BY MZALENDO CONTRIBUTOR – Moreen Majiwa (@mmajiwa)
During their two-day retreat MPs made a unanimous decision to extend their term to December 2012. According to the Daily Nation Thursday November 11, 2010 some parliamentarians stated that it was even possible for the National Assembly to extend its term to February 2013, the date that marks five years after the current parliament was established.
We have been left wondering – is this proposed extension constitutional?
Article 9 (1) of the 6th Schedule of the new constitution which outlines the provisions for transition states that the ‘first election for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within 60 days after the dissolution of the National Assembly at the end of its term.’ Article 10 of the same schedule reads ‘the National Assembly existing immediately before the effective date shall continue as the National Assembly for the
purposes of this Constitution for its unexpired term’.
The interpretation of the phrase ‘unexpired term’ is crucial to determining the
constitutionality of the proposed extension. If the phrase ‘unexpired term’ is taken to mean five years, with 12 calendar months in each year, then a case can be made for the extension. Counting from December 2007, the date of the previous general election, the current parliament’s ‘unexpired term’ would end December 2012, the date of the proposed extension. Counting from February 2008, the date of the establishment of the current parliament, which was delayed due to the post election violence of 2007/2008, parliament’s unexpired term would end in February 2013.
However regarding when the elections should be held the new constitution is clear. The constitution states that elections should be held on the second Tuesday in August in every fifth year for members of parliament [Article 101 (1)] the president [Article 136 (2)], county assembly [Article 177 (1)] governor and his deputy [Article 180 (1)].
Confining the argument to parliament Article 101 (1) states ‘the general election of MPs shall be held on the second Tuesday in August every fifth year’. The question that should be asked with regards to the date of the next election as envisioned by the new constitution is whether the second week of August 2012 falls within the fifth year of the five-year parliamentary term?
Whether the counting of the five years begins from December 2007, the date of the last election, or from February 2008, the date of the establishment of the current parliament the second Tuesday in August works out to Tuesday 12th August 2012 is within the fifth year of the current parliament’s term. This is all that is required by the constitution for the election to take place on 12th August 2012.
Under the previous dispensation, the President was the sole determinant the date of the general elections. The element that the new constitution brings to determining the date of the general election is certainty i.e. the second Tuesday of August 2012.