Following the decision made on September 1 by majority of the Supreme Court judges to nullify the August 8 presidential election, the IEBC notified the public that a fresh election will be held on October 17.
In a gazette notice, the IEBC also notified the public that there will be no nominations for candidates participating in the fresh election, and relying on the 2013 decision of the Supreme Court in Raila Odinga’s presidential petition, declared the contest will be between Uhuru Kenyatta and Raila Odinga.
From both practical and public interest points of view, IEBC’s position presents the ideal scenario -- what Attorney General Githu Muigai calls best political outcome -- except for three complications that may have minor or devastating implications on stability of Kenya’s political order.
The first complication is that in its 2013 judgement, the Supreme Court did not render any decision on the basis of which IEBC can rule out fresh nominations and confine the contest to Uhuru and Raila. In my view, what the IEBC refers to a “decision” is at best a legislative proposal by the Supreme Court. I will shortly explain this minor complication.
The second complication is fairly serious because it could easily lead to nullification of the fresh presidential elections. The explanation may sound complicated but it is fairly simple when you grasp the essence of the fresh election pursuant to Article 140 of the Constitution.
The procedure for presidential election is set out in Article 138, and for purposes of this article, two things should be noted.
First, nomination of candidates is a precondition for the election of president pursuant to Article 136 or in the event that such election is cancelled in the circumstances set out in Article 138(8).
Secondly, in the event of a fresh election as contemplated in Article 138(5), no fresh nominations are necessary because such fresh election is actually a run-off and merely a continuation of the initial election that has not produced a winner. This run-off must be held within 30 days of the previous election.
It cannot be gainsaid that the fresh presidential election occasioned by nullification of Uhuru’s election will not be a run-off which is why the Constitution provides for 60 days similar to a new election following cancellation of presidential election under Article 138(8).
In its 2013 judgement, the Supreme Court stated that a fresh election triggered by the invalidation of the declared president-elect does not require fresh nomination of candidates because “such a fresh election is built on the foundations of the invalidated election”. It boggles the mind that the Supreme Court could utter such statement.
This reasoning is untenable and contradictory. In plain English, the word nullify means two things. First to make a legal agreement or decision have no legal force. Secondly, to cause something to have no value or effect.
The immediate effect of the decision of the Supreme Court majority to invalidate Uhuru’s election is that the certificate of president-elect issued to him by Wafula Chebukati on August 11 was rendered a nullity. The original basis for the said certificate of president-elect is that Uhuru had on May 29, 2017 been issued with a certificate of nomination as the Jubilee Party presidential candidate for the August 8 election.
Baldly stated, the reasoning of the Supreme Court in the 2013 judgement is that after an election of President is invalidated, the certificate of President-elect is nullified but the certificate of nomination remains valid and somehow survives as a foundation for the fresh election.
This strange reasoning begs the questions: Why is this not the case in parliamentary and other elections? If the nomination certificates issued to Uhuru and Raila for the August 8 election are still valid, why is this not the case for Ekuru Aukot and the other fringe candidates?
How will IEBC justify application of some sub-clauses of Article 138 and not others, particularly regarding nominations? Most importantly, if Uhuru and Raila were issued with nomination certificates for the presidential election held August 8, does each of them truly believe such certificate is valid for the fresh election on October 17?
The third complication relates to the legal consequences of Raila’s threat to either pull-out or impede the holding of the fresh election ordered by the Supreme Court unless his impossible sounding conditions are met by IEBC.
On the face of it, if the order for fresh elections is interpreted to mean an election between Uhuru and Raila – as the Supreme Court opinion of 2013 suggests – then there is great trouble for Kenya ahead if Raila pulls out of the October contest.
Without a doubt, such a scenario will plunge Kenya into a constitutional crisis which would have to be cured by either a NASA-instigated civilian coup (read nusu mkate care-taker government) or a Jubilee-led palace coup in which Jubilee Party damns the Constitution and claims Kenyans had already given Uhuru a new mandate in August. This kind of uncertainty is preventable and this is how.
There are only three circumstances under which the Supreme Court can make binding decisions. First, the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the President. Secondly, it has appellate jurisdiction to hear and determine select appeals from the Court of Appeal.
Thirdly, under Article 163(6) the Supreme Court may give advisory opinions. The purported decision of 2013 that IEBC is citing in its gazette notice for the October 17 fresh presidential elections is not a decision made under any of the three circumstances above. Logically one may ask: what was it then?
Like in 2017, the AG was admitted as amicus curiae (friend of court) during the 2013 petition. Based on an apparent apprehension that there was a lacuna in law in the event that Uhuru’s election was invalidated, the AG invited the court to answer the following question: “Does the fresh election anticipated by Article 140(3) mean an entirely new presidential election (including the nomination process), or does it mean a similar election as that anticipated under Article 138(5) and (7) – with the same candidates as in the earlier poll?”
The Supreme Court understood the AG as inviting it “to give directions on a line of relief declared by the Constitution depending on merits”. Upon accepting the AG’s invitation, the court gave its directions and answers to his questions. In my view, the directions and answers given in 2013 do not amount to a decision of the Supreme Court under Article 163 as argued above.
For avoidance of doubt, Article 138 sets out the procedure of presidential election whether such election is triggered by the expiry of the President’s term under Article 136(2)(a), impeachment of the President under Article 146 or invalidation of a presidential election under Article 140.
The way I see it is that the directions and answers in the 2013 judgement were based on the understandable inclinations of the AG and the Supreme Court to avoid the procedure set out in Article 138. In 2013 the merits of those answers and directions were not put to test as Raila’s petition did not succeed.
In 2017, I am afraid there would be dire consequences for Kenya if the IEBC tries to avoid Article 138 whilst Raila is threatening to pull-out of the fresh elections. The reason is simple: If the procedure under Article 138 is followed and nominations conducted, it will not matter whether or not Raila pulls out of the race because IEBC will simply declare the nominated candidate as elected.
Likewise, if the procedure under Article 138 is not followed, then the foreseeable political future of Kenya rests in the hands of Raila as there would be no constitutional basis for Kenya to have a legitimate President without going through the rigours of an election.