High Court's decision to include Thirdway Alliance candidate Ekuru Aukot in the repeat presidential election has put NASA leader Raila Odinga in a tight corner after withdrawing from the race.
Mr Odinga and his running mate Kalonzo Musyoka based their decision to quit the race on paragraphs 289 and 290 of the 2013 Supreme Court presidential election petition ruling, which were yesterday declared as having no legal effect by Justice John Mativo.
NASA principals said the Supreme Court was clear that in the event they abandon the race before the scheduled date, the elections would be called off and IEBC compelled to conduct a fresh presidential election within 90 days.
But while allowing Aukot's inclusion, Justice Mativo ruled the Supreme Court acted beyond its mandate by purporting to interpret the Constitution on fresh election, and on a question asked by Attorney General who had no major role to play as amicus curiae.
“The issue was not raised by petitioners or respondents and did not arise from the pleadings. Those directions were not part of the final orders. It was mere opinion of the judges which are not binding to this court in interpretation of what constitutes fresh election,” ruled Mativo.
The decision has however divided both politicians and legal practitioners on its impact to the withdrawal of Mr Odinga and Mr Musyoka from the October 26 poll.
One argument is that by trashing the 2013 Supreme Court decision on what constitutes fresh elections and who should participate, the court signalled Odinga has no choice but to participate in the election since his decision is not backed by law.
Others however hold that the decision does not affect his withdrawal, and that there will be no election on October 26 in accordance with the 2013 judgement.
Their argument is NASA principals withdrew their candidature before Justice Mativo’s decision and that the law cannot be interpreted backwards when something has already happened.
Lawyer Nelson Havi said what Justice Mativo did was turning logic unto himself, and that it is like saying if the Supreme Court cannot interpret the Constitution, then they cannot determine any election petition which is largely about the Constitution.
“Raila’s decision to withdraw from the presidential election legally stands. It cannot be said to have been overtaken by Justice Mativo’s decision. The Supreme Court's decision was legally binding,” said Havi.
NASA also insisted Justice Mativo’s ruling had no impact on their withdrawal, saying they were party to the case and were aware of the ruling.
In any case, NASA argued the ruling dealt with paragraph 289 on inclusion of candidates in the election while Mr Odinga and Mr Musyoka’s withdrawal was based on paragraph 290 of the judgement.
“The decision is binding and is not obiter as claimed. The court in 2013 did not invite itself to make that determination but it was responding to the AG’s application as the protector of public interest. Thus, we made the decision well aware the High Court was not dealing with paragraph 290 on withdrawal and consequently IEBC has no choice but to commence fresh nomination process,” NASA secretariat boss Norman Magaya said.
Obiter dictum refers to a court statement which was not part of a question or an argument before it.
A similar position was taken by Lawyer John Swaka, who argued the judgement will not affect Raila’s withdrawal.
He said Raila’s withdrawal was to allow IEBC put its house in order and that the election will only be held in accordance with the directions issued by the Supreme Court after the changes are effected.
“IEBC has done nothing and thus the October 26 election will be impossible. We have no choice until the procedure is adhered to,’’ said Swaka.
However legal arguments aside, Raila and NASA are piling pressure, through protests, to force electoral reforms.
But Majority Leader Aden Duale argued the court's decision dealt the final blow to NASA, insisting their withdrawal is not based on any law since they did not fill Form 24A as required to withdraw from a presidential race.
According to Duale, Raila shot himself in the foot and deliberately decided to organise his own political funeral.
“It was not based in law, he relied on the 2013 Supreme Court ruling which Justice Mativo has declared as a mere opinion. He has now thrown himself and his running mate under the bus and all NASA can now do is to re-organise themselves and try their luck in 2022,” Duale said.
Another lawyer, who sought anonymity over his involvement with IEBC, said the judgement yesterday has cleared the law that Raila cannot rely on an orbiter dictum (court statement which was not part of a question or an argument before it) to justify his withdrawal.
He said the question on what should happen when a candidate withdraws after nullification of an election was a ‘by the way’ statement which has no legal effect.
“The court may meander and give views which were not the dispute before it or the parties never argued on the same. This cannot be relied upon and is not binding,” he said. “The High Court judgement has changed everything. Aukot’s case is a game changer.”
Lawyer Tom Macharia agreed with Duale, saying the entry of Aukot has spoilt Odinga’s chances and his plot to have the election pushed to allow for reforms.
He argued NASA used Article 138 and Article 143 together to justify their case yet they should be cited separately. Hence Raila’s withdrawal, in terms of law, is null and void, Macharia argued.
Article 138 deals with cancellation of a presidential election in the event a candidate or deputy dies or withdraws.
Article 143 on the other hand talks of nullification of a presidential election and conducting a fresh one.
The lawyer said the judgement by Justice Mativo clearly stated that the two articles can only be applied in different scenarios and thus Raila’s plan was scuttled.
“If you read Justice Mativo’s judgement, the case by Aukot has spoilt Raila’s plan. The judge was very categorical that the sections that he had used are separate and cannot be used together,” said Macharia.
Lawyer SK Waweru said there will be an election on October 26 as the Constitution stipulates that a fresh election has to be done within 60 days.
According to Waweru, the Supreme Court never envisaged a scenario where there will be nominations and thus the withdrawal cannot apply. He, too, said that inclusion of Thirdway Alliance candidate had changed the course.
[Paul Ogemba, Kamau Muthoni and Geoffrey Mosoku]