Following the conclusion of the August 9 General Election, Parliament is expected to be recalled at any time.
However, it is unclear whether it will wait for by-elections in the Pokot South, Kacheliba, Rongai, and Kuresoi South constituencies. Due to a mix-up of ballot papers, the Independent Electoral and Boundaries Commission (IEBC) suspended voting in these areas.
Article 126 (2) of the Constitution states that whenever a new House is elected, the President shall appoint the place and date for the first sitting, which shall be no later than 30 days after the election, through a gazette notice.
This provision is based on the fact that a sitting of either House may be held anywhere in the republic and at any time. The members will be sworn in first, followed by the election of a Speaker. The events will be presided over by the clerks.
The Senate and National Assembly Standing Orders state that the clerks must read the President’s notification as published in the gazette during the first sitting. They will then place a list of the members’ names 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.
Article 74 of the Constitution governs the inauguration of MPs. It states that no one may assume or perform any functions of an MP’s office prior to taking and subscribing to the oath or affirmation of office.
However, the Independent Electoral and Boundaries Commission (IEBC) must first gazette the MPs. Section 39 of the IEBC Act provides that the commission shall determine, declare, and publish the results of an election immediately following the close of polling.
Senators were gazetted during the inauguration of the 12th Parliament on August 18, 2017, ten days after the General Election. Four days later, members of the National Assembly were gazetted.
During the swearing-in of members of the two Houses, the precedence order shall be followed.
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 will take precedence in the Senate.
A member-elect who has previously served as a Speaker will be given priority in the National Assembly.
This will be followed by the majority party leader, minority party leader or Deputy Speaker, and members-elect with the longest cumulative period of service in the House.
Members-elect with the longest cumulative period of service in the National Assembly, the Senate, and the East African Legislative Assembly (Eala) will be followed by all other members-elect, 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.
After the MPs have taken their oaths of office, the Speakers will be elected.
The Speaker shall notify the members of the location, date, and time of the opening of Parliament, which shall not be more than 30 days after the first sitting, after taking his oath.
The Standing Orders also state that any question that arises while members are taking the oath and before the Speaker is inaugurated will be decided by the clerk.
During that time, the clerks will exercise the Speakers’ powers.
Mutakha Kangu, a constitutional lawyer, told the Nation that President Uhuru Kenyatta has the authority to gazette the new Parliament’s session.
“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.
