Uhuru may be in office 4 months after 2022 elections

President Uhuru Kenyatta’s successor may wait 120 days after the 2022 General Election to assume office if a proposed constitutional amendment is passed and the outcome of the vote successfully challenged at the Supreme Court. 

The Building Bridges Initiative’s Constitution of Kenya (Amendment) Bill 2020 proposes to increase the period during which the Supreme Court is required to determine a presidential election petition from 14 to 30 days.

This means should the outcome of the next presidential vote be challenged in court, which is most likely given how heated the race is shaping up to be, especially between camps allied to Deputy President William Ruto and ODM leader Raila Odinga, the inauguration of Mr Kenyatta’s successor will be delayed further.

The extension, if enacted, will consequently affect transition timelines stipulated in the Assumption of Office of the President Act.

It requires the president-elect is sworn in on the first Tuesday after 14 days of declaration of the results, if the outcome is not contested, but in the event of a petition, seven days after the Supreme Court’s declaration of the election valid.

Fresh election

The wait will even be much longer should the Supreme Court nullify the presidential election, as happened in 2017 when President Kenyatta’s re-election in that year’s August vote was nullified, forcing a repeat election in October, which he easily won after his main challenger, Mr Odinga, boycotted the poll.

The Constitution provides that if the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within 60 days after the determination.

The BBI proposes an amendment to Article 140 relating to questions as to the validity of presidential election to provide for “a more realistic period of finalising the presidential election petition and (which) is informed by previous experience.”

The Bill proposes that Article 140 (2) of the Constitution is amended by deleting the word “fourteen” and substituting with “thirty”

From the declaration of results of a presidential election by the electoral commission, a verdict by the Supreme Court and the inauguration of the president-elect are 28 days — if the top court upholds the election. This period will be extended to 35 days if the BBI proposal is implemented.

The Constitution provides that a person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the date of the declaration of the results of the presidential election. In 2017, the electoral commission took three days after voting to declare the presidential election results.

 Within 14 days — 30 if the BBI proposal is passed — after the filing of a petition, the Supreme Court shall determine the petition and its decision shall be final.

But if the Supreme Court determines the election of the president-elect to be invalid, a fresh election shall be held within 60 days after the determination. By this time, 40 days have lapsed and 100 by the time the fresh election is concluded, ushering in a new countdown.

The BBI constitutional Bill also proposes to remove the condition that requires a presidential election to be cancelled and a new election held when a person nominated as a deputy president dies on or before a scheduled election.

Minimise tension

“This is to ensure that a presidential election is held despite the death of a running mate of the presidential candidate to avoid uncertainty and minimise tension in a presidential election,” the report explains.

Separately, the Bill recommends that other election petitions — for MCA, MP and governor — are concluded by the Court of Appeal.

The draft law proposes an amendment to provide “for the finality of the determination by the Court of Appeal on the validity of any appeal relating to an election, other than a presidential election.”

Another proposal seeks to include those who have served as President, Deputy President, county governor or a Member of Parliament, or even vied for these positions, among persons banned from being members of the electoral commission.

The amendment proposes to bar persons who have, within five years preceding an election, held office or stood for election as President, Deputy President, county governor or a Member of Parliament from being members of the Commission.

The proposed amendment provides for the finality of the decisions of Court of Appeal in these petitions by barring an appeal to the Supreme Court, which is a blow to poll losers and lawyers, who make a tidy sum in legal fees representation rival politicians.

Electoral disputes

Another proposal on electoral disputes seek to remove the jurisdiction to handle disputes arising from the nominations of candidates by political parties from the Independent Electoral and Boundaries Commission.

Instead, the Bill wants to vest this jurisdiction in the Political Parties’ Disputes Tribunal “so as to achieve speedy adjudication of those disputes and also streamline the mandate of the Commission.”

“The amendment further seeks to broaden modes of service of a petition relating to an election to include print and electronic media to take cognizance of the advancement in technology,” adds the report.

Another proposal seeks to include those who have served as President, Deputy President, county governor or a Member of Parliament, or even vied for these positions, among persons banned from being members of the IEBC.

The amendment proposes to bar persons who have, within five years preceding an election, held office or stood for election as President, Deputy President, county governor or a Member of Parliament from being members of the Commission.

“The amendment proposes to include some of the offices which were not part of this list. The amendment also specifies the membership of the Commission in the Constitution to include four members to represent Political Parties,” the report states.

(Download a copy of the BBI Report: BBI REPORT)