Push and pull as Kenya pre­pares for fresh pres­i­den­tial elec­tions

Earlier on Tues­day, op­po­si­tion mem­bers of par­lia­ment boy­cotted the o∞cial open­ing of the House

The East African - - NEWS - By FRED OLUOCH Spe­cial Cor­re­spon­dent Ad­di­tional re­port­ing By Eric Oduor

Ahead of the Supreme Court’s de­liv­ery of its full rul­ing that an­nulled Kenya’s Au­gust 8 pres­i­den­tial elec­tion, po­lit­i­cal drama, in­trigues and threats have taken cen­ter stage.

The high­light of the week was Thurs­day’s pe­ti­tion by Ny­eri Town MP Ngun­jiri Wam­bugu to re­move Chief Jus­tice David Maraga for pre­sid­ing over the nul­li­fi­ca­tion of the elec­tion.

How­ever, Pres­i­dent Uhuru Keny­atta dis­tanced him­self from the suit and di­rected Mr Wam­bugu to with­draw it, say­ing; “We have agreed to go back to the vot­ers.”

But this did not in any­way mute de­mands by the op­po­si­tion Na­tional Su­per Alliance (Nasa) for the re­moval of key of­fi­cials of the In­de­pen­dent Elec­toral Com­mis­sion (IEBC), and con­tin­ued crit­i­cism of the judges of the Supreme Court, in­clud­ing rev­e­la­tion of plans by Ju­bilee mem­bers of par­lia­ment to re­duce the court’s pow­ers.

Earlier on Tues­day there was drama when Nasa mem­bers of par­lia­ment boy­cotted the open­ing of par­lia­ment by Pres­i­dent Keny­atta, ar­gu­ing that he does not have pow­ers to per­form the task. The House started its of­fi­cial ses­sion on Wed­nes­day but the MPS re­fused to par­tic­i­pate, say­ing the House was not prop­erly con­sti­tuted.

Ar­ti­cle 134(1) of the Con­sti­tu­tion states that be­tween the date when an elec­tion is held un­til the newly elected pres­i­dent is sworn in, the per­son who was pres­i­dent on the date of the elec­tion shall not hold full pow­ers of the pres­i­dent. This is what is called tem­po­rary in­cum­bency.

Dur­ing the tem­po­rary in­cum­bency pe­riod, the per­son hold­ing the of­fice (that is the tem­po­rary in­cum­bent) shall not have pow­ers to nom­i­nate or ap­point judges; to nom­i­nate or ap­point any other pub­lic of­fi­cer re­quired to be ap­pointed by the pres­i­dent; nom­i­nate or dis­miss Cab­i­net sec­re­taries; to nom­i­nate or dis­miss any per­son serv­ing as a diplo­matic rep­re­sen­ta­tive of Kenya.

He or she may not ex­er­cise the power of clemency or mercy to con­victed per­son or con­fer any na­tional hon­ours or award on any per­son.

How­ever, there’s no re­stric­tion on the pow­ers of sum­mon­ing any of the cham­bers of par­lia­ment.

Nairobi lawyer Okwe Achi­ando says that while tem­po­rary in­cum­bency does not pre­vent the pres­i­dent form ad­dress­ing par­lia­ment, “in an or­gan­ised democ­racy, you can­not call par­lia­ment to ad­dress mem­bers and al­low them to de­bate your speech, which con­tains your agenda for the coun­try, when you are still fac­ing an elec­tion.”

Stand­ing Or­ders re­quire par­lia­ment to dis­cuss the pres­i­dent’s speech, which usu­ally out­lines the gov­ern­ment leg­isla­tive agenda for the one week be­fore MPS can em­bark on any other busi­ness.

How­ever, this was not the case as Pres­i­dent Keny­atta, in his speech, con­cen­trated on na­tional co­he­sion and rule of law is­sues.

The of­fi­cial open­ing of par­lia­ment is meant to pave the way for MPS to form cru­cial House com­mit­tees, among them the House Busi­ness Com­mit­tee that pre­pares the agenda to be tabled be­fore the House. But this time it was lack­ing be­cause there is no sub­stan­tive pres­i­dent.

Orange Demo­cratic Move­ment chair­man John Mbadi told The East African that the for­ma­tion of the House Busi­ness Com­mit­tee is il­le­gal and un­pro­ce­du­ral, which will see all mat­ters passed by par­lia­ment chal­lenged in court.

Nasa main­tains that since the Supreme Court gave a ver­dict that the pres­i­den­tial elec­tion had il­le­gal­i­ties and ir­reg­u­lar­i­ties, the ver­dict amounted to crim­i­nal cul­pa­bil­ity on the part of the elec­toral body.

The alliance has is­sued a set of con­di­tions that must be met be­fore its par­tic­i­pates in the Oc­to­ber 17 elec­tion. (See box)

On the other hand, Ju­bilee MPS in both the Na­tional As­sem­bly and the Se­nate con­firmed that they plan to use their ma­jor­ity in both Houses to en­act laws which will re­duce the pow­ers of the Supreme Court, such as deny­ing the court the power to over­turn the re­sults of a pres­i­den­tial elec­tion.

But Okello Opollo, a Nairobi lawyer said that such a move would be an as­sault on the free­dom of the Ju­di­ciary and the 2010 Con­sti­tu­tion that seeks to set a clear de­mar­ca­tion be­tween the three arms of gov­ern­ment.

“It was not in vain that the con­sti­tu­tion cre­ated a Supreme Court after years of mis­trust of the Ju­di­ciary. It was meant to act as a su­pe­rior and neu­tral ar­biter in a bit­ter po­lit­i­cal con­test,” said Mr Opollo.

The Supreme Court was in­cluded in the 2010 Con­sti­tu­tion as part of com­pre­hen­sive ju­di­cial re­forms after the dis­pute over the 2007 pres­i­den­tial elec­tions.

With less than a month to the fresh elec­tions Pres­i­dent Uhuru has changed cam­paign tact and has re­cently been meet­ing del­e­ga­tions from var­i­ous re­gions at State House, Nairobi, in ad­di­tion to pub­lic

It was not in vain that the con­sti­tu­tion cre­ated a Supreme Court after years of mis­trust of the Ju­di­ciary.”

ral­lies. Ju­bilee has also adapted the strat­egy of en­gi­neer­ing po­lit­i­cal de­fec­tions from Nasa as a psy­cho­log­i­cal weapon — a throw back from Kanu’s po­lit­i­cal play­book.

Nasa on the other hand is yet to start cam­paign­ing and has been busy push­ing for re­forms within IEBC. Sources within Nasa think tank re­vealed that the coali­tion will be hold­ing less pub­lic ral­lies and will con­cen­trate on door-to-door cam­paign­ing.

Pic­ture: File

A pub­lic demon­stra­tion in sup­port of re­moval of IEBC of­fi­cials.

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