This emerged as the former prime minister on Wednesday brushed aside any succession talk when he chaired the party’s Central Management Committee and rolled out a roadmap for polls.
The Orange Democratic Movement constitution does not allow Raila as the party leader to pick his successor or hand over to his two deputies should he decide to step down.
Instead, article 16 of the ODM constitution stipulates the mandate of the party leader and provides how a vacancy in the office can arise or be filled in strict compliance with the law.
The express provision of ODM’s supreme document mandates a special National Delegates Convention as the only organ that can fill the position of party leader.
“In the event that the party leader is unable to discharge his or her duties by reason of physical or mental infirmity, bankruptcy, death, resignation or where he or she ceases to be a party member, a special National Delegates Convention shall be convened to elect a new party leader,’’ the section states.
This means that Raila has no discretion to hand over the mantle to any ODM official including his two deputies - former governors Hassan Joho of Mombasa and Wycliffe Oparanya of Kakamega- to take charge of the party should he succeed in his bid for the AU’s top job.
Raila is eyeing the African Union Commission chairperson job in February next year and his potential exit from the country’s political landscape has triggered vicious succession wars within his ODM party.
Joho and Oparanya, influential linchpins in ODM, have declared their interest to succeed Raila at the helm of the 18-year-old party should he be elected the AUC chairperson.
They have intensified campaigns and lobbying within and without the party, stoking fears of an imminent implosion and lack of direction in case Raila leaves for the continental assignment.
As Kenya’s candidate for AUC job, Raila has received the backing of President William Ruto and some East African leaders ahead of next year’s selection process.
Raising the stakes in the succession battle is a provision in the ODM constitution that provides that the party leader is the presidential flag bearer in the last general election or the automatic presidential candidate in a succeeding general election.
"The party leader shall be the party’s presidential candidate at the last presidential election where the party presents a candidate for the said position. Where the party does not present a presidential candidate, the party leader shall be elected at the National Delegates Convention," states article 16(2a) of the ODM constitution.
This provision means that having been the party's presidential candidate in the 2022 polls under the Azimio la Umoja One Kenya coalition party, Raila is the ODM party leader until his successor is picked solely by national delegates.
"The party leader shall remain in office until the next election of national officials," the law states.
In yet another provision that would force Raila to remain in office for some time despite the succession talk, the National Elections Board, which should receive applications from interested candidates should Raila resign, is yet to be sworn in.
Critically, the ODM's Central Management Committee endorsed the disbandment of the current board and created a new entity known as the National Elections Coordinating Committee and devolved management of internal polls and nominations to the counties.
However, these proposals are yet to be taken through the party's organs including the National Executive Council and the National Governing Council for ratification.
The party also needs to amend the constitution to provide for the devolved electoral process under the NECC in place of the NEB before the new team assumes office to manage Raila's succession, should the ODM boss opt to exit early before next year's AU polls.
"Nomination to the office of party leader shall be by a written application to the National Elections Board in the prescribed form," reads section B of article 16 of the ODM constitution.
The party CMC meeting on Wednesday scheduled a NEC meeting on April 11 to ratify the NECC, which will oversee internal polls and process the filling of any vacancy if it arises.
"Thereafter, we shall have an NGC before April 27 to ratify the decision of the NEC," said ODM secretary general Sifuna at Wednesday's press conference after the CMC meeting.
These legal landmines, coupled with Raila's desire to strengthen his ODM party even if he exits to the AU, have forced the Azimio boss's strategists to push for his extended stay at the helm until internal structures are put in place to clear the path for his successor.
However, when need be, Raila can invoke sections of the ODM constitution to have the National Governing Council make changes to the party's leadership awaiting the ratification of NDC.
Article 49 of the constitution provides that the NGC can make policy and administrative decisions on behalf of the National Delegates Convention.
This is when it is in the considered opinion of the NEC that such a decision cannot await the NDC "but thereafter present such decisions for ratification at the Ordinary Session of the NDC".
The ODM constitution provides for two deputies, one in charge of strategy and another overseeing the policy arm, occupied by Joho and Oparanya respectively.
With Joho and Oparanya aggressively angling to succeed Raila, insiders say Odinga's hands are tied to stay put, owing to the legal provisions in the constitution.
Raila last Sunday warned against factional wars in the party about his succession, saying ODM needs all leaders and regions and that he will remain in charge.
"I have only said that I have to be the African Union Commission chairperson. I have not gotten the job, I'm still here," he said in Mombasa on Sunday.
"Addis Ababa is not far from here and even if Baba is not here, we will sit down as ODM and agree on the way forward."
Joho has declared he will run for president in 2027 and received the backing of almost all regional MPs after traversing the entire Coastal Strip from Taita Taveta to Lamu rallying for support.
“I have declared I am ready for the presidential bid. Many people are discouraging us, but I am telling you, this time, we are not changing our mind, we must be counted in the country's politics,” Joho said last week.
“And we will go to every remote village, sensitising our people, then we go to the entire country and talk to everyone.”
Oparanya is raising the stakes for his bid to succeed Raila, banking on his loyalty and recent support for anti-government protests when Joho was a no-show.
"I am willing and capable to lead the ODM party should Baba win the AU job," Oparanya said last week.
Raila has, however, noted that any member is free to say whom he wants to succeed him, should he bag the continental job.
"You are a member of ODM and if the party decides to hold elections it will be as ODM. If you bring the thought of dividing the party on regional grounds the party will be weak," he said.
"I want ODM to remain as it is, the strongest and most organised political party in East and Central Africa region."
National Assembly Minority Whip Junet Mohamed said that while Raila's final decision carries the day, the ODM leader will always follow due process as provided in the constitution to process his proposals.
"ODM is governed by the constitution and all decisions are made within the party, but people should not attempt to jump the queue. They should hold their horses,"Junet said.
