By KEPHER OTIENO

The Cabinet is on the spot over its decision to clear the way for a constitutional amendment on the elections date. The move is straining relations between the Government and Commission for Implementation of the Constitution (CIC), in what observers say could fundamentally drag implementation.

While Parliament appears set to effect the changes, the Charles Nyachae-led team has put the Executive and Legislature on notice over what it calls 'unnecessary amendments'. Last Tuesday, the Cabinet gave nod to amendments that would extend the term of the current Parliament, setting December 17 as the General Election date and not the August 14 backed by CIC.

The row brings Article 101 (1) of the Constitution into focus. The article says a General Election of MPs and Senators shall be held on the second Tuesday in August every fifth year. Similarly, Article 136 (2) says election of the President shall be held on the same day as that of MPs. And Article 177 (1) explains that county representatives will also be elected on the same date.

But the Cabinet appeared uncomfortable with the August 14 date, resulting into its Tuesday decision. According to Justice Minister Mutula Kilonzo, the August date clashes with the implementation of the Appropriation Act. "We need to have Appropriation Bill brought and discussed in Parliament to ratify distribution of revenue," he argues.

Budget process

This means if polls were to be held in August, the budget process would be affected. This is because it would mean the House is dissolved in June (two months to elections), even before the Budget is read. Gwasi MP John Mbadi agrees with Mutula but warns against further amendments to the new Constitution. But Saboti MP Eugene Wamalwa says there is no point amending the new laws this early.

He claims trying to 'mutilate' the document was uncalled for and would expose the new laws to abuse by anti-reform forces. "We must jealously guard against altering contents of the Constitution even before we begin to realise its fruits," argued Wamalwa. Political scientist Tom Mboya of Maseno University said: "The moment we begin to mutilate the Constitution, we will be doomed."

He claims anti-reform forces were likely to ride on gaps in the Constitution to frustrate its implementation. "It's treacherous to begin amending the Constitution at this stage, even before the new laws take off fully," warns Mboya. He went on: "The matter needs the attention of the Supreme Court to interpret the relevant sections of the law and set the polls date," he says.

Mr Mboya warned Parliament it could be used to stifle implementation. "Elections are normally tied to the life of Parliament. But successive regimes always kept the date as a secret weapon," he says. Mboya urged the Nyachae-led commission to 'insulate' Kenyans against abuse of the laws. As experts put the Cabinet on its defence over the matter, lawyer Cleveland Ayayo supported plans for the amendment.

Proposed changes

Mr Ayayo argued the proposed amendments did not touch on the structures or supremacy of the Constitution. He says there was nothing wrong if only sections that are in conflict are amended. "The Constitution serves as the reference Bible and therefore must ensure there is no discord in crucial articles," Ayayo argues.

Former Committee of Experts (CoE) member Bob Mkangi told The Standard on Sunday that in writing the Constitution, they did not want to go against Kenyans' proposals.

"We only focused on contentious issues because all other issues contained in the draft were ratified by delegates at Bomas," he said. Another former CoE member Otiende Amollo says he was not remorseful about the debate on elections date. He cites Sections 1(1), 136(2), 177(1) and 180(1), Articles 101 and the transitional clauses in the Sixth Schedule.

Mr Amollo says those pushing amendments have based their arguments on Schedule 6 Section 9(1) with 'ill' intent. "I have said before that all the four basic articles 101, 136, 177 and 180 fall in chapters whose application is suspended by the virtue of the Schedule 6, Section 2(1) and (2).

Under Section 59 of the old Constitution, and unlike the new one, which specifies the term as five years, Parliament did not have a fixed term. Parliament's term was "on expiry of the five years or if sooner dissolved by the President" and again, the Executive 'kept the polls date a secret weapon'.