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 Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Monday, 25 February 2013
Tuesday, 28 June 2011
One-third, two-thirds what is the difference?
I have had a very interesting and eye opening experience today. In Kenya, there is the case currently in Court about the nominations to the brand new never been seen before in Kenya Supreme Court. For the benefit of those who do not know what this is, let me break this down for you. We passed a new Constitution last year that stipulated in it that the composition of all elective and appointive bodies will have to have no more than two thirds of one gender. The Supreme Court nominations have Two Women and Five Men. Has the requirement to not have more than two thirds of one gender been met?
The Federation of Women Lawyers Kenya Chapter (FIDA-Kenya) has led a group of several womens organisations to challenge this balance as failing to meet the Constitutional provisions. The Chief Justice has appointed some reputable Human rights lawyers to defend the Judicial Service Commission in the matter. Till now, I was a casual observer to this circus, since as you can tell from my earlier posts, my beef with the JSC was on a different tangent, but today they are not lucky, I am on their back again!
Let us do the math. Two thirds of 7 will give you 4.67 people. One third will give you 2.33. Now we know there are no .33 people (duh!) so how do we resolve the impasse? Article 81(2) of the Constitution of Kenya 2010 reads as follows.
81. The electoral system shall comply with the following principles––
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
This means any number less than or equal to two thirds is within the Constitutional confines. It therefore follows, any such overflow, must be rounded down to ensure the threshold is met. This means therefore if you have 4.67 rounded off to 5 people, 5 is more than the two thirds MAXIMUM and therefore it cannot be Constitutional. Meaning, .67 takes it over and above and therefore is unconstitutional. The only solution is to round it off to 4 so that the number of the opposite gender comes up to 3 meeting the threshold of NOT MORE THAN two thirds.
The argument has been on women attaining the one third threshold, but that premise is misleading. The constitution gives the maximum, and it cannot be exceeded even by one person. Not getting it yet? Let me try it another way. Having 5 members of one gender in a 7 member Court translates to 71.43% of the court being represented by one gender. Having 2 members of one gender in a 7 member Court translates to 28.57%. Two thirds would be 66.67%, meaning the current composition of the Supreme Court is 4.76% OVER the allowed constitutional maximum. This may seem like a small difference but just think of it this way. We are to have a National Assembly with 350 members. If it were to be 4.76% off, instead of having 233.33 members of one gender topping the two thirds maximum, you would have 16.6 more members, making the new number 250. That is 17 members over the limit, but the same 4.76%
I know either you have a eureka moment, or you are shaking your head wondering what I am on about. The moral of this whole story is this. The Supreme Court appointments may look like the are off not even by a whole person, so why the big deal. Think of a protractor, where you measure one degree from another is a single convergent point, but as the lines elongate, it becomes apparent that a degree from another travel very different paths and if you meet them after one kilometre, they will be so far apart. A builder puts a plumbline to determine whether a wall is straight, because even the smallest deviation, could see the whole structure collapse. If we are implementing this constitution, lets do it right, otherwise, in future the mess will be bigger than we could have imagined, and may be too late for us to fix. God bless y'all, as usual, the big children need me to pick them up or the school will fine me 500/= for late pick-up. (seriously, they fine us if we pick the children up late!!)
The Federation of Women Lawyers Kenya Chapter (FIDA-Kenya) has led a group of several womens organisations to challenge this balance as failing to meet the Constitutional provisions. The Chief Justice has appointed some reputable Human rights lawyers to defend the Judicial Service Commission in the matter. Till now, I was a casual observer to this circus, since as you can tell from my earlier posts, my beef with the JSC was on a different tangent, but today they are not lucky, I am on their back again!
Let us do the math. Two thirds of 7 will give you 4.67 people. One third will give you 2.33. Now we know there are no .33 people (duh!) so how do we resolve the impasse? Article 81(2) of the Constitution of Kenya 2010 reads as follows.
81. The electoral system shall comply with the following principles––
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
This means any number less than or equal to two thirds is within the Constitutional confines. It therefore follows, any such overflow, must be rounded down to ensure the threshold is met. This means therefore if you have 4.67 rounded off to 5 people, 5 is more than the two thirds MAXIMUM and therefore it cannot be Constitutional. Meaning, .67 takes it over and above and therefore is unconstitutional. The only solution is to round it off to 4 so that the number of the opposite gender comes up to 3 meeting the threshold of NOT MORE THAN two thirds.
The argument has been on women attaining the one third threshold, but that premise is misleading. The constitution gives the maximum, and it cannot be exceeded even by one person. Not getting it yet? Let me try it another way. Having 5 members of one gender in a 7 member Court translates to 71.43% of the court being represented by one gender. Having 2 members of one gender in a 7 member Court translates to 28.57%. Two thirds would be 66.67%, meaning the current composition of the Supreme Court is 4.76% OVER the allowed constitutional maximum. This may seem like a small difference but just think of it this way. We are to have a National Assembly with 350 members. If it were to be 4.76% off, instead of having 233.33 members of one gender topping the two thirds maximum, you would have 16.6 more members, making the new number 250. That is 17 members over the limit, but the same 4.76%
I know either you have a eureka moment, or you are shaking your head wondering what I am on about. The moral of this whole story is this. The Supreme Court appointments may look like the are off not even by a whole person, so why the big deal. Think of a protractor, where you measure one degree from another is a single convergent point, but as the lines elongate, it becomes apparent that a degree from another travel very different paths and if you meet them after one kilometre, they will be so far apart. A builder puts a plumbline to determine whether a wall is straight, because even the smallest deviation, could see the whole structure collapse. If we are implementing this constitution, lets do it right, otherwise, in future the mess will be bigger than we could have imagined, and may be too late for us to fix. God bless y'all, as usual, the big children need me to pick them up or the school will fine me 500/= for late pick-up. (seriously, they fine us if we pick the children up late!!)
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