NAIROBI, Kenya, Oct 10 – On Tuesday, Opposition leader Raila Odinga threw an anticipated spanner in the works of the planned fresh presidential poll.
He announced his withdrawal from the gazetted October 26 presidential poll, contending that the Independent Electoral and Boundaries Commission should conduct fresh nominations for the presidency at least 90 days to a new poll date.
President Uhuru Kenyatta and his Deputy President William Ruto who anticipated the move are however of a different mind – it is their position that Odinga’s withdrawal clears the way for their declaration as legitimately re-elected.
Legal minds are themselves torn on the matter with the IEBC urgently convening a meeting Tuesday evening with its legal team for expert advice.
The confusion, advocate Duncan Oketch told Capital FM News, stems from the absence of an express constitutional provision on what should happen in the situation the country currently finds itself in. “The Constitution doesn’t have an answer.”
In a tweet, advocate Donald Kipkorir concurred, only he put it this way: “With the withdrawal of Baba Raila Odinga from #Ballot2017, Kenya enters into uncharted Constitutional & Legal waters! God Save Kenya!”
The position President Kenyatta and his deputy have taken – Country Director of the Electoral Institute for Sustainable Democracy in Africa Felix Odhiambo opined – is likely informed by regulation 52 of the Election General Regulations which provides:
“Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected.”
This proviso however, in Odhiambo’s professional opinion, does not supersede the Supreme Court finding when it considered Odinga’s presidential election petition in 2013, that in such instance, fresh nominations should be held.
“It is clear that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.”
“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 judgement reads.
A finding which, advocate Paul Nyamodi counters, was overtaken by amendments to the Election General Regulations which provide only three days, from the date of nomination, for the withdrawal of a candidature; nominations which in the present instance took place in May.
It follows then, he said, that the IEBC has – in compliance with the Constitution and directions of the Supreme Court – until October 31 to conclude the election process triggered when the August 8 exercise was nullified.
“The electoral process must be completed,” he said. “And it is completed by declaration.”
Advocate Moses Chelang’a’s reading of the situation differs with that of Nyamodi but is in line with that of Odhiambo; in his mind, Odinga’s call for another fresh poll is based on the opinion of the Supreme Court as quoted above.
Given the divergence of opinion, was Oketch’s assessment, the IEBC could always revert to the Supreme Court, for guidance.