This archive report was first published on 22 November 2019.
Published on November 22, 2019, by Dr. Okoth Ayugi, a lecturer in the School of Surveying and Geospatial Sciences at the Technical University of Kenya.
The Constitution of Kenya sets the date for general elections, but a common myth suggests that the next election will be held on the second Tuesday of August in 2022. However, this is a misconception based on a misinterpretation of the Constitution.
Article 142(1) limits the President's term, stating that the President shall hold office for a term beginning on the date of swearing-in and ending when the next elected President is sworn in. Article 136(2)(a) states that the President's election shall be held on the same day as a general election of Members of Parliament (MPs), which is the second Tuesday of August in every fifth year.
However, this interpretation is flawed. The Constitution does not specify that the election must be held on the second Tuesday of August in every fifth year. Instead, it states that the election shall be held on the same day as a general election of MPs, which is the second Tuesday of August in every fifth year.
Therefore, the correct interpretation is that the general election shall be held on the second Tuesday of August in the fifth year after the previous election. The first general election held under the 2010 Constitution was on March 4, 2013. Four years later, the election date fell on March 3, 2017, and the fifth year began on March 4, 2017.
According to Article 101(1) and 136(2)(a), the general election for MPs was held on the second Tuesday of August, which was August 8, 2017. The fourth year of this general election will end on August 7, 2021, and the fifth year will begin on August 8, 2021.
Given that elections of MPs shall be held on the second Tuesday of August of the fifth year, which will fall on August 10, 2021, a general election held on the second Tuesday in August 2022 will be an election in the sixth year, which the Constitution does not envisage.
It is essential to seek an interpretation of the Constitution in the High Court of Kenya to clarify the date of the next general election. A similar thing was done in 2012, when those elected under the previous constitution sought an interpretation as to the end of their parliamentary terms and the date of the first general election under the 2010 Constitution.
Dr. Ayugi is a lecturer in the School of Surveying and Geospatial Sciences at the Technical University of Kenya.
