Loud whispers from the Corridors of Power!

There are things you know, but which because you don’t have what can be considered ‘irrefutable proof’ by the big-shots, you just have to resort to the blog. I listen to lots of little birds in my line of duty. And boy, the birds have been singing!

Does anyone remember back in July when we were so busy trying to trace the Independent Electoral and Boundaries Commission Act? Okay, here is what the whispers in the corridors of power say.

The motive of the whole plot –to hide the IEBC Act-- was to make it impractical for the election to be held in August 2012, because that will ‘shorten’ the President’s term. The furtive plan saw to it that President Kibaki had to be kept in office until December 2012.

But so as not to have the debate on the election date every five years, they sought to change the Constitution and take the polls to December.

The scheme, orchestrated by insiders in government and the Cabinet, saw the holdup in the publication of the Independent Electoral and Boundaries Commission Act, which in turn delayed the on-going process of picking the commissioners to the team.

The Cabinet’s move to push for the change of the election date from the second Tuesday of August to the third Monday of December was because the people in power were worried that the interpretation of having the polls in March 2013, will raise questions about the President’s legitimacy in holding office after December 30, 2012.

The argument is that the President’s term will expire on December 30, 2012 –five years after he was controversially sworn in on the same date in 2007.

Putting the polls to March 2013, the way distinguished constitutional scholars like Prof Yash Pal Ghai have proposed –from their reading of the Constitution-- will mean that Kenya will be without a Head of State until the polls are held. And that vacuum is what the men at State House and Office of the President don’t want.

To buttress their case for a change of the election date, the President’s men then came up with two reasons: the budget cycle and the impracticality of having the polls next August.

I sought an interview with the Minister for Justice and Constitutional Affairs, Mr Mutula Kilonzo, to get an explanation about the motive, essence and impact of the amendment to alter the election date.

He declined to pursue the line of having the polls in March 2013 saying it was fraught with more problems; he termed the August date as impractical and said the December date was the only reasonable compromise.

“You want me to deal with questions about whether the President will be legally in office after December 30 (2012)? No. I don’t want to go there,” Mr Kilonzo said.

While he did not dwell on the covert plot to ensure that President Kibaki served his full five-year term, the minister said it was “impossible” to have the polls before December.

“We don’t have the electoral and boundaries commission in place, so how do we even begin to think about elections? Who will conduct the elections?” Mr Kilonzo posed.

To him, if the IEBC is in place, at the earliest by the end of this month (October); it will have four months as per the IEBC Act to conclude the delimitation of boundaries and come up with the 80 new constituencies.

After that, the commission will publish the new electoral zones and give 30 days for the Gazette Notice to be contested in court as stipulated in the Constitution.

Given the uproar witnessed when the Interim Independent Boundaries Review Commission (the so-called Ligale Commission) controversially published the controversial list of new constituencies, a legal challenge cannot be ruled out. Once it is filed, it has to be resolved within three months.

“If you add the four months from November, we’ll be in February. Then add one, March will be gone waiting for people to file petitions, then three months to hear the petitions, by the time we are done with that, we’ll be in June,” he told me a fortnight ago.

Once the new constituencies are drawn, the minister said, the commission’s next task will be to register voters in all the 290 constituencies across the country.

“The point is, once the new constituencies are drawn, the current voters’ register will become null and void. In the referendum, we took 45 days to register voters all over the country. That’s a month and a half gone. That will be on August 15. Isn’t that the second Tuesday of August (or thereabouts)?” Mr Kilonzo said.

It is only after the voters’ are registered –the Interim Independent Electoral Commission targets 19 million voters—that the procurement for ballot material will be done. That, the minister insisted cannot be done through single-sourcing. The commission will have to follow the long-drawn government procurement procedures.

This also assumes at the IEBC will have drawn the budget for the next polls for it to be included in the Supplementary Budget, which is traditionally passed in Parliament in March, so that it has the money to lay the ground for Kenya’s first General Election under the new Constitution.

“I am afraid that as the minister of Justice and one in charge of election matters, I cannot give you an election in August,” he said.

The Budget cycle was the next, with the minister saying that the financial year ends on June 30. He said the provision in article 260 that the word “financial year” can be defined by national legislation will also have constitutional implications.

If Parliament decides to change the date, the minister argued, it will violate articles 2(5) and 2(6) of the Constitution which provides that “the general rules of international law shall form part of the law of Kenya” and that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.

Kenya is obligated under the East Africa Community Treaty to read it national budget on the same day with the four other members of the EAC –Uganda, Tanzania, Rwanda and Burundi. The economic implications of altering this cycle, the minister said, given that Uganda was Kenya’s largest trading partner, are huge.

The reading of the Budget is crucial for the rollout of the customs union, because the Treasuries in all East African countries agree on tariffs to levy on goods entering the region and uniform tariffs on goods and services trading within the region. If any member does that earlier, trade will be affected.

But the timelines were known to the government, the Cabinet and the minister as they sat at Uhuru Park that morning on August 27, 2010 when the Constitution was promulgated. Why didn’t they act?

The Judiciary is currently siezed of the matter and is declaration as to the date of the next elections will put the matter to rest and perhaps force the Cabinet to shelve the Constitution of Kenya (Amendment) Bill, 2011.

HOW THE TIMELINES LOOK

October 2011: IEBC commissioners appointed, sworn in and effectively form the commission

November 2011-February 2012: The commissioners go round the country collecting views, while they scrutinize the Ligale report and other reports on the delimitation of boundaries. The commission has four months as per the Fifth Schedule of the IEBC Act to gazette the names of all the 290 constituencies.

March 2012 –The 30 days within which Kenyans can lodge petitions in court

April –June 2012 – Three months within which the Judiciary has to settle all questions on the petitions

July-August 15, 2012—The IEBC may have 45 days within which to register voters, but this could be more given the huge number of constituencies and the increased mandate. But at least 45 days will be needed.

August 15-September 15—The 30 days required for the scrutiny of the voters’ roll by the electorate, so that their names are changed.

September 15-November 15—60 days are required to order ballot papers, because of the procurement procedures of government and the likelihood of , recruit clerks to the polls and train them for the General Election. Within this period there’s a need for civic education to reduce the number of spoilt votes and make the clerks work fast in the polls.

December 19: The election date