Court gives nod to postpone elections, DP Ruto protests

The court ruled that treaties signed by African Union (AU) member states allow for postponing of elections in the event of a disaster that threatens the well-being of citizens, such as the Covid-19 pandemic, which has caused the deaths of thousands on the continent.

But any government that wants to postpone elections must do so using the laws in its country. This means that if a country’s laws do not provide for postponement, lawmakers must come up with regulations to define and govern the process.

Advisory opinion

The Pan-African Lawyers Union (Palu), which sought the advisory opinion, had asked the court to issue rules and guidelines for postponement of elections by AU members. Palu draws its membership from lawyers and law societies in African countries, and has been formally recognised by the AU since 2006. Law Society of Kenya President Nelson Havi said they were not part of the process.

Nakuru Senator Susan Kihika and Garissa Township MP Aden Duale claimed that a number of presidents were behind the petition filed last year.

“There will be an election on August 9, 2022 as per the Constitution of Kenya. The court advisory doesn’t supersede the constitution. Let everyone prepare for the elections on the said date and those winding up to finish and go,” the senator said.

Mr Duale added: “It’s only the courts in Kenya which can make such a determination.”

Senior counsel Paul Muite argued that postponing elections is more of a political decision than legal.

“Periodic election dates are fixed in the constitutions of respective countries. It is true elections can be postponed, but this is a decision that must be made consciously given it is very divisive. Each country must weigh the political risks and the environment it finds itself in before postponing the elections without which it can be catastrophic,” Mr Muite said.

Those rooting for the adoption of the advisory opinion argue that Kenya, being a signatory to the charter creating the court, should enforce it.

Debate on whether the 2022 elections should be postponed has been raging for some time now with Ndaragwa MP Jeremiah Kioni planning to petition the High Court to defer the General Election to give the electoral commission sufficient time to conduct boundary delimitation.

But being a leading Jubilee MP and the chairman of the National Assembly Constitutional Implementation Oversight Committee, the DP thinks Mr Kioni is acting on behalf of allies of President Uhuru Kenyatta keen to extend his stay in power.

“We had a meeting today with some of the affected members (MPs who risk having their constituencies scrapped for not meeting the population quota). We have agreed on another session next Wednesday in Mombasa,” Mr Kioni said yesterday even as he lauded the decision by the.

The lawmaker holds that going into elections without changing the laws would see thousands of voters disenfranchised.

Cotu secretary-general Francis Atwoli, a close ally of the President and his Handshake partner Mr Raila Odinga, is a leading voice in the push to have elections held at a later date.

“Covid-19, imminent post-election violence, natural disasters and anything that has a great threat to human life are reasons enough to postpone any election considering the value attached to human life,” Mr Atwoli argued.

He added: “And this forms the premise upon which I anchor my arguments on why the 2022 General Elections should and can be postponed. Of importance is that my support for BBI (Building Bridges Initiative) is not out of thin air. I do so believing that the proposals as contained in the BBI will greatly improve the political stability of the country moving forward,” Mr Atwoli argues.

Allies of the DP charge that the President and Mr Odinga, having suffered a setback after the High Court stopped the BBI, want to postpone the polls to allow them time to appeal the judgment, and still be able to amend the supreme law before a new government is elected.

At least 13 African countries are scheduled to hold elections in 2021 while Kenya is scheduled to hold hers in August, 2022.

While President Kenyatta’s administration has insisted that there are no plans to postpone the 2022 elections, a section of politicians has alleged that the Executive plans to push the voting.

Palu filed the advisory opinion in June, last year. The African Court on Human rights notified AU member states of the petition on August 11. Interestingly, no African country presented any argument, whether in support or opposition, of election postponement to shield citizens from Covid-19.

The Centre for Human Rights Law at Saos University (London) was allowed to participate in the advisory opinion on behalf of the Journal of African Law, a publication of Cambridge University.

The Saos University department curiously claimed that elections had been postponed in Kenya, which is still approximately 13 months away from its General Election.

Part of Palu’s request was hinged on the fact that the pandemic has forced most countries to curtail some constitutional requirements like the right to movement and association, which directly relate to political rallies and public campaigns by election candidates. With many countries, Kenya included, banning public rallies, some candidates for various positions in government may suffer a disadvantage in campaigning for votes.

The ban of political rallies in countries like Kenya has also affected voters’ right to participate in the government of their countries.

The AU’s judicial arm said in its ruling that countries which decide to hold elections amid a pandemic must put in place measures to ensure a free, fair and transparent process for all stakeholders including contestants and voters.

And in deciding on whether to hold or postpone elections, African governments have been advised to consult with the political class, health officials and the civil society, which largely draws its membership from activists and governance experts.