Judges, Isaac Lenaola, David Majanja and Mumbi Ngugi, sitting as a Constitutional Court failed to establish a clear date for the elections. Before the President and Prime minister decide on the election day, there is a need for the only date given four times as “Second Tuesday of August” and two times as “2012” to be presented and decided by the Supreme Court. The seven justices of the Supreme court, Justice Willy Mutunga, Justice Nancy Baraza, Justice Philip Tunoi, Justice Mohamed Ibrahim, Justice JB Ojwang’, Justice Smokin Wanjala and Justice Njoki Ndung’u can individually offer their opinion as to whether or not the election day created by the constitution for the first elections of President, National Assembly, Senate, Governors and County Assemblies is14th August 2012.

After studying the constitution, there is no doubt that different opinions can be reached by different people. Just like Bush versus Gore ruling of 5 to 4 by the Supreme Court of U.S the goal is to have a majority ruling prevail from the seven Supreme Court justices. One thing that is very clear is the constitution is that the second Tuesday of August is the Election Day and 2012 the election year.  

The Constitution Articles and Clauses on Elections 

101. (1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.

102. (1) The term of each House of Parliament expires on the date of the next general election.

136. (2) An election of the President shall be held–– (a) on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year

177. (1) A county assembly consists of— (a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year

180. (1) The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.

Sixth Schedule 

9. (1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.

(2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.

10. The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term.

The Constitution Election Date of 14th August 2012 

General Election set Second Tuesday of August 2012

In Clauses 101(1) 136(2) 177(1) and 180(1) the elections are set for the second Tuesday in August. The constitution in 9(2) …if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012. This clearly states that the elections for Governors and County Assemblies shall be held 2012. This also tells us that the date of the election is set for 2012 unless dissolution of National accord occurs. 

Term of Parliament

Article 102 (1) The term of each House of Parliament expires on the date of the next general election. This clause establishes the term of parliament to expire on the second Tuesday of August where it fixes a general election. This clause clearly defines the date the term extended to the current National Assembly shall expire based on this constitution.  

Unexpired Term 

10. The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution for its unexpired term. One clear purpose of the constitution is having elections on second Tuesday of August. If this applied, the statement would read, “The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this Constitution (Elections on Second Tuesday August 2012) for its unexpired term. The words “for its unexpired term” applied in this context can reference the term remaining as applied to the term created from effective date to expiry date by the new constitution in article 102 (1) and further in 9(2). 

2012 The Election Year

Sixth Schedule 9 (2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012. The constitution mentions 2012 as the election date. The constitution also considers that National Accord could be dissolved after it becomes effective any time from August 2010. Had the national accord dissolved say in September 2010, the elections based on constitution would have been held in second Tuesday of August 2011 for President, National Assembly and Senate. The constitution by noting that county assemblies and governors shall be held 2012 assigns this date.