The Independent Electoral and Boundaries Commission (IEBC) has given its clear direction on repeat presidential poll few days after Raila Odinga’s withdrawal.
The commission says the October 26, election is on course and all eight candidates who participated in the August 8 elections will be in the contest. This includes NASA’s Raila Odinga who quit the race on Tuesday claiming the IEBC was not ready to conduct a free, fair and credible election.
Gap in Raila’s Withdrawal
IEBC argues that though Odinga submitted a letter explaining his withdrawal, he failed to submit the requisite Form 24A.
“They however have not submitted the statutory Form 24A. Once the Commission receives the requisite Notice from any of the candidates, it will process the same in accordance with the requisite provision of the Law,” IEBC explained in a statement.
The IEBC move shadowed High Court Justice Mativo’s ruling that directed that all candidates who vied in the August 8 General Election participate as candidates in the repeat Presidential Election.
“The logical construction which to me would serve the public interest is that those who participated in the invalidated election do qualify to contest in the fresh election,” Justice Mativo ruled.
This was in response to a court case filed by Thirdway Alliance presidential candidate challenging Supreme Court’s decision on September 1 that gave President Uhuru Kenyatta and Raila Odinga unique privilege to face each other in the presidential re-run.
Raila’s Game Plan
Hours to the High Court ruling on Dr Ekuru Aukot’s case on Wednesday, Odinga and his political club laid an interesting game plan, calling for fresh nominations and a totally new election before the country elects its new president.
They said their withdrawal was a cancellation of the October 26 election.
The Tuesday move by the opposition swerved the country’s political momentum for a while. Many observers begun to question the constitutionalism of the slated October 26 election.
Even NASA, itself expressed confidence that without Odinga on the ballot, the country would not have an election.
Siaya Senator James Orengo said on Wednesday that Odinga had not withdrawn from the election entirely.
Supreme Court Opinion
NASA’s decision to quit relied on paragraph 290 of the 2013 Supreme Court ruling on Raila Odinga’s presidential petition. The six-member bench ruled that if a candidate who took part in the original poll withdraws, the poll is postponed.
The paragraph states, “Suppose, however, the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (8) (b) would become applicable, with fresh nominations ensuing.”
Article 138 (8) (b) states that “a presidential election shall be cancelled and a new election held if…a candidate for election as President or Deputy President dies on or before the scheduled election date.”
Capital reports that the opinion is however divided on whether the Supreme Court analysis of 2013 is legally binding with those opposed to its application in the present case, categorising it as obiter dictum, defined as “A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.”
Political pundits had weighed on the issue even before the IEBC statement. National Assembly Majority leader Aden Duale said Odinga based his withdrawal on a Supreme Court ruling that was not legally binding and further failed to quit as the law requires.
He tweeted; “With the High Court ruling that the opinion of the 2013 Supreme Court is not legally binding, we must have an election on October 26, 2017. It must also be noted that Raila Odinga did not withdraw his candidature by following the legally prescribed format through Form 24A.”
The new developments now mean that Odinga is still a candidate for the October 26 re-run.
Unless a candidate signs the prescribed form 24 A, according to IEBC, all the eight will appear on the ballot come October 26.
But will Odinga and his brigade rescind their Tuesday decision?
NASA’s 11 “irreducible minimums” to IEBC haven’t been considered. Further, the opposition have visibly absconded from grassroots campaigns for their quest for office even as President Uhuru Kenyatta criss-crosses the republic on vote hunt mission.
Odinga on Wednesday travelled to the UK. He is expected to give a lecture at the Royal Institute of International Affairs, Chatham House tomorrow, before flying back on Saturday.