According to highly-placed sources, the clause shall be introduced to ensure a smooth transition after Uhuru’s exit.
Supporters of the extension argue that Uhuru needs more time to midwife the referendum process and its implementation. Leading BBI proponents such as Cotu Secretary General Francis Atwoli have publicly said Uhuru is too young to retire.
Others have cited disruptions caused by Covid-19 pandemic as a valid reason to extend Uhuru’s and by extension, Parliament’s terms.
A tweet by Mwaniki Munuhe on August 2 stirred debate online. “President Kenyatta needs a repeat 2020 just like schools are repeating classes next year. HE needs a fair chance to deliver on his Big Four. So does Parliament,” read the tweet.
Uhuru has in the past publicly said he is not interested in staying on after 2022.
Although the extension plan is shrouded in secrecy and the majority of legislators are unwilling to be associated with it, preferring to talk about it anonymously, interviews with some MPs revealed a discreet push.
Those supporting it are said to be viewing a term extension as an option should plans to hold a referendum before the next election fail.
Covid-19 and reforms
A raging Covid-19 pandemic has slowed down the momentum of BBI that had seen allies of Uhuru and ODM leader Raila Odinga move around the country to rally support.
With rallies coming to an abrupt end and with the clock ticking towards the 2022 poll, questions are emerging on whether the reforms envisioned under the BBI will be achieved on time.
A senior member of ODM who did not want to be named claimed that although extending the life of the current political offices by at least one year has not been formally discussed in any meeting, it is on the table.
“We are faced with several issues and time is running out, so there is nothing wrong with exploring alternatives because the changes to the constitution are necessary,” said the official.
The official described 2020 as a ‘wasted year’ because of the pandemic.
The proposal is expected to elicit debate among MPs and constitution experts.
According to Article 102 of the Constitution, Parliament can extend its term by a maximum of a year but only in the event the country is at war.
Such a resolution would require the backing of at least two-thirds of the Senate and the National Assembly.
The clause states: “The term of each House of Parliament expires on the date of the next general election,” implying that extension of
Parliament’s term would consequently alter the term of the President, governors and ward reps.
“When Kenya is at war, Parliament may, by resolution supported in each House by at least two-thirds of all the members of the House, from time to time extend the term of Parliament by not more than six months at a time,” states the article.
Constitutional lawyer Bobby Mkangi said trying to use Covid-19 as a reason to seek for an extension is “neither here nor there” since the pandemic has not stopped Parliament’s operations.
“The date of the election is a constitutional issue. If it is to be changed there would be many things to explain,” he said.
“The ability to make any changes lies with the people. A transitional clause can be varied. From one month, six months, one year or five years, however, to tinker this, the people have the final say,” he said.
According to Mkangi, the plan would attract public resistance if it has no legal basis other than being a plot by elected leaders to extend their terms.
“If it is legally engineered well and good, however if not, it will face legal landmines as it will be unconstitutional and subject of a court case,” he said.
Former chairman of the Committee of Experts on constitutional review, Nzamba Kitonga described the plot as “impossible.”
“The conditions set for an extension are very serious. There is no justification whatsoever legally or constitutionally. As far as I am concerned, there is nothing like that,” he said. ?
Constitutional lawyer Ndegwa Njiru described the use of Covid-19 as a reason for altering the election date as “absurd.”
“The pandemic is not unique to Kenya. It is a global pandemic, and we know countries like the US, Tanzania are preparing for elections,” said Njiru.
He said since the constitution contemplates that the country goes for an election after every five years, it is only through a referendum that the election date can be altered.
“The question (of altering the election date) can only be determined by the people of Kenya through a referendum. If it comes through the
BBI and it is ratified, then it would mean that it is Kenyans who have allowed for the extension,” he said.
Such an extension, he said, is only meant to ensure that there is no vacuum in the government.
However, an MP who sought anonymity, suggested that a clause could be introduced in the BBI report to alter the election date.
“The way to do it is by including it in the BBI Bill. For clarity, you can introduce a clause in the Bill to alter the election date,” said the lawmaker.
A number of MPs, however, said any plans to extend the life of Parliament may not be necessary because it is still possible to hold a referendum next year.
“I have heard those claims but I will not support an extension of the life of parliament,” said Alego Usonga MP Samuel Atandi
“We are hoping that a vaccine will be in the market by next year to help address the challenge Covid-19 has caused,” said Jared Okello (Nyando).
John Mbadi, the ODM chairman and National Assembly Minority Leader, dismissed the proposals as a ‘rumour’ but admitted that MPs are racing against time to ensure key reform issues are resolved by next year.
“We have not yet considered it as factual. We are expecting President Uhuru Kenyatta and Raila Odinga to receive the BBI report in the next two weeks. We are hoping that the referendum will be held next year,” said Mbadi.
The Suba South MP, however, said in case of any eventualities, the issues will be addressed when the right time comes.
The plan was also dismissed by Deputy Majority Whip Maore Maoka, MPs Caleb Kositany (Soy), Opiyo Wandayi (Ugunja), Didmus Barasa (Kimilili), Godfrey Osotsi (nominated) and Dan Manzo (Makueni) who said Covid-19 pandemic cannot be a reason for extending the life of Parliament and all political offices.
Maore said such an extension would be bad for the lawmakers as it would set the public mood against them ahead of the poll.
“I have not heard of such a thing and if it happens, it would be a bad omen for sitting members. About 90 per cent of members would end up losing their seats,” said the Igembe North MP.
“Those calls are not justified because we are still two years to the election. If the elections were going to happen in the next month, the calls would be genuine. The US is set to go into an election this November and I have not heard of such a push,” said Osotsi
Kositany and Barasa said it would be an affront on democracy to extend the term of the current elected leaders without any justifiable reason.
“I don’t see any reason for an extension of term for any office. Extending term of Parliament will mean extending the term of the President as well,” said Kositany.
Maanzo said Covid-19 can only be a reason for extending the terms of political offices if, by having elections, the resultant spread would occasion mass deaths.
Otiende Amollo, the vice the chairman of the Parliamentary Justice and Legal Affairs Committee, described the proposal as “uncalled for” warning that it would spark a constitutional crisis.
“Kenyans, especially MPs, should not harbour such an intention. Kenya is a constitutional democracy, with elections date specified in the law,” said Dr Amollo.
“If you were to extend the life of Parliament, then it means we have to change the constitution to do so by way of an amendment to the electoral clause,” he said.
Kisumu Town West MP Olago Aluoch said extending the life of the current Parliament is not a priority.
“Some people are arguing that a whole year has been lost, but Parliament never ceased to hold sessions, albeit periodically,” he said.
Ugenya MP David Ochieng also dismissed the proposal.
“Elections are happening all over Africa and the rest of the world, why should we postpone ours?” said Ochieng.
(Report by Roselyne Ndisi Obala, Harold Odhiambo, Kepher Otieno and Moses Nyamori)
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