One of the minimum reforms that is likely to be agreed on between the Government and the Opposition is that concerning the calendar of the National Assembly. The reform is intended to make the calendar of the National Assembly independent of the presidency so that he may neither dissolve nor prorogue it.

This reform is most likely to pass because it is also in the interest of the MP’s. If passed, the current House will sit until January 9, next year, when it will stand dissolved. This is because the constitutional term of the National Assembly is five years from the date the House meets after a General Election. The current house first met on January 9, 2003. If the reform does not pass , then the president will have to dissolve the House at least six weeks before the end of December when the term of the presidency expires.

To many MP’s, this is a loss of more than Sh 3 million in salaries and emoluments. To Cabinet ministers, the loss for those three months is more than Sh 6 million each. Further, as they are entitled to serve until the next Cabinet is appointed after elections, they will lose the income for between January and March when the elections would be held. Both the Government and the Opposition would prefer a constitutional situation in which the life of the National Assembly is set out on January 9.

But that is where the constitutional crisis will begin. Under the Constitution, a presidential election is held under four circumstances. Firstly, is when Parliament is dissolved. A presidential election must be held in the ensuing General Election. The other four circumstances are if the President dies, or resigns, or is declared incapacitated in mind or body or if his election is nullified by an election court.

When Parliament acquires its own calendar, the next House must meet by next April 9. But the President must be sworn in by December 31 because the current presidential term expires on December 30. Can we have a presidential election in circumstances other than the ones provided in the Constitution? Can the President initiate an election in circumstances in which parliament is not being dissolved?

As the constitution is now, he cannot. So, the President will have to wait until the House dissolves itself under the terms of its independent calendar so that a presidential election automatically ensues from the General Election. . The President will, therefore, have to serve until April 9, next year, when the House is likely to meet next whether or not he completes and wins the next election. The Constitution requires that he should hold office until the next President is sworn in.

But the President will have to seek a way to have a presidential election before December 30. How will he do this? He can only do so by resigning. Can he abdicate the presidency, and then still forward his name for re-election?

When a presidential election is held outside a General Election, no person can be an eligible candidate unless he is already an MP. So, some of the presidential aspirants will not be eligible to run in December after minimum reforms. But if that election is held, then the House is dissolved on January 9, a presidential election must again be held, for two reasons. Firstly, by dissolving the House, the President-elect loses one of his fundamental qualifications of being a President, which is his membership. Secondly, the Constitution requires that a presidential election MUST be held whenever the House is dissolved.

So what happens? Do we have a presidential election in December and another one in April? If the incumbent wins the December election, can he compete in the April one when the Constitution forbids one to serve more than two terms? Will the December-April period be a term?

The confusion is brought about by what may appear to be a simple reform; to give Parliament an independent calendar. But the grave consequences of it are not being discussed. What may appear to be minimum reforms will require maximum consideration.