Tactical blunder that denied Raila chance to be president
The withdrawal of Raila Odinga from the repeat election of October 26 was a tactical blunder that cost him the chance to lead the country, the Supreme Court confirmed in its judgment on Monday, 21 days after it upheld the re-election of President Uhuru Kenyatta.
Supreme Court judges said that while his public announcement and letter to the electoral commission was legal, within his rights and substantive, there was no way the elections it had ordered to be repeated could have been postponed.
They said the withdrawal of a candidate from the presidential election is not contemplated in the Constitution and the Election Act, but noted that the withdrawal of a presidential candidate from the race is contained in Regulation 52 of the Election regulations, which provides a procedure.
They added that the regulation was not applicable in the current case because nominations had been conducted in May 2017 and it was not among the issues that led to the nullification of the August 8 presidential poll.
Regulation 52, the court said, requires that a candidate who intends to withdraw must do so within three days of nomination by writing to the national returning officer, in this case IEBC chairman Wafula Chebukati.
The judges — Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, justices Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola — said the effect of Mr Odinga’s withdrawal and the question of fresh nominations were the most important in the two election petitions. And although the matter was pending before the Court of Appeal, they had to wade in because an opinion given by the Supreme Court — in the Raila Odinga case in 2013 — was subject to various interpretations, some of which were contradictory.
They agreed with Justice John Mativo of the High Court, who said the 2013 decision was an obiter dictum — uttered in court, but not legally binding on other courts as a precedent. They added that the Supreme Court, which has original and exclusive jurisdiction as provided under Article 140 of the Constitution, has the responsibility of resolving the question without any reservations.
“Our immediate question, therefore, is: did the Nasa candidate withdraw from the October 26 electoral contest?” Justice Wanjala asked. Mr Odinga had not only made a public pronouncement on his withdrawal, but also written a letter to IEBC, and Justice Wanjala said that “constituted a substantive and legally effective withdrawal from the election”.
As to whether that had any legal effect, the judges ruled that the move could not have led to the cancellation of the election. They reasoned that one cannot be forced to participate in an exercise he or she does not want to take part in, but the validity of an election cannot be challenged on this ground.
The court ruled that the October 26 election was credible, free and fair, and that it met the constitutional threshold required in a presidential election. They also said the IEBC was guided by a court in its decision to include all the parties in the repeat poll.
Mr Odinga, the Nasa candidate, withdrew from the repeat poll on September 10, citing lack of commitment to electoral reforms.
“Our withdrawal from the election requires the IEBC to cancel the election and to conduct fresh nominations,” Nasa said in a statement at the time. “The procedure for nomination of presidential candidates is provided for in the Elections Act 2011. The implication of this provision is that upon our withdrawal, the election scheduled for October 26 stands cancelled.”
The judges, however, disagreed, saying “the withdrawal could not, in law, have occasioned the cancellation of the repeat poll”.
The petitioners — Njonjo Mue and Khelef Khalifa — had argued that IEBC erred in disregarding the withdrawal or abandonment of the race by Mr Odinga because he holds a unique and special constitutional construct and place in Kenya’s democracy.
On claims of irregularities, Justice Ojwang said the petitioners made general allegations without proving the claims, and that IEBC could not be faulted for shifting some polling stations in Kibra and Mombasa since there was violence in some areas that made it impossible to hold the poll there.