In Summary
  • This fresh election is not in the nature of a re-run limited to the two individuals gazetted by the IEBC.
  • But it must be realised that we are in a multi-party democracy where an election is not just a political exercise.

Mr Raila Odinga on Tuesday indicated that he had formally withdrawn from the election contest scheduled for October 26.

The implication of this must be understood on the basis of both the Constitution and the decision of the Supreme Court in 2013, when judges said that, in the event a presidential election is annulled and a fresh one ordered, it is only the petitioner, if at all the petitioner was a candidate, together with the respondent, who shall participate in the fresh poll.

Now in this case, the Independent Electoral and Boundaries Commission already gazetted Mr Odinga and President Uhuru Kenyatta as the only candidates in the repeat poll.

NOMINATION

It follows, therefore, that on the basis of the decision by the Supreme Court in 2013, the abandonment of Mr Odinga’s bid has the effect of ensuring that there can only be a fresh election under the provision of Article 138 of the Constitution.

This fresh election is not in the nature of a re-run limited to the two individuals gazetted by the IEBC.

It requires that a fresh nomination process be carried out 90 days before the next date of the election.

LEGAL MEANS
There is, therefore, the sad reality that the election will not be conducted on October 26 unless, of course, the IEBC intends to subvert both the Constitution and the 2013 Supreme Court decision.

Immediately Mr Odinga made his decision known, President Kenyatta and his Deputy William Ruto indicated that they want to go on with the election with or without Mr Odinga.

That may be their desire, but it must be resolved within the law.

And it is unlikely that the IEBC will want to be drawn into a situation where it is being pushed to conduct an election at the behest of only one of the parties.

NEW POLL
The commission has retreated to consider legal advice from its lawyers.

It is likely that IEBC lawyers will, from the trend that we have seen lately, toe the line that Jubilee has been taking all along and advise the poll agency to go on with the election.

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