By JV Owiti
ON THE CUREENT ON-GOINGS, NOMINATIONS, GAZETTEMENT, NASA’S WITHDRAWAL, RAILA 2013, JUSTICE MATIVO’S DECISION AND WAY FORWARD
1. Raila 2013 has been, and still remains, bad law in my view (my previous posts will confirm this). IEBC messed up in the first place in relying on it to decide that only 2 candidates could vie.
2. Going by the SCORK’s 2017 holding that an election is a process, I said it and I repeat, that the IEBC should have started a fresh electoral cycle in compliance with the court’s order.
3. I agree with Justice Mativo’s judgment in which he directed that IEBC does a corrigenda to include Ekuru AUKOT in the fresh elections (I have deliberately left out the date) except that in my view the court was wrong to hold that fresh nominations are impossible within 60 days.
4. Legislative authority is vested with the Parliament; the legislatures have the power to make laws. It is within Parliament’s powers to even legislate laws to amend the current Election Laws (and even certain provisions of the Constitution!) The same must however be done within the 4 corners of the Constitution.
5. The mandate to interpret laws lies exclusively with the courts. That mandate includes the power to interpret laws where there is some grey area and or confusion; and even to invalidate laws that do not meet the constitutional thresholds.
6. Laws generally operate prospectively. While there are cases where statues may be made to be retrospective, they can’t when they have the effect of affecting the rights (including political) of persons. The amendments to tye Election Laws if in good faith should apply only to elections after the fresh elections.
7. Fresh elections within the meaning of SCORK 2017 decision would have at best required fresh party nominations of candidates and further nominations by IEBC.
8. IEBC relied on Raila 2013 (the bad law) to gazette President Uhuru and former PM Raila. NASA relied on the same in withdrawing their candidature with the intention to trigger a fresh electoral cycle.
9. Regulations 52, 53 and 21 provide what happens when a candidate having been nominated withdraws from a race. Withdrawal is then by way of the prescribed Form 24A
10. The IEBC’s gazettement of the 2 main opponents may not have amounted to a nomination in the strict sense and as such the applicability of the regulations and or the form may be challenged.
11. Justice Mativo’s decision came a day after NASA’s candidate withdrew on the basis of the Raila 2013 (the bad law) which was the at the time. (By the way I share the view that the paragraphs 289 – 292 of Raila 2013 part of which was NASA’s basis for withdrawal was obiter dicta). However, it was the law at the time of the withdrawal.
12. As per paragraph 291 of the said Raila 2013, the effect of a candidate in the original contest absconding was a cancellation of the elections and an ensuing of fresh nominations. Whether the letter of withdrawal amounted to proper withdrawal remains debatable – IEBC thinks otherwise.
13. It is there a sustainable argument that the elections stood cancelled as soon as NASA’s letter of withdrawal was received and stamped by IEBC and as such Justice Mativo’s decision (which I agree with materially) came in a little too late.
14. IEBC has stated that all the 8 candidates in the original election are eligible to participate in the elections but that any of the 8 may opt out. (I agree with IEBC that they can’t compel anyone to participate in the repeat elections. Actually there’s no particular candidate who must be on the ballot for elections to be held!)
15. Candidate Jirongo – one of the 8 in the original contest – has allegedly been adjudged bankrupt going by media reports. He has also allegedly denied being bankrupt (going by the same media reports. Either way nothing stops IEBC from including him in the race should the elections proceed. He has a right to be included until he exhausts his right of appeal – assuming he was indeed adjudged bankrupt.
16. There remains a confusion as to whether the IEBC’s continuing with the elections as planned is the right thing to do or whether indeed such elections shall suffer the same fate (that of being invalidated) for being illegal on the basis of Raila 2013 (the bad law).
17. In my view, the IEBC should have as a matter of urgency sought the advisory opinion of the SCORK on the propriety and or impact of NASA’s purported withdrawal.
We shall overcome.
God bless mother KENYA.