One thing I have heard over and over again is, "I cannot wait for March 5th, then all the madness will be behind us." Whenever I hear this I cringe because for sure, it will not be over on March 5th, indeed, it will have just began. Let me explain.
When we voted in the Constitution in 2010, in it were some very prescriptive detail on how we are to conduct our affairs. This is one of the biggest criticism I have of our Constitution. It wants to be Constitution and statute all rolled in one. One of the most prescriptive parts of the Constitution are those that have to do with elections. Given our history, one can see why the Committee of experts felt they should go into overkill. However, in their responding to the emotion of the day, we are now saddled with a reality that few of us had anticipated.
Kenya has elections slated for the 4th of March 2013. She is going to the polls to elect a whole new system of Government, a return to bi-cameral parliament, as well as the establishment of 47 Counties, each with its own County Government. However, all those other positions being contested are eclipsed by the presidential election. It is so hotly contested, that the election fever is now burning us literally with people becoming apprehensive of violence. I wish Kenyans would realise how long a wait we are in for, they would realise we cannot sustain this high tempo momentum for long, because it will take us all of three months to install a newly elected President.
When we go to the polls on March 4th, the Constitution gives the Independent Electoral and Boundaries Commission 7 days within which the results must be announced. Of course nothing stops them from announcing earlier than the 7 days, but if they stretch it to the limit, this takes us to March 11th when the final results are declared. Once they are declared, Article 140 indicates, that there is a 7 day period during which time any challenge to the results may be lodged. Since multiparty politics resumed in 1992, each and every election of a President has seen a challenge in court, so I think it would be safe to assume, based on similar fact evidence, that this would be the case this time around too. This takes us to March 18th 2013.
After March 18th 2013, if there is a petition in court, the Supreme Court has 14 days to make a determination on it, this would take us to 1st April 2013. If they determine the President-Elect was not duly elected, Kenyans have to go back to the polls to repeat the election within 60 days, taking us to the 1st week of June 2013. IF the decision is that the election was good and proper, we would be headed for a second round. The reason for the assumption that there would be a run-off, is simple. Again, similar fact evidence. Since 1992, the President has been elected by less than 50% of the votes cast, except for 2002 when President Moi was no longer running and Kibaki was declared as a joint ticket presidential candidate under the NARC coalition. This means the threshold of 50% +1 would be near impossible for anyone to achieve, given we have 8 Presidential candidates. There is the additional hurdle of 25% in at least 24 Counties. Even recent polls demonstrate, no single candidate has this locked down.
Back to my timeline. On March 18th,2013, if the Supreme Court find the elections were fine, the IEBC has 30 days within which to organise and conduct a run-off. This would take us to the 16th April 2013. On the 16th April 2013, we go to the polls and vote in the run-off. The IEBC have 7 days to declare the election, so for the sake of argument if they take the full 7 days, that would take us to 23rd of April 2013. Once the results are declared, if there is no petition filed, the President-elect will be sworn in on the first Tuesday after the 14th day. The 14th day is the 7th of May, since it is itself a Tuesday that would go to the 14th of May as the day the President-elect will be sworn in.
If there is a petition filed, this is how the scenario will play out. After 16th April we take 7 days to wait for a petition, and the Supreme Court again have 14 days to hear the matter, a total of 21 days, 7th of May 2013. Once a decision is rendered on 7th of May, we have 7 days to swear in the President, that goes to the 14th May 2013.
Kenyans, this means we have between March 4th 2013, and May 14th 2013 to have a new occupant of State House. We need to be extra patient, and to let things play out as they must. If we keep up this election fever we have, we run the risk of suffering permanent brain damage as a people, making it a catalyst for the eruption of fresh violence. When we go to the polls, we better be prepared for the fact that a new President is actually three months away, and in the mean time we can concentrate on setting up our County Governments so that our day to day life is not disrupted.
God bless Kenya, and I wish all of you a wonderful Lenten season. On March 4th, let us Get-Out-The-Vote and make our voices heard, au sio?
Showing posts with label Judiciary. Show all posts
Showing posts with label Judiciary. Show all posts
Monday, 25 February 2013
Friday, 8 July 2011
Is it "Cat out of the Bag" or is it "Cat on a Hot Tin Roof?" - Part II
Well, after a few days of considering what I feel on this issue, I think I have it nailed. Someone asked me what on earth I meant by "Cat out of the bag" and "Cat on a hot tin roof". Its simple really. Cat out of the bag means finally we have a chance to see exactly what direction the Chief Justice's agenda for the new Judiciary is. Some of us skeptical of him heard so much high praise about how revolutionary and wonderful he would be for the Judiciary and so looked forward to some real change. Maybe it was therefore easier for him to simply start by something easier, like dresscode. Nothing much to decide about that. So now the cat is out of the bag, it will be very liberal and relaxed under our new CJ, so I guess my spaghetti strap tops and peep toes will find a place in his new dress code, I am sure.
Cat on a hot tin roof, is simply reactionary. The fact that so much hullabaloo was raise concerning the stud prior to his confirmation in office, and after he assumed office, the "young lawyers" kept asking him to clarify that position so he felt compelled by the pressure of it all to react one way or another. Seeing as he is the purest cleanest Judicial Officer now, it would seem, he could not preach water and drink wine, so instead chose to simply clarify, stud are fine, and so are dreadlocks.
I have given this much thought and have had endless debates with friends and colleagues about this. What I pen down today is what we would call "A considered opinion". Our Chief Justice is quoted as saying that if he had to remove the stud, he would rather lose the position of CJ. Now that he is well and truly in charge, he has to live up to that assertion, as well as live up to the expectation of changing things in the Judiciary. So his cat is out of the bag, and he is dancing on a hot tin roof.
I must say I am disappointed. I do not have much faith in the CJ and his magical ability to change the Judiciary in the manner most of us imagine, but I have a lot of faith in the fact that in his position he has the ability to change the course of history as far as Kenya is concerned. The fact that his first major directive was to hire Advocates to defend the JSC in a matter that is clear (see earlier post on one-third, two-thirds what's the difference) may be put down as inexperience, learning the ropes as it were, since I don't see the ruling of the Court going the JSC way on this one. However, for him to take to Facebook to issue a statement of the magnitude of this particular one, I think was very misdirected. Who is his intended audience? The Advocates who practise before the Court on a daily basis? The Judicial Officers who will effectively implement the directive? How were they to find the directive on Facebook? Then what on earth does he mean it is on his behalf and the Supreme Court? Which Supreme Court? His Deputy and himself? Then now, does that mean the Judiciary has become "Us" and "Them"? The Supreme Court is some form of higher power court that does not really belong with the rank and file of the Subordinate Courts, High Court and Court of Appeal?
One definitely cannot have his cake and eat it too. You cannot be the law enforcer, when no law seems applicable to you. One thing about being a Judicial Officer is that sometimes, you must preach water even if you drink wine, because water must be preached over wine. That is how you apply the law, not because you agree with all of it, but because it is what it is. The Court cannot be run on the basis of "what-I-believe-in" or "I-don't-see-what-the-problem-with-that-is" It is like a building. The architect can design anything he wants, however he wants, but when it comes to construction, it only works if it is built from the foundation up. Brick upon brick, so is the law, precept upon precept, precedent upon precedent. Any attempt to alter this order, can see the whole thing come tumbling down.
So now that the cat is out of the bag, let the dance on the hot tin roof begin!
Cat on a hot tin roof, is simply reactionary. The fact that so much hullabaloo was raise concerning the stud prior to his confirmation in office, and after he assumed office, the "young lawyers" kept asking him to clarify that position so he felt compelled by the pressure of it all to react one way or another. Seeing as he is the purest cleanest Judicial Officer now, it would seem, he could not preach water and drink wine, so instead chose to simply clarify, stud are fine, and so are dreadlocks.
I have given this much thought and have had endless debates with friends and colleagues about this. What I pen down today is what we would call "A considered opinion". Our Chief Justice is quoted as saying that if he had to remove the stud, he would rather lose the position of CJ. Now that he is well and truly in charge, he has to live up to that assertion, as well as live up to the expectation of changing things in the Judiciary. So his cat is out of the bag, and he is dancing on a hot tin roof.
I must say I am disappointed. I do not have much faith in the CJ and his magical ability to change the Judiciary in the manner most of us imagine, but I have a lot of faith in the fact that in his position he has the ability to change the course of history as far as Kenya is concerned. The fact that his first major directive was to hire Advocates to defend the JSC in a matter that is clear (see earlier post on one-third, two-thirds what's the difference) may be put down as inexperience, learning the ropes as it were, since I don't see the ruling of the Court going the JSC way on this one. However, for him to take to Facebook to issue a statement of the magnitude of this particular one, I think was very misdirected. Who is his intended audience? The Advocates who practise before the Court on a daily basis? The Judicial Officers who will effectively implement the directive? How were they to find the directive on Facebook? Then what on earth does he mean it is on his behalf and the Supreme Court? Which Supreme Court? His Deputy and himself? Then now, does that mean the Judiciary has become "Us" and "Them"? The Supreme Court is some form of higher power court that does not really belong with the rank and file of the Subordinate Courts, High Court and Court of Appeal?
One definitely cannot have his cake and eat it too. You cannot be the law enforcer, when no law seems applicable to you. One thing about being a Judicial Officer is that sometimes, you must preach water even if you drink wine, because water must be preached over wine. That is how you apply the law, not because you agree with all of it, but because it is what it is. The Court cannot be run on the basis of "what-I-believe-in" or "I-don't-see-what-the-problem-with-that-is" It is like a building. The architect can design anything he wants, however he wants, but when it comes to construction, it only works if it is built from the foundation up. Brick upon brick, so is the law, precept upon precept, precedent upon precedent. Any attempt to alter this order, can see the whole thing come tumbling down.
So now that the cat is out of the bag, let the dance on the hot tin roof begin!
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