Deputy Clerk Michael Sialai said the case being prepared by the Coalition for Reforms and Democracy (Cord) headed by Prime Minister Raila Odinga may also delay appointment of Cabinet secretaries and other State officers and the budgetary process.
“We may have a challenge whereby if we swear in newly- elected members of the National Assembly and the Senate, we will not have cabinet secretaries because all those who are ministers presently will have been deemed to have resigned,” he said.
But lawyer Ahmednassir Abdulahi said there would be no constitutional crisis given that the Executive and Parliament are separate arms of government with distinct roles as outlined in the Constitution.
“They (MPs and Senators) would be sworn in even before the President Elect and his deputy take oath of office. The executive appointments can wait until the Head of State is sworn in but Parliament has its own calendar,” Mr Abdulahi, who is a commissioner at the Judicial Service Commission, said.
The Chairman of the Commission on the Implementation of Constitution (CIC), Charles Nyachae, could not be reached for comment as his mobile phone went unanswered.
The Constitution bars Cabinet secretaries, who are members of the Executive from being members of the National Assembly or Senate.
“A Cabinet Secretary shall not be a member of Parliament,” says Article 152 (3) of the Constitution.
The Officers would, however, be allowed to attend committee meetings summoned by the House to answer questions or to table their respective ministries’ budgets.
The law also gives the National Assembly the power to vet appointees for Cabinet secretary slots, principal secretaries, the Attorney-General, the Secretary to the Cabinet, high commissioners, ambassadors, diplomatic and consular representatives or any other public officer whom the constitution requires or empowers the President to appoint or dismiss.
Article 126 (2) gives the President the prerogative to appoint the place and date for the first sitting of the new House, which should not be more than thirty days after election, in this case April 4, 2013.
Kenyans went to the General Election to pick their leaders who will drive development agenda for the next five years on March 4, 2013.
“The President shall address the opening of each newly- elected Parliament and address a special sitting of Parliament once every year and may address parliament at any other time,” states the Constitution in Article 132 (1).
According to the Supreme law and the Elections Act, a petition challenging the election of a new President must be filed within seven days of declaration of results and be heard and determined by the Supreme Court within 14 days after the filing.
Should Cord coalition file the case by Friday this week, the Supreme Court would be expected to render its verdict by March 29.
This would leave the newly-elected Head of State with about a week to appoint the date of first sitting of the House. This would coincide with the date within which the President Elect is to be sworn in after the Supreme Court declares the election valid.
If the court annuls the election of Mr Kenyatta and his deputy, William Ruto, a fresh election would be held within 60 days, forcing President Kibaki to convene Parliament and address it for business to begin.
The most pressing business is the annual budget which the Constitution stipulates must be laid before the House in April, two months to the end of the financial year.
The Tenth Parliament approved the 2013/14 Budget Policy Statement and the Budget Outlook Paper before it constitutionally dissolved on January 14, 2013.
The Division of Revenue Bill, which divides revenue raised by the national government among the national and county levels of government and a County Allocation of Revenue Bill, which shares revenue among the 47 counties, would be the first on the legislative agenda.
The law also requires the cabinet minister responsible for Finance to submit to the National Assembly estimates of revenue and expenditure of the national government for the next financial year by the end of April.
The Constitution also mandates Parliament to scrutinize the budget proposals, approve the same with or without amendments after consulting members of the public.
The National Assembly and the Senate would conduct the first business of electing respective speakers before the parliamentarians are sworn in, usually on the basis of a gazette notice that was to be published today.
Thereafter, both Houses would stand adjourned to a day to be appointed by the President which would be the inauguration of the Houses at a joint sitting.
-emutai@ke.nationmedia.com
