Opposition chief Raila Odinga's political game plan yesterday was scuttled by a High Court ruling likely to give President Uhuru Kenyatta an easy ride.
The day after Raila dramatically withdrew from presidential rerun, a High Court in Nairobi gave a lifeline to all August 8 poll losers — spoiling a NASA strategy that depended on a scenario with only two contenders, one of whom withdraws.
Before the court ruling yesterday, the apparent NASA game plan — calling for nominations and a totally new election — had confounded many people and left Uhuru and his brigade pondering their next move to ensure his legitimacy.
The repeat election is to be on October 26.
Raila's strategy depends on paragraph 290 of the 2013 Supreme Court ruling on his own presidential petition. The six-member bench ruled that if a candidate withdraws the poll is postponed.
The paragraph states: “Suppose, however, the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(8) (b) would become applicable, with fresh nominations ensuing.”
According to NASA, the implication of that ruling is that upon his withdrawal, the upcoming poll is cancelled.
The High Court ruing yesterday — that said all candidates could run again — threw the country into further confusion.
The IEBC and President Uhuru Kenyatta spent most of the day in separate meetings as they struggled to find clarity in the cascading events.
NASA's anti-IEBC demonstrations continued yesterday.
ODM deputy leader Hassan Joho, Johnson Muthama and James Orengo headed Nairobi protests in which cars were damaged and shops looted in Nairobi.
In Kisumu, at least 17 people were admitted to hospital.
Yesterday activist Okiya Omtatah dashed to court to bar IEBC from declaring Uhuru President unopposed, in case of the October 26 election in which he ran alone.
Although the case was certified urgent, the judge declined to issue an ex parte (restraining) orders, instead letting all affected parties take part in the case.
However, with the High Court allowing all poll losers to run, this scenario of an unopposed winner is less likely
In a clear indication the IEBC was confidently proceeding with poll preparations, the Commission yesterday told the Star they are ready to accommodate all poll losers who want to run on October 26.
“It is doable on our part,” IEBC communications manager Andrew Limo said. “Commissioners have learnt pressure is part of the game. So normally when it comes, we find ways to mitigate it.”
The IEBC has not printed any ballot papers and there was still time, he said.
“The ballot papers would be longer than two candidates [but] no significant cost implications,” he said.
He contradicted Raila's assertion yesterday on Radio Jambo that the commission had colluded with Jubilee to print ballot papers in Nairobi's Industrial Area.
It was still not clear whether Raila had legally withdrawn as a candidate. Although he wrote a letter of withdrawal to IEBC that was received and acknowledged, some experts said he needed to fill out a mandatory 24A form for withdrawal to be complete.
But in a surprise ruling yesterday, Justice John Mativo faulted the IEBC for locking out Third Way Alliance presidential Candidate Ekuro Aukot and ordered his inclusion in the repeat poll.
The judge termed the 2013 Supreme Court ruling “obiter dictum”, meaning it was not binding and therefore cannot be relied on as a precedent.
The judge also ruled that following nullification of Kenyatta's victory, all eight candidates who ran on August 8 are eligible to run again.
“The logical construction which to me would serve the public interest is that those who participated in the invalidated election do qualify to contest in the fresh election,” the judge ruled.
Ironically, Raila had strongly backed Aukot's petition against a spirited opposition by Uhuru and IEBC.
Ekuro sought to be included in the rerun, after the IEBC had said it would be between Uhuru, whose election was nullified, and Raila, the sole petitioner.
Immediately after the ruling, there were indications most candidates who lost by a huge margin wanted to run again. They include independent candidates Joseph Kavigah and Abduba Dida, former minister Joseph Nyagah, Prof. Michael Wainaina and Cyrus Jirongo.
Raila's next course of action remains unclear even as NASA announced daily street protest to push for electoral reforms, including the sacking of top electoral officials.
With Raila's withdrawal, Uhuru will return to State House with a huge margin as he faces feeble opponents. None except Raila won more than one per cent of votes cast.
However, Raila is not done yet and has scheduled a massive rally in Mombasa on Sunday. He wast o fly to the UK and return Saturday.
xxHis adviser Salim Lone said Raila would meet former British Minister, and other leading figures during his UK trip.
“Indeed news of his withdrawal will make this visit help focus even more attention on the need for Kenya's friends to help counsel against the rapidly diminishing space for free and fair elections and the rule of law,” Lone said.
Raila's withdrawal had triggered an unprecedented legal crisis that could have plunged the country further into uncharted waters with Uhuru's term ending on November 1. Already Kenyans are dealing with many firsts, including the nullification of a Presidential election.
Justice Mativo's declaration that the 2013 Supreme Court advisory was not binding also left legal experts divided as to whether it also affects the provision cited by NASA.
“Our withdrawal requires IEBC to cancel the election and conduct fresh nominations. The procedure for nomination of presidential candidates is provided the Elections Act 2011,” the NASA statement said.
The Act states that political parties must nominate their presidential candidates at least 90 days before a general election.
Thus, if NASA'sscenario were to remain, the new election could be held in February next year.
NASA chiefs have remained mum over the implications of Mativo's ruling even as Aukot, cautiously welcomed the verdict.
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