Reading through emerging commentaries on Justice Mugure Thande's judgment last Friday, one shudders at the artificial constitutional crisis Kenya is sleepwalking into.
It still beggars belief how a supposedly modern state can just "forget" to hold elections on the due date.
Justice Thande declared Article 136(2)(a) requires the presidential election to be held on the second Tuesday of August in the fifth year following the previous general election, and not after the fifth year.
However, the judge suspended the effect of the declaration to avoid disruption and allow parties to pursue appeals.
The result is a can of worms and if and how to fix the grave constitutional error.
The judge's declaration regarding what constitutes "the next general elections" and when these polls should take place has been construed differently.
One group believes the judge suspended or amended Article 136 by purporting to vary an election date cast in stone in the constitution.
Other commentators believe she merely acknowledged the logistical improbability of an election this August and offered the IEBC an opportunity to clean its mess by conducting the "next general elections" as fast as possible to remedy an egregious constitutional violation.
A third group holds that the judge created uncertainty by vaguely directing the electoral commission to return to the constitutional order to hold the "next general elections", without indicating whether she expects the IEBC to hold the polls immediately or whether the IEBC should persist with its flawed August 2027 arithmetic.
Because she was unclear, the judge fostered a faulty perception that she had, through her discretion, postponed polls slated for this August to August 10 next year.
The problem with importing the doctrine that an adverse declaration can be deferred to a future date for good order or to avert imminent chaos is that it opens up the absurd idea that a judge can, willy-nilly, rule against a provision of the constitution. Further, the judge stands accused of purporting to suspend Article 136.
Justice Thande suggests that the IEBC can conduct elections as soon as its practical but does not address the matter of the legal status of the president and legislature after last Tuesday or in the event the IEBC is ready to hold elections in, say 90 days.
Supposing the IEBC is ready for the delayed polls in six months, what law or action will trigger dissolution of Parliament before the polls?
The judge also held that although the general election was due on Tuesday this month, it was not going to happen, yet any elections held on any other date would be invalid.
Then she suspended the invalidity indefinitely. It is this alarming "suspension" that has been called out to be unconstitutional and misconstrued as a greenlight for IEBC to postpone the polls scheduled for last Tuesday to August 2027.
There's a conundrum with grave constitutional ramifications in every permutation that
crops up. Despite last week's judgment, what constitutes "the next general elections" remains unsettled. This monumental dereliction of duty by the IEBC and the Attorney General is treasonous and has caused the kind of constitutional crisis that unravels nations.
Despite being the main culprit in the mess, the IEBC has published a programme for elections around August 10, 2027, as if Justice Thande's judgment did not happen or directed it to that date. Grave consequences lie ahead if this willful but flawed misconstruction of the said judgment stands.
This pillage of the constitution started when President Mwai Kibaki unconstitutionally extended his term by a year to 2013, allowing President Uhuru Kenyatta to also stretch his term by a year. Justice did not postpone the elections by a year!
Lady Justice Thande deserves credit for striking a blow for constitutionalism, including for clarifying that there is no five-year parliamentary or presidential term in Kenyan law.
She gave the IEBC an opportunity to return the electoral cycle to the constitutional order. She should have been bolder and ordered IEBC to hold the aborted polls within a specific period and let the chips fall where they may. The 2013 general election date was set by the court.
It is undisputed that Tuesday's polls aborted. Holding fast and fresh elections is the only viable option acceptable under the constitution.
The supreme law envisages a lawful repeat election when a scheduled one aborts or under certain circumstances.
If the IEBC persists with the plan to postpone the polls by a year, it will have to explain to the Supreme Court in the future from when it plucked the legal authority to extend the current president's and parliamentarians' term by an extra unconstitutional year.
The reasonable thing to do when one violates the constitution is not to escalate or aggravate through excuses and obstinacy. You take reasonable steps to achieve fast remedial compliance.
The next elections should therefore be held before August 10 next year preferably in three to six months from now to avert an annulment in the event it proceeds with its discredited arithmetic and grammatical sins that caused the problem.
To stand on firmer legal ground, the Attorney General or the IEBC should not waste time and resources on a futile appeal.
They should approach the Supreme Court for an advisory opinion/guidance on how to unwrap and walk around the conundrum they have caused and return the country to constitutional timelines in readiness for next polls in August 2031.
The writer is an advocate of the High Court
