On 10th October, former Prime Minister Raila Odinga announced the withdrawal of his candidature from the planned 26 October presidential election re-run.
Apparent reason for withdrawal
In his press statement Mr. Odinga declared that ‘[NASA] came to the conclusion that there is no intention on the part of the IEBC [the Independent Electoral and Boundaries Commission] to undertake any changes to its operations and personnel to ensure that the “illegalities and irregularities” that led to the invalidation of the 8th August, 2017 [sic] do not happen again… The Jubilee administration’s proposed amendment to the election laws demonstrates that it has no intention of competition on a level playing field.’
Mr. Odinga argued that the IEBC has not addressed the key shortcomings in the electoral process that were identified in the detailed judgment of the Supreme Court delivered on 21 September 2017.
Mr. Odinga’s position is that his withdrawal from the election triggers the requirement for fresh nominations and an entire re-run of the presidential electoral process and not just a re-run pursuant to the Supreme Court’s annulment of the earlier election. This distinction, if upheld, is important because it means that even if the position is upheld, the earliest a fresh election could occur is on 30 January 2018.
Legal basis for withdrawal:
In NASA’s press statement, Mr. Odinga relied on a paragraph in the Presidential Election Petition judgment of 2013 where the Supreme Court in paragraph 290 stated, ‘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(1) (b) would become applicable, with fresh nominations ensuing’ (emphasis added).
The above-mentioned paragraph in the judgment was corrected by the Supreme Court to Article 138 (8) (b) of the Constitution of Kenya, 2010 (the Constitution) that provides that a presidential election will be cancelled ifi) no person has been nominated for president within the period set for delivery of nominations;
ii) a candidate for President or his Deputy dies on or before the scheduled election date; or
iii) a candidate who would have been entitled to be declared as President dies before being declared as President.
Article 138 of the Constitution does not make any reference to the abandonment of an election by a candidate. It would appear that the Supreme Court in the Presidential Election Petition judgment of 2013 expanded the scope of Article 138 (8) of the Constitution, without support from a plain reading of Article 138 (8).
What does the withdrawal mean?
The High Court allowed the petition of another presidential candidate, Ekuru Aukot and ordered the IEBC to include him on the ballot for the election on 26 October.
The IEBC has since confirmed that the election will proceed on 26 October with all original candidates including Mr. Odinga on the ballot, arguing that Mr. Odinga did not withdraw in the manner provided by the election laws. Ironically, as things currently stand, Mr. Odinga may find himself a candidate despite declaring that he does not wish to participate in the elections scheduled for 26 October.
What is the anticipated way forward?
Time is of the essence, since under Article 140(3) of the Constitution a fresh election must be held within 60 days of the determination by the Supreme Court, which was made on 1 September 2017. Mr. Odinga will no doubt argue that this timeline does not apply in the current situation since the fresh election he is calling for arises from his withdrawal rather than pursuant to the Supreme Court’s recent decision.
There are profound questions of constitutional interpretation and separation of powers that now arise.
It appears inevitable that the Supreme Court will once again take centre stage. As the apex court, the Supreme Court is not bound by its previous decisions. As it has already made clear, its most profound duty is fidelity to the Constitution. In particular, if asked to confirm the meaning of Article 138(8) of the Constitution vis-a-vis paragraph 290 of the Presidential Election Judgment, 2013 the Supreme Court could:
i) uphold the decision by the IEBC to hold the elections on 26 October with all candidates on the ballot, despite Mr. Odinga’s withdrawal;
ii) uphold the decision by the IEBC to hold the elections on 26 October but order them to remove Mr. Odinga’s name from the ballot because of his decision to withdraw; or
iii) uphold its finding in paragraph 290 of the Presidential Election Judgment, 2013 which therefore means that entirely fresh elections would have to be called.
We cannot at this stage share a timeline of events with any certainty but will do so in due course once there is more clarity.
Parliament passed a bill that makes amendments to the election laws. In due course we will provide our analysis of that bill.
Should you have any questions on this legal alert, please do not hesitate to contact Karim S. Anjarwalla.
The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.