Confusion surrounds Kenya government operations in the wake of a petition challenging the presidential election results after senior state operatives differed over key transition issues.
One of the areas of contention is whether incumbent ministers as well as Prime Minister Raila Odinga should continue serving in the government until a new Cabinet is sworn in. Also in contest among political players is the extent to which President-elect Uhuru Kenyatta should exercise the powers of the president.
The fact that several ministers have been elected as senators, governors and Members of Parliament further complicates matters as it is not clear which of their two roles they should now assume.
Mr Odinga’s Coalition for Reform and Democracy (Cord) moved to court on Saturday to challenge the result declaring Mr Kenyatta as the winner in a case the Supreme Court is required by law to hear and dispose of in two weeks.
Attorney-General Githu Muigai, in a legal opinion to the Head of Civil Service Francis Kimemia, advised that the PM and other ministers would continue to hold office until the incoming president picked a new team, otherwise the country would sink into a constitutional crisis.
“Any other implementation would as a matter of consequence result in a vacuum in government and precipitate a constitutional crisis,” said Prof Muigai.
“Conceivably, the process of resolving disputes arising from the election may take longer than anticipated and thereby extend the mandate of the ‘caretaker’ government indefinitely. In this respect, the absence of a Cabinet would occasion a crisis as there are many other constitutional organs that require ministerial interpretation and are necessary for the management of the state i.e. national security,” he added in the letter dated March 13.
That thinking is contrary to that of the Commission for the Implementation of the Constitution chairman Charles Nyachae, who had in a letter to President Mwai Kibaki dated March 11 argued the ministers should have relinquished their posts after March 4.
The AG’s legal opinion, however, said a minister will lose their right to remain in office if they are elected and take oath for another office like that of senator, MP or governor.
The discordant views emerged as the country’s top legal minds toyed with the possible scenarios around the outcome of the case.
The Supreme Court can decide to dismiss the petition by Cord, whose prayers are that the presidential elections were not validly conducted and tallied, and therefore should be nullified.
Should this happen, then Mr Kenyatta, who was declared the winner by the Independent Electoral and Boundaries Commission (IEBC), will be sworn in on the first Tuesday after 14 days from the day the electoral body declared the results.
Secondly, the Supreme Court could order re-tallying of the presidential votes. But Education Minister Mutula Kilonzo, who is one of Cord’s lawyers, argues that this can only be granted for the purpose of determining whether the petition can be accepted or not.
“The jurisdiction of the court is limited to determining whether the elections were validly conducted or not,” said Mr Kilonzo.
Should Cord’s petition sail through and the Supreme Court calls fresh elections, the polls would have to be carried out in 60 days, further extending the transition period.
Kenya’s landlocked neighbours — who experienced bruising shortages after delays in releasing results in the country’s hotly contested polls slowed business activity, hurting supply chains — will be keenly watching the unfolding events in the country, in the hope the transition period ends smoothly.
In the week after the election, most transporters using the Northern Corridor to Uganda, Rwanda, Burundi, eastern Democratic Republic of Congo and South Sudan scaled down transport operations because of uncertainty of the election outcome and fears over a possible outbreak of violence.
A nullification of the elections would be a major body blow to Mr Kenyatta, who as president-elect has been acting presidential. There are reports that he has started crafting his Cabinet.
He has met Chinese, Cuban, Russian and a clutch of envoys from a number of “friendly” countries and has been receiving security briefings from the country’s intelligence agencies.
Mr Kenyatta has also held highly publicised sessions with the country’s umbrella labour union Cotu (Central Organisation of Trade Unions) and key business lobby Kepsa (Kenya Private Sector Alliance), besides presenting his coalition’s manifesto to Finance Minister Njeru Githae, a member of his alliance.
During these functions, he has asked Kenyans to move on and asked his opponents to “accept the results and stop holding the country to ransom.”
Cord members led by Lands Minister James Orengo have faulted Mr Kenyatta and his deputy William Ruto for meeting the country’s security bosses, arguing that they should wait for the Supreme Court’s verdict, because an election petition is “part of the electoral process” and the duo can only continue with what they are doing legally after power is officially handed to them.
However, Mr Kimemia maintained that the law requires the team to brief a president-elect immediately such a declaration is made by the electoral commission.
There are indications that should Kenyans go for fresh elections, President Kibaki could be compelled to call the first sitting of newly elected MPs and senators.
Lawyer Jotham Arwa suggests that it is possible to swear in MPs as they can operate under the old president because the Constitution has made parliament autonomous, in that it does not need the president to prorogue it.
He argued that government operations will only be affected in cases where certain legislation is required. “The only problem is that it would be contrary to the convention of elections where a new parliament operates under a newly elected president. But since parliament is free from the executive, it can go ahead and start its legislative duties,” he said.
The new National Assembly Speaker would then adjourn the sitting of Parliament to a specific day when the new president will come to address a joint sitting of both houses. Article 321(1) (a) of the Constitution states: “The president shall address the opening of each newly elected Parliament.”
Another dilemma staring Kenyans in the face if the court finds IEBC led by Chairman Isaack Hassan culpable of election malpractices, is whether the electoral body can be trusted to preside over a fresh election.
Mr Arwa said that the IEBC still has the legal authority to hold fresh elections; the only question is whether they will have the moral authority to conduct the polls should they be found to have been in the wrong.
In this case, he suggests that Kenya can contract the services of United Nations election agents that normally help out countries that are unable to constitute their own electoral commissions, as happened in Cote d’Ivoire.