November 23rd 2017

Opinion / Commentaries

Githu Muigai, James Orengo underrating the enormity of crisis under temporary incumbency

If IEBC fails to conduct elections before 1 November, a constitutional crisis will set-in and temporary presidency will subsist for the next five years, because temporary presidency usually ends when another president is elected and sworn in.

By Jamal Bake HassanSaturday, 23 Sep 2017 15:53 EAT

AG Githu Muigai with lawyer Paul Muite at the Supreme Court.

Since the Supreme Court directed the electoral commission IEBC to conduct the repeat presidential elections in 60 days, legal minds have begun a prognosis on the question of what will happen should IEBC fail to conduct election before 1 November, 2017.

Attorney General has fronted a narrative that Uhuru Kenyatta will remain President till the next president is elected and sworn-in, implying that Uhuru could be in office until August 2022 when another general election would be due. On the flipside, Senior Counsel James Orengo submits that the tenure of incumbency that Uhuru now enjoys ends at the expiry of the 60 days given by Supreme Court.

I disagree with both interpretations. There is a lacuna in our Constitution. It is silent on what will happen in the event elections are not conducted within 60 days as espoused under article 140 of the Constitution. If IEBC fails to conduct elections before 1 November, a constitutional crisis will set-in and temporary presidency will subsist for the next five years, because temporary presidency usually ends when another president is elected and sworn in.

As it stands, we have exhausted the two possible scenarios contained and foreseen in our constitution. First, the elections canvassed under Article 136 of the Constitution have taken place. This Provision of the Constitution is spent because Kenyans have already moved to polls on the 8 August and have elected a president.

The second scenario is captured under article 140 of the Constitution, where a president has been elected but the validity of his election is challenged under article 140 of the Constitution and subsequently his election was nullified by the Supreme Court which ordered a repeat presidential election be conducted within 60 days after it rendered its judgment.

This is where we are. Orengo is of the opinion that the immediately the sixty days lapse, there will be a vacancy in the office of the president. What Orengo doesn’t fathom is that Article 140 of the constitution is not an end in itself and it does not declare any vacancy, so the only standing constitutional provision where Orengo can seek refuge is article 146 which encompasses scenarios where the office of the president is deemed vacant.

Those scenarios have been captured under article 144 and 145 of the Constitution, such cases includes but is not limited to when a sitting president dies or when a president is impeached among others. Senior Counsel Orengo and NASA by extension will try to employ article 146 (1)(c) to dislodge Uhuru from the seat of temporary presidency, and install the Speaker of the National Assembly as a president for ninety days before another presidential election is conducted, but for reason earlier enunciated Article 146 (1)(c) will not suffice.

Since the constitution does not foresee a situation where IEBC fails to hold a fresh election under Article 140 pre November 1, it means that by dint of Article 134 (1) (a) of the constitution Uhuru will remain a temporary president for five years till 2022. However, exercise of presidential powers during temporary incumbency under article 134 of the constitution is restricted.

For the five years to come, Uhuru as a temporary president will not be allowed to hire or fire constitutional office holders or perform other duties of a sitting president. Uhuru in other words, will be a ceremonial president, a lame-duck and toothless bulldog.

The next five years, the work of Raila Odinga as a leader of opposition might be to ensure that Uhuru will not leave the constitutional cage of temporary incumbency. In short, all arms of the government except the judiciary will be paralysed.

The only way out of this inevitable constitutional crisis is by way of extra constitutional means, which include but not limited to "nusu mukate" government to be brokered by the international community.

The writer is an Advocate of the High Court based in Nairobi.





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