countdown however begins some 18 to 24 months to every election, and turning the New Year is bound to spur heightened political activity.
Although the Independent Electoral and Boundaries Commission earlier in December affirmed that the General Election — presidential, senate, national assembly, county governor and county assembly polls — will be held on August 8, 2017, it is apparent that elected leaders have not given up on a scheme to push the elections back to December that year or even up to mid-2018.
“The next General Election will be held on Tuesday, August 8, 2017 as per the Constitution. That is only 19 months away or 607 days to be exact,” electoral boss Issack Hassan announced at the IEBC offices as he launched a schedule for voter registration.
The Constitution of Kenya passed in 2010 set the first Tuesday of August every five years as the General Election date, but the announcement by Mr Hassan was keenly awaited as MPs from both sides of the divide have been eager to extend their term.
They argue, as they did in successfully pushing back the elections initially set for 2012 to 2013, that elected leaders must serve a full five-year term from the time they are sworn in to the time the House is dissolved.
The Constitution of Kenya (Amendment) Bill Number 1 of 2015 flopped on failing to get the support of at least two-thirds of all members. It got 216 votes, which was just 17 shy of the required majority, with 24 voting against it and four abstaining.
Despite Mr Hassan’s pronouncement, the MPs who supported the motion have not given up, and are quietly mobilising to launch another attempt in parliament once six months have elapsed.
Another option they are considering is sponsoring a move in the High Court challenging the election dates as they did in 2012.
Already, they have started floating trial balloons using newspaper commentaries and social media activists who have been arguing that the Appeal Court ruling of 2012 that pushed the General Election date to March 2013 set a precedent in respect of the dates for the next elections.
The rather odd ruling on an interpretation sought by the Electoral Commission favoured the position used by parliamentarians in seeking to extend their terms.
Traditionally in Kenya, elections have been held every five years, with the five-year term measured from the date of one election to the date of the next election.
This means that if an election is held on January 1, 2012, for instance, the next election must be before January 1, 2017. It never took into account when the elected leader was sworn in, or the period the Assembly is dissolved, some 60 days before the actual election date.
But the January 2012 High Court ruling and Court of Appeal affirmation extended the term of office to five years from the time of swearing in to the date the House is dissolved.
Court of Appeal Judges Erastus Githinji, David Maraga, Hannah Okwengu and Kalpana Rawal, on an appeal by civil society groups, upheld partially the earlier finding by High Court Judges Isaac Lenoala, Mumbi Ngugi and David Majanja that effectively extended the term of the 10th Parliament.
The ruling also ignored the new constitutional provision that elections be held in August, which would actually have meant a General Election that month in 2012, and subsequent elections after every five years in August.
The only dissenting voice in the Court of Appeal came from Justice Martha Koome, who argued that pushing the elections to March 2013 would unconstitutionally extend the life of the incumbent parliament, and with that also the tenure of president Mwai Kibaki.
Although the Court of Appeal ruling was specific only to that General Election before reverting to the August every five years cycle outlined in the Constitution, it left enough grey areas for exploitation by MPs keen to hold on to their perks and privileges for as long as possible.
They are preparing arguments that since they were elected in March 2013, their terms, including those of President Uhuru Kenyatta and Deputy President William Ruto, do not end until March 2018.
They further argue that if they are to remain in office until March 2018, there must still be 60 days from the time the Houses of Parliament stand dissolved to the next poll, which then cannot fall before May or June 2018.
According to a scenario worked out by a strategist for a group of MPs plotting to push back the election dates, Members of the National Assembly and Senate, as well as County Governors and Members of Country Assemblies were elected on March 4, 2013, and formally sworn in by March 28 the same year.
President Kenyatta and Deputy President William Ruto were also elected on March 4, but only sworn into office on April 9 after the Supreme Court threw out the election petition and upheld the presidential election victory over the challenge of Raila Odinga and Kalonzo Musyoka on the Cord ticket.
Based on the Appeal Court ruling setting the 2013 election dates, it therefore follows that the next election for Governors, Senators, Members of the National Assembly and MCAs cannot be held earlier than May 2018, which will be five years after the March 2013 election and swearing-in, followed by the statutory two-month period for the IEBC to formally call the elections and provide to nomination process and official campaign period.
However, a General Election must incorporate the presidential election. Since President Kenyatta and Mr Ruto were both formally sworn in on April 9, 2013, their five-year terms lapse on April 9, 2018. Add the 60-day rule, and the next Presidential Election can therefore not be held before June 9, 2018. The demand therefore will be that IEBC hold all elections together with the presidential elections in June 2018.
It also changed the known method of measuring an electoral term hitherto established in Kenya and also in practice everywhere else in the democratic world.
With the unity of purpose usually shown by Kenyan parliamentarians when their self-interest is at stake, it would not be surprising if a push for an extended term, likely to be mounted in the first half of next year, succeeds.
