Chief Justice David Maraga at the Supreme Court during the reading of the verdict that upheld President Uhuru Kenyatta’s election victory on November 11, 2017. [Photo: Beverlyne Musili| Standard]The Supreme Court yesterday explained Opposition leader Raila Odinga’s withdrawal from the presidential election would not have occasioned cancellation of the October 26 fresh poll or prompted fresh nominations.
Six judges also ruled that Raila’s October 10 letter to the Independent Electoral and Boundaries Commission (IEBC) communicating his withdrawal was not sufficient without filling out the requisite statutory form.
Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Jackton Ojwang, Smokin wanjala, Njoki Ndung’u and Isaac Lenaola in a unanimous decision, said since Raila did not attach Form 24A, then his letter would only be deemed to have been an intention to withdraw.
The judges ruled that the letter did not have any legal effect and would not have been a basis of cancelling the fresh election.
Election law
They pointed out that both the Constitution and the election law did not envisage a scenario where a repeat election can be cancelled based on the withdrawal of a candidate.
“The withdrawal of a candidate would not have occasioned the cancellation of the fresh election,” the decision read by Justice Wanjala on behalf of his colleagues read in part.
They, however, pointed out that the NASA leader had a right to throw in the towel since he had outstanding 12 irreducible minimums that had not been settled by the IEBC.
“A candidate, however, cannot be forced into a process that he does not have confidence in,” they added.
The Opposition leader and his lawyers had argued his decision to withdraw ought to have forced a third contest between him and President Uhuru Kenyatta in 90 days.
At the time Raila announced his withdrawal, IEBC had only gazetted Raila and Uhuru as the only candidates for the fresh poll.
Raila announced his withdrawal on the eve of a High Court decision by judge John Mativo who subsequently allowed Third Way Alliance candidate Ekuru Aukot to have his name on the ballot and opened the door to five other presidential candidates.
Raila had argued that he was not required to attach Form 24A as part of his withdrawal letter, the reason being the presidential candidates did not undergo fresh nominations after the nullification of the August 8 election.
The court found that he was, however, not required to file his withdrawal documents within three days as no fresh nomination was conducted.
Odinga buttressed his withdrawal based on the 2013 Supreme Court opinion which spelt that a fresh election is between the winning candidate and one who challenges that election in court.
But the court pointed out that the position shifted as the issue of candidature was contested before the High Court by Third Way Alliance candidate Ekuru Aukot in which all candidates were allowed to run in the fresh election.
On withdrawal, IEBC chairman Wafula Chebukati had said that the two would have validly pulled out if they had submitted form 24A.
According to the chairman, the High Court case filed by Thirdway Alliance presidential candidate Ekuru Aukot completely dimmed the chance for Raila and Kalonzo to walk out as the demand for fresh nominations was removed.
He also argued NASA supported the inclusion of all the other candidates and thus it could not walk away when the court granted their demands.
On fresh nominations, the court found that candidates did not require going back to their parties to seek fresh mandate after the nullification of the August 8 election.
According to the court, it did not nullify the August 8 election based on a flawed nomination process and thus the mandate given to candidates by their political parties were still legal in the re-run.
“If the election was nullified based on a flawed nomination process, then a fresh nomination ought to have been done. The court did not nullify the election based on a flawed process,” the judges ruled.
“In our appraisal of the law we hold that the nomination remained valid and no fresh nomination was required. We find no fault on the first respondent for failing to hold fresh nomination,” they added.
Nomination certificates
On the nomination, former Kilome lawmaker Harun Mwau argued that the October 26 election was unconstitutional as candidates used their August 8 nomination certificates.
According to Mwau, the nominations certificates expired immediately the highest court in the land nullified the poll.
In reply, IEBC chairman argued that it was impossible for the parties to hold fresh nominations and to gazette the newly nominated candidates and conduct the election within 60 days.
“Thus, for the purposes of the presidential election of October 26, 2017, there was no requirement for the nomination generally, rather the gazettement of the candidates eligible to participate in the said fresh presidential elections by the commission, which was deemed to be a nomination of those candidates so gazetted,” Mr Chebukati replied.
He said nominations would only have been conducted if the Supreme Court nullified the nominations.
