Is it a Temporary Incumbency or NOT?- Kipchirchir Cleophas

Art. 134 (1)(a) of the Kenyan Constitution, provides for the exercise of presidential powers during temporary incumbency. Specifically, it states:

“A person who holds the office of the President or who is authorized in terms of this Constitution to exercise the powers of the President- (a) during the period on the date of the first vote in a presidential election , and ending when the newly elected President assumes office.”

A reading of this Article of the Constitution of Kenya, 2010, is clear; yet if not properly elaborated either through legislative amendment or the interpretation of a competent court, it will create avenues for wide interpretations which leaves us with only one outcome; Confusion! As we grapple and ponder on this issue, we are alive to the pronunciation of the Supreme Court of Kenya of 1st September 2017 in which the Court, based on arguments and evidence presented before it, annulled the outcome of the presidential results of 8/8/2017.

What is without doubt, is that we are headed for a fresh presidential Election.

On the onset, Article 134 (1)(a) gives a timeline of incumbency presidency. This starts on the date of the first vote in a presidential election and ends when the newly elected president assumes office. As we all know, the first presidential election was held on 8/8/2017, thus as per this Article, marked the first date of temporary incumbency. However, what is interesting is the impact  the decision of the Supreme Court Of Kenya (SCOK) had on the provisos of this Article?

The Court nullified the outcome of the 8th August 2017 exercise, therein ordering a new presidential election within 60 days from 1st September 2017 as enunciated by Article 140 (3) of the Constitution. We are alive to the fact that such an order by the court is interpreted to mean restoration of status quo, at least until the fresh presidential election is conducted. What then this does begs the questions; Does the incumbent president maintain all the powers and privileges accorded to any sitting president?; or does he fill the position of temporary incumbency as contemplated by Article 134 of the Constitution?

A simple reading and definition of status quo is that all things remain as they were, with the enjoyment of all the rights and privileges accruing therein. As such, President Kenyatta’s status quo, as per the nullification by the SCOK of the exercise of 8/8/2017 in so far as presidential election is concerned, is maintained. This equates to an arguable fact that no presidential election ever took place on 8/8/2017. The whole exercise in the eyes of the Apex Court, was null and void, which could suffer but only one fate, annulment.

The Independent Electoral and Boundaries Commission (IEBC) as we all know, have scheduled and gazetted the 26th October 2017 as the date for the fresh presidential elections. Alive to the foregoing discussion on the impact of the Court’s decision on the 8/8/2017 exercise, it could easily be interpreted that, as it stands, the status quo of the President was maintained, that Mr. Kenyatta is not enjoying temporary incumbency, in fact, if anything, provisos of Article 134 are yet to take effect. In support of this, One, we did not undertake any “first” presidential election on the 8/8/2017 in so far as the Court’s decision is concerned, thus leading to; Two, we don’t have in our hands any president elect awaiting assumption of office.

If anything, the first presidential election is scheduled for 26th October 2017 as ordered by the Court in its pronouncement. It is then that we would invoke into life the wordings of Article 134 (1) (a).


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