Why next General Elections cannot be held on August 2021 as some want us to believe

You all know Mungai Kihanya, he writes the World of Figures on Sunday Nation. On Sunday June 26 2016, he wrote an article in the same Sunday Nation titled Elections should be in 2021, not 2022 that apparently attracted the attention of very few Kenyans. Although the article was written over a year ago, we haven’t seen someone like Okiya Omtatah file a case either in high court or in the Supreme Court seeking from the courts a determination that the next general elections be held on the second Tuesday of August 2021 instead of August 2022. This is because all lawyers and politicians apparently take it for granted that the next general elections will be held on the second Tuesday of August 2022.

Even though the article by Mungai Kihanya that wanted to draw attention to the plausibility that the next general elections should be held on the second Tuesday of August 2021 attracted close to zero attention, it didn’t pass the attention of my friend Salim Maina. Salim Main, while referring to my yesterday’s article on a similar subject, insisted and probably still insists that the next general elections should be held on August 2021. He argued his points via our Facebook Group  (remember to join) where he brought to the discussion the reasoning of Mungai Kihanya that the constitution uses the term “in every fifth year” instead of “after five years” in setting the date for general elections in Kenya.

The problematic constitutional clause that is being interpreted both by Mungai Kihanya and Salim Maina as suggesting for elections to be held after every four years is Article 101 (1). The clause, which deals with election of Members of Parliament, provides as follows, “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year“, emphasis mine. The election of Governors, Members of County Assembly, and Presidency are then set to coincide with the election of members of Parliament. For example, election of President is set in Article 136 (2) (a) in the following words, “An election of the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year“.

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The words “in every fifth year”, according to Mungai Kihanya and consequently Salim Maina, indicate without doubt that the next general elections should be in the fifth year after the 2017 general elections which should be on the second Tuesday of August 2022. This Mungai calculates as follows:

Let’s count again together, like little children:

The first year will run from August 8, 2017 to August 7, 2018;

The second from August 8, 2018 to August 7, 2019;

The third from August 8, 2019 to August 7, 2020;

The fourth from August 8, 2020 to August 7, 2021;

The fifth from August 8, 2021 to August 7, 2022

The logic by Mungai Kihanya seems reasonable, but there is one question he has not asked from the words “in every fifth year”. The question is, “fifth year of what?” Is it the fifth year of an elected official’s term, or the fifth year of election? The two may seem to mean the same thing, but when we consider the term of the president we find that they mean totally different things.

Since the date of general elections has been set using the election of member of parliament, it is important to ask the constitution what it says about the term of a member of parliament. We find this in Article 102 (1) which states that “The term of each House of Parliament expires on the date of the next general election” and thus doesn’t give us much headway. However, since the election of members of county assembly is also set to happen on the same date as election of members of parliament, we can refer to the clause specifying the term of a member of county assembly to help us. We find the clause in Article 177 (4) which states that “A county assembly is elected for a term of five years.”

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Going by Article 177 (4), it is obvious that a member of county assembly must serve until August 2022 in order to have served for five years since, if they serve up to August 2021, they shall have served for four years only. We can count as follows: August 2018 is 1 year, August 2019 is two years, August 2020 is three years, August 2021 is four years and August 2022 is five years.

Now that Article 177 (4) clearly reveals that the “fifth year” referred to in Article 101 (1) means the fifth year of an elected official’s term, the next question is how does it relate to the term of the president or rather any other elected official?

The answer is in Article 142 that provides that “(1) The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President in accordance with Article 136 (2) (a) is sworn in.”

That is, a person elected president does not start his/her term on the second Tuesday of August when elections are held, but, as stated in Article 141 (2) (a) of the constitution, “on the first Tuesday following—the fourteenth day after the date of the declaration of the result of the presidential election, if no petition has been filed under Article 140; or (b) the seventh day following the date on which the court renders a decision declaring the election to be valid, if any petition has been filed under Article 140.”

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If for example President Uhuru was sworn in on August 22nd 2017, then the second Tuesday of August 2021 which will be August 10th 2021, could have fallen on his fourth year of his second term, not his fifth year of his second term. The second Tuesday of August that falls on his fifth year would have been in August 9th 2022, and that date still holds true even if he is sworn in in two weeks from yesterday.

Although I am not a lawyer, I believe that the constitution has been very clear that elections are held every five years, and that the fifth year referred to in Article 101 (1) refers to the fifth year of an elected official. Therefore, the constitution is very clear that our next general elections will be held on August 9th 2022, which will be the second Tuesday of that August.

Odipo Riaga
Managing Editor at KachTech Media
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