Right to withdraw candidature ‘neither absolute nor unregulated’

Last week on 10 October 2017, barely 16 days to the fresh presidential election in Kenya, the NASA presidential candidate Raila Odinga and his running mate, Kalonzo Musyoka, made a dramatic decision to pull out of the poll, asserting their democratic right to withdraw.

Now, rights are generally positive protections and guarantees afforded equally by the law to citizens of a polity/State.

The right to present oneself as a candidate for an election is a central pillar of democratic participation.  In the Kenyan context, the right to offer oneself as a candidate is available in theory to all Kenyans by dint of Article 38 (3)(c).

However, the right only crystalizes and inures to a specific candidate upon that candidate’s fulfillment of legal conditions attached to the specific political office sought. In the case of the President, not only must the candidate be a Kenyan citizen, but such a candidature must be endorsed by no fewer than two thousand voters from at least 24 of the 47 counties, namely 48,000 voters.

The right to withdraw, while not specifically textualized in our Constitution must arguably be held to exist, at a minimum, as the corollary to the right to present oneself as a candidate, or as an implied right to vie for office. However, due to the constitutional and statutory silence regarding the existence of the right to withdraw, it is unsurprising that confusion and uncertainty has followed attempts at exercising this putative entitlement.

More specifically, confusion was created by paragraph 290 of the 2013 judgment of the Supreme Court in Raila v Uhuru. This paragraph suggests that, abandonment by one of the presidential candidates of their quest would trigger cancellation of presidential elections under article 138(8) (in a manner similar to a candidate’s death).

Indeed, this is the legal basis that informed NASA’s disingenuous and ill-timed decision to pull out of the upcoming repeat elections set for 26 October 2017. This interpretation has since been adjudged, and rightly so, by the High Court in Ekuru Aukot v IEBC, to have been nothing more than a non-binding opinion of Supreme Court of Kenya, 2013.

Aside from the clear reasoning by Judge Mativo in the above matter, it is my respectful opinion that a similar conclusion could still have been arrived at, simply by an assessment of the character of the right of withdrawal.

First, like the positive right to contest an election, withdrawal of one’s candidature should be expected to only accrue once certain conditions are complied with. The reason for this is obvious. Whether a candidate represents a political party or is an independent candidate, it is certain that a good number of citizens’ right to vote for the candidate of their choice would stand in jeopardy due to the decision of a candidate to pull out post-nomination.

The denial of opportunity to vote has an impact on the democratic participation of citizens who are forced to either choose someone other than their first preference or otherwise desist from voting. Second, aside from its disruptive effect, elections are very costly to conduct, with Kenya’s present electoral cycle imposing a direct cost to the exchequer of no less than Sh100 billion (not factoring in opportunity cost). That the agency of one person should create such a cost to the economy and the country as a whole, is not good public policy.

Not surprising, Parliament in its wisdom, albeit imperfectly, by dint of Regulation 52 of 2017 provided for this contingency thus: “a candidate who has been nominated may withdraw his or her candidature by delivering to the respective returning officer a notice to that effect in form 24A not later than three days after nominations.”

The Regulation can also be read in my view as constituting a limitation on the right to withdraw within the meaning of Article 24 of the constitution which provides that all rights may be limited by law, if such limitation is reasonable and justifiable in an open and democratic society.

In sum, it is clear Raila Odinga is not simply asserting the right to withdraw but deploying withdrawal as a strategic instrument to achieve political outcomes, and trigger a national crisis. The immediate outcome he seeks is to torpedo the election of 26 October 2017.

This, he has now effectively failed to achieve by the combined effect of the Mativo judgment and the operation of the Election Amendment Laws, which are now clearer in regulating the impact of any such withdrawal. More insidiously, it was hoped that the withdrawal would lead to a fresh nomination within 90 days, a specter that would invite other constitutional and legal challenges, including questions around the incumbent president’s term of office.

Pertinently, the non-holding of elections on 26 October would trigger greater instability in our political and socio- economic life as the conduct of executive function of government will enter a zone not contemplated by the constitution. It is in this legal penumbra that Mr. Odinga hoped to negotiate political accommodation for his coalition.

As is absurd for any Kenyan to stake a claim to a political office without complying with requirements attached to such candidature, so is withdrawal no carte blanche entitlement available at the whim and caprice of a candidate. Its impact cannot be visited on innocent voters, nor can its destabilizing effect be permitted, unless a candidate pulls out in accordance with the law.

(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)

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