A Kenyan Constitutional Crisis: What Happens If Elections Are Not Held Within 60 Days?

By now, the whole world knows that Kenya made history when its Supreme Court nullified the results of the presidential election earlier this month. The court further ordered that a new presidential election be held within 60 days, as the Kenyan Constitution dictates. A new election has since been set for the 26th of October, and this was rescheduled from earlier October because the company that supplied electronic kits for the election asked for more time. However, opposition leader Raila Odinga seeks to move that date beyond the 60 day window that has not been anticipated by the Constitution. The question remains among many Kenyans, what happens then?

A lot of Kenyans do not know what will happen if the October 31st deadline isn’t met. This statement is based on some strange opinions. One such opinion is that the whole election will be overturned, from MCA to the Presidential level and the Speaker of the National Assembly assumes the role of Acting President. Others simply do not know. If you are either of the two groups, please read on.

The Kenyan Constitution, in article 139 (3) states that:

If both the persons declared elected as the President and the Deputy President die before assuming office––

(a) the Speaker of the National Assembly shall act as President from the date on which the President-elect would otherwise have been sworn-in; and

(b) a fresh presidential election shall be conducted within sixty days after the second death.

To make this matter of the Speaker clear, that is the only way that he/she can assume the Presidency and a new election held between 60 days, no other way.

Now with that out of the way, let us examine the real issue: that of who becomes president if the 60 day deadline is not met. In Article 140 (3), it says that:

If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.

That is as far as the Constitution anticipates. It does not give guidance beyond that. As it stands, the electronic company that supplies the electronic kits for the election have said they need more time and that 60 days are barely not enough.

That, dear reader, is what a constitutional crisis is. Simply put, it is a scenario that is not anticipated or foreseen by the law. Who will be President after that? The simple answer? Well, that is just it, there is no simple answer. A lot of political analysts are divided on this matter.

One argument is that Uhuru Kenyatta assumes incumbency for the next five years, upon which he would be eligible for re-election given that, technically, he is going to be an incumbent for the next five years. So, technically he would rule for 15 years assuming that he would be elected come 2022. What if he decides to do that? It is a possibility. Already, there have been calls from politicians that Kenya needs a “benevolent dictator”. This was by Dr. Ekuru Aukot who was defeated in the concluded polls. Just recently other calls for “benevolent dictator” by Jubilee Party’s David Murathe have emerged with the purpose “to save Kenya”. Dangerous words.

Another argument, a more sensible and peaceful approach, would be to approach the court once more to determine a way forward. However, this is not very likely considering that the Jubilee Party does not have much faith in the Supreme Court. In fact, the Jubilee Party, who have a majority in parliament, seek to pass a law that will reduce the powers of the Supreme Court immensely, so much so that the court will have no power to nullify an election and that manual transmission of results will have more weight than electronic transmission of results.

Based on Raila Odinga’s record, he is hoping for the courts to provide direction. Obviously, Jubilee will fight this with everything they have got. Tensions are high. What is Kenya coming to? Are we headed for civil war? How about a dictatorship? The Kenyan economy is suffering. The cost of living is up the roof and Kenya’s growth is stunted at the moment with investors taking a step back especially with the claims from the opposition, NASA, that they will boycott the election if it’s not pushed forward. If the date is not pushed and NASA do not show up and Jubilee pass a legislation to reduce the court’s powers, then Kenya is in for a trickier time. In all probability, an ethnic clash looms.

That said, I appeal to all Kenyans to trust in the institutions of our nation, and the Constitution to lead us forward. Democracy and peace will prevail, we have to trust in that.

Ferdinand Bada
Lets connect