For those who are in haste and cannot wait to shunt their honourable member as soon as practicable, 2012 cannot come soon enough. But not so fast, these so called honourable members have some pressing matters that they are most keen to accomplish and you guessed it 2012 is too soon and a 2013 general election would be much more in fitting with the grand plans that they have for their electors or is that would be tormentors?
The electorate by and large seem set for 2012 but their representatives are not as keen. But if it be that democracy is the rule of the people by the people for the people; why there be such a misalignment of interests? Who shall save us from this predicament? Thankfully, for anyone who has forgotten or wasn’t paying attention, the enactment of the new constitution is set to hugely inconvenience those accustomed to the status quo. But the incumbents are seeking a last hurrah, as they seek to exploit any chink in the armoury of the new constitutional settlement. The question is, do they have the proverbial leg to stand on?
Well sort of:
SIXTH SCHEDULE (Article 262) TRANSITIONAL AND CONSEQUENTIAL PROVISIONS PART 3, SECTION 9(1)
States that:
“The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term”
The question then becomes what is the term of the National Assembly?
The 2013ners argue that the term of the National Assembly is 5 years from the date when members of parliament were sworn in. This means that from 15 January 2008, the term would expire on 15 January 2013. The elections would follow 60 days later i.e. some time in March 2013.
A few hurdles to overcome with this line of argument:
· Looking back historically, there is unlikely to be a National Assembly that lasted 5 years weakening the 5 year term argument
· Chapter 8 Part 2, 102(1) which the transitional provisions (Part 1, S2(1) provides that it is applicable to the first general election states that: “The term of each House of Parliament expires on the date of the next general election”.
Applying this provision, the expiry of the term of this Parliament will be determined by the date of the next general election as opposed to a reference to ‘5 year term’ which is hard to substantiate.
And therefore the date of the next election is as stipulated in the constitution i.e. Chapter 8 Part 2 S101(1): “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year”. The election would therefore take place 60 days from this date i.e. some time in November 2012.
But it would seem a bit curious to use the provision in Chapter 8 Part 2 S101(1) to determine the term of this Parliament. More so because of the addition of 60 days to the setting of the election date.
· However, S9(2) appears to anticipate that in the normal course of things the general election would be held in 2012.
Though I am inclined to think the constitution sought to set an August 2012 date, the conclusion has to be that the drafters of the constitution left us with a situation as clear as mud which is negligent for such a critical event in the roll out of the new constitution.
I would opine that the Supreme Court might go with strict interpretation (August 2012) or pragmatic interpretation (March 2013) in light delays due to glitches in the implementation of the new constitution and in both instances they would have a leg to stand on.
