The Prime Minister has consistently stated his position that the next General Election should be held in December this year.
There are many arguments in support of a December election, many of which deal with practicalities and conveniences. This past week, the PM raised an important issue regarding the choice of December as the election date. This is in respect to Kenya’s budgetary cycle and the likely crisis that a March election will bring about.
Last week, the Independent Electoral and Boundaries Commission (IEBC) announced March 4, 2013 as the date of the General Election. We can expect then that within two weeks of that date, all the results for National Assembly elections will have been compiled and, by the end of the month, gazetted.
The Constitution says that the President must call Parliament within 30 days after the election. The next Parliament will, therefore, be called to its first session in April.
This is where the budgetary cycle begins to get messed up. The Constitution requires that at least two months before the end of each financial year, the Cabinet Secretary of Finance submit to the National Assembly estimates of the revenue and expenditure of the National Government for the next financial year.
Kenya’s financial year ends on June 30, so these estimates must be with the House by April 30. Any delay in gazetting the election results and in calling the first session of Parliament will, therefore, result in a breach of the Constitution for there will be no National Assembly to present the estimates to.
But even if these deadlines are met and the estimates are approved by June 30, there will be no Appropriations Bill before the House. So on June 30, Parliament cannot approve any money for the government since the new Constitution denies Parliament power to authorize expenditure on the Budget without an Appropriations Bill being laid before the House.
Between the time of approval of estimates and presentation of an Appropriations Bill, and a resolution of Parliament to authorize expenditure pending the passage of the Bill, there will occur a crisis whereby government cannot spend money without breaching the Constitution.
It is almost a certainty that if we have the General Election in March, we will then either have to close down government operations for some time in July awaiting approval of estimates and of the Appropriation request, or we close our eyes, and as has now become the norm, breach our new Constitution.
But that is just part of the problem. Again it is certain that if we have a March 4, 2013 election, the next Budget shall be drafted and compiled by the retiring regime. This will raise serious legitimacy issues where an outgoing government will be setting the agenda for the new government.
Going by the date of April 30 as the time when the first session of Parliament meets, the new President will not have a Cabinet Secretary of Finance for another 30 days or so, maybe even longer.
From May 2013, the new Parliament will have to elect a Speaker and then form and appoint committees. No vetting can take place until a committee to vet appointees is constituted. These appointees are many, up to 22 Cabinet Secretaries. This will take about half a month to vet and approve at the best.
So as the new President is struggling to form his administration, the outgoing government will be busy presenting the Budget on which the new President shall rule for the first year of his term.
The Cabinet Secretary cannot do the Budget alone so he has to wait for Parliament to approve the new President’s appointee for the position of Principal Secretary to the Treasury. This pushes the timetable even further.
And this is the good case scenario. If there is a runoff and election petitions are subsequently filed, the new President shall form his government only to come and meet that the outgoing President has been administering the economy for him over several months.
Apart from the illegitimacy of the result of such an eventuality, we must be fair to the new government and give it a clean slate to implement the manifesto on which it will have been voted to power.
Indeed, the outgoing President should not have any influence over the new government by committing it to a Budget that is based on the manifesto of an outgoing administration.
The solution would lie in changing our financial year. But we have an understanding with the other members of the East African Community, Uganda, Tanzania, Rwanda and Burundi, that we should read our Budget around the same time. I doubt they will agree to change their financial year simply because we cannot agree on an election date.
The question to ask then is whether the crisis of constitutionalism and legitimacy that are inherent in a March election are justified. Is it that critical that elections are done in March regardless of the crisis this will cause?
Someone should answer these practical issues and take personal responsibility for the crisis that the proponents of a March election are about to put us into.
Paul Mwangi is legal affairs adviser to the Prime Minister.