Fears of a constitutional crisis in the event the principals exercised their power to dissolve the coalition but failed to trigger the dissolution of Parliament caused President Kibaki to insist on a March election.
Mr Kibaki’s legal advisers, particularly Justice and Constitutional Affairs minister Mutula Kilonzo and Attorney-General Githu Muigai, told the President that a decision between him and Prime Minister Raila Odinga to end the coalition would only lead to the fall of the Cabinet but Parliament would remain in place until its term expired.
That situation has been blamed on a loophole in the new Constitution which does not explicitly tie the end of the coalition to the end of the life of Parliament.
This legal advice prompted Mr Kibaki to insist that the elections be held in March next year putting him at odds with the Prime Minister and leaving the Independent Electoral and Boundaries Commission with no option but to set its own date of March 4, 2013.
Mr Kilonzo says there was no other option available to the President: “Parliament runs its own calendar and, if you dissolve the coalition, it does not automatically mean that MPs go home.
The transition clauses are clear that Parliament has to run its full term which ends on January 15, 2013. There are no two ways about it and those who are not for the March date can only seek legal redress,” he said.
But Mr Kibaki’s decision to insist on a March election has set him up against the broad mass of voters with opinion polls showing a majority of Kenyans favour a 2012 election.
Mr Odinga said the IEBC and PNU, which seem to back a March election, were going against the wishes of the majority.
“The PM feels March elections will prolong the life of the current administration and Parliament while cutting short the life of the next by several months. This, in the PM’s view, is self-serving and unjustifiable,” the PM’s office said in a statement issued before the IEBC announced the election date.
The decision to settle on polls in 2013 has also left the IEBC in a tricky position after senior Orange Democratic Movement leaders came out to question its neutrality.
Chief Whip Jakoyo Midiwo accused IEBC chairman Issack Hassan of having sided with rivals in President Kibaki’s Party of National Unity.
Mr Midiwo said the two principals had planned to meet on Tuesday to agree on the election date but Mr Hassan led his team to first meet President Kibaki and later Mr Odinga separately and then announced the March date.
“Why was it difficult for Mr Hassan to wait until Wednesday to announce the election date after the principals had agreed?” Mr Midiwo asked.
Election Date options
At a press conference on Saturday morning, Mr Hassan indicated the IEBC had been left with few options following the failure of President Kibaki and PM Odinga to agree.
A January 13 Constitutional Court ruling said that the next elections can be held 60 days after the two coalition partners agree in writing to dissolve the coalition or after the end of the life of Parliament on January 15, 2013.
But Mr Kibaki and Mr Odinga have been publicly far apart on the issue and Mr Hassan explained that the commission needed clarity on the date to properly prepare for the next elections.
Mr Hassan said that by Friday evening it had become clear that the two principals were not likely to agree and commit themselves in writing when they would dissolve the coalition government.
“The country needs to know the election date. We must remove the uncertainty, anxiety and suspense surrounding this date. We appreciate and understand that there are Kenyans who may have preferred an earlier election date, but we call upon all Kenyans to be understanding and support the Commission in delivering a peaceful, free, fair and credible election,” Mr Hassan said.
The elections boss refused to be drawn into the coalition wars over the date insisting that what the Commission had been asking for was a commitment between the two principals on when they would dissolve the coalition.
“We were not seeking their arguments on what they both prefer but a written agreement on when the coalition would be dissolved as required by law,” Mr Hassan said.
There were mixed reactions to the announcement of the March 4 date yesterday. Party lines were blurred as individual politicians took different positions.
Kenya Elections Delay
Speaking during the centenary celebrations by the Catholic Diocese of Kisii, Mr Odinga accused PNU of trying to delay the elections: “Any leader who is popular enough should not fear elections. And by extending the election date to March next year they will be eating into the next government’s life which is immoral,” he said.
In his statement earlier, the PM said elections in March would inconvenience the nation.
“They would mean campaigns and voting take place in the middle of a school term. Since schools are routinely used as polling stations, this would cause inconveniences and disruptions to learning. March campaigns and elections would also fall in the middle of a critical period in the calendar of most farmers in the country with farm activities in top gear,” Mr Odinga said in sentiments echoed by party secretary-general Prof Anyang’ Nyong’o.
Mr Odinga’s rival, Mr William Ruto, also opposed the March date and said Parliament would overturn the decision.
“Where did they get the March date from? Let the people decide when they want elections to be held,” said Mr Ruto.
Mr Ruto was cheered by members of the public who chanted December! December! The Eldoret North MP said it is only Parliament that will have the final say on when the elections will be held.
“We as MPs will move a motion to move the elections date back to December this year,” he said.
Vice-President Kalonzo Musyoka took a different line and called for calm and consultations on the matter. “I was for the December date, but equally I have no problem with next year so long as it is held in a peaceful atmosphere.”
ODM’s Musalia Mudavadi said he preferred a December date but would accept a March election if the decision was upheld. But he said focus should be on the integrity of the process.
“We must start looking critically at how prepared the electoral body is to conducting elections so that we can be assured of a good, smooth election,” he said.
Narc-Kenya leader Martha Karua criticised the two principals for trying to extend the life of the current administration and expressed optimism the courts would rule in favour of a 2012 election.
The stage was set for a day of drama following a series of consultations within President Kibaki’s court over the election date according to interviews with those familiar with the process.
President Kibaki opted for the March date after his advisers warned that the dissolution of the coalition would not automatically cause Parliament to be dissolved in readiness for a General Election.
The same message was passed on to the IEBC this week after consultations with Mr Kilonzo and before the Commission’s meeting with the President on Friday.
Withdraw a bill
Mr Kilonzo got the nod from the President’s side of the coalition earlier to withdraw a bill before Parliament seeking to fix the election date at the third Monday of December of the fifth year.
The decision making process over the election date appeared to mirror the strained relations that characterise the coalition.
The two principals failed to discuss a common position and instead made their positions public.
Last week, President Kibaki had announced that he prefers elections in 2013 arguing that the courts had directed as much.
At his meeting with IEBC, Mr Odinga is said to have suggested a December 18 election as opposed to March as suggested by the President citing precedent and convenience. In the end, the IEBC opted to make its own decision.
Nation Media …Additional reporting by Justus Wanga and Aggrey Mutambo