Raila’s secret weapon to stop repeat election

A single but potentially powerful article in the 2010 Constitution could be NASA’s secret card in blocking the repeat presidential polls if their push for electoral reforms hits a snag.

Yesterday NASA leader Raila Odinga announced that they will go to Anniversary Towers on Tuesday to eject CEO Ezra Chiloba.

NASA claims Chiloba was the chief architect of rigging during the August 8 General Election in which Raila lost to President Uhuru Kenyatta by over one million votes.

“We don’t fear going to the election. But we will only participate if the IEBC is reconstituted. Starting Tuesday, we will hold demonstrations outside the IEBC offices to remove Chiloba from office,” Raila said in Kawangware on Sunday when he campaigned in Dagoretti North constituency.

Interviews pieced together from constitutional lawyers indicate that the article which makes it mandatory for a presidential vote to take place in all the 290 constituencies could be the most potent arsenal for the Raila-led coalition.

Article 138 (2) of the Constitution, on the procedure of presidential elections, states, “if two or more candidates are nominated, an election shall be held in each constituency.”

This article, according to a section of lawyers, including some Jubilee-leaning advocates, means that an election shall be considered null and void if a constituency or some constituencies do not participate.

NASA commands an enormous following in at least four of the previous eight provinces – Nyanza, Western, Coast and Lower Eastern.

Raila also enjoys a following in Turkana, Samburu and parts of Masaailand.

This means that if the Opposition succeeds in blocking the election from taking place in their “territory”, they could triumph in blocking President Uhuru Kenyatta’s second term.

On Friday, a no-nonsense Raila said it was clear that the IEBC would not meet the “irreducible minimums” that NASA has set as conditions for participating in the repeat presidential election.

“With every passing day, it’s getting clear the conditions [reforms] will not be met and so there shall be no election. We will not allow Uhuru to take the country down the paths of failed nations,” Raila said.

Yesterday, Raila announced a new strategy to oust the top electoral chiefs, including embattled CEO Chiloba, through street protests.

Without opening up on their political game plan, NASA Chief Executive Officer Norman Magaya told the Star that, indeed, a presidential election must be held in every single constituency.

“For the election to comply with the Constitution, it must be held in every single constituency. It’s the reason the Constitution uses the term “shall” be held in each constituency,”Magaya, a lawyer, said.

Raila has himself numerously hinted at this strategy.

The Opposition chief said with their declaration of no election withoutreform, the polls would probably take place in one or two regions, like Uhuru’s Gatundu backyard.

“There will be no election because if Kenyans won’t take part, it will probably be conducted in one or two regions and not all the regions of Kenya. Therefore, it will not be an election for the entire Republic of Kenya,” the ex-Prime Minister told Germany’s international broadcaster Deutsche Welle on Saturday.

Yesterday constitutional lawyer Nelson Havi described the times ahead as “too catastrophic for Jubilee to imagine” should NASA oppose the October 26 presidential polls.

“The net effect is that there will be no election. This is perhaps Raila’s most potent constitutional weapon at his disposal,” Havi told the Star, describing Article 138.

He warned that in a legitimate Presidential election that adheres to the Constitution and the election laws, the IEBC must hold elections in all the 290 constituencies.

“If the IEBC goes ahead and declares Uhuru as the winner of that election, all that we need to do is to go to court and say there was no election because the election was not conducted in all the 290 constituencies,” he said.

Constitutional lawyer Kibe Mungai termed the constitutional provision a “serious and potent weapon” that NASA can unleash to frustrate the repeat presidential election.

“That is one of the sections NASA could be having in mind, you can politically achieve it effectively, it is a potent threat that can be carried through and is a serious issue of concern,” said Mungai.

Asked if NASA has the capacity to deal the planned polls a deathblow, Mungai said, given the fervent support that Raila enjoys in Nyanza, Coast, Western and Nairobi, no election could be a reality.

“From a legal point of view, that is a serious issue, truth be told, if a major party like NASA doesn’t want the election and is out to frustrate it; I think it is very easy and NASA is capable of doing that effectively,” he said.

Jubilee’s push to have a recount of the Presidential ballot by launching a judicial review of the September 1 Supreme Court judgment, have also been interpreted as making a new poll a mirage.

NASA is demanding far-reaching reforms, including procurement of a new integrated electoral management system that would eliminate the involvement of the controversial French Firm Safran Morpho.

Yesterday, lawyer Dunstan Omari said it would be untenable for the electoral agency to push on with an election without the support of NASA (See Expert Comment P5).

He warned that should the State attempt to use the military and police to force an election, then the legitimacy of the President would be in tatters.

“Failure to do an election in any polling station or any centre, nullifies the election,” Omari said.

“It is even unimaginable that the IEBC can attempt to conduct an election in opposition-controlled constituencies should Raila boycott.”

He went on, “Raila controls almost half of the country, if he makes it impossible for the IEBC to conduct an election, then the government forces an election in those areas through Gestapo-kind arrangements, then it will not be an election.”

But Senate Majority Leader Kipchumba Murkomen trashed the no-election talk as brinkmanship and dared NASA to attempt it if they want to see Raila locked out from the polls.

“I want to dare NASA, try committing an election offence and your candidate will bed nullified from the election and we will have Uhuru Kenyatta sworn-in at Kasarani,” he threatened on Thursday.

Uhuru himself has said that he will not leave State House even if the country fails to go to the polls on October 26.

“If they frustrate the election, I’m telling them in broad daylight, Uhuru Kenyatta will remain President until Kenyans vote and decide,” Uhuru said on Tuesday last week.

His comments were buttressed by Attorney General Githu Muigai, who warned on Friday that Uhuru will remain in charge, even if there is no election.

“If in any case the election is not held within 60 days, that does not de-legitimise the government of the day,” Githu said, contradicting many legal minds, including LSK Chairman Isaac Okero’s.

But Githu was rebuked by Ford Kenya leader Moses Wetang’ula , who accused him of being mischievous and dishonest.

“What the Constitution then provides for, and you can read it very carefully, is a provision that then makes the Speaker of the National Assembly a caretaker President for 90 days to have elections,” Wetang’ula told a press conference on Friday.

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