Tuesday’s announcement by Opposition leader Raila Odinga that he was pulling out of a repeat duel with President Uhuru Kenyatta has generated uncertainty in the country. The Standard sought out experts to put to rest some of Kenyans’ fears.
Although activist Okiya Omtatah has filed a constitutional petition at the High Court for formation of a caretaker government on the basis that there will be no election on October 26, there are divided opinions on what would happen if elections do not take place. University of Nairobi lecturer and legal consultant Peter Onyango agrees with Omtatah on the petition, stating that President Uhuru Kenyatta’s temporary incumbency ends on November 1 and that without the election taking place on October 26, there must be a caretaker government to oversee fresh presidential election within 90 days. However, lawyer Kibe Mungai argues that the status quo will remain if elections are not held on October 26, with Uhuru and his deputy, William Ruto remaining in office until another election is held. Similar sentiments are held by Lawyer Ndegwa Njiru who argues that Uhuru will be in office until a new person is elected. According to the lawyer, a caretaker government is not provided for in the Constitution and thus the incumbent will have an extended term.
Lawyer Edwin Sifuna explains the moment NASA candidates RailaOdinga and Kalonzo Musyoka withdrew from the race, it meant that there must be a fresh presidential election as contemplated by the Constitution where all candidates undergo fresh nominations.
“Fresh election is well defined, that we must start from at the nominations. The October 26 election stood cancelled immediately Raila withdrew, and we are waiting for the IEBC chairman Wafula Chebukati to make the formal announcement,” said Sifuna.
But lawyer Henry Kurauka argues that there will be no other election other that the one scheduled on October 26 as directed by the Supreme Court. According to Kurauka, the Supreme Court order has not been set aside. He however added that there are some issues raised by NASA which may need political solutions and not strict adherence to the law.
What happens if an election is held on October 26 but some constituencies fail to participate?
This uncertainty is what prompted Pokot South MP David Pkosing to move to court seeking a declaration that if some constituencies fail to vote as a result of actions by NASA, then IEBC should go ahead to declare the president based on the constituencies that voted.
Pkosing’s lawyer, Kibe Mungai, admits that it will not be possible for the IEBC to declare results if all 290 constituencies do not participate, but that nobody can be allowed to benefit from a process they themselves frustrated. But Dr Onyango is more emphatic, saying that there will be no valid election even if only one out of the 290 constituencies fails to participate.
“The constitution is clear that IEBC must declare presidential results from all the 290 constituencies, there is no shortcut about that. All indications are that many constituencies in NASA strongholds are not going to participate, which means there will be no valid election if it happens on October 26,” said Onyango.
When Justice John Mativo deviated from the 2013 Supreme Court judgement on the presidential election petition to order IEBC to include Ekuru Aukot in the repeat presidential election, he introduced a new term, “obiter dictum” which has caused division on its applicability.
The term means a by-the-way statement by a judge or something said by a court but was never argued by parties in court. Lawyer Charles Kanjama explained that the term is a basic law in first year of law school to define the components of a judgement. However, Lawyer Nelson Havi argues that whether part of a judgment is considered to be obiter dictum or not, it is binding on all lower courts and no judge should deviate from it. According to the lawyer, the decision of IEBC to exclude other presidential candidates from the repeat polls and that of NASA candidates to withdraw from the contest based on the 2013 decision of the Supreme Court were valid and binding.
There are talks that the electoral commission might change the October 26 date for repeat presidential election to accommodate other presidential candidates following the High Court’s interpretation of the meaning of fresh election. Dr Onyango agrees that the commission can extend the date so long it is within the 60 days ordered by the Supreme Court to conduct fresh elections, although there will be legal and logistical challenges to their preparations. Lawyer Henry Kurauka however states that IEBC has no powers to extend the election date as already set, since doing that will be in contravention of the constitution and the Supreme Court order. Lawyer Havi says that the date can be pushed beyond the 60 days to have all the requirements set by the law met. His counterpart, Lawyer Njiru argues that the day can be extended but has to be within the 60 days that was ordered by the Supreme Court.
According to Laywer Nelson Havi, this means there will be no election on October 26. He said nothing will change until fresh nominations are done.
On the other hand Lawyer Ndegwa Njiru says that there is no legal effect as Raila, in terms of law, has not withdrawn and cannot do so now. He says inclusion of the other candidates means the President cannot be declared the winner until the election is conducted.
According to the IEBC, all the eight presidential candidates who participated in the August 8 presidential polls will be on the ballot in accordance with the High Court determination of what constituteS a fresh election. This was supported by Lawyer Kurauka, who argues that the decision meant no exercise took place on August 8, and all candidates must be included.
However, Lawyer Njiru argues that the number will be reduced to seven unless Jirongo goes to court and gets clearance after being declared bankrupt. He adds that one can seek nullification of a presidential election on the basis of having him on the ballot.The number will also depend on whether IEBC omits Raila from the list following his withdrawal from the contest.
This is a statutory form which a candidate ought to submit alongside the withdrawal letter for IEBC to formally exclude him or her from the ballot.
According to Lawyer Nelson Havi, Raila was not required to fill the form as the nomination period had already passed. He says that non-completion means nothing as the fresh election ought to be done out of a court order. But Njiru on the other hand says Raila’s failure to fill and sign the form means he has not withdrawn. He however says that even if Raila fills in the form, it has already been overtaken by events and has no legal effect.
Can IEBC officials be punished for not conducting the election in 60 days?
Lawyer Havi says that the IEBC officials cannot be punished for pushing the date beyond November 1. He argues that IEBC will simply be following the 2013 Supreme Court order.
Lawyer Njiru says that IEBC will have disobeyed an order and thus will be in contempt of Court. According to the lawyer, the officials will have also neglected their duty and thus can easily be kicked out of office.
Lawyer Njiru says that Matiang’i was justified to ban demos in city centers due to destruction of property and stopping other people from conducting businesses. He says that the right to picket cannot be used as a basis of hooliganism. Lawyer Boniface Mumbi says that a right to picket and hold peaceful election cannot be taken away and thus the ban is in violation of that right. In addition, he says there is a court order which allowed NASA to protest peacefully and as such, the ban is illegal.