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Kenya in transition dilemma over election petition
Confusion over government operations as lawyers weigh the possible scenarios presented by Supreme Court case.
By FRED OLUOCH Special Correspondent
Posted Saturday, March 16 2013 at 18:49
In Summary
Confusion surrounds Kenya government operations in the wake of a petition challenging the presidential election results after senior state operatives differed over key transition issues.
One of the areas of contention is whether incumbent ministers as well as Prime Minister Raila Odinga should continue serving in the government until a new Cabinet is sworn in. Also in contest among political players is the extent to which President-elect Uhuru Kenyatta should exercise the powers of the president.
The fact that several ministers have been elected as senators, governors and Members of Parliament further complicates matters as it is not clear which of their two roles they should now assume.
Mr Odinga's Coalition for Reform and Democracy (Cord) moved to court on Saturday to challenge the result declaring Mr Kenyatta as the winner in a case the Supreme Court is required by law to hear and dispose of in two weeks.
READ: Raila to challenge Uhuru's victory in court
Attorney-General Githu Muigai, in a legal opinion to the Head of Civil Service Francis Kimemia, advised that the PM and other ministers would continue to hold office until the incoming president picked a new team, otherwise the country would sink into a constitutional crisis.
"Any other implementation would as a matter of consequence result in a vacuum in government and precipitate a constitutional crisis," said Prof Muigai.
"Conceivably, the process of resolving disputes arising from the election may take longer than anticipated and thereby extend the mandate of the ‘caretaker' government indefinitely. In this respect, the absence of a Cabinet would occasion a crisis as there are many other constitutional organs that require ministerial interpretation and are necessary for the management of the state i.e. national security," he added in the letter dated March 13.
That thinking is contrary to that of the Commission for the Implementation of the Constitution chairman Charles Nyachae, who had in a letter to President Mwai Kibaki dated March 11 argued the ministers should have relinquished their posts after March 4.
The AG's legal opinion, however, said a minister will lose their right to remain in office if they are elected and take oath for another office like that of senator, MP or governor.
The discordant views emerged as the country's top legal minds toyed with the possible scenarios around the outcome of the case.
The Supreme Court can decide to dismiss the petition by Cord, whose prayers are that the presidential elections were not validly conducted and tallied, and therefore should be nullified.
Should this happen, then Mr Kenyatta, who was declared the winner by the Independent Electoral and Boundaries Commission (IEBC), will be sworn in on the first Tuesday after 14 days from the day the electoral body declared the results.
Secondly, the Supreme Court could order re-tallying of the presidential votes. But Education Minister Mutula Kilonzo, who is one of Cord's lawyers, argues that this can only be granted for the purpose of determining whether the petition can be accepted or not.
"The jurisdiction of the court is limited to determining whether the elections were validly conducted or not," said Mr Kilonzo.
Kenya in transition dilemma over election petition - News - www.theeastafrican.co.ke
Confusion over government operations as lawyers weigh the possible scenarios presented by Supreme Court case.
By FRED OLUOCH Special Correspondent
Posted Saturday, March 16 2013 at 18:49
In Summary
•One of the areas of contention is whether incumbent ministers as well as Prime Minister Raila Odinga should continue serving in the government until a new Cabinet is sworn in.
•Also in contest among political players is the extent to which President-elect Uhuru Kenyatta should exercise the powers of the president.
•The discordant views emerged as the country's top legal minds toyed with the possible scenarios around the outcome of the case.
•Another dilemma staring Kenyans in the face if the court finds IEBC led by Chairman Isaack Hassan culpable of election malpractices, is whether the electoral body can be trusted to preside over a fresh election.
•Also in contest among political players is the extent to which President-elect Uhuru Kenyatta should exercise the powers of the president.
•The discordant views emerged as the country's top legal minds toyed with the possible scenarios around the outcome of the case.
•Another dilemma staring Kenyans in the face if the court finds IEBC led by Chairman Isaack Hassan culpable of election malpractices, is whether the electoral body can be trusted to preside over a fresh election.
Confusion surrounds Kenya government operations in the wake of a petition challenging the presidential election results after senior state operatives differed over key transition issues.
One of the areas of contention is whether incumbent ministers as well as Prime Minister Raila Odinga should continue serving in the government until a new Cabinet is sworn in. Also in contest among political players is the extent to which President-elect Uhuru Kenyatta should exercise the powers of the president.
The fact that several ministers have been elected as senators, governors and Members of Parliament further complicates matters as it is not clear which of their two roles they should now assume.
Mr Odinga's Coalition for Reform and Democracy (Cord) moved to court on Saturday to challenge the result declaring Mr Kenyatta as the winner in a case the Supreme Court is required by law to hear and dispose of in two weeks.
READ: Raila to challenge Uhuru's victory in court
Attorney-General Githu Muigai, in a legal opinion to the Head of Civil Service Francis Kimemia, advised that the PM and other ministers would continue to hold office until the incoming president picked a new team, otherwise the country would sink into a constitutional crisis.
"Any other implementation would as a matter of consequence result in a vacuum in government and precipitate a constitutional crisis," said Prof Muigai.
"Conceivably, the process of resolving disputes arising from the election may take longer than anticipated and thereby extend the mandate of the ‘caretaker' government indefinitely. In this respect, the absence of a Cabinet would occasion a crisis as there are many other constitutional organs that require ministerial interpretation and are necessary for the management of the state i.e. national security," he added in the letter dated March 13.
That thinking is contrary to that of the Commission for the Implementation of the Constitution chairman Charles Nyachae, who had in a letter to President Mwai Kibaki dated March 11 argued the ministers should have relinquished their posts after March 4.
The AG's legal opinion, however, said a minister will lose their right to remain in office if they are elected and take oath for another office like that of senator, MP or governor.
The discordant views emerged as the country's top legal minds toyed with the possible scenarios around the outcome of the case.
The Supreme Court can decide to dismiss the petition by Cord, whose prayers are that the presidential elections were not validly conducted and tallied, and therefore should be nullified.
Should this happen, then Mr Kenyatta, who was declared the winner by the Independent Electoral and Boundaries Commission (IEBC), will be sworn in on the first Tuesday after 14 days from the day the electoral body declared the results.
Secondly, the Supreme Court could order re-tallying of the presidential votes. But Education Minister Mutula Kilonzo, who is one of Cord's lawyers, argues that this can only be granted for the purpose of determining whether the petition can be accepted or not.
"The jurisdiction of the court is limited to determining whether the elections were validly conducted or not," said Mr Kilonzo.
Kenya in transition dilemma over election petition - News - www.theeastafrican.co.ke
