NAIROBI, Kenya, Sep 5 – Thirdway Alliance presidential candidate Ekuru Aukot is expected to file a petition at the Supreme Court Tuesday afternoon seeking clarity on which candidates are to participate in the fresh presidential election.
The election is expected to be held on October 17.
Aukot is contesting the decision of the Independent Electoral and Boundaries Commission (IEBC) to restrict the new election to President Uhuru Kenyatta and Opposition leader Raila Odinga, terming the move as a violation of the Constitution.
According to the Thirdway leader who was also enjoined as an interesting party in the 2017 presidential petition, the Supreme Court decision to nullify the August 8 presidential election and order a fresh one within a period of 60 days meant that all the eight candidates who took part in the annulled poll have a right to participate in the new election.
“The judges said that the election was not held in accordance with the dictates of the Constitution, rule of law and the regulations and therefore they declared the presidential election invalid, null and void which means there was really no election,” Aukot said in a media interview on Monday.
“If you repeat this election afresh it means all the parties which participated in the annulled election must be on the ballot. It is upon them to choose whether they wish to take part or not,” he added.
His argument received a boost Tuesday when National Super Alliance (NASA) leader Raila Odinga added his voice to the debate.
Odinga who spoke to reporters at Wilson Airport before flying to Kisii for a rally in readiness for the new poll said all candidates who took part in the invalidated presidential poll have a right to run again.
“A runoff is held when no candidate attains 50 per cent plus one. This is a repeat of a presidential election because what happened in the previous one was nullified by the court and therefore the decision by IEBC is null and void,” Odinga who run on an Orange Democratic Movement party said accompanied by his running mate Kalonzo Musyoka (Wiper Democratic Movement), as well as NASA co-principals Musalia Mudavadi (Amani National Congress) and Senator Moses Wetangula (Forum for Restoration of Democracy – Kenya).
Odinga also faulted the electoral agency for declaring October 17 as the date for the new election citing lack of consultation, instead proposing October 24 or 31.
A similar opinion was also held by lawyer Moses Chelanga who held the opinion that the new presidential contest is to be held in accordance with Article 140 (3) of the Constitution and not 138 (5).
— Moses Tula Chelanga (@thechelanga) September 4, 2017
Former independent Nairobi gubernatorial candidate, Miguna Miguna, expressed his disappointed with the decision to limit the new race to State House to Kenyatta and Odinga, saying it is not founded in law.
— Dr. Miguna Miguna (@MigunaMiguna) September 4, 2017
Article 138 (5) of the Constitution dictates that a fresh election is to be held within 30 days in the event none of the candidates in an election fails to garner 50 per cent plus one vote nationally, and at least 25 per cent of the vote in 24 counties.
Article 140 (3) on the other hand stipulates that a fresh election is to be held within 60 days following nullification of a presidential election by the Supreme Court.
While announcing the date for the new election, IEBC in its communiqué Monday evening did not disclose the criteria used to arrive at the conclusions that only Kenyatta and Odinga shall participate in the new election.
Sources however indicate that the Commission relied on a decision rendered by the apex court in the 2013 presidential petition, which was interpreted to mean that only two leading candidates in an election are to participate in a new poll in the event the court invalidates the vote outcome.
— Speaker. J.B. Muturi (@SpeakerJBMuturi) September 4, 2017