Some Reflections on the Supreme Court Decision in The Kenyan Presidential Election Petition: A Critique Of The Holdover Doctrine
Abstract:The decision of the Supreme Court of Kenya nullifying the 2017 presidential election has generated a great deal of political debate and intellectual hair splitting. One of the key concerns is that the constitutional provisions on the term of office of President may have been entangled by the holdover principle. This paper analyses the concept of holdover of presidency in the light of the transformation agenda of the Constitution of the Republic of Kenya, 2010. It sets the stage and provides focused direction that legal research may follow in addressing some of the salient issues budding on the sides of the decision of the Supreme Court, mainly; its interplay with key constitutional provisions on the term of office of the President. The technicalities emanating from this decision and the consequential implications for the presidential term of office as revealed by this paper indicate sharp inconsistencies that pertains the danger of an unintended extension of presidential term. In that breath, the paper canvasses for an amendment of the Constitution targeted at streamlining the provisions on holdover with those on presidential term in order to eliminate inbuilt ambiguities and inconsistencies for the furtherance of the broader ends of true democracy and good governance.
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