By Stephen Makabila

The Supreme Court has its hands full even before it becomes fully operational.

It is expected to address four burning issues ahead of next year's epic General Election, including the determination of the polls date. Other sticky matters awaiting its ruling are the ambiguity on whether a presidential candidate can contest any other office and whether State officers should not hold political party offices besides gender equity issues. After a two-month delay occasioned by a court injunction, the Supreme Court was finally sworn in three weeks ago at State House, Nairobi.

President Kibaki, Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka, former Attorney General Amos Wako, Chief Justice Willy Mutunga and Head of Public Service Francis Muthaura witnessed the swearing-in. After being sworn in, the judges declared determining the general election date would be their first assignment. "We may be forced to solve the matter immediately even before the rules to operationalise the court are in place because of its urgency," said Justice Mohammed Ibrahim.

However, the Cabinet on Tuesday unanimously agreed to amend the Constitution to extend the life of the current Parliament and end debate over the polls date. If the Executive gets its way, the next General Election would be held on December 17, 2012 instead of August 14, 2012 as has been advocated by the Constitutional Implementation Commission led by chairman Charles Nyachae.

A Bill with amendments to Article 177 of the Constitution and all other provisions that touch on the election date will be drafted and brought to Parliament for debate. Observers say MPs, who are currently on recess, are likely to pass the amendment Bill because it stretches their term, but CIC has rejected the plans and the Supreme Court may be called upon to play referee.

On the controversial gender issue, the Cabinet wants Kenyans to go for the 290 elective seats without gender discrimination, hoping to rectify imbalance through nomination seats. The move is likely to ignite battle with CIC, which has maintained the one-third provision for women in elective positions should be upheld. The battle may find its way to the Supreme Court.

Other seats

Chairman of the Centre for Multi-Party Democracy Justin Muturi says the Supreme Court should address the ambiguity of a presidential candidate running for other seats.

While the Elections Act prohibits presidential candidates from contesting other seats, experts in electoral laws, among them Koki Muli, argue a citizen by birth can run for more than one position, according to the Constitution. "Supreme Court should have the final decision on this because there is ambiguity," added Muturi.

The court's members are justices Philip Tunoi, Jackton Ojwang', Mohammed Ibrahim, Njoki Ndung'u and Smokin Wanjala. The court's president will be Mutunga and Vice-President, Nancy Baraza. CIC has also been insisting State officers are in breach of the law by hanging on to party positions, but politicians want the Supreme Court to give its opinion. Nyachae claimed State officers were unsupportive of the implementation, owing to their resistance to give up party positions.

Article 77 (2) says State officers should give up political party offices. Top party officials hold senior positions in the Grand Coalition and are also presidential candidates.

"The definition of Public Officer under Article 260 of the Constitution does not include the current ministers…therefore, Article 77(2) does not apply to them… we suggest CIC seeks interpretation on the applicability of Article 77(2) on current ministers from the High Court or Supreme Court," Mr Caroli Omondi, a senior official in the Prime Minister's office, told CIC.

Last Edited: Tue 20th September 2011 at 10:17:51 AM