Uncertainty over presidential poll continues with more cases being filed in court

Jubilee politician (l) Waihenya Ndirangu and Pokot South MP David Pkosing at the Milimani Law Courts. Pkosing is seeking to have Raila compelled to participate in repeat poll. George Njunge/Standard

Two more cases were filed in the High Court on Monday, bringing to five the number of petitions whose determination will have an impact on next week's repeat presidential election.

Three of the cases are pushing for the abandonment of the October 26 elections. If successful, they could lead to the starting afresh of the presidential election and prolonging of the political crisis.

Two other petitions want the elections to proceed as scheduled, irrespective of whether or not Opposition leader Raila Odinga and five other presidential candidates are on the ballot.

One of the two petitions advocating the status quo seeks to have the electoral commission directed to declare President Uhuru Kenyatta president-elect in the event he is the sole nominated candidate.

Yesterday, former Kilome MP Harun Mwau added a new twist to the push-and-pull with an urgent petition at the High Court to stop the October 26 poll on grounds that the Independent Electoral and Boundaries Commission (IEBC) has failed to comply with constitutional provisions for a fresh election.

Also in court was a lobby group, the Uzalendo Institute of Leadership and Democracy, with an application seeking the court’s interpretation of what will happen with the October 26 presidential election following the withdrawal of the National Super Alliance (NASA) candidate.

And Pokot South MP David Pkosing continued with the push to compel Raila and his running mate, Kalonzo Musyoka, to participate in the repeat election.

Activist Okiya Omtatah has filed a fresh petition arguing that the environment is not conducive for the repeat election and is seeking the formation of a caretaker government after October 26.

IEBC Chairman Wafula Chebukati yesterday added his voice to the controversy, stating in his affidavit in response to Mr Pkosing’s petition that the commission cannot force Raila to contest in the repeat polls. Mr Chebukati told the High Court that the IEBC's only duty was to comply with the Supreme Court order for fresh election within 60 days.

At the Court of Appeal, the judges have set Thursday to hear an application to bar fringe candidates from contesting in the October 26 polls following IEBC’s decision to include all candidates who contested on August 8.

Fresh nominations

The High Court ordered the inclusion on the ballot of Third Way Alliance presidential candidate Ekuru Aukot a day after Raila withdrew his candidature. IEBC thereafter opened the door to the five other presidential candidates.

Initially, IEBC had gazetted the names of Uhuru and Raila as the only candidates for the fresh election, prompting court action by Dr Aukot. When Raila announced his withdrawal, he argued that the move paved the way for a fresh election with fresh nominations within 90 days. But the successful petition by Aukot the following day complicated matters.

Through lawyer Benjamin Musyoki, Mr Mwau argued (Monday) that IEBC had violated the Constitution by gazetting the candidates without mandatory nomination.

“It is clear the commission has waived provisions of the Constitution and electoral laws when they have no such powers and if the election proceeds, it will be clear as day and night that the Supreme Court will again invalidate the outcome,” said Mr Musyoki.

Mwau’s case, if successful, could take the commission back to the first step of the presidential election process, with the nomination of candidates and their running mates.

He argued that after the Supreme Court nullified the August 8 polls, it ordered fresh elections “in accordance with the Constitution and applicable election laws”, so the commission had no choice but to start by fresh nomination.

He said that based on the Supreme Court's decision and the High Court's clarification of what constitutes a fresh presidential election, the whole presidential election in August had no legal effect.

“It is only after nomination that a candidate qualifies to participate in a presidential election. What the IEBC did by gazetting the candidates was illegal, which makes the October 26 election unconstitutional, null and void,” said Musyoki.

Mwau wants the court to declare the October 26 election null and void because the commission allegedly did not follow the correct procedure.

Uzalendo Institute of Leadership and Democracy, in its petition, argued that Raila and Kalonzo’s withdrawal from the race had caused a stalemate on the fate of the October 26 election. It asked the court to determine the effect of the decision.

According to the lobby, Raila’s basis for withdrawal was the 2013 Supreme Court judgement on the presidential election petition which does not clearly explain what happens in such circumstances.

“The Supreme Court decision was made in the absence of legislation on the question of withdrawal of a presidential candidate, and as such is not applicable under the current circumstances,” said the lobby’s secretary, Hellen Wanjiku.

The civil organisation argued that the provision in the 2013 Supreme Court decision is not binding and should not be used since it was just an opinion given by the court upon request by the Attorney General.

The lobby wants the court to declare that the section relied on by the NASA candidate was obiter dictum (court opinion not central to the main case) and not binding on IEBC regarding withdrawal of candidates. The application is in agreement with that of Pkosing, that a presidential candidate cannot withdraw from the race after their names have been gazetted by IEBC.

Pkosing filed an additional affidavit to support his application, arguing that with the heightened and continued demonstrations, he is convinced elections will not take place in all the 290 constituencies, which would mean any outcome would be void.

“NASA leaders have repeatedly said there will be no election on October 26. Their threat to sabotage the election is real and that is why the court needs to come in quickly to prevent wilful sabotage of democracy,” said his lawyer Kibe Mungai.

The MP wants an order compelling Raila to participate in the repeat election or in the alternative, allow the IEBC to declare results based on the constituencies that will take part in the poll.

Chebukati, however, said the commission cannot force any person to contest in the repeat polls.

“The Supreme Court order was that the commission carry out a fresh election in accordance with the Constitution and applicable election laws. The order did not compel, bind, or otherwise oblige any candidate to participate,” he said.