The country was facing a major political and constitutional crisis last evening following Raila Odinga’s withdrawal from the race as opinion was divided evenly on the impact of his move.
Interviews with politicians, lawyers and analysts yesterday gave varied views that pointed to at least six options going forward even as the Independent Electoral and Boundaries Commission last evening went into a crisis meeting with its legal team.
President Uhuru Kenyatta said Raila had exercised his constitutional right by withdrawing from the race but insisted the repeat poll would continue on October 26 as scheduled.
“The NASA leader was the one who went to the Supreme Court and the judges later ruled in his favour. By withdrawing from the presidential repeat election, he has wasted Kenyans' time and resources which were allocated for the exercise. We have set aside more than Sh12 billion for the presidential election, which would have been used for rehabilitating roads among other mega projects to uplift the living standards of Kenyans,” said Uhuru.
Deputy President William Ruto challenged the IEBC to declare Uhuru as President, saying his only competitor had already withdrawn.
“We want to say without fear of contradiction that Kenyans voted for Uhuru Kenyatta with more than 8.2 million votes against Raila’s 6.2 votes in August polls. Since Raila has withdrawn, then the only way left is for the electoral agency to declare Uhuru Kenyatta as President of the Republic of Kenya,” said the DP.
While withdrawing, Raila insisted IEBC should resort to the Elections Act and commence a fresh process of nominating candidates within 90 days to facilitate a fresh election.
“Our withdrawal from the election requires the IEBC to cancel the election and to conduct fresh nominations. The procedure for nomination of presidential candidates is provided for in the Elections Act 2011, Section 13 (1),” Raila said.
The IEBC officials went into talks with their lawyers to decide what legal position to communicate following the withdrawal by Raila who alongside Jubilee Party's Uhuru the commission had decided as the only candidates for the fresh poll.
The High Court will today decide an application by Thirdway Alliance presidential candidate Ekuro Aukot who had asked it to compel IEBC to allow him to run.
“Following the withdrawal of the NASA presidential candidate, the commission and the legal team are meeting and will communicate way forward,” IEBC said in a tweet.
Interviews with lawyers and politicians yesterday suggested at least six options as the way forward following the withdrawal of Raila’s presidential candidature.
One was that IEBC would continue with presidential election on October 26.
Another view was that fresh elections would be organised within 90 days based on the 2013 Supreme Court judgement.
Yet another suggestion was that IEBC would declare Uhuru elected president based on Article 138(1) of the Constitution that provides that if only one candidate is nominated he/she shall be declared winner.
The other suggestion was that based on the action IEBC takes, a petition could be filed at the Supreme Court.
Another proposal was that Parliament could proceed with proposed electoral amendments to factor solution to crisis. One of the proposals was designed to make it clear what action would be taken should Raila withdraw.
Finally, some felt the action had opened the route to a caretaker government after November 1.
Although the Constitution and elections laws do not address what happens when a candidate withdraws, some lawyers believe IEBC can invoke Regulations 52 and 53 of the election laws to declare Uhuru duly elected unopposed.
“The electoral amendment regulations committee which was co-chaired by Meru Governor Kiraitu Murungi and Siaya Senator James Orengo cured this problem. Section 52 and 53 of the committee’s agreements says where there are two candidates and one abandons the election midway, the other is declared winner. In this case, Uhuru will be declared winner,” senior counsel Ahmednasir Abdullahi said.
He added: “There is no legal lacuna in this issue but it might pose a political problem. But the law will solve the matter as Raila has run away fearing defeat.”
Others were of the opinion that IEBC can proceed with elections as scheduled since nomination and gazettment of candidates had been done.
“This was a court order that elections be held within 60 days and a candidate wilfully withdraws midway. The question we all must answer what’s the consequence? The election can still proceed. The withdrawal has no effect, the candidate has already been nominated and gazetted and thus the elections will on,” said former IEBC commissioner Thomas Letangule.
Lawyer Charles Kanjama said any Kenyan can move to the Supreme Court to challenge the electoral body’s action.
"Depending on either IEBC orders for fresh elections or declares Uhuru President, NASA or any Kenyan can go to the Supreme Court to petition the action. Then the Supreme Court will rule on the way forward," Kanjama said.
Analysts also says the withdrawal may afford an opportunity for NASA to come up with a new line-up where Raila is not necessary the candidate.
This may give a chance to a Kalonzo/Mudavadi ticket to take on UhuRuto should the commission accept to conduct fresh nominations.
This view is emboldened by NASA’s demand that IEBC conducts a fresh nomination exercise within 90 days in accordance to the Elections Act.
City lawyer Donald Kipkorir said on Twitter; “With the withdrawal of Baba Raila Odinga from #Ballot2017, Kenya enters into uncharted constitutional & legal waters! God Save Kenya!”
Constitutional lawyer Mutakha Kangu added: “I have looked at paragraph 290 of the 2013 Supreme Court ruling where it says that if one candidate withdraws from the race, then then section 138 of the constitution will become applicable,” said Dr Kangu. “We will have to hold fresh elections in 90 days. We are talking about next year.”
Lawyer Nelson Havi remarked: “The law is very clear. If one candidate withdraws as captured in paragraph 290 of the 2013 Supreme Court ruling, Kenya shall now hold fresh elections within 90 days."
Makueni MP Dan Maanzo: “There can be no election on October 26 as they had planned. The amendments before the National Assembly are in themselves in conflict with the Constitution and the Supreme Court order. Even if Uhuru assents to them, they cannot be applied retrospectively.”
“IEBC cannot declare Uhuru president-elect because he has not been elected. The other election was nullified and therefore even if they do that, he will not have any legitimacy. And if that is the case, we shall also swear in our President," he added.
Lawyer Boniface Muumbi and Waikwa Wanyoike in their separate interviews with The Standard said that IEBC will now have to wait for the parties to carry out nominations and have another election within 90 days.
“The only way the issue can be resolved is through having a general election. The Supreme Court directed that nominations must be conducted and then the election be conducted,” said lawyer Muumbi.
Lawyer Waikwa said: “The IEBC is using the 2013 judgment to lock out Ekuru Aukot from the fresh election. It took a controversial position on the same judgment. What Raila applied is the same judgement and thus my opinion is it will be followed.”
Lawyer Ndegwa Njiru took a contrary view. He said that only Article 138 (1) will apply, which provides for declaration of a candidate as validly elected if he/she is the only one nominated.
MPs Moses Kuria (Gatundu South), Kanini Kega (Kieni), Gideon Keter (nominated) and Catherine Waruguru (Laikipia) said IEBC has no option but to pronounce Kenyatta as the victor since his opponent had withdrawn from the race.