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Nomination of presidential aspirants can't be ignored

By Dennis Waweru | September 26th 2017

Kenya is about to commit itself to another expensive presidential election without exacting an important legal commitment from the presidential candidates. The nomination exercise for candidates is not a mere procedure to be wished away but one that plays an important role in preparation for the main election.

And no, it is not out-of-abundance of caution exercise as the IEBC is wont to imagine. It is a legal requirement through which qualifications of candidates are tested along the constitutional and legal parameters.

For presidential candidates, the Constitution prescribes certain bare minimums which aspiring candidates must have. Over and beyond this, nominations play another role if Article 138 (1) and 138 (2) are taken into account.

The Articles say: “If only one candidate for President is nominated, that candidate shall be declared elected” and “If two or more candidates for President are nominated, an election shall be held in each constituency.”

Put in plain terms, presidential nominations determine whether the country will go into election or not. Despite the Supreme Court ordering a fresh presidential poll, not a run-off, the IEBC has remained cagey on whether candidates will present fresh nomination papers or not.

While the assumption, based on Supreme Court directions of the 2013 presidential petition, is that only the two leading candidates will take part in the fresh poll, the matter as to whether the two are qualified post the August 8 election, should not be left to assumption.

One of the candidates has expressed lack of interest in the fresh poll on account of certain “irreducible minimums” which have a snowball in hell’s chance of realisation within the less than 38 days left before the lapse of the 60-day window within which to conduct the repeat election.

Should such a candidate, nominated in the last cycle, be forced into participating in the repeat vote? Is it worth the legal risk of proceeding on an election without nominating the candidates especially noting the requirement of Article 138 (2) which decrees that the election shall be held in EACH constituency if more than one candidate is nominated?

What if the disinterested candidate successfully ensures the election is not held in at least one constituency, what becomes of the validity of that election? Assuming he simply pulls out of the race, what would be the legal status of an election between one nominated candidate and himself?

We can cure all these doubts by slotting the nomination exercise in the pre-election calendar. The Attorney General must advise the country appropriately same way he has advised on perpetuation of temporary incumbency powers beyond the 60-day period.

If he does not advise appropriately, the country will slide into unfamiliar legal imbroglio and give NASA grounds to challenge the validity of President Uhuru Kenyatta’s re-election.

The IEBC must also move with speed and save the country from the ignominy smiling at us. The country must be saved from the mind games being played by the Opposition, whose aim is to precipitate a constitutional crisis. Let all legal minds pronounce themselves on this matter and let history be our judge, lest it be said we never spoke to it.

The writer is former Dagoretti South MP

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