, NAIROBI, Kenya, Oct 19 – Kiambu Town Constituency MP Jude Njomo has moved to court seeking to have Raila Odinga’s withdrawal from next week’s presidential election declared null and void.
In a petition filed before the High Court Thursday, the lawmaker through his lawyer Kibe Mungai argues that Odinga’s withdrawal from the race ought to have been backed by a statutory Form 24A, in the absence of which such action should be deemed non-binding.
The petition which has been filed under a certificate of urgency also seeks to have the court bar the Independent Electoral and Boundaries Commission (IEBC) from canceling next week’s election and call for a fresh one in the event Odinga formally quits the repeat election.
“During a fresh presidential election triggered by Article 140(3) of the Constitution the withdrawal of a candidate does not enjoin the Independent Elections and Boundaries Commission to cancel the same in order to hold a new election pursuant to Article 138(8) of the Constitution,” the petitioner pleads.
Further, the petitioner wants a declaration rendering the reasoning captured in paragraph 290 of the 2013 Supreme Court ruling unconstitutional.
“Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(8)(b) would become applicable, with fresh nominations ensuing,” the contested paragraph of Raila Odinga & five others v IEBC & three others (2013) reads.
Njomo prays that “a declaration is issued to declare that the Supreme Court obiter dicta (not establishing precedent) reasoning in paragraph 290 of the Raila Odinga (2013) case is not binding.”
According to Njomo, paragraph 290 of the 2013 Supreme Court ruling is out of sync with Articles 2(4) and 138(8)(b) of the Constitution.
Article 2(4) provides that: “Any law, including customary law, that is inconsistent with this (2010) Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this (2010) Constitution is invalid.”
In his supporting affidavit, Njomo states that the inclusion of the term “abandons” in the 2013 ruling of the Supreme Court was erroneous and cannot be used to refer to circumstances set in Article 138(8) (b).
The said Article reads: “A presidential election shall be canceled and a new one held if – a candidate for election as President or Deputy President dies on or before the scheduled election date.”
Since declaring his withdrawal from the October 26 repeat presidential election, Odinga has insisted that there can be no election unless fresh nominations are conducted preceding an election.
President Uhuru Kenyatta (Jubilee Party) has however dismissed Odinga’s demands insisting that next week’s election would have to proceed as ordered by the Supreme Court when it annulled his re-election in the August 8 poll on September 1.
Jubilee has since filed contempt of court proceedings against Odinga for planning to sabotage the October 26 election.
On Wednesday, NASA during a rally in Nairobi’s Kamukunji grounds reviewed its clarion call from “No Reforms No Elections” to “October No Elections.”
Odinga reiterated his stance on the forthcoming election when he met IEBC Chairperson Wafula Chebukati on Thursday after which meeting he told the press that the poll agency is ill-prepared for next week’s election.
“The revelations which have come from Chebukati and Commissioner Roselyn Akombe (who resigned on Tuesday) have basically confirmed our reasons for pulling out of this race. It is now clear that a conducive environment does not exist for a free and fair electoral process,” he remarked.
IEBC has already concluded printing of ballot papers, the same expected to start arriving in the country on Saturday.
The Commission also made a decision to include United Democratic Party candidate Cyrus Jirongo in the August 8 presidential election after he contested his exclusion from the election on bankruptcy grounds.
“It is easier from an operational point of view to include him now rather than being given an order to include him when you’ve already printed the ballot papers,” Commissioner Abdi Guliye, who flew to Dubai to oversee the printing of ballots, explained.
Other than Odinga and President Kenyatta (Jubilee Party), other candidates on the ballot are Ekuru Aukot (Thirdway Alliance), Alliance for Real Change leader Abduba Dida and independent presidential candidates Michael Wainaina, Joseph Nyagah and Japheth Kaluyu.