New kids on the block: Form 24A, obiter dictum and why Raila undaunted

October 11, 2017 5:04 pm
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Opinion is however divided on whether the Supreme Court analysis is legally binding with those opposed to its application in the present case, categorising it as obiter dictum, defined as “A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent/FILE

, NAIROBI, Kenya, Oct 11 – The Head of the Raila Odinga campaign secretariat Willis Otieno says his client is not required to sign the newly famous Form 24A to formalise his withdrawal from the October 26 presidential race.

Otieno explains that there were no fresh nominations conducted for the poll; which is the scenario regulation 52 of the Election General Regulations envisages.

The much touted regulation reading: “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 nomination.”

Pulling up a copy of the gazette notice announcing the poll date, Otieno pointed out the Independent Electoral and Boundaries Commission Chairperson Wafula Chebukati made clear that no fresh nominations would be held, in line with the Supreme Court decision in the Raila Odinga petition of 2013.

He adds that Odinga cannot be expected to subscribe to a regulation whose application he’s challenging in the present case and which would result in the automatic declaration of President Uhuru Kenyatta as re-elected should the IEBC successfully appeal the High Court finding of discrimination in their limiting of the October 26 poll contenders to two.

The regulation continuing to read: “Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected.”

Rather, Odinga is relying on the Supreme Court judgement of 2013 in the Odinga petition in which the judges proffered the opinion that where a fresh poll is ordered and one of the two contenders abandons the race, fresh nominations for another poll should be held.

Opinion is however divided on whether the Supreme Court analysis is legally binding with those opposed to its application in the present case, categorising it as obiter dictum, defined as “A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.”

The same view adopted by High Court Judge John Mativo when he compelled the IEBC to include Ekuru Aukot as a contender in the October 26 fresh presidential poll; the August 8 exercise having been nullified by the Supreme Court on September 1.

“The directions are not part of the final orders of the court. In my view, they cannot be said to be the ratio decidendi of the case,” he found.

On Tuesday Odinga announced that he was withdrawing as a contender in the October 26 presidential poll for the reason that the exercise is “pre-rigged” in favour of President Kenyatta; he thereafter said he expects the IEBC to conduct fresh nominations in preparation for a more acceptable poll.

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