Familiar to all lawyers is Justice Oliver Wendell Holmes’s statement, “If my countrymen want to go to hell, I will help them. It's my job.”
Have our judges taken us there?
Raila pulled out of October 26 polls citing the IEBC’s failure to reform. Uhuru dared him, stating that Kenya is bigger than an individual.
The withdrawal was met with lamentations; Raila was accused of insensitivity to the nation’s polls preparation resources. The ensuing stalemate is compounded by partisan interpretations on the ramifications of the decision.
Justice Mativo’s inclusion of Ekuro Aukot only adds to the confusion. In Parliament, MP Mbarire celebrated, “We can now have an election now that Ekuro will be on the ballot”.
Uhuru and Raila were gazetted as the only candidates for the rerun. The 2013 Supreme Court decision limiting candidates in a fresh election following nullification to the president-elect and runners-up, informed the IEBC’s decision. Raila’s withdrawal was based on the court’s decision that nominations and an election be held under Article 138 of the Constitution if one of the two candidates withdraws.
The determination of who participates in the election was made by the Supreme Court in 2013, on a question framed by the AG.
The High Court could not revisit the issue on the claim that the determination was obiter dictum, “an unnecessary opinion”. The Supreme Court interpreted the meaning of “fresh election” under Article 140 (3) of the Constitution. However wrong or ‘unnecessary’ the interpretation may have been, the High Court cannot depart from it. Justice Mativo’s holding that the Supreme Court cannot interpret the Constitution is outrightly wrong.
A fresh election was triggered upon the IEBC’s receipt of Raila’s withdrawal. Form 24A under Regulation 52 (1) was unnecessary, as the election was not preceded by nominations.
Ekuro’s inclusion goes against the 2013 decision. It is overtaken by events and operations of the law, as there is no election for his participation.
Candidates who conceded defeat, or opposed Raila’s petition were lawfully excluded. The 2013 and Justice Mativo’s decisions, the latter of which was as specific as the former, on the fate of conceding candidates, are clear.
No valid election can be held on October 26. Kenyatta cannot be declared winner for want of contest under Regulation 52 (2). Anything short of a fresh election will be invalid. It will accelerate Kenya’s journey to hell!
The writer is a lawyer