Election 2017. Brace for 60 days of political uncertainty ahead of November 1 re-run

NASA supporter celebrating Supreme Court ruling on the streets of Nairobi.

In the wake of the Supreme Court’s nullification President Uhuru Kenyatta’s election and ordering of a re-run in 60 days, Kenya could be thrown into a political uncertainty if polls are not held within the stipulated time.

National Super Alliance’s presidential candidate Raila Odinga and his running mate Kalonzo Musyoka filed the petition.

Already NASA has made it clear that it cannot trust the Independent Electoral and Boundaries Commission, IEBC, with a presidential election. This position is buoyed by the Supreme Court’s determination of the presidential poll, itself an indictment on the commission.

In its majority declaration, the Supreme Court found that the IEBC had “failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.”

Judges Njoki Ndung’u and Jackton Ojwang’ gave dissenting declarations but Chief Justice David Maraga, his deputy Philomena Mwilu, Judges Smokin Wanjala and Isaac Lenaola upheld Raila’s petition. Judge Mohamed Ibrahim was taken ill and did not participate in the declaration.

However, IEBC chairman Wafula Chebukati is confident that IEBC can still manage another election. On Friday he said they were up to the task but invited law enforcers to arrest and prosecute IEBC officials who might have broken the law.

But, the possibility of a crusade akin to that which sent the Isaac Hassan IEBC packing cannot be ruled out with NASA mounting street protests to kick the IEBC out.

Lawyer Charles Kanjama, however, says there should be no constitutional crisis because the institutions and the law governing elections are still intact.

“The election is going to be run on the basis of the law but not what Jubilee or NASA want. It doesn’t matter what the politicians want,” he says.

But he advises the IEBC to listen to all sides ahead of the re-run.

On the possibility of a presidential petition after petition, he says that is a legal reality Kenyans will have to live with.

“They (petitions) can go on indefinitely.”

The re-run is also fraught with logistical challenges.  Questions are being asked as to whether IEBC, assuming it remains intact, will organise the repeat poll ahead of November 1 deadline.

There is also the likelihood of a litigious Kenyan rushing to court have the suitability of the IEBC to run another election determined, which litigation could shave off valuable time from the polls agency with grave implication on the poll deadline.

Last month Treasury Cabinet Secretary Henry Rotich assured the nation that money had been set aside for a run-off although he did not see it happening because he considered the presidential race a two-horse affair.

 The election ordered by the Supreme Court is not a run off but a re-run where the winner must garner 50 per cent plus one of the total votes cast. Failure to reach that threshold will cause a run-off election contested by the winner and number two.

And, a petition at the Supreme Court is still possible if one party feels the re-run was not conducted according to the law, which court can uphold the election or order a fresh one.

Lawyers are not agreed whether it will be a fresh election that will have to go through the whole hog… party nominations and what have you.

It is also not clear whether fresh candidates could jump into the race although the other six that ran in the annulled one can decide to contest or pull out.