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Dear Kenyan lawmakers, it’s article 140(3) that sets 60-day deadline for fresh polls

This article is more than 6 years old

During a debate in Kenya’s National Assembly, three members cited three different articles of the Kenyan constitution as saying the same thing.

“I want to refer to Article 140(3). It provides that a fresh election following the nullification by the Supreme Court of the election result shall be held within 60 days,” the leader of majority party, Aden Duale, said.

Another MP, David Bowen, claimed that “under article 40” the Kenyan constitution provides for the Supreme Court “to look into the election process”.

Later MP Dido Rasso said: “Under article 143 of the constitution, if the supreme court determines the election of the president to be invalid, a fresh election shall be held within 60 days after that determination.”

They were debating the date of the new presidential election following the annulment of the one in August. President Uhuru Kenyatta’s ruling Jubilee Party and its affiliates insist that the 26 October date set by the country’s electoral commission is final.

But the opposition coalition, led by Raila Odinga, says there will be no election on that date unless a set of conditions are met to guarantee a free, fair, transparent, credible and verifiable process.

Majority party leader got it right

Could the Hansard reporters have captured the lawmakers’ words incorrectly? Africa Check asked the official custodian of parliamentary records, Michael Sialai, for an explanation.

In Rasso’s case, a video of the proceedings shows he pauses between saying “140” and “3”. What he read though was the exact wording of article 140 subsection 3. (Note: After we published this report, Kenya's Hansard editor, Anne Njoroge, told us that they will correct the citation.)

Article 143 is about the immunity of the president from civil and criminal proceedings during his or her term in office, while article 40 talks about the right to property. So majority party leader Duale was the one who got it 100% right.

In its majority decision, the supreme court was categorical that the 60-day window for fresh polls was prescribed by article 140(3).

“An order is hereby issued directing the [Kenyan Independent Electoral and Boundaries Commission] to organize and conduct a fresh presidential election in strict conformity with the constitution and the applicable election laws within 60 days of the determination of 1st September 2017 under article 140(3) of the constitution,” the court said. - Alphonce Shiundu (04/10/2017)


Additional reading:

FACTSHEET: What you need to know about Kenya’s 2017 general election

Is Kenya the first African country to overturn a presidential election?

Kenya’s new parliament by numbers


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