East African Center For Law & Justice


Constitution Implementation Process at Risk

The cases against the post-election violence suspects at the ICC are threatening to derail the process of implementing the new constitution in Kenya. This is based on the fact that there is a lot of politics revolving around them and calls for their deferral.

They has been a lot of focus on the ICC cases so much that the people meant to be working towards implementing the new constitution are busy campaigning either for or against the ICC process.

Recently, the Commission for the Implementation of the Constitution (CIC) stirred fresh arguments with the assertion that the next General Election should be held in August 2012 and not December as argued by some quarters in the Coalition Government.

These dates are as stipulated in Article 101 of the new constitution. The CIC Chairman Charles Nyachae explained that the new Constitution is clear that the elections shall be held on the second Tuesday of August after every five years.

This was however not received well by many who want some of the leaders named for Hague to take part in the elections. The Ocampo 6 want their cases to be deferred so that they have time to form local tribunals and also an opportunity to take part in the coming presidential elections

Nyachae also trashed arguments by the Justice and Constitutional Affairs Minister Mutula Kilonzo and the Interim Independent Electoral Commission (IIEC) that the Constitution allows the current Parliament to run until December 2012.

He said that those arguing that the National Accord and Reconciliation Act has been preserved to run for five years were also wrong as there is no stated term of the Coalition Government. "It is very clear that the Act is stated to continue in operation until the first general election is held. So that Act cannot in itself determine when the election shall be held," he said.

According to the electoral commission, the earliest registration of voters in the country could be concluded is August next year, while voters in the Diaspora who will be voting for the first time in the elections would register between September and December next year.

However in the transitional clauses Schedule Six part 3 (9) (1) states that the election shall be held "within sixty days after the dissolution of the National Assembly at the end of its term." The current Parliament has no term as under the old Constitution only the President had a fixed term, therefore it can be dissolved earlier than the 5 years that some people are arguing for and still have the elections held in August of 2012.

The Ocampo 6 are worried that if their cases at The Hague are not deferred and the elections here in Kenya are held in August, they are worried that they may miss out on the election process.

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