CIC Advisory to the Public on the Setting of the Election Date by the Independent Electoral and Boundaries Commission (IEBC)

In the discharge of its mandate to oversee the process of implementation of the Constitution of Kenya, 2010, The Commission for the Implementation of the Constitution (CIC) finds it appropriate to issue this advisory to the people of Kenya as regards the setting by The Independent Electoral and Boundaries Commission (IEBC) of the date for the first elections under the Constitution of Kenya, 2010.

In giving this advisory, CIC is concerned, not with the political interests and preferences surrounding the election date debate, but with the constitutional and legal issues that underlie the setting of that date.

IEBC is established under Article 88 of The Constitution of Kenya, 2010, and is an independent
Constitutional Commission within the meaning of Chapter 15 of the Constitution.

In terms both of Article 88(4) of The Constitution and Section 4 of The Independent Electoral and Boundaries Commission Act, 2011, IEBC is inter alia “responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution”.

In terms of Sections 14, 16, 17, and 19 of The Elections Act, IEBC shall publish a notice of the holding of the election, in the Gazette and in the electronic and print media of national circulation, in the case of a General Election, at least sixty days before the holding of the elections.

As regards the first General Election under the Constitution of Kenya, 2010, IEBC on Saturday 17th March 2012, made public its decision to hold the said Election on 4th March 2013.

In the considered view of CIC, and in the context of the public debate generated by IEBC’s announcement, two questions fail to be determined:-

(a) Is IEBC the constitutional organ mandated to set the date of the General Election; and

(b) If so, has IEBC set the date within the parameters of the Constitution and the Law.
Both these questions were canvassed and interrogated comprehensively in the judgment handed down by the Constitutional Division of The High Court (Lenaola, Ngugi and Majanja JJ) in Constitutional petition no.65 of 2011 consolidated with petitions nos. 123 of 2011 and 1855 of 2011.

In its judgment on the question, “when shall the first General Elections be lawfully held?”, the constitutional Court ruled:

“the first General Elections under the Constitution can only be lawfully held as follows:-

(a) In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with Section 6(b) of The National Accord and Reconciliation Act, 2008

(b) Within sixty days from the expiry of the terms of the National Assembly, on 15th January, 2013”

On the question, “which body under the Constitution is entitled to fix the election date, the Court

(i) In light of the authority and powers conferred by Article 88 to the IEBC to conduct and supervise elections, it is the IEBC that will fix the election date for the first elections under the Constitution.

The IEBC is an independent body and in line with its mandate, it shall fix a date once it is satisfied the conditions and arrangements that ensure a free and fair election have been met but within sixty days of either of the two events referred to.

(ii) Having found that the first elections under the Constitution shall be held within sixty days from the end of the expiry of the National Assembly as provided or upon dissolution of the National Coalition, we hold that it is the responsibility of IEBC, to fix any date within the sixty days thereafter.”

The Constitution of Kenya, and specifically Article 165, gives the High Court jurisdiction to hear and determine any questions with respect to the interpretation of the Constitution, unless therefore, a decision of The High Court is reversed or varied either by the Court of Appeal or the Supreme Court, such decisions remain the authoritative and binding constitutional and legal position.

In the instant case, it is the unequivocal view of CIC that IEBC, in Terms of the judgment of the Constitutional Court, is the organ constitutionally mandated to set the election date.

CIC is fully persuaded that, in the discharge of the mandate, IEBC acted entirely within the parameters of the Constitution, as stated by the Constitutional Court.

The date set by IEBC is therefore the constitutionally valid date for the first General Elections under the Constitution.

It is to be recognized that this date may change if:-

(i) The Court of Appeal or The Supreme Court reverses or varies the judgment of The High Court; or

(ii) In accordance with the Court’s ruling, the President and the Prime Minister, by a written
agreement, dissolve the Grand National Coalition; or

(iii) The Constitution is amended to expressly set a different election date.

In the absence of any of the above events taking place, it behoves all Kenyans, including all other
constitutional organs and offices, to respect IEBC and its mandate.

Article 2 of The Constitution of Kenya, 2010, states that, “This Constitution is the supreme law of the Republic and binds all persons and all state organs at both levels of Government”. Further, by virtue of Article 3 of The Constitution, “Every person has an obligation to respect, uphold and defend the Constitution”.

CIC therefore calls upon all Kenyans to uphold the Constitution of Kenya, 2010, in particular by according respect to both the Judiciary in its constitutional role of interpreting the Constitution, and to IEBC, in the discharge of its mandate, as the Election Management Body, including, the mandate to set the date for the first General Election under the Constitution of Kenya, 2010.

CIC takes this opportunity to reaffirm its commitment in ensuring that the Constitution of Kenya, 2010 is implemented fully and faithfully, in letter and spirit.


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