Petitioners want Supreme Court to move presidential elections to 2026

A petition has been lodged at the Supreme Court seeking to compel the Independent Electoral and Boundaries Commission (IEBC) to hold the next presidential election in August next year and not 2027 as currently scheduled.

The case has been filed by Dr. Owiso Owiso, Khelef Khalifa, and Ashioya Biko, who argue that the Constitution requires presidential elections to be held within the fifth year following the last general election.

They point to Article 136(2)(a) of the Constitution, which states that a presidential election must be held on the second Tuesday in August in the fifth year.

With the last election held on August 9, 2022, they say the next poll should take place on August 11, 2026.

"We urge the court to declare that the fifth year from the last election begins on August 9, 2026," the petitioners state.

According to them, any attempt to hold the election after this date would breach constitutional timelines and render the process invalid.

"Consequently, as guided by article 136(2)(a) of the constitution which require the next presidential election to be on the second Tuesday of the fifth year, which fifth year begins on August 9, 2026, Kenya's next presidential election must be held on the second Tuesday of August 2026, being the fifth year," Dr Owiso says.

It is not lost on the petitioners that the courts have notoriously determined the issue of the timelines set by the constitution, and the obtaining legal position is that

They are also asking the court to issue an order directing the IEBC to proceed with preparations for the next presidential election on the second Tuesday of August 2026.

According to the petitioners, the breakdown of the years following the recent presidential elections held in August 9, 2022, are as follows:

Year one, from August 9, 2022, to midnight August 9, 2023, year two from August 9, 2023, to midnight August 9, 2024, year three, from August 9, 2024, to midnight August 9, 2025, year four from August 9, 2025, to midnight August 9, 2026 and year five, from August 9, 2026, to midnight August 9, 2027.

"As consequence of the constitution provisions cited above the then President had served for a period of four years and five months, counting from the date when he was sworn in as president, being April 9, 2013, and the presidential election held on August, 8,2017," they state in their court pleadings.

However, the petitioner states that the formula of construing and computing the dates as provided is indeed correct and that the fifth year from the last general elections commences on August 9, 2026, so the general elections should be conducted on the second Tuesday of 2026.

The petitioners accuse the IEBC of failing to adhere to the ordained timelines for conducting the next general elections per the Constitution.

Notably, they state that holding the next presidential election on any other date than the second Tuesday in August of the fifth year from August 9, 2022, being in August 2026 (that is, any delay or extension of the election date), would unlawfully interfere with Kenyans right to participate freely in the government of their country.

Additionally, they say that such action will frustrate the holding of regular elections as provided in law and frustrate the principles of democracy, rule of law, human rights and people's rights (1981) articles 2(3), 2(13), 4, 5, 17 and 32(7) of the African Charter on Democracy.