Parliament and Supreme Court have say in postponing election

Bobby Mkangi, of the Committee of Experts on Constitutional Review, in Nakuru. February 18, 2015. [Kipsang Joseph, Standard]

It won’t be a walk in the park for President Uhuru Kenyatta to call off next year’s elections.

Legal experts who spoke with The Sunday Standard explained that although the head of state can do it, he has to have two-thirds majority from Parliament. He also must conduct public participation.

Debate about the postponement of elections has been triggered by Africa Court on People and Human Rights which issued an advisory that countries can decide to postpone elections owing to the Covid-19 pandemic.

However, different lawyers say that the advice is not binding and the president will have to first declare a state of emergency, then seek Parliament’s consensus which must be supported by a two-thirds majority in the National Assembly and in the Senate. The Supreme Court has to ratify the postponement

Bobby Mkangi, of the Committee of Experts on Constitutional Review, says that if the president has to call off the elections, he has to do it within the local laws- the Constitution and the Elections Act.

“It is a discretional issue and has to involve Parliament and there must be a wide engagement,” he said.

Ali Noor (left) flanked by Bobby Mkangi during the launch of a report on violence against children in Nairobi, 2014. [David Njaaga, Standard]

However, Duncan Okatch says that the Constitution envisages situations such as pandemics and wars.

According to him, the president can call off elections, but is limited to a year. He says the continental court looked at the vaccination disparities in African countries as a recipe for a catastrophe if people are allowed to assemble, hold campaigns, and vote.

“It is debatable whether Covid-19 is a natural disaster or national disaster. To that extent, you can postpone elections for six months but you must have the consensus of both Houses with at least two-thirds of the members,” Okatch said.

But lawyer Moses Kurgat holds a different perspective. He argues that the election date is cast in stone and Uhuru cannot wriggle out of it. According to him, Kenya is not at war, and even with the pandemic, the country has held elections.

According to him, Public Health Act does not have provisions for postponement of an election.

“In Kenya, we have the Constitution, the Elections Act on how to manage an election. The president must restrict himself to that. Right now a pandemic is not war and even countries which have been hit have not postponed the election,” Kurgat argued.

He posits that the advisory is not binding and cannot be used as a reason to postpone the next year’s election.

An 11-judge bench, led by Justice Imani Aboud while determining an advisory sought by Pan African Lawyers Union, found that each member state should create its own laws on what happens after the expiry of the term of office of elected officials.

Supreme Court Building, Nairobi. June 4, 2021. [Elvis Ogina, Standard]

Okweh Achiando on the other hand says that the advisory has to be domesticated, then the World Health Organisation has to declare Covid-19 as a pandemic and people are dying in large numbers.

Waikwa Wanyoike says that the court’s decision is not about postponing the election but ensuring a free and fair election during Covid-19.  

He is of the view that the president has to consult widely and seek consensus if he wants to postpone the 2022 election. [Kamau Muthoni]

“Up to this time, even at the height of Covid, Kenya did not declare a state of emergency. It will be mischievous to call it as we head to the elections. It is not a decision for the president. It has to go through Parliament and be ratified by the Supreme Court,” Waikwa said.