GENERAL LEGAL ADVISEReflections on the Raila “withdrawal” – Which way for Kenya?
By GUANDARU THUITA
Raila Odinga having withdrawn from the presidential race, the questions that lingers in the minds of all Kenyans is why and what next? In this site, we are least bothered with the whys. It may be the case as argued by NASA that the IEBC is irredeemably compromised. It may also be the case that the exiting candidate was not ready and needed more time to either prepare or bargain for a piece of the national cake. It may also be the case that Raila wanted to walk out of a miserable situation honourably with his head high while having the last laugh.
Whatever the why, it does not change the odd situation that Kenyans find themselves and the fundamental question of what next.
Do we still continue with the scheduled elections on 26th October 2017?,Should the only remaining candidate be declared as validly elected?,Should fresh nominations and a fresh election be held in 90 days?None of the above.
To answer these queries, it is important to critically examine the various positions put forth by the various parties and even analysts. Which better premise to begin with other than that of the man who has made the withdrawal. Hon. Raila in his withdrawal statement attached herein Raila withdrawal from race, he cites the provisions of the 2013 Supreme Court Judgment where at paragraph 290, the Court observed that in the event of a fresh election ordered by the Supreme Court, if one of the candidate dies or otherwise abandons the race, then the provisions of Article 138(8) (b) of the Constitution apply in which case, the scheduled election is cancelled, fresh nominations are undertaken by Political parties in accordance with the Elections Act and another election held thereafter.
Accordingly, Hon. Raila urges the IEBC to forthwith cancel the elections and order Political Parties to carry out nominations 90 days prior to the next election. Curiously, the withdrawal statement does not identify the date for the next election.
The position taken by NASA may on the face of it appear to be logical. In fact, some heavy weight political analysts like Mutahi Ngunyi have been swayed by the argument and tweeted that the Presidential Election will be held on 10th January 2018. The fact that NASA has a formidable legal team that won at the Supreme Court when the odds were so much against it injects the much needed sense of authority on the issue.
However, when NASA’s position is examined beneath the surface, one discovers that the foundation, if any, is weak to the core and shall definitely crumble. For starters, the NASA position does not directly rely on any constitutional provision but rather on a clearly misinterpreted provision by the 2013 Supreme Court. In the corrected version of the 2013 Supreme Court Judgment, Article 138(8)(b) of the Constitution is cited as the basis upon which a withdrawal from the Presidential race by a candidate after nullification of the results by the Supreme Court can cause an election to be cancelled.
But does that Article indeed provide for that? Let’s paraphrase it here in order to understand it.
“A presidential election shall be cancelled and a new election held if—…(b) a candidate for election as President or Deputy President dies on or before the scheduled election date;”
This Constitutional provision only encompasses instances when either the Candidate or running mate dies before a new election. It simply does not make any reference to a withdrawal or “abandonment” as the 2013 Supreme Court decision purported it to have. One wonders what the 2013 judges with all their resources and time were smoking when they made such an erroneous finding.
Notwithstanding that the Supreme Court is final arbiter on Presidential Elections, it cannot purport to put non-existent words in the mouth of the Constitution. That part of the 2013 decision is what jurists would call a decision made per incuriam meaning that it was made mistakenly and “without care” of existing legal provisions. The underlying principle is that decisions made per incuriam are not binding on other courts.
Besides having been made per incuriam, that portion of the 2013 decision still lacks validity when one applies what jurists call the principle of obiter dicta. An obiter dicta can simply be said to be an incidental or a by the way expression of opinion which a judges makes in the course of delivering a finding. An obiter dicta is neither essential to the decision nor binding. In fact, in the relevant paragraphs of the 2013 decision, the court repeatedly uses the term ‘suppose” meaning that what it was dealing with was a hypothetical issue before it rather than a factual issue.
NASA has in the case filed by Dr. Ekuru Aukot challenging his exclusion from the repeat presidential race on among other reasons supported Dr. Aukot on the ground that the 2013 judgments findings on the point were made as obiter dicta. How can then NASA now change stand and purport that the same provision were binding? A person cannot be blowing hot and cold on an issue at the same time. In the event of the inevitable case that will be filed by NASA as a result of the Raila withdrawal, this “blowing hot and cold” may be used as evidence against it.
The other major flaw that NASA has committed is to rely on the provisions of the Elections Act to demand for IEBC to direct Political parties to conduct nominations 90 days prior to the next “general election”. It is also on this basis that Mutahi Ngunyi has erroneously stated that the election will be held on 10th January 2018 which is 90 days from 10th October 2017 which is the date that Raila presumably handed in his withdrawal statement.
This line of thought is completely misplaced as the conduct of the fresh/new election was a directive from the Supreme Court rather than emanating from the Elections Act. NASA has relied on the provisions of Article 138(8)(b) to call ask for the Election to be cancelled. If that be the case, Article 138 (9) which provides that “A new presidential election under clause (8) shall be held within sixty days after the date set for the previous presidential election.” would then come into play. Accordingly, the IEBC would have to set a new presidential election on or before 26th December 2017.
If NASA’s position was to be adopted, where would Kenyans be left on the issue of the election date? The Elections Act does not give a definite date but only prescribes that the nomination should be a certain number of days before the election. In fact, Section 13 of the Elections Act which has heavily been relied on by NASA refers to a “general” rather than a “presidential” election and it would therefore be doubtful if Section 13 of the Elections Act applies in the circumstances. In fact, Section 14 of the Elections Act under the sub-heading “Presidential Election” would appear to be a more relevant provision rather than Section 13.
Having established that NASA’s demand for a new election process has no basis in law and having found that equally, the demand for nominations in 90 days before the supposed new election is also without merit, it is imperative to examine whether the stand taken by Hon. Uhuru Kenyatta the Jubilee candidate has any merit either.
Senior Counsel Ahmednassir Abdullahi who was acting for Uhuru Kenyatta in the presidential petition has tweeted that under Regulation 52(2) of the Elections (General) Regulations 2012, if a candidate who has withdrawn in a race that only involved 2 candidates, then the remaining candidate shall be declared elected as a result of a declaration that there is no contest. An example of the by election in Gatundu where such a declaration was given is doing round the media as an example.
However, this interpretation is still not immune to a landmine just like the other provisions of the Elections Law. First, the Constitution and the Elections Act have not made any specific provisions for the “Declaration of no Contest”. Regulations are not always the best vessels to hold substantive law. A Regulation being a statutory instrument ought to be more focused on enforcement of the law and procedures rather than create new laws. It is likely that if in issue, the Regulations can be challenged and even quashed if it is shown that the drafters of the rules went beyond their mandate or that the regulation are inconsistent with either the governing Act or the Constitution.
In addition, one may wonder whether the act of withdrawal was valid under the General Regulations or Not. Regulation 52 reads as follows:-
52 (1) A candidate who has been nominated may withdraw his or her candidature by delivering to the respective returning officer a notice to that effect in Form 24A not later than three days after nomination.
(2) Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected in accordance with regulation 53.
Critically, the act of withdrawal is governed by Regulation 52(1) which expressly states that one can only do so within 3 days after the nominations. This having happened many months ago, Raila is thus marooned and cannot purport to withdraw. The purported withdrawal can in this sense be seen as being an effort in futility.
The other question would be in the form in which the withdrawal was done. The regulations require a certain prescribed form 24 A to be filled by the one withdrawing. It is not clear whether this form is what was used by Raila. If not utilised, the withdrawal will be a nullity and hence elections to be carried out on 26th October.
The other major item that may have an impact in this case is the Ekuru Aukot High Court case. If Aukot succeeds in court, then there will be more candidates remaining and hence notwithstanding Raila’s withdrawal, the election would continue on 26th October 2017. If Aukot loses, then Raila would have been thdue e only one against Uhuru and having withdrawn from the race it may well be the case that Uhuru will be declared as duly elected due to no contest.
It appears that the well is not settled on a withdrawal after the first election. It appears almost inevitable that the clash of views willl have to be resolved in court