B.Timer wrote:mukiha wrote:The 10th paragraph of the SIXTH SCHEDULE in CHAPTER EIGHTEEN reads:
"10. The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term."
I have highlighted the phrase "for its unexpired term" because this where the contentions lies.
My understanding is that to find out what the unexpired term is, we have to go to the old constitution to find out how the term of parliament is defined.
This is found in section 59 of the OLD constitution and it reads:
59
(1) The President may at any time prorogue Parliament.
(2) The President may at any time dissolve Parliament.
(3) If the National Assembly passes a resolution which is supported by the votes of a majority of all the members of the Assembly (excluding the ex-officio members), and of which not less than seven days’ notice has been given in accordance with the standing orders of the Assembly, declaring that it has no confidence in the Government of Kenya, and the President does not within three days of the passing of that resolution either resign from his office or dissolve Parliament, Parliament shall stand dissolved on the fourth day following the day on which that resolution was passed.
(4) Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after dissolution and shall then stand dissolved.
(5) At any time when Kenya is at war, Parliament may from time to time provide for the extension of the period of five years specified in subsection (4) for not more than twelve months at a time: Provided that the life of Parliament shall not be extended under this subsection by more than five years.
Clearly, there WERE three ways in which the term could expire:
1] By presidential dissolution
2] By parliamentary resolution to dissolve
3] After expiry of 5 years
I do not understand why everybody is only thinking about the last one and ignoring the other two... which BTW, appear earlier in the list.
So, this is what will happen: come June next year, the President will have authority to dissolve the House, despite what the new constitution says about the term of parliament being independent. in my view, this independence is only applicable to a parliamnet elected under this constitution.
However, in order to give such a move legal backing, it would be wise to seek a constitutional interpretation through the Supreme Court.
therefore, I do not see any problem.
I must agree, yours are good arguments.
I must nonetheless take an alternative view as hereunder;
Unexpired term as used can only mean uninterupted term.
The other options given for (1&2 as above) are sanctioned interuptions.
There surely exists a difference between a premature dissolution of Parliament and running its full term to epiry.
Again I am not sure the President still holds the powers to prorogue or dissolve parliament!!!
Arguments of - if this parliament/president/cabinet were not elected/in office in accordance with the new constitution continue to be challenged.
A case in point is Uhurus budget - minister/Cabinet secretary!
Even the nomination of CJ,DCJ&DPP was handled not as per the dictates of the transitional clauses.
It is just murky!
We will have to invite the judiciary to interpret these matters. Of course there after thier view becomes the official view - binding.
http://www.standardmedia...key%20to%20polls%20date
http://www.nation.co.ke/.../-/12wigpq/-/index.html
The court gave us their opinion - direction over the matter.
That remains binding unless overturned through an appeal.
I however find their arguments to be cogent and based on proper interpretion of the Constitution as we have it - with its weaknesses and inadequancies.
They stopped short of saying that the constitution did not sufficiently aadress the important matter of the transition elections.
For me, its an in-excusable ommission on the part of the CoE.
As it were, we are at the mercy of Politicians, who have vested self interest in the matter.
We are left to hope and pray for their magnanimity and selflessness- that they act in the best interest of the Country.
The Constitution should never have put us in this situation!
We had a chance to correct such shortfalls, but the Politicians we now rely upon to act with magnanimity, created an aura of euphoric 'thinking' amongst the citizens - so that any divergent voice was drowned in political fervour!
Over to you Kibaki and/or Raila!
Dunia ni msongamano..