When there are political circumstances or actions or a state that is not anticipated by the Constitution, that is what in legal terms is defined as a constitutional crisis. That is where we would be if the repeat election is not held within the 60 days specified by the Supreme Court.
The problem with a constitutional crisis is that the very foundation of the State would be under threat. You know the very foundation of the State is the Constitution. If circumstances are outside of the Constitution, then the question arises, Is there still a Constitution on which the nation is founded?
The provisions of the Constitution should be in force all the time and not in a situation where the leadership of the country or the people can chose when to consider the Constitution as paramount and other circumstances when not to.
When the Constitution no longer applies, then, there is nothing that guides the county. The problem with that is that it begins to erode the legitimacy of the government and the State. And all manner of complications will follow. Which is why we really have to try, we have to do what we can to avoid finding ourselves in that situation.
There would be the question of the constitutionality of whatever administration that stands in place after 60 days. Is it an administration that is founded in the Constitution? Would it abide by the provisions of the Constitutions once the Constitution is breached in this way?
You see, a constitutional crisis does not have any solution within the Constitution. This is because the Constitution doesn't anticipate circumstances where it is not applied.
If there is no swearing in of a president after 60 days, then how does the current President come out of the state of temporary incumbency? Except by completely disregarding the Constitution, in which case then is he still the President? It is a difficult question.
There must be an election before November 1, 2017. That is the law. I have seen reports that the 17th of October may not be suitable even to the IEBC themselves. Whatever the case before November 1 – which is when the 60 days lapse – an election ought to have taken place.
The demands of various players concern whether or not the IEBC would have the confidence of all stakeholders and all participants.
Okero is the Law Society of Kenya President
Source
The problem with a constitutional crisis is that the very foundation of the State would be under threat. You know the very foundation of the State is the Constitution. If circumstances are outside of the Constitution, then the question arises, Is there still a Constitution on which the nation is founded?
The provisions of the Constitution should be in force all the time and not in a situation where the leadership of the country or the people can chose when to consider the Constitution as paramount and other circumstances when not to.
When the Constitution no longer applies, then, there is nothing that guides the county. The problem with that is that it begins to erode the legitimacy of the government and the State. And all manner of complications will follow. Which is why we really have to try, we have to do what we can to avoid finding ourselves in that situation.
There would be the question of the constitutionality of whatever administration that stands in place after 60 days. Is it an administration that is founded in the Constitution? Would it abide by the provisions of the Constitutions once the Constitution is breached in this way?
You see, a constitutional crisis does not have any solution within the Constitution. This is because the Constitution doesn't anticipate circumstances where it is not applied.
If there is no swearing in of a president after 60 days, then how does the current President come out of the state of temporary incumbency? Except by completely disregarding the Constitution, in which case then is he still the President? It is a difficult question.
There must be an election before November 1, 2017. That is the law. I have seen reports that the 17th of October may not be suitable even to the IEBC themselves. Whatever the case before November 1 – which is when the 60 days lapse – an election ought to have taken place.
The demands of various players concern whether or not the IEBC would have the confidence of all stakeholders and all participants.
Okero is the Law Society of Kenya President
Source
