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September 25, 2018

What does it mean? Obiter dictum and the Kenyan election

NASA Presidential candidate Raila Odinga and his running mate Kalonzo Musyoka at the bomas of Kenya October 3,2017 for a meeting with IEBC commissioners.Photo/HEZRON NJOROGE
NASA Presidential candidate Raila Odinga and his running mate Kalonzo Musyoka at the bomas of Kenya October 3,2017 for a meeting with IEBC commissioners.Photo/HEZRON NJOROGE

NASA leader Raila Odinga's pullout from the repeat election ignited discussions and varied interpretations of what the constitution says would be the implication.

Kenyans, including some lawyers, held that President Uhuru Kenyatta would be declared re-elected unopposed.

Others reasoned parties would have to conduct fresh nominations and that IEBC would announce a fresh presidential contest.

Uhuru's win on August 8 was nullified on September 1, the Supreme Court saying the election was not conducted in accordance with the law.

The court ordered a fresh election within 60 days from that date and IEBC gazetted Raila and Uhuru as the only candidates for the rerun.

However, on Wednesday, the High Court declared that Thirdway alliance presidential candidate Ekuru Aukot should be on the ballot for the repeat election.

Justice John Mativo said the other six candidates who participated in the August 8 poll were also eligible to run as the constitution guarantees them the right to do so.

Read: Ekuru Aukot court ruling scuttles Raila Odinga plan

President Uhuru Kenyatta addresses Jubilee Party supporters during his tour of Kilifi county, October 10, 2017. /PSCU


With the historical ruling arose the legal jargon – orbiter dictum. It is an opinion or remark by a judge which does not form a necessary part of a court's decision.

It's a Latin word meaning "things said by the way".

Raila reportedly based his decision to withdraw from the October 26 repeat race on the 2013 Supreme Court ruling following his petition against Uhuru.

In its judgment at the time, the apex court said in chapter 290 of its ruling: "Suppose, however, that 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(1) (b) would become applicable, with fresh nominations ensuing."

Raila has maintained there will be no elections seemingly because there have been no fresh nominations.

Mativo however said chapter 290 of the 2013 Supreme Court ruling that Raila seemingly based his decision on was just an orbiter dictum - a by the way - and cannot therefore be used as a precedent.

Further, the 2013 court, under former Chief Justice Willy Mutunga, has since made corrections and said it meant Article 138 (8)(b) which says: "A presidential election shall be cancelled and a new election held if a candidate for election as president or deputy president dies on or before the scheduled election date."

In chapter 291 of the 2013 Supreme Court ruling, the court said: "Bearing the foregoing scenario, does the fresh election contemplated under Article 140(3) bear the same meaning as the one contemplated under Article 138(5) and (7)?

"The answer depends on the nature of the petition that invalidated the original election. If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the president-elect, then the fresh election will, in law, be confined to the petitioner and the president-elect.

"And all the remaining candidates who did not contest the election of the president-elect, will be assumed to have either conceded defeat, or acquiesced in the results as declared by IEBC; and such candidates may not participate in the fresh election"

Article 140 (3) of the constitution says: "If the Supreme Court determines the election of the president- elect to be invalid, a fresh election shall be held within sixty days after the determination."

Related: Raila withdraws from race, demands fresh election

Also read: What Raila’s election pullout means for Kenya’s turbulent democracy

IEBC CEO Ezra Chiloba confers with chairman Wafula Chebukati at the press conference in Nairobi where they announced the cancellation of the registration of voters outside Africa, February 7, 2017. /JACK OWUOR


However, Mativo said the IEBC erred by using the Supreme Court's decision to bar the six presidential candidates from participating in the fresh election.

Again, he said, Chapter 291 of the 2013 Supreme Court ruling was orbiter dictum so it's not legally binding.

Lawyer Charles Kanjama said: "To me, putting aside all the drama that has happened, it seems that the current interpretation by judge Mativo is the most accurately that corresponds with the frimas of the constitution."

He spoke on Wednesday during a discussion on NTV's Sidebar.

Advocate Miguna Miguna faulted the IEBC for failing to call fresh nominations following Raila's withdrawal.

He said that according to the law, the repeat election became null and void following Raila's pull out.

"This decision to go ahead and hold fresh nominations is in itself in contempt of court because how did they arrive at Uhuru Kenyatta and Raila Odinga as the candidates without considering Mativo's ruling that all candidates should be included?" posed Miguna.

 He said it is wrong for the commission to base a section of its actions on the 2013 Supreme Court ruling, call for fresh elections and ignore the section that requires that fresh nominations are held if one candidate pulls out. 

Homa Bay women representative  Gladys Wanga said: "In our view, the elections died yesterday (Tuesday) after Raila withdrew. Fresh nominations must be held."

 She based her argument on the 2013 Supreme Court obiter dictum. 


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