Nairobi — The Kenya Gazette notice which legalised the election of MPs and President Kibaki shows they will be in office illegally if the next election is held in March 2013.
According to special gazette notice number 12612, the MPs' and President Kibaki's terms end on December 30, 2012 which marks five years from December 30, 2007 when the Electoral Commission of Kenya (ECK) chairman Samuel Kivuitu gazetted their election. The MPs elected in the December 27, 2007 general election were sworn in on 14 January, 2008, a fortnight after they were gazetted on 30 December 2007.
A constitutional court ruled in January this year that the general election can be held in March 2013, or President Kibaki and Prime Minister Raila Odinga can trigger an election before then if they agree in writing to dissolve the coalition government. The Independent Electoral and Boundaries Commission has set election for March 4, 2013. They are however ready to hold an election in December this year if the two principals agree.
The date has split the politicians with Prime Minister Raila Odinga stating that he is ready for a December poll. Narc Kenya chair Martha Karua argues that President Kibaki and MPs will be in office illegally if the elections are held in March. Kivuitu gazetted President Kibaki on December 30, 2007. On the same day, through Gazette notice number 12615, Kivuitu gazetted members of the 10th Parliament. A payslip obtained by the Star for one of the members shows that they earned their first salary at the end of January 2008. The payslip is generated by the Parliamentary Service Commission (PSC) after members are gazetted.
Yesterday former Ntonyiri MP Maoka Maore said the current legislators are being dishonest when they claim their term began on January 14, 2008 the date they were sworn in. "The legal notice No.103 of December 30 2007 bearing the names of all MPs of the 10th Parliament has been ignored. Agents of confusion are having a field day," he added.
The former MP said even the constitutional court erred when it ruled that the MPs' term ends on the day they were sworn in yet they were gazetted the same day with President Kibaki. The MPs earned their full salary for January 2008, as evidenced by a copy of a payslip that is in the Star's possession, and wondered how then could their term have begun on the day they were sworn in. "The gazette notice is a legally biding instrument by which government communicates. As a matter of fact, a payslip of an MP for January 2008 indicates that full salary was paid for that month. How would this have happened if the 14th was their first day of work?" Maore said.
Narc Kenya and Centre for Multi-Party Democracy (CMD) reiterated the MPs' stay in office after 30 December will be illegal. "Their (MPs') term began when they were gazetted and not when they were sworn in. The term also began when they started earning salaries," CMD chair Justin Muturi said. Narc Kenya's Martha Karua and Danson Mungatana said the election should be held this year and any attempt to hold elections in March next year will plunge the country into a constitutional crisis. "I have said and will continue to insist that we were paid our salaries beginning January 2008 any salary beyond this year is illegal. Ni haramu," Karua added.
Mungatana said holding the polls next year will be unconstitutional as it will affect the budget system. He said that according to Article 212 (1) of the constitution, the Cabinet Secretary for Finance should present to the House the estimate at least two months before its actual reading. Mungatana said that holding polls next year will mean that the next President and Cabinet will not be party to the budget which they will have to implement. "These are weighty issues that show holding elections in March will plunge this country into a constitutional crisis," he added.
The Narc K boss asked IEBC to meet budget experts to seek their views on the implications of the elections date and reconsider the March 4 date. Karua insisted that elections must be held this year since the constitution talks about holding elections inside the five-year term and not outside. SUPKEM secretary for Youth affairs Hashim Kamau accused MPs of insincerity while supporting or opposing the election date.
Kamau said he supports elections to be held in December saying traditionally and in world democracies, elections are held inside the term of Parliament. "Some MPs who were supporting elections to be held in March have now changed heart since the President favours March, while others support the IEBC date since the PM Raila Odinga has supported a December date," Kamau told the Star.
Yesterday, Maore who served in the Ninth Parliament argued that even when an election of an MP is petitioned, the Electoral Commission is the first respondent for declaring one as an MP vide a gazette notice and not the Speaker for swearing in one. "No one has ever sued the Speaker for swearing in the wrong person. This is a grand conspiracy that has persisted by insisting the term of President differs with that of MPs," he added.
The former MP said that when the Ninth Parliament was dissolved, MPs were paid up to 22 October 2007 and not the full salary. "The Minister for Justice should start a process of telling the truth of whether its December 30 or January 14. A definition of a term of office should include the electioneering period. No term should spill over to the next," he added.
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