"In the Fifth Year" Fallacy: A Constitutional Rebuttal to the 2026 Election Debate

For some time now, I have been hesitant to write a formal commentary on the issue of whether the next General Election should be held in 2026 or 2027. This debate was sparked around April this year by the esteemed counsel, Mr. Willis Otieno, and numerous debates have since ensued online and in mainstream media.

There appears to be confusion, and nobody seems to offer any remarkably well-thought-out counterargument. In fact, this issue is immensely disturbing to the point that a petition in Owiso & 2 others v Independent Electoral and Boundaries Commission & another; Law Society of Kenya & 8 others (Interested Parties) [2025] KESC 52 (KLR) had to be lodged at the Supreme Court seeking to find answers as to the appropriateness of this argument advanced by Mr. Otieno.

A ruling was delivered on the 15^th of August 2025 on this matter, and the Court clarified that its jurisdiction under Article 163(3)(a) of the Constitution is "exclusive original", and can only be triggered after a petition under Article 140 of the Constitution has been filed.  This jurisdiction is limited to the consideration of whether a president-elect has been properly elected and cannot be used pre-emptively. Furthermore, the Court, while relying on the case of Ekuru Aukot Vs Independent Electoral & Boundaries Commission & 3 others [2017] KEHC 9390 (KLR), noted that the question relating to the date of the next general election is in the realm of interpretation and application of the Constitution and not an election petition per se.

Basically, therefore, the Supreme Court avoided answering the question in the ruling but referred to the case of John Harun Mwau & 3 Others Vs Attorney General & 2 Others [2012] KEHC 5438 (KLR), where the High Court noted that there could be a possibility for the term for the next President, Members of Parliament, Governors and members of the County Assemblies may be shorter than five years as a consequence of the transitional provision. This still did not really conclude whether the Petitioners were right or wrong in their proposition.

The public is already moved by Mr. Otieno's argument, and each day, more and more people are onboarding this bandwagon. There appears to be no refuge or source of answers, and as we have continuously observed, where the best arguments are absent, even flawed ones parade as truths, and the people follow them, not because of their soundness but because of their presence. That is why, with all due respect, I am compelled to present my argument against Mr. Otieno's proposition.

In this article, I shall first analyse what exactly Mr. Otieno means and then proceed to draw my readers' attention to the flaws of his argument by making three main criticisms. Firstly, I will demonstrate that the proposition contradicts the Constitution itself since it is in disharmony with Article 177(4). Second, I argue that logically speaking, there shall be more absurdities caused by this interpretation rather than solutions, and finally, I shall delve into the originalism theory of Constitutional interpretation and show that it was the original intention of the drafters of the Constitution to have a Presidential term running for five years. I shall then conclude with the observation that this issue has never been a problem, and the law is okay as it is.

1         MR. WILLIS OTIENO'S ARGUMENT

 Mr. Otieno's argument is simple: that a plain reading of Articles 101 (1) and 136(2)(a) of the Constitution, where it is stated that a General Election is to be held on 'the second Tuesday in August, in every fifth year' means that the elections are to be held inside (not outside) the fifth year. To that extent, I totally agree with him.

He, however, proceeds to interpret this specific provision as follows:

"We are a country of the rule of law and the guiding document is our Constitution. Article 142 of our Constitution, Article 136 of our Constitution and Article 259(5)(c) of the Constitution – if you read those Articles, you come to the inescapable conclusion that presidential elections are supposed to be held on the second Tuesday of August in the fifth year. And my argument then was that when you count the fifth year, you count from the date of the previous elections until you find the fifth year. And we discovered that the fifth year runs from the 9^th of August 2026 and it ends on the 8^th of August 2027. Inside it, find the second Tuesday, and that second Tuesday in August will be the 11^th of August 2026, not in the year 2027 on the 10^th of August, which some have been proposing, including IEBC, to be the date of the elections [as it falls] in the sixth year."

His interpretation is premised on the guidance of Article 259(5)(c) of the Constitution which states that "In calculating time between two events for any purpose under this Constitution, if time is expressed as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began."  This provision, in essence, means that a year under the Constitution begins on the same date of the same month of each calendar year. For example, if one were to count a year from the 26^th of August 2025, the next year under the Constitution begins on the 26^th of August 2026. By using this interpretation, Mr. Otieno consequently makes the argument that if we were to count from the 9^th of August 2022, when the first year begins, the second year begins on the 9^th of August 2023, the third one begins on the 9^th of August 2024, the fourth one begins on the 9^th of August 2025 and the fifth one begins on the 9^th of August 2026. Inside the fifth year, you are to find the second Tuesday of August, and that shall be the date of the next General Election. In his opinion, and while applying that logic, thus concludes that the date of the next General Election is on the 11^th of August 2026.

2        THE CRITICISM

Superficially, Mr. Otieno's argument seems to be very sound in law. His passionate insistence and cautionary tone cannot be missed, and he has continuously warned the nation over the looming danger, seeking to salvage the nation from the brink of a constitutional crisis. If you listen to him in interviews, you can be sure that it is either the nation follows the Constitution to the letter (according to his interpretation) or the nation shall be on the verge of collapsing by contravening the very Constitution that it dearly seeks to uphold.

A thorough scrutiny of his argument, however, reveals its fundamental flaws. If that interpretation is adopted, it shall end up being a contradiction of the very tenets of the Constitution. It is a rule of thumb that a statute or a constitutional provision should not be interpreted in a manner that results in some absurdity, or some repugnance or inconsistency with the rest of the instrument (See: Lord Wensleydale in Grey v Pearson (1857) 6 HLC 61). As shall be demonstrated hereunder, Mr. Otieno's position does not heal the Constitution but instead causes a lot of absurdity and distortion of the actual position of the law. If followed, there may be more conflicts in the future, and an actual constitutional crisis shall occur.

2.1        There Shall be a Disharmony within the Constitution

Article 177 of the Constitution, which deals with the membership of a county assembly at Sub-Article (1)(a), uses the same language as that used in Article 136(1)(a) that concerns the elections of a President and all the other provisions that deal with the elections of other persons in elective positions. It provides that the election of the members of a county assembly is to be held on the second Tuesday in August, in every fifth year. It then continues, under Article 177(4), by stating verbatim that a 'county assembly is elected for a term of five years.' Perhaps the actual date of the General Election can be in question, ambiguous and be said to mean different things, but this one provision is as clear as clarity can ever be. The term of a county assembly is made up of five full years.

If that is the case, and bearing in mind that the Constitution states the elections of MCAs are to be held together with the elections of all other elective positions in a General Election, having different timelines for different elections contradicts the Constitution itself.

2.2        The Proposition Causes More Absurdities than Solutions

The second argument is a matter of common sense. Why would the Constitution be interested in the fifth year had it not intended that that year forms part of the term? Which one would be easier and more reasonable, to say that the elections are to be held every four years or to explicitly mention the fifth year? This reminds me of the question Jesus posed in Matthew 9:5 when he asked, "Which is easier: to say, 'Your sins are forgiven,' or to say, 'Get up and walk'?" It was easier for the drafters of the Constitution to mention the fifth year, and it was not without reason. It is there, framed like that, not to shortchange the elected persons but to prevent them from extending their term limits.

The wording of the Constitution should be seen as delimitations because, had it been framed as "general elections are to be held on the second Tuesday of August after every five years", the interpretation can be manipulated to even mean that the 100^th year after the five years still falls within the legitimate time within which elections can be conducted. Noting that this Constitution generally view the elected representatives as the servants of the people in light of Article 1 and many similar Articles throughout the Constitution that place the people at the centre of everything and repeatedly shows that leaders have delegated power, such a framing could result in an entitlement whereby the elected representative feels as though he or she is entitled to the five years of leadership, unlike the actual provision of the Constitution which basically sets a range within which power can be exercised before the next general election.

Furthermore, assuming Mr. Otieno was right, what happens to the fifth year after the General Election is conducted? Shall it be counted in the new term as the first year, or shall it be ignored? The most reasonable answer would be that it forms part of the new term.

Now, assuming we decided to follow this logic, what would happen if in one particular fifth year, the 2^nd Tuesday in August shall be on the 8^th of August, as the case shall be in the year 2045, which shall also be the year of the General Election if one follows Mr. Otieno's method? In 2045, the fifth year shall start on Wednesday, the 9^th of August 2045, and the 2^nd Tuesday in August shall already have passed since it shall be the 8^th August 2045. In that specific period, running from the 9^th August 2045 to 8^th August 2046, there shall be no 2^nd Tuesday in August at all, and the nation shall be totally stranded. Even if, then, someone recommends that an adjustment be made, that alone shall be deemed as a weakness in Mr. Otieno's proposition, and this must be very far from the intention of the Constitution of Kenya 2010.

Looking at the law and applying reason, it must be concluded affirmatively and with a lot of certainty that Mr. Otieno's interpretation is contradictory and gives rise to an absurdity in the Constitution.

2.3        The Interpretation's Conflict with Originalism

 The theory of originalism supposes that the meaning of a constitutional provision must be understood as fixed at the time it was adopted. Thus, a judge should interpret the Constitution in line with the 'original intent' of the framers or the 'original public meanings' of the text, that is, what the public understood it to mean at the time of its enactment. This theory limits judicial discretion and ensures that the judges are faithful to the Constitution of the suggests that constitutional democracy, properly understood, is best constructed through originalism (See: See Cass R Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1996)).

Originalism theory of constitutional interpretation brings us to the same conclusion as it was already spelt out in the Revised Harmonised Draft at Clause 124 that 'the President shall hold office for a term not exceeding five years beginning with the date of assumption of office.' Although this specific provision did not find its way into the current Constitution of Kenya 2010, the Draft comprised of the recommendations agreed upon as a result of the deliberations of the Parliamentary Select Committee on the Review of the Constitution in accordance with section 32(1) (c) of the Constitution of Kenya Review Act, 2008  and was presented to the Committee of Experts pursuant to section 33(1) of the Constitution of Kenya Review Act, 2008 on 29th January 2010. This was what had already been agreed upon, and even if the framing came out differently, originalism supposes that the intended meaning was as is in the Draft.

3        CONCLUSION

It is true that this country is going through a lot of issues in its governance. Many citizens are genuinely dissatisfied, and many wish that new elections should be conducted in order for there to be a change of leadership. There is still a lot of uncertainty in the hearts and consciences of the citizens, and it is indeed true that given a chance, a majority of the people would desire to effect a change. Mr. Otieno is such a citizen, and his desires, together with those of other like-minded citizens, are valid.

Yet, let us be clear: the law is not a matter of wishful interpretation, and it can never be bent to favour political convenience. The strength of the Constitution stands on the people's fidelity to it. Misinterpreting, or rather, misrepresenting its provision is a betrayal of the very foundation of justice and democracy, however inspiring that misinterpretation could be. Nobody could have guessed that one day, we could argue against an interpretation of the Constitution for being too good.

Thank you,

Mungai Kariuki.