Debate rages on oath for Kibaki and Cabinet

By Wainaina Ndung’u and Munene Kamau
There is confusion as to whether President Kibaki, Vice President Kalonzo Musyoka and a section of Cabinet will have to take fresh oaths after December 30 to legalise their continued stay in office up to March 4 next year when the general election is held.
While it is clear that MPs’ terms end on January 15, 2013 when they will earn their last salaries and allowances as legislators, there is a 60-day window leading up to the polling day when five members of the Executive will technically still be in office.

They are Kibaki, Kalonzo, Prime Minister Raila Odinga and deputy premiers Uhuru Kenyatta and Musalia Mudavadi as well as those who were sworn in as ministers and assistant ministers before the new Constitution was promulgated on August 27, 2010.
A senior member of the Judiciary who asked not to be named toldThe Standard that the five are protected by the Sixth Schedule of the Constitution and the National Accord to stay in office up to March 4.
Expiry of term
The judge said it is clearly stated in the schedule that elections for the President will be held 60 days after the expiry of his term and that means President Kibaki’s term will end on March 4 next year.
However, some MPs maintain that legislators should also be allowed to continue earning salaries and allowances up to March 4, after which new MPs will be sworn in. This has created confusion since MPs are not part of the exclusion written into the Sixth Schedule that protects the terms of the five members of the Executive.
Because President Kibaki and VP Kalonzo were sworn in on December 30, 2007, there are those who argue that the Head of State, his deputy and some members of the Cabinet will have to take afresh the oath of office  for their extra days in power after the term of Parliament.
They insist that Kibaki and Kalonzo can only avoid taking the oath of office afresh if Elections are held in December this year as demanded by the PM and a section of the political class. Otherwise, the two would be in breach of the Constitution.
Only Raila, Mudavadi and Uhuru were sworn in on April 17, 2008, therefore, making them exempt up to that date, they argue.
The Independent Electoral and Boundaries Commission (IEBC) opted to abide by a High Court ruling that set March 4 as the date for the polls in the event that Parliament completes its term on January 15 next year as scheduled.
Court cases
“When he was sworn in on December 30, 2007, he took an oath to serve for only five years, which expire in December this year. Any additional days in office without a new oath will be unconstitutional,” says former Nyeri town MP Wanyiri Kihoro.
According to Kihoro, the matter gains prominence because even the March 4 date preferred by Kibaki and the IEBC is ambitious for Kenya where the Government has rarely honoured a constitutional deadline.
Kihoro foresees a situation where the electoral process will be delayed further by bickering on contentious issues such as procurement of electoral materials and systems, issuance of IDs and voter registration of millions of youths and demarcation of new electoral units.
But Assistant Minister Mwangi Kiunjuri said only MPs would have to take a fresh oath of office if they insist on earning salaries after January 15 as the Constitution allows President Kibaki and VP Kalonzo to stay in office until their successors are sworn in.
“We (MPs) should not earn a single cent from January 15, 2013 if we do not take a new oath.? We shall be stealing from Kenyans,” said Kiunjuri.
He said perhaps the safest route is for Attorney General Githu Muigai and Chief Justice Willy Mutunga to provide legal interpretation of the law so the country does not trudge on into dangerous grounds.
Efforts by The Standard to contact Muigai on Monday failed.
MPs who have opposed the extension of Parliament and Kibaki, Raila and Kalonzo’s terms beyond December 31 include Narc Kenya presidential candidate and former Justice minister Martha Karua who said she will not take her two weeks salary for January. Karua insisted that all MPs would be unconstitutionally in office after December 31 this year, including members of the Executive.
Siakago MP Lenny Kivuti, however, said?MPs should continue to draw their salaries until others are elected and sworn in.

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