Parliament is expected to be recalled any time now following the conclusion of the August 9 General Election.
It’s not, however, clear whether it shall wait for the by-elections in Pokot South, Kacheliba, Rongai, and Kuresoi South constituencies. The Independent Electoral and Boundaries Commission (IEBC) suspended voting in these areas due to a mix-up of ballot papers.
Article 126 (2) of the Constitution provides that, whenever a new House is elected, the President, through a gazette notice, shall appoint the place and date for the first sitting, which shall be not more than 30 days after the election. This provision is anchored on the fact that a sitting of either House may be held at any place within the republic and may commence at any time. The first business shall be the swearing in of the members, who will then elect a Speaker. The clerks shall preside over the events.
The Standing Orders of the Senate and the National Assembly provide that, in the first sitting, the clerks shall read the notification of the President as published in the gazette. They will then lay a list of the names of the persons elected as members on the table and administer the Oath or Affirmation of Office.
“The clerk shall administer the oath or affirmation of office to members-elect in alphabetical order,” the Standing Orders state.
The swearing-in of the MPs is guided by Article 74 of the Constitution. It provides that no person shall assume or perform any functions of the office of an MP before taking and subscribing to the oath or affirmation of office.
However, the MPs have to be gazetted by the Independent Electoral and Boundaries Commission (IEBC) first. Section 39 of the IEBC Act on the determination and declaration of results provides that the commission shall determine, declare and publish the results of an election immediately after close of polling.
During the inauguration of the 12th Parliament, senators were gazetted on August 18, 2017, which was 10 days after the General Election. The gazettement of members of the National Assembly came four days later. The order of precedence shall be followed during the swearing-in of the members of the two Houses.
The order of precedence in the Senate shall be senators with the longest cumulative period of service in the House, those with the longest cumulative period of service in the Senate and the National Assembly, those with the longest cumulative period of service in the National Assembly, those with the longest cumulative period of service in any other legislature, and then the rest.
In the National Assembly, a member-elect who has served as a Speaker before shall be given priority. This will be followed by the leader of the majority party, leader of the minority party or Deputy Speaker, members-elect with the longest cumulative period of service in the House.
Next will be members-elect with the longest cumulative period of service in the National Assembly, the Senate and the East African Legislative Assembly (Eala), members-elect with the longest cumulative period of service in the Senate, members-elect with the longest cumulative period of service in the Eala and all other members-elect. Once the MPs have taken their oaths, the next step shall be the election of the Speakers.
After taking his oath, the Speaker shall notify the members of the place, date and time of the opening of Parliament, which shall not be more than 30 days after the first sitting.
The Standing Orders also provide that, when members are taking the oath and before the Speaker is inaugurated, any question arising shall be determined by the clerk. The clerks shall, during that period, exercise the powers of the Speakers. Constitutional lawyer Mutakha Kangu told the Nation that President Uhuru Kenyatta has powers to gazette the sitting of the new Parliament.
“Until a new President is sworn in, the outgoing President shall continue to discharge the duties of the Head of State. The President-elect has no powers,” he said.
